This article talks about the remarkable features of Muslim child custody law and the details have been laid down for undertaking the custody of a son and of the daughter by the mother as well as the father.
Muslim child custody law
Under the Muslim Law, the Mother has the first and foremost right to have the Muslim child custody. The mother cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified. Right of Hizanat is the hizanat and it can be enforced against the father or any other person. The mother’s right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right.
Mother’s right of hizanat
The further Muslim law talks about the Muslim child custody in relation to:-
”Among the Hanafis, it is an established rule that mother’s right of hizanat over her son terminates on the latter’s completing the age of 7 years. The Shias hold the view that the mother is entitled to the child custody of her son till he is weaned. Among the Malikis the mother’s right of hizanat over her son continues till the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same.”
Among the hanafis the mother is entitled to the child custody of her daughters till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mother’s 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 daughters till they attain the age of 7. The mother has the right of Muslim child custody up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Mother cannot surrender her right to any person including her husband, the father of 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 females entitle to Muslim child custody in the absence of mother:
- Maternal grandmother
- Maternal aunt and great aunt
- Full sister
- Uterine sister
- Consanguine sister
- Paternal aunt
- Maternal great grandmother
Father’s right of hizanat
Father’s Right to Hizanat
All the schools of Muslim law recognize father’s right of hizanat under two conditions that are:
- On the completion of the age by the child up to which mother or other females entitles to custody.
- In the absence of mother or other females who have the right to hizanat of minor children.
- Father undoubtedly has the power of appointing a testamentary guardian and entrusting him with the custody of his children. Other male relations entitled to hizanat are:
- Nearest paternal grandfather
- Full brother
- Consanguine brother
- Full brother’s son
- Consanguine brother’s father
- Full brother of the father
- Consanguine brother of the father
- Father’s full brother’s son
- Father’s consanguine brother’s son
Among the Shias hizanat belongs to the grandfather in the absence of the father.
Right of Hizanat could lost by Hazina or Hazin if all the schools of Muslim law agree that a hazina should be:
- Of sound mind
- Good moral character
- Living at such a place where there is no risk, morally or physically to the child
- Of such a age which would qualify her to bestow on the child the care it may need (not applicable to the mother)
Other Considerations under Shia law
Under Shia law if a Muslim person abandons Muslim religion then that person cannot consider for Muslim child custody. Also hazina who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of hizanat. The cardinal principal of hizanat in Muslim law is the “welfare of the child”. The rights of hizanat cannot lost on account of her poverty or want of funds to maintain that Muslim child custody. Also neither the father nor the mother has the right to remove the child from the matrimonial home. Hazin may be deprived of the child custody if he is a minor or of unsound mind. Also hazin who is leading an immoral life or who is a profligate has no right to the Muslim child custody.