Rights Of Child Under Islamic Law :A Detailed Study

MANIPAL UNIVERSITY JAIPUR

SCHOOL OF LAW

Submitted To: Submitted By:

Ms. Sushila Choudhary Tushar Dutt Dave

(Department of Law) 161401116

BA.LL.B (Hons)

Semester – VI

Section - B
CERTIFICATE
This is to certify that the project entitled, “Analysis of UN Convention on the
Right of Child,1989” submitted by “Tushar Dutt Dave” in partial fulfilment of
the requirement for the award of “BA.LLB (HONOURS) at the “MANIPAL
UNIVERSITY JAIPUR” is an authentic work carried out by him under my
supervision and guidance.

Ms. Sushila Choudhary

 ACKNOWLEDGEMENT
In performing our assignment, I had to take the help and guidance of some respected persons
who deserve our greatest gratitude. The completion of this assignment gives me much
pleasure. I would like to show my gratitude to Ms. Sushila Choudhary, Course Instructor, and
Manipal University Jaipur for giving us good guideline for assignment throughout numerous
consultations. I would also like to expand our deepest gratitude to all those who have directly
and indirectly guided us in writing this assignment.

In addition, a thank you to the Professor who introduced us to the Methodology of work and
whose passion for the “underlying structures” had lasting effect. I also thank the Manipal
University Jaipur for the consent to include the copyrighted pictures as a part of our paper.

Many people, especially our classmates and team members itself have made valuable
comment suggestions on this proposal which gave us inspiration to improve our assignment. I
thank all the people for their help directly and indirectly to complete our assignment.

Tushar Dutt Dave

Contents

Introduction ............................................................................................................................................. 5
Rights of Children in Islam: .................................................................................................................... 6
Rights Before Birth: ............................................................................................................................ 6
Rights of the Unborn Child: ................................................................................................................ 7
Rights After Birth ............................................................................................................................... 7
Human Rights of Children in Islam: ....................................................................................................... 7
Right to Life and basic Necessities: ........................................................................................................ 9
Right to Love and Affection: .................................................................................................................. 9
Right to General Care/Health: ................................................................................................................ 9
Right to Lineage:................................................................................................................................... 10
Right to Inheritance: ............................................................................................................................. 10
Right to maintenance of illegitimate child ....................................................................................... 10
Right to Equality: .................................................................................................................................. 11
Right to Maintenance: ........................................................................................................................... 11
Right to Basic Education: ..................................................................................................................... 11
Right to be well provided (Materially): ................................................................................................ 12
Prohibition for Cursing: ........................................................................................................................ 12
Right of the Child to be Protected:........................................................................................................ 12
Rights of the Orphans: .......................................................................................................................... 13
Conclusion ........................................................................................................................................... 14
Webliography........................................................................................................................................ 14
Introduction

The nature of the rights of children could be inferred from the following anecdote: “One day a
man came to Umar Ibn Al-Khattab to complain of a disobedient son. So the man had brought
the boy to him and blamed him for his disobedience. Then the boy addressed Umar by saying
‘O commander of the faithful: Are there no right for a boy against his father? Umar said “Yes”.
Then the boy said “What are those rights, O commander of the faithful? Umar said, ‘To choose
a good mother for him, to select a good name for him and to teach him the Holy Quran’. Then
the boy said: ‘O commander of the faithful, my father has not accomplished any of these rights.
As for my mother, she was a black slave for a Magian, as for my name, he has named me “Jual”
(Beetle) and he has not taught me even one letter of the Holy Quran. Then Umar turned to the
man and said ‘You came to me complaining about the disobedience on the part of your son,
whereas you have not given him his rights. So you have made mistakes against him before he
has made mistake against you’. Violation of children rights is to contravene the Shariah and
disobey Allah. Traditions of the Holy Prophet provide that, “the Muslim community would
earn a name among other communities for its kindness to their children”.

Rights of Children in Islam:

Children are the blessings from Allah and in order to thank Allah parents should fulfill their
duties prescribed to them towards their children. Children are the delight of the hearts in their
childhood, one’s companions and comfort in old age, and the only source of “duaa”
(invocations) in graves, in all they are the means by which one earns fruits of this life and the
reward of the hereafter. The Rights which are given to children in Islam can be divided into
two parts. (1) Rights before birth; (2) Rights after birth.

