Can a Muslim in the exercise of his right as a natural guardian of his children claim the custody of his 9 years old daughter from her mother (his estranged wife)? Explain in the light of the concepts of wilayat and hizanat under Muslim law.

Question: Can a Muslim in the exercise of his right as a natural guardian of his children claim the custody of his 9 years old daughter from her mother (his estranged wife)? Explain in the light of the concepts of wilayat and hizanat under Muslim law. [HJS 2015]

Find the question and answer of Muslim Law only on Legal Bites. [Can a Muslim in the exercise of his right as a natural guardian of his children claim the custody of his 9 years old daughter from her mother (his estranged wife)? Explain in the light of the concepts of wilayat and hizanat under Muslim law.]

Answer

To begin with, one has to bear in mind that there are two types of guardianship over a minor:

1. Wilayah or guardianship of the property and education and marriage of the ward

2. Hizanah or guardianship over the rearing and bringing up of the child.

The term ''Guardianship' (also referred to as Wilayat) connotes the guardianship of a minor. Guardianship of a minor person means overall supervision of the minor's personality. It means the care and welfare of the child including the liability to maintain it. It is more than simply custody of the child at a certain age.

In Muslim Law, Guardianship of children is referred to as Hizanat. As per the Shariat law that applies to Muslims, the father is considered to be the natural guardian of his children irrespective of sex, but the mother is entitled to the custody of her son till the age of 7 years and of her daughter till she attains puberty. Thus under Muslim law, a male would attain majority/adulthood when he reaches the age of 7 years and a female would attain a majority upon attaining puberty.

Thus, it is clear from the aforesaid legal excerpt, a Muslim cannot in the exercise of his right as a natural guardian of his children claim the custody of his 9 years old daughter from her mother (his estranged wife). Because the custody of a minor girl child in Muslim Law vests with her Mother until she attains puberty.

The reasoning behind the same was elaborately discussed in the case of Mohammed Khalid v. Smt Zeenat Parveen and others, AIR 1988 All 252. The court held that it is well established that in a proceeding under the Guardianship Act for the custody of a minor it is the welfare in the widest sense of the term that is to be considered, though the father as natural guardian may have a prima-facie right to a minor's custody. It can be negated only if the minor's welfare lies in keeping him in the custody of his mother.

Merely because the father is the natural guardian under the personal law applicable to him, the custody of the minor cannot be entrusted to him having in mind overall consideration of his physical and material well-being, education, upbringing, happiness, etc., the dominant consideration shall be the interest of the minor then the claims of the rival parties. Ordinarily, the mother is the most competent and suitable person to protect the interest of the minor and safeguard his welfare. To the affection and love of a mother, there is no substitute. Universal phenomenon and human approach have acknowledged that the mother's affection for the child is unparalleled.

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