Referring for judgement to a kaafir judge or an imaam who, although wise, is not a scholar

Referring for judgement to a kaafir judge or an
imaam who, although wise, is not a scholar

In the city where we live in
the West, there is no Islamic court or Islamic centre to which we can refer for judgement
or for help to resolve conflicts. We have an Islamic Da’wah centre but there is no
director or anyone we can refer to resolve conflicts. Can a wife’s agreement before a
kaafir judge to give up custody of her children be regarded as binding? Can a kaafir
judge’s verdict that a father has to spend on his children if they are with the
mother be regarded as binding?

 

Praise be to Allaah.

We put this question to Shaykh Muhammad ibn
Saalih al-‘Uthaymeen, may Allaah preserve him, who answered as follows:

Firstly – may Allaah bless you – if the people at
the Da’wah centre agree that matters may be referred to them, then this is OK. This
is a duty upon them, because we should refer things to Muslims for judgements.

But with regard to the issue of giving up custody – if
the mother gives up custody – this does not need the ruling of a judge. If she states
that, this is sufficient for it to become binding.

As for spending on the children, so long as they are going to
go back to their father when the mother gives up her right to custody, he is going to
spend on them anyway.

Question:

If the kaafir judge rules that the father has to spend on
them whilst they are with their mother, is this considered to be binding?

Answer:

Even if the judge does not state that the father has to spend
on them, it is still his obligation according to sharee’ah.

Question:

But the amount?

Answer:

The amount is to be determined by ‘Urf (local custom).

Question:

So if the amount stipulated by the kaafir judge is in
accordance with ‘Urf, is it binding on him?

Answer:

It is binding on him not because it is the ruling of the
judge but because it is ‘Urf.

Question:

If the husband and wife agree to refer to a Muslim for
judgement, is his ruling binding on them? In the West, the imaam may be a person who is
not religious, so can they refer to him for judgement?

Answer:

If there is no one else available, then it is OK, but the
fuqaha’ have stated the condition that he should be fit to judge, meaning that he
should have knowledge of sharee’ah, but if there is no one else, let them fear Allaah
as much as they can.

Question:

There may be no one there at all who knows about passing
judgement, but if there is a wise Muslim man?

Answer:

If they ask him to judge between them on the basis that he is
going to bring about a reconciliation, this is OK.

Question:

But if we say that it is only for reconciliation, his words
will not be binding?

Answer:

No, but if he passes a judgement and they agree to it, then
it will become binding. Every reconciliation that the two parties agree to is binding
because of the hadeeth: “Reconciliation is permissible among Muslims”. And
Allaah knows best.

Islam Q&A
Sheikh Muhammed Salih Al-Munajjid