Rights Before Birth:

There are certain rights which a child has even before coming into existence. According to the
tradition of the Prophet when a man chooses his wife, it is the top priority for him to choose
one bearing the characteristics of a good mother. While looking for the marriage the most
important quality which every man looks for in his future wife is not her beauty, wealth or her
lineage but her “taqwa” (righteousness) which is the most important quality ascribed by the
Prophet . a. Child is a Blessing from God. A child is a blessing from God to the parents but at
the same time it is a trust from God, and it is not a possession. A child has the rights given by
Allah which must be fulfilled. There are instances where some couples remain without a child
for years, with no apparent defect in either of them and it has also happened with the Prophets.
So a child is the greatest gift to parents, for which they should always be thankful to God. The
children, being a precious gift, it is responsibility of the parents that they should raise their
children according to the guidelines of who has given this gift. Throughout the pregnancy, the
expecting parents must take care to prepare for the new arrival. The mother must take care of
herself by eating right kind of food, getting the required amount of rest, and seeking medical
aid whenever needed. Preparing for birth also includes remembering God and seeking his aid.
The children should be valued and given due importance by the parents. Unless the parents do
not realize the worth of their children, they will not be able to accord them sincere love,
affection, take pains and make sacrifice for them. Pious children are the best means for their
parents to be rewarded here and in the Hereafter both. Leaving behind pious and virtuous
children is an act of great virtue. It is like leaving behind big and shady trees under the shade
of which people take rest and shelter and the credit goes to the person who planted and looked
after them.

Rights of the Unborn Child:

When a child is begotten, the rights that Allah has prescribed for unborn child in the Islamic
law will take effect. Lost, misguided and ignorant are those persons who kill their children,
prior or after their birth. The Holy Quran says about such person. “They are losers indeed who
kill their children foolishly without knowledge, and forbid that which Allah has provided for
them, forging a lie against Allah. They indeed go astray and are not guided”. Thus, there is
clear prohibition against abortion. The person who aborts a child is punishable by paying
‘diyah’ (repartation) known as “algharrah”

Rights After Birth:

Children’s rights are numerous. Essentially, they have the right to a decent and peaceful life as
well as to a good and worthy name. In addition, they are entitled to basic necessities of life
which includes affordable house and lawful food. They are also entitled to useful education
and proper upbringing so that they can achieve good moral character as well as protection
against possible vices and bad habits such as lying, cheating, theft, jealousy, deception and
unkind attitude towards parents. Children are entitled for a just and equal treatment. No child
should be given priority or any type of preference over the others in terms of gifts, ownership
or inheritance. Similarly all children must be equally treated in terms of kind treatment and
good behavior. An unfair treatment to the children may result in bad behavior towards either
or both the parents in old age and may also become a reason of hatred towards one another.

Human Rights of Children in Islam:

Islam cares about childhood and Muslims regard children as a trust and gift from Allah . Parents
will be held responsible for this trust on the Day of Judgment. Islam pays much attention to the
proper manner in which the children are to be raised and particular attention to the rights of
children, so that they can face the difficulties in life. The best interest of the child should always
be the priority of the parents. All the principles regarding the raising of the children and their
rights are mentioned in the Holy Quran and in the tradition of the Prophet . These rights are of
such importance that they are given to the child even before he or she is born. In Islam much
emphasis is given on the character of the woman for the purpose of the marriage not on her
beauty or wealth. Respect for Human Rights begins with the way how a community treats its
children. Rights of children and Human Rights cannot be separated because children are the
future generation. Taking care of the future generation by protecting their dignity and providing
them with their needs is the most important thing for bringing up best citizens to serve the
community. On the other hand, child abuse weakens the ability of a child to study and make
them nervous as they lose the sense of security. And this leads to the commission of the crime
by the child who was abused. Family is the most important unit of the community for bringing
up next generation, if there is a problem at home, the children will be affected by it, and the
family as well as the community will suffer.

The Holy Quran says: “You know not whether your parents or your children are nearest to you
in benefit. These are settled portions ordained.” This verse shows the Islamic attitude towards
the relationship between parents and children from infancy to adulthood it is unparalleled love
and care of the parents which brings the child from the stage of absolute weakness and
helplessness to perfect strength and independence. Following are the basic Human Rights given
by Islam to every child including the orphans.

1. Right to Life and its necessities;

2. Right to love and affection;

3. Right to General care;

4. Right to Lineage;

5. Right to Inheritance;

6. Right to Equality;

7. Right to Maintenance;

8. Right to Education;

9. Right to be well provided (Materially);

10. Right of the child to be Protected and

11. Right of Orphans.

Right to Life and basic Necessities:

As a fundamental principle, Islam has guaranteed right to life to all human beings. The Holy
Quran in verse V: 32 clearly says that if anyone kills a soul or spread mischief in the land, it is
as if he/she has killed the whole mankind and if anyone save a soul, it is as if he/she has saved
the whole mankind.

