Discuss the right of a Muslim woman over her female child. Can she enjoy this right after the dissolution of her marriage? Who is a Testamentary guardian?

Question: Discuss the right of a Muslim woman over her female child. Can she enjoy this right after the dissolution of her marriage? Who is a Testamentary guardian? [BJS 2014]

Find the question and answer of Muslim Law only on Legal Bites. [Discuss the right of a Muslim woman over her female child. Can she enjoy this right after the dissolution of her marriage? Who is a Testamentary guardian?]

Answer

The custody, or what is called 'hizanat' of a minor girl until she attains puberty and of a minor boy until he attains the age of 7 years is with the mother. But even then the legal guardian is only the father. The right to the custody of the minor girl until she attains puberty continues with the mother, though she is divorced by the father of the child. However, the mother cannot continue to have custody of the child, if she marries a second husband, in which case the custody belongs to the father. This is the proposition that has been laid down in 'Ulfat Bibi v. Bafati', 49 All 773.

In the aforesaid case, the mother married a second husband, and she was held disentitled to have custody of the child. The learned Judges observe as follows:

"We are of opinion that a woman who has been divorced if this appellant has been divorced and has married a second, husband, is not a person either herself better suited than the father, however, unsuitable the the father may be, and not a person "who ought to be heard, to say that the father is unsuitable. She has abandoned her home and husband either by her own free will, or as the result of her conduct, and in the eyes of the law she has lost the right to assert a claim against the father for the child and probably the right to assert this appeal."

Mulla in his book on Principles of Mohammedan Law's 13th Edition states as follows:

"The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child unless she marries a second husband in which case the custody belongs to the father."

Who is a Testamentary Guardian?

Guardianship of a minor person means the overall supervision of the minor's temperament. It means that the care and welfare of the kid together with the liability to take care of it. It is more than mere custody of the kid at a particular age.

The term 'Guardian' is defined in Guardian and Ward Act as

"a person having the care of a person of a minor or of his property, or of both his person and his property".

A testamentary guardian can be defined as a guardian appointed by a will. Will can be made by the father only and in absence of a father and his executors, the Paternal grandfather can do so. Thus, a testamentary guardian may be one that is appointed as guardian of a minor beneath a will. Only the father or, in his absence, paternal grandfather has the right to appoint a testamentary guardian. A non-muslim and a feminine might also be appointed as testamentary guardians. As per Shia Law, a non-Muslim cannot be chosen as a testamentary guardian.

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