Question:
Asslamualaikum w.b.t SS Mufti. I have a question on a gift. What is the ruling for a mother or father to ask his or her child to return his or her gift? Is it permissible or haram to do so? Hope for an explanation from SS Mufti. Thank you.
Answer:
Waalaikumussalam w.b.t.
Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.
We start with the saying of the Prophet PBUH which says:
الْعَائِدُ فِي هِبَتِهِ كَالْعَائِدِ فِي قَيْئِهِ
"He who takes back his present is like him who swallows his vomit."
Sahih al-Bukhari (2621)
Basically, the act of asking back donation or gifts given to someone is haram. We have already discussed this in detail in the article entitled AL-KAFI #1614: THE RULING OF ASKING BACK A GIFT
However, there is an exception through a hadith of the Prophet PBUH narrated by Ibn Abbas RA and Ibn Umar RA:
لاَ يَحِلُّ لِرَجُلٍ أَنْ يُعْطِيَ عَطِيَّةً أَوْ يَهَبَ هِبَةً فَيَرْجِعَ فِيهَا إِلاَّ الْوَالِدَ فِيمَا يُعْطِي وَلَدَهُ وَمَثَلُ الَّذِي يُعْطِي الْعَطِيَّةَ ثُمَّ يَرْجِعُ فِيهَا كَمَثَلِ الْكَلْبِ يَأْكُلُ فَإِذَا شَبِعَ قَاءَ ثُمَّ عَادَ فِي قَيْئِهِ
It is not lawful for a man to make a donation or give a gift and then take it back, except a father regarding what he gives his child. One who gives a gift and then takes it back is like a dog which eats and vomits when it is full, then returns to its vomit
Sunan Abu Dawud (3539) and Jami’ al-Tirmidhi (2132)
Through this hadith, it is clearly stated that the ruling of asking back a gift is prohibited except if it is made by a father to his child. Hence, a father has the right to retrieve his donation from his children and it is the same for gifts, sadaqah or the like, even without any court’s rule, before saying the aqad or after, and it is the same whether the child has already receive it or not, either rich or poor, young or an adult according to this hadith. [See: al-Mu’tamad fi al-Fiqh al-Syafi’i; 3/184].
The phrase father here is also analogically deduced (qiyas) to others like a mother, grandfather and grandmother, paternal or maternal, even if they are from a different religion because the relationship is based on blood.
However, the action of a father asking back his gift to his child is not mutlaq (absolute) towards every type and time. So, it is followed by a specific dawabith (guidelines) for a father to ask back his gift.
First: The stuff or gift intended to be taken back should still be under the possession of the receiver (the child).
So, if the gift is already not his possession like being traded, or waqf and etc, then it is prohibited to be retrieved.
If the receiver has already sold some of it or waqf some of it or part of the gift is suspended, then it is permissible for the father to retrieve the remainder. Next, if the child rent, pawn or gifted it to others, but is not yet received by the person, during that time, retrieving is permitted because the stuff is still under the power and right of the child, and its ownership is not yet changed. However, if the stuff is already received by others, then the ownership of the child is already abrogated which makes it cannot be retrieved by the father.
If the gift has already changes hands, but then is owned back by the child through other means, for example, through buying, gifting or inheritance, it is not obligated for the child to give it back to his or her father. This is because the ownership has changed which leads to change in its ruling. It is as if the gift is not the original one and therefore, the father has no right to retrieve it.
The same is when there is an addition whether joined or separated, this addition does not deny the father’s right to retrieve it. In fact, the giver may ask back the gift including the joined addition like animal fats or a ploughed land.
For separated addition, for example, offspring or production, if the addition comes separately from the donation, it can be retrieved. If the addition comes after the recipient, it will not be given back to the giver, but remained as the right of the receiver because it happens while it is under his possession.
Likewise, if the giver gave an animal which is not pregnant or tree which does not have any fruit, then, the animal gets pregnant or the tree produces fruit before the giver asks it to be returned, in this situation, the offspring in the womb or the fruit will not be retrieved back to the giver. The receiver only needs to retrieve the original gift and the fruit is the right of the receiver because it can be separated and happens while it was under his possession.
Second: The gift or donation should still be under the possession of the receiver, in which if the receiver is deemed as bankrupt or there is any suspension upon him, then it is prohibited to be retrieved.
Third: There should be no barricade that hinders the retrieve. These barricades are like the father becomes insane, becomes apostate, being in ihram if the gift is from hunting, or a retrieve which is bonded with conditions or commands in the future. This is because the retrieve cannot be bonded by any condition.
[See: al-Majmu’ Syarh al-Muhazzab; 15/382-385, Mughni al-Muhtaj; 3/568-573, al-Mu’tamad fi al-Fiqh al-Syafi’i; 3/184-185, al-Fiqh al-Manhaji trans. Datuk Dr Zulkifli al-Bakri; 4/183-184]
Closing
In conclusion, the ruling of a father asking back the gift given to his child is permitted but followed by some conditions stated above. So, if the conditions are not fulfilled, then, its ruling goes back to the original rule which is haram. However, we also advise the public especially parents in asking back the gift, it is best to make sure first of the child’s needs upon the gift. If the gift makes it easier for the child to live his daily life, then it is better to let the gift be in the hand of the child. Lastly, we pray to Allah SWT to give us understanding in practising His religion, strengthen the sincerity in our heart to worship Him as well as bless all our deeds.
Wallahua’lam.