Muslim Child Custody
The laws relating to custody of children is closely related to guardianship. Guardianship is the right and power vested to an adult about the person and property of the minor but custody is the day to daycare and upbringing of the child/minor. The term custody is not defined either in Hindu law or Muslim law.
In one of the poems written by Kahlil Gibran, “On Children” he says that, “Your children are not your children… they are the sons and daughters of Life’s longing for itself. They come through you but not from you, though they are with you yet they belong not to you… you are bows from which your children as living arrows are sent forth…”
The child must be given the freedom to do according to his wish but not to be forced to do the things. Parents must guide the child but not force them to do what the parents want.
Custody of child:
The Guardians and Wards Act, 1890, regulates questions of guardianship and custody for all children within the territory of India.
According to the Shariat act, the father is the natural guardian but the custody of the child vests with the mother until the son reaches the age of seven and the daughter attains puberty. In Muslim law, custody is called the Hizanat which means the care of the infant. The mother is the most suited for the custody of a child up to a certain age. A mother can’t deny her right unless she is disqualified because of apostasy or misconduct and custody of the child is found unfavorable to the welfare of the child. The mother’s right of hizanat in no sense an absolute right.
Mother’s right of custody:
The first and foremost right vests with the mother and that right is known as the Right of Hizanat. The mother taking custody of the child is called the hazina. The mother’s right of custody over her son terminates on completing the age of 7 years.
Among the Hanafis, the mother’s right of hizanat over her son terminates on latter’s completing the age of 7years. The Shias hold the view that the mother is entitled to the child custody of her son till he is weaned. The mother is entitled to the child custody of her daughter till the age of puberty.
Among the Malikis, the right of hizanat of the mother over her son continues until the child has attained the age of puberty. The rule among the Shafi’s and the Hanabalis remains the same.
Among the Malikis, Shafi’s, and Hanabalis right of custody over her daughters continues till they are married. Under the Ithna Ashari law, the mother is entitled to the custody of her daughter till they attain the age of 7.
The mother has the right of Muslim child custody up to ages specified in each school, irrespective of the fact whether the child is illegitimate or legitimate. Mother cannot surrender her right to any person including her husband, the father the child.
Under the Shia school after the mother, hizanat belongs to the father. In the absence of both the parents or on their being disqualified the grandfather is entitled to custody. Among the Malikis following female is entitled to Muslim child custody in the absence of mother:
- Maternal grandmother
- Maternal aunt
- Uterine sister
- Full sister
- Consanguine sister
- Maternal great grandmother
- Paternal aunt
The mother’s right is not lost even if she ceases to be Muslim. In the case of Zaynb v. Md. Ghouse, the Madras High court has held that conversion of the mother to any other religion does not deprive her of the right of hizanat. The court allowed the mother the custody of her child although she had become a Christian. It was also observed by the court that if the mother was living separately, she would not lose her right to the custody of her child.
When the right of Hizanat may be lost by a Hazina:
A hazina must be of sound mind, of good moral character, living at such a place where there is no risk, morally or physically, to the child. The schools of Muslim law agree that a hazina will forfeit her right of hizanat in the following cases:
- By her Apostasy
- By her marriage to a person not related to the child within the degree of prohibited relationship.
- By her misconduct, such as negligence or cruelty towards the child and
- By her going away and residing, during the subsistence of the marriage, at a distant place from father’s place of residence.
Fathers right of Hizanat:
A male entitled to custody is called hazin. Right of the father to the custody of the minor child in the following cases:
- On the completion of the age by the child up to which mother or other females are entitled to its custody.
- In the absence of the mother or other females who have the right to hizanat of minor children.
The father’s right of hizanat of the male child continues till the child attains puberty and for the female child till they get married.
The father has no power to deprive the mother or any other female relation from hizanat of the child up to the age which is entitled to custody. The father has the power of appointing the testamentary guardian. The testamentary guardian will be entitled to custody only where the father is entitled to it. In Athar Hussain v. Syed Siraj Ahmed, it was held that in case of custody of a minor, if personal law overrides statute, then the personal law would have to yield to the yardstick of the welfare of minor paramount consideration principle. A hazin who is a minor or of unsound mind or is leading an immoral life or who is profligate has no right to the custody of the child.
In this case, it was held that the mother loses the guardianship of the minor daughter in case she remarries with another person not related to the child within prohibited degrees of relationship. In this case, the court granted the certificate of guardianship to the parental grandmother about the minor’s person and property.
The case deals with the maintenance of the child born out of the marriage after the divorce between the man and woman. Md. Qasim was married to Noor Sabha and had three children. The respondent left the appellant with her three children without divorce and remarried another woman. Later Noor Sabha filed an application u/s 125 of CrPC for maintenance of herself and her three children which was allowed. The respondent divorced her and approached the high court claiming that since he has divorced her, the Muslim protection act, 1986 shall apply according to which he does not need to maintain his wife and children after two years of their birth. The issue was whether the children born out of the Muslim marriage shall be entitled to maintenance under CrPC after the divorce of the couple. It was held that the child is entitled to demand maintenance under section 125 of CrPC and also from the Muslim Women (Protection of rights on Divorce) Act. The father shall be liable to pay maintenance to the son until he attains majority and stabilize himself and provide for himself and he shall be liable to maintain his daughter till she is married.
The parties were Sunni Muslims, their marriage was solemnized in 2014 at Dharwad, according to rituals of Islamic law. A male child was born in 2015. The parties entered into Khul (divorce) and the relation ceased from January 5, 2018. The respondent moved to court seeking custody of the child contending that it is he who is the father and therefore custody of the minor son according to Muslim law has to rest with him, he alleged that the minor was not being brought up in a healthy atmosphere. The appellant’s ex-wife opposed his case by filing the written statement.
The petition filed by the petitioner against the respondent u/s 10 and 25 of the guardians and wards act, 1890 is hereby dismissed as the mother was a teacher and her father was a retired teacher, and the mother residing with her parents. The family which comprises of grandparents and divorcee mother has assured income by way of salary. The child has been admitted to a fairly good school. All this having been said, the custodial rights over the ward need to be adjudged here. However, the petitioner is granted visitation rights to visit the minor child on every fourth Sunday of each calendar month with prior intimation to the respondent.
A guardian is necessary for a minor as he/she is not capable to take care of himself and also not enough mature to think about his/her good and bad and take decision accordingly. The main aim of custody is the welfare of the child. A child should be in a good environment where he is comfortable and can be nurtured properly.
- Paras Diwan, Muslim law in Modern India, (Allahabad Law Agency, Faridabad, 13th ed., 2018)
Author: Abhishek B G,
KSLU'S LAW SCHOOL / STUDENT