Children have the right to be fed and clothed till they grow up to adulthood and it is the duty
of the father to do that, if necessary mother can provide help. It is the duty of the parents to see
that the personality of the child should develop in all fields. In order to protect the child from
intellectual, moral and religious undesirable behavior, parents can resort to strictness for the
sake of discipline. Children should not dislike or hate their strictness rather they should listen
and obey their parents.

Right to Love and Affection:

The parents should be affectionate towards their children and treat them with care, love and
affection. The Prophet loved children a lot. The Prophet would show special kindness to
orphaned children. Some parents believe that being frank with children is not good from the
discipline point of view, but this is wrong. Love and leniency can do much what fear and
strictness cannot do. If leniency leads to rudeness on the part of children it should be mixed
with strictness.

Right to General Care/Health:

Islam has a set of general principles that make it incumbent upon Muslims to preserve the life
and health of child, negligence and carelessness in this matter constitute a major sin.

A Muslim cannot act properly and perform his duties towards his Lord without good health. It
is the Islamic responsibility of parents to preserve the life and health of their child, and provide
care as he or she grows. Care and protection of the child is the responsibility of the parents. It
is also their duty to protect their youngster from sickness and from dangers that may threaten
their lives and affect their growth. Islam warns against neglecting the need to provide children
with medical treatment or with preventive measures against fatal diseases or other illness.
Right to Lineage:

No parent can disown his or her child or deprive the child from the family name. It is the right
of the child to have a legitimate birth (being born from parents who are legally married). Where
the child is born outside the wedlock such children are deprived of all their rights and are
oppressed by the society. Where the child’s parents are not known, no other couple can claim
the parenthood of the child by way of either direct or indirect adoption. The Holy Quran states
that the adopted children are not the real offspring’s of the adopters, they must be related to
their true procreators whether known or knowable.

Right to Inheritance:

The Holy Quran states that children have the right to inherit from the day of their birth.
Depriving or banning the right of inheritance or other financial gifts during the lifetime of the
parents or preference of a child over the other is considered as an act of injustice. Injustice will
definitely lead to an atmosphere of hatred, anger and dismay amongst the children in a
household. Such an act of injustice may, most likely lead to animosity amongst the children,
and consequently this will affect the entire family environment.

Right to maintenance of illegitimate child

Tyabgi says ‘Mohammadan law appears to impose no burden upon the natural father of the
child’. Muslim laws, it seems, does not confer any kind obligation of maintenance of
illegitimate children on either parent, though the Hanafis recognize the obligation of nurture a
child till the age of seven; the Shias do not even recognize this obligation.

Under Muslim law, the father is not bound to maintain his illegitimate child, but Section 125
of the Criminal Procedure Code, 1973, (which ensures that all such unfortunate children are
maintained by their fathers except a married daughter) however binds the father to pay for the
maintenance of the child. The father would be held liable to pay a certain amount even if the
mother refuses to give up the illegitimate child to him.
Right to Equality:

The parents must adopt impartial and equitable treatment towards their children. They should
not exhibit discriminatory behavior towards their children. In Islam there is no discrimination
between male and female children both have equal rights on their parents, therefore parents
should not prefer sons over daughters. Any discrimination among male and female children is
a major sin in Islamic Sharia. Daughters also have share in the property of parents and they
should be given their due Share in it.61 The Holy Quran says that both the male and the female
were created from a single person (Adam) and that are equal in terms of piety and
righteousness.

Right to Maintenance:

Maintenance means the responsibility to spend one’s own earnings or property for the
sustenance of some other person. Here, maintenance means making of all arrangements
necessary for the sustenance of a child out of one's own pocket. It includes the expenditure for
nourishment, health, education and training under Islamic law. It is the father who is primarily
responsible to provide maintenance to his children, male or female, whether in his custody or
in the custody of someone else. The extent of his liability depends upon his financial position
and the situation of the father. The daughters are entitled to be maintained till they get married,
even if the marriage takes place after the attainment of puberty. After marriage the
responsibility shifts upon the husband. Where the marriage of the daughter gets dissolved or
her husband dies, then such daughter is place back to the position of an unmarried daughter.
While a male child can claim maintenance from his father until he attains puberty. After puberty
the maintenance of the male child exists on father, and it continues only in those cases where
the male child is indigent or physically or mentally disabled. The father is liable to maintain
the child even when the child is in the custody of a divorced mother. The Father’s responsibility
to maintain the child comes to an end when he refuses the custody of the child for no justifiable
reason.

Right to Basic Education:

According to Islam, one of the most important obligations of the parents is that the children
should be properly brought up, raised and educated. Children are a trust given to the parents
and they will be responsible for it on the Day of Judgment. It’s obligatory for the parents to
arrange for the proper education of their children. Education is the basic tool for the
development of the children’s personality as well as the most precious gift from parents.

