Are the mother and father regarded to have violated the rights of their child who is married and who lives in a different place from them if they take from his property without his permission?

The Answer

Dear Brother / Sister,

According to a hadith that is accepted as sound by hadith scholars, the property of a person’s child means the property of his father: ‘You and your property belong to your and for your father’. (see Fathul-Bari, V/211-212; Tuhfatul-Ahwazi Shamila, III/482)

Scholars have different ijtihads about the decree of the hadith above and the legal conclusion to be drawn from it. Among those ijtihads, the one that is more accurate according to other verses and sound hadiths, and ‘general principles and rules regarding property’ is as follows: The object that is the property of the child is not the property of the father at the same time. If it were so, when the child died, his property would belong only to the father; the son’s/daughter’s children, wife and mother could not be heirs.

The hadith expresses ‘ibaha (permissibility)’, not ‘property’; it means that ‘the father can take his child’s property and use it as much as he needs without asking his child’. The decree (result) is not unconditional; it is subject to some conditions:

1. The property bought by the father should not harm his child.

2. The child should not be in need of the property taken by his father.

3. The father should not take the property from a child and give it to his other children.

4. He should need the amount he receives and should not take more than he needs.

5. The need should be legitimate; for example, it is not permissible to take the child’s money to buy alcohol or cigarettes.

It is unanimously agreed by scholars that the maintenance (nafaqah) of the needy father and mother belongs to the son who is rich enough, and the maintenance of the child in need belongs to the father.

However, if the parents eat and drink their child’s property without the child’s being aware of, it is halal even if the child does not like it. The father is not regarded to have eaten haram in that case. On the other hand, the son has to take care of the father and the mother. Nevertheless, it is not appropriate for the son to eat from his father’s property without permission. (see Mughnil-Muhtaj, 5/183; Ibn Abidin, 5/696; Mawsuatul-Kuwaytiyya, 45/202)

As for the other relatives:

The verses ordering us to give the kindred their due rights (al-Isra: 17/26) and to do good to kinsfolk (an-Nisa: 4/36) and the hadiths ordering and advising us to take care of relatives from close relatives to distant ones, to take care of them (sila ar-rahm), to start helping and benevolence from relatives first are legal sources of maintenance of relatives. We see that mujtahids are divided into three groups in evaluating and applying those verses and hadiths:

a) According to Hanafis, blood relatives between whom marriage is not permissible become mutually worthy of sustenance when the conditions are appropriate; brothers, sisters, paternal uncles, maternal uncles, nephews, nieces, paternal aunts, and maternal aunts are blood relatives of that kind.

b) According to Hanbalis, those who are asaba (first degree relatives of the father) and inheritors are mutually worthy of sustenance.

c) According to some mujtahids such as Ibn Qayyim, regardless of their marriage prohibition, those who inherit each other also become mutually worthy of sustenance when necessary. This ijtihad is the ijtihad that widens the framework of sustenance and is most suitable for the verses, hadiths and the spirit of Islam.

If there is more than one relative - with the exception of some situations between husband and wife, and child and father - the maintenance liability is in proportion to the share of each person in inheritance.

The right of maintenance of one’s parents, grandparents, great-grandparents, etc. his children, grandchildren, great-grandchildren, etc. and his wife is not dependent on the decree of the judge; they can receive their right for their maintenance without the consent of the debtor and without considering whether he is ready or not.

The maintenance of other relatives is obtained based on either the consent of the debtor or the decree of the judge.

The state provides the maintenance of the people who are in need and who do not have relatives. Fiqh books mention the maintenance of such individuals while listing the expenses of baytul-mal (state treasury). The Messenger of Allah (pbuh) expressed that duty of the state by saying, ‘If a person dies and leaves property, it belongs to his family; if a person dies and leaves a child to be taken care of, it belongs to me’.

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