Marital Problems and Visitation Rights
23-7-2002 | IslamWeb
Question:
I am a Muslim from Mauritius which is a non-Islamic State. I contracted Nikah and from that was born a baby girl. Following a minor incident with my mother, my wife rang her father it was agreed that my wife and my baby would stay for three days at her parents' place. After the said period my father-in-law informed me that my wife and my baby will not re-instate my house. Since then my wife and I are living separately. Meanwhile parents and relatives from both sides were discussing in order to find if we could reconcile and it was agreed that I would have a right of access to my baby three times a week, that is I would collect the baby at the place of my wife's parents and bring her to my place and then return the baby to her mother after three hours. The baby was brought to my place regularly until wife's father rang and told me that as from now on I would not be allowed to take my baby with me as negotiations have failed. My father in law also informed me that he has decided to break the Nikah. The decision to put an end to the marriage was communicated a second time to me by my wife's uncle later. I have not seen my baby since end of March and my father in law is doing everything possible according to the law of the country to prevent me from having access to my baby and to see her. On the above facts, I would be very grateful if you could let me know: Whether according to the Shari'a, my wife and her father are allowed to deprive me, as father, to have access to my baby by taking her away for a few hours and to return her back. And the extent of my rights as father over the baby according to the Islamic Jurisprudence on the subject.
Answer:
All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad 
is His slave and Messenger.
If the matter is as you mentioned, that your wife has left the house due to a 'minor incident' with your mother, then your wife should not have left your house without your permission and should not have asked for divorce from you.
The Prophet said: “The smell of Paradise is forbidden for any woman who asks her husband to divorce her without a valid (Islamic) excuse.” [Ahmad and Ibn Maajah]
Know that divorce is the right of a husband and it is not valid unless a husband issues it. Therefore, it is within your right not to divorce her.
On the other hand, neither your wife nor her father has any right to stop you from visiting your daughter, or to deny your right to take her with you for some hours – as mentioned in the question – since, there is no divorce to implement the rulings of guardianship of your daughter.
However, if there is a divorce, the mother is more entitled to the guardianship of the child till the age of seven years. During this period, a father can come to the house of the mother's child (whether the child is male or female) to visit him/her. Preventing him from such visit is not permissible. According to the customs, the father can visit once in a week or once in every two days as approved by some jurists.
Basically, a daughter remains in her nursing place. If her mother does not like to permit her ex-husband to enter there, she has to permit her daughter to go outside so that her father can meet her and get knowledge about her welfare.
Finally, you should spare no effort to reunite with your wife. Seek the help of pious people from her relatives or others to make your wife and her parents aware of their mistake, to clarify to them that it is your right to visit your daughter, and to make them understand that resorting to man-made laws that are against the Sharee'ah is forbidden.
For more benefit on the custody of children and right of visiting them, please refer to Fataawa 326341, 86891, 87762, 88331, 89832, 182019, 213352, 82128, 341287, and 86053.
Allah knows best.