Right to be well provided (Materially):

One of the important rights of children on their parents is the spending by the parents for the
welfare and well-being moderately. Negligence or over spending is not accepted nor tolerated
in Islam. As this will have a negative effect on the child. In every religion and society men are
urged not to be miserly to their children and household, who are their natural heirs why would
one be miserly to those who are going to inherit their wealth? Children are even permitted to
take moderately from their parent’s wealth to sustain themselves if the parents decline to give
them proper funds for their living. Spending on one’s children manifest deep gratitude to Allah
for the wealth, which the creator has conferred on to the father. He cannot withhold his wealth,
nor slant on it otherwise it will go involuntarily to his children after his death.

Prohibition for Cursing:

The parents generally think that it is their right or even responsibility to chide their children to
keep them within bounds. Sometimes they even curse and abuse them. Islam does not approve
of this attitude. They holy Prophet said: “Don’t curse your own selves, or your children, or
your belonging. There is the possibility that your curse may synchronize with the time when
Allah is about to confer upon you what you demand and thus your prayers may be readily
responded.” Some parents beat their children on very small mistakes this is the wrong attitude
of the parents, it does not mean that parents can’t punish their children but they can punish only
on great misdemeanor we should follow the example of the Holy Prophet (PBUH) who never
beat any child or any servant in his entire life time. This is the best example for the parents to
follow in the upbringing of their children.

Right of the Child to be Protected:

Islam aims at protecting an individual and the society from any kind of harm and for this
reason Shariah provided for the rights of every human being either male, female, children,
young and old person to be protected from any kind of exploitation. It is the duty of every
individual, societies and State to protect these rights from being exploited by others. In its
essence and by virtue of its rule and regulations Islam provides children with a protective
environment. The concept of child protection cannot be fulfilled unless we confront all forms
of abuse, violence and exploitation, or even just threaten to deny the child his or her basic
rights. In attaining sufficient parents care, basic education, health, enjoyment, sport and the
free expression of what goes on in the child’s mind. Child care and protection is primarily the
responsibility of the family. The Prophet , said: “All of you are guardian and responsible for
your wards and the things under your care.” Psychological and emotional abuse of children is
a stark contravention of the rights Islam has prescribed for the children. It is the duty of parents
and those who deal with children that they should deal with them with kindness, love and
compassion, away from any harshness or severity, whether verbal or physical. The Prophet has
said that those who do not treat children with mercy are not from one of us. And this is not only
for the parents but addressed to all.

Rights of the Orphans:

In addition to the above mentioned rights of the children. Islam prescribes certain directives
upon Muslim “ummah” (community) to take special care of the orphans, they too have rights
like other children under Islam. The Holy Quran has referred to the welfare of the orphans and
attitude of kindness and affection towards them. An orphan is one who has lost his father and
has not yet reached puberty, the age of minority ends at the age of 18 years.

Islamic law gives great attention to orphans and to others in a similar situation. It recognizes
their rights which will ensure for them a dignified life and stable psychological and social life.
The followings are the summary of the most important rights, guaranteed by Islam to the
orphans and the like, so that it may not be ignored. 1. Right to Life.

2. Right to Kinship.

3. Right to Accommodation.

4. Right to show him mercy and compassion.

5. Right to Education.

6. Right to Child Support.

The care of orphans and their proper upbringing is one of the foundations of the Islamic values.
It reduces the impact of deprivation and horror of the catastrophe upon losing their parent who
support them. Islam provides moral and material care to an orphan, from birth until the
completion of his education or vocational preparation to face life.

Conclusion
It is the right of every child to get love and affection from both the mother and the father. He
or she has the right to be brought up in a cool, loving and accepting environment. But justice
seems to have pervaded the illegitimate children in our country under Muslim Law and for no
mistake of their own. A person cannot be given punishment for a crime he/she has not even
committed. The Legislature has been uninvolved in this topic, which requires immediate
attention and proper legislation to remedy the anomalies in law. It will not be wrong to say that
it is truly ironical that the reforms introduced by legislation have rather created aberrations and
confusion rather than improving the status of illegitimate children.These inconsistencies in the
law seem to have affected the Hindus, the Muslims, and the Christians most of all.

Webliography

1. https://blog.ipleaders.in/illegitimate-children-muslim-law/
2. http://www.quranreading.com/blog/rights-of-children-in-islam-according-to-quran-and-
sunnah/
3. https://d1.islamhouse.com/data/en/ih_books/single/en_Rights_of_Children.pdf