All Muslim authorities recognize the mother’s right of hizanat. According to the Radd-ul-Muhtar, “the right of the mother to the custody of her child is re-established. Whether she be a Mosalman, or a kitabia or a majoosia, even though she be separated from her husband. But it does not belong to one who is an apostate. The Fatwai Alamgiri puts it thus: “the mother is of all persons the best entitled to the custody of her infant children during Con cubical relationship as well as after its dissolution.” The term hizanat is applied to the woman to whom belongs the right of rearing a child.
Of all the persons, the first and foremost right to have the custody of children belongs to the mother, and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody and care of children during the period laid down in Muslim law, so long as she is not disqualified from retaining them. The mother’s right of hizanat is recognized in the sense that it can be enforced against the father or any other person, but it is a right to which obligations are attached. The mother’s right of hizanat is solely recognized in the interest of children, and, in no sense, it is an absolute right; she cannot exercise in the way she likes to exercise it. Since Muslim law considers the right of hizanat as no more than the right of rearing of the children; it terminates at an early age of the child. In this regard, Muslim law makes a distinction between the son and the daughter.
The son
According to the Fatwai Alamgiri, the mother is entitled to the custody of a boy until he is independent of her care, that is, until he is seven years old. Among the hanafis, it is an established rule that the mother’s right of hizanat over her son terminates on the latter’s completing the age of seven years.
The Shias hold the view that the mother is entitled to the custody of her son until he is weaned. (This is considered to be the completion of two years), and that during this period the mother cannot be deprived of the custody of her son under any circumstances whatever, except with her own consent. On the completion of the age of two by the son, the mother’s right of custody terminates.
According to the Malikis, the mother’s right of hizanat over her son continues till the child attains puberty. The rule among the Shaffis and the Hanbalis is the same as among the Hanafis. But these schools hold the view that on completion of the age of seven years, the child is given a choice of living with either parent. But in every case, the father is entitled to the custody of his son when it attains puberty.
Even though the mother is entitled to custody of son below the age of 7, considering the welfare of the child the father was guaranteed visitation rights.
The daughter
Among the hanafis, the mother is entitled to the custody of daughters till they attain the age of puberty. Among the malikis, the shafis and the hanbalis, the mother's right of custody over her daughters continues till they are married. On the other hand, under the Ithana Ashari law, the mother is entitled to the custody of her daughters till they attain the age of seven. In all the schools of Muslim law, the mother has the right to the custody of her married daughter below the age of puberty in preference to the husband.
The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate.
Since the right of hizanat of the mother is a right of rearing of children given to her in the interest of children, she cannot surrender her right to any person, including her husband, the father of the child. For instance, if she obtains khula from her husband on the stipulation that she would surrender her right of hizanat to the father of the child, the khula will be valid and the stipulation will be void. Further, the mother cannot be deprived of her right of hizanat on the ground of her property; it is for the father of the child to provide her with sufficient funds for the maintenance of the child.
Other females who are entitled to hizanat
Among the hanafis, the following females are, after the mother, entitled to hizanat of the minor children of the age upto which the mother is entitled to it (the list is as given by Mulla):
- Mother's mother, how highsoever,
- Father's mother, how highsoever,
- Full sister,
- Uterine sister,
- Consanguine sister,
- Full sister’s daughter,
- Uterine sister’s daughter,
- Consanguine sister’s daughter,
- Maternal aunts, in like order as sisters, and
- Paternal aunts, in like order as sisters.
Tyabji and Ameer Ali give a different list.
The rule is that among the females, the nearer excludes the remoter. Under the Shia school, after the mother, the hizanat belongs to the father. In the absence of both the parents, or on their being disqualified, the grandfather is entitled to the custody. Authorities are not clear as to who is entitled to the custody after the grandfather. Some Shia authorities have laid down certain rules of preference on the basis of which the text book writers have compiled a list of persons who are entitled to the custody of minor children, in the absence of the grandfather. Ameer Ali holds the view that after the grandfather, hizanat belongs to the grandmother, after her it belongs to the ascendants, then to collaterals within the prohibited degrees, the nearer excluding the remoter.
Among the Malikis, the following females are entitled to the custody of minor in the absence of the mother:
- The maternal grandmother,
- The maternal great grand-mother,
- The maternal aunt and grand-aunt,
- The full sister,
- The uterine sister,
- The consanguine sister, and
- The paternal aunt.
Father’s right of hizanat
All the schools of Muslim law recognize the right of the father to the custody of his minor children in the following two cases: On the completion of the age by the child up to which mother or other females are entitled to its custody, and
In the absence of the mother or other females who have the right to hizanat of minor children. The father cannot be deprived of the right of hizanat of his male child of seven years if he is not found to be unfit.
The father’s right of hizanat continues till the child attains puberty. It appears that among the Shaffis and the Hanbalis, the father is entitled to the custody of his female children till they are married.
Other male relations entitled to hizanat
In the absence of the father in both the aforesaid cases, the following persons are, according to the Hanafis, entitled to the custody of children:
- 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 brother’s son, and
- Father's consanguine brother’s son.
Among the above, the rule is that the nearest excludes the remoter. In Athar Hussain V. Syed Siraj Ahmed, it has been held that in case of custody of minor, if personal law overrides statute, the personal law would have to yield to the yardstick of welfare of minor paramount consideration principle.
When right of hizanat may be lost by a hazina
All the schools of Muslim law also agree that a hazina will forfeit her right of hizanat in any of the following cases:
Insanity and minority- Insanity is a disqualification, and no person of unsound mind is entitled to the custody of a child. Minority is also a disqualification; but a minor mother is entitled to the custody of her children.
When right to hizanat may be lost by hazin
A male entitled to the custody of the child is known as hazin. The Muslim law-givers have not dealt with the disqualification of a hazin in any detail but it seems to be clear that, just as in certain cases, a hazina may be deprived of the custody of the child, similarly, a hazin may also be deprived of it. Thus, a hazin, who is a minor, or of unsound mind, has no right to the custody of the child. A hazin, who is leading an immoral life, or who is a profligate, has no right to the custody of the child.
Welfare of the child is paramount consideration
In Salamat Ali V. Majjo Begum, the Allahabad High Court observed that under the personal law if mother is entitled to custody of a minor child, she could normally get it, but the court should also consider whether in so doing it would be for the welfare of the minor. If evidence shows that she would not be a fit person to have the custody or that it would not be in the welfare of the child to give her custody, then she should not be given custody of the child. The court should not give effect to the personal law, but should be guided by the paramount consideration of the welfare of the child.
Conclusion
A guardian is necessary for minor because the minor itself is not capable to take care himself and also not enough mature to think about his/her good and bad and take decisions accordingly. While appointing the guardian the main aim is the welfare of the child.
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