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Fatwa CenterAn apostate wife has no right to custody of her Muslim children
Question
Assalaam alaykum. If a Hindu woman converts to Islam and marries a Muslim (myself) and then converts back to her former faith and preaches Hinduism in my presence in spite of me advising her to follow Islam, then what is the status of the custody of our son and my property. I divorced her as per the Islamic rites and rituals and two years back and left my son and property after the divorce in the name of Allah. She filed a domestic violence case against me in Margao (Goa) India court and has taken possession of my house by illegally breaking the locks of the house (while all my school, college and other educational certificates were present in the house) and is staying in the house at present. I am jobless and penny-less and face lot of problems in my daily life as I do not have a house presently. I stay at my uncles', father's, brothers', sisters' homes and pass each day as a gift of Allah, and I miss my son, who is with her. Fuide me with a kind and favorable fatwa, Allaah willing, and remember me in your invocations.
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah and that Muhammad, sallallaahu ʻalayhi wa sallam, is His slave and Messenger.
We implore Allaah to relieve you of your burden and ease your hardship. You are advised to supplicate Allaah, The Exalted, for He answers the supplications of whoever calls upon Him and relieves the distressed and eases their hardships. Allaah, The Exalted, says (what means): {Is He [not best] Who responds to the desperate one when he calls upon Him and removes evil and makes you inheritors of the earth? Is there a deity with Allaah? Little do you remember.} [Quran 27:62]
You should know that the apostate has no right to the custody over children, as explained in fatwa 198609. Hence, it is impermissible for you to approve transferring the custody of your child to your wife who has apostatized allowing her to instill disbelief and immorality within the young child's mind and heart. Rather, it is incumbent on you to strive to take the custody over your child to the best of your abilities.
Dear brother, it seems that she has taken you very lightly and went so far in her injustice, filing a lawsuit against you and wrongfully seizing your house by force. You are advised to be more strict in this regard and strive in taking back your rights. You can seek all the help and assistance of whomever you hope would help you in this regard. There is no harm in bringing your case to regular courts run by man-made laws for the necessity of taking back your rights and warding off injustice. Please, refer to Fatwa 89824.
As for your properties of which you mentioned leaving them to her willfully, for the Sake of Allaah, if you mean that you have given them to her as gifts before her apostasy, then Hanafi jurists maintained that a gift granted to the apostate is valid. Az-Zaylaʻi 
wrote, "The activities of the apostate are dealt with in different categories: Valid through consensus such as confirming lineage, divorce and accepting gifts......." [Tabyeen Al-Haqaa’iq]
The Hanbali scholar Ibn Qudaamah wrote:
"If the apostate acquired ownership of properties through lawful and legal means such as: (claiming a previously ownerless property by means of) hunting or harvesting grass, accepting gifts, sale, or employment, working as an ajeer khaas (hired-worker who is contracted by one party to perform a specific task in a pre-defined amount of time) or an ajeer mushtarak (worker who offers his services to many and thus may be contracted by several clients at once), then the ownership is valid, legal, and accepted by the Sharee'ah because there is no religious impediment to ownership acquisition in this case and the person is eligible for acquiring it. Hence, the apostate's ownership of his property is established as per the Sharee'ah, and he remains legally entitled to maintain possession of his property in this case ..." [Al-Mughni]
Hence, if the gift was offered to her before or after apostasy and she accepted it and took possession of it, then it is a valid gift. However, if you have not granted these properties as gifts to her, then they are still your properties, and you are advised to strive in claiming and taking them back, as explained above.
Allaah knows best.
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