Explain the right of 'hizanat' of a Muslim mother to her female child. Whether she loses this right when she has been divorced by the father of such a child?
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Question: Explain the right of 'hizanat' of a Muslim mother to her female child. Whether she loses this right when she has been divorced by the father of such a child? [BJS 1987]Find the question and answer of Muslim Law only on Legal Bites. [Explain the right of 'hizanat' of a Muslim mother to her female child. Whether she loses this right when she has been divorced by the father of such a child?]AnswerThe mother is entitled to the custody (hizanat) of her male child until he has completed...
Question: Explain the right of 'hizanat' of a Muslim mother to her female child. Whether she loses this right when she has been divorced by the father of such a child? [BJS 1987]
Find the question and answer of Muslim Law only on Legal Bites. [Explain the right of 'hizanat' of a Muslim mother to her female child. Whether she loses this right when she has been divorced by the father of such a child?]
Answer
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.
In Akhtar Begum v. Jamshed Munir, A.I.R. 1979 Delhi 67, the petitioner (mother) moved a petition firstly under section 25 of the Guardians and Wards Act, 1890 for custody of her minor daughter and then filed an application under section 12 of the Act for temporary custody by invoking personal law of the parties. The petitioner and the respondent (her husband) were Sunni Muslims governed by the Hanafi Law of Sunni Muslims. The section 12 application was dismissed by the trial Court which was influenced by the general principles of the law of guardianship and lost sight of the personal law of the parties.
The personal law of the parties enjoining custody of a minor girl being given to the mother till the minor attains the age of puberty is a vital factor in determining even the question of temporary custody. The Court below has not kept this aspect in view. That would bring the impugned order within the mischief of exercising jurisdiction illegally, "that is, in breach of some provision of law" as held by the Supreme Court in M.L. Sethi's case, A.I.R. 1972 S.C. 2379.
As observed in Mumtaz Begum v. Mubarak Hussain, A.I.R. 1986 M.P. 221 the mother of the child shall not suffer disqualification to have custody of the child for the mere fact that she is not residing with her husband, the child's father. If there exist circumstances to show that it was difficult for her to reside with her husband or that she had not forsaken voluntarily her husband's company, she should not be penalized. That apart, importance must be attached to the main rider, namely, she rides "at a distance from the father's place of residence." Indeed the court must read the underlying meaning of the rider. Even if the mother must have custody of the child of tender age, till he attains the age of 7 years, the father must not be denied access to the child.
In Imambandi v. Mutsaddi, (1918) 45 I.A. 73, 83-84 their Lordships of the Privy Council said:
"It is perfectly clear that under the Mahomedan law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or, if he be dead, his executor (under/ the Sunni law) is the legal guardian."
It would appear from the passage quoted above that the father is the primary and natural guardian of his minor children and that the right of custody of the mother and the female relations mentioned below is subject to the supervision of the father which he is entitled to exercise, by virtue of his guardianship. If so, the right of hizanat does not carry with it all the powers which a guardian of the person of a minor has under the Guardian and Wards Act, of 1890.
If the minor's mother remarries, the real father can file an application under section 25 and claim custody on the ground of the remarriage. He is not required to wait till the minor attains the age of 7 years.
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.
In Akhtar Begum v. Jamshed Munir, A.I.R. 1979 Delhi 67, the petitioner (mother) moved a petition firstly under section 25 of the Act for custody of her minor daughter and then filed an application under section 12 of the Act for temporary custody by invoking the personal law of the parties. The petitioner and the respondent (her husband) were Sunni Muslims governed by the Hanafi Law of Sunni Muslims. The section 12 application was dismissed by the trial Court which was influenced by the general principles of the law of guardianship and lost sight of the personal law of the parties.
The personal law of the parties enjoining custody of a minor girl being given to the mother till the minor attains the age of puberty is a vital factor in determining even the question of temporary custody. The Court below has not kept this aspect in view. That would bring the impugned order within the mischief of exercising jurisdiction illegally, "that is, in breach of some provision of law" as held by the Supreme Court in M.L. Sethi's case, A.I.R. 1972 S.C. 2379.
As observed in Mumtaz Begum v. Mubarak Hussain, A.I.R. 1986 M.P. 221, the mother of the child shall not suffer disqualification to have custody of the child for the mere fact that she is not residing with her husband, the child's father. If there exist circumstances to show that it was difficult for her to reside with her husband or that she had not forsaken voluntarily her husband's company, she should not be penalized. That apart, importance must be attached to the main rider, namely, she rides "at a distance from the father's place of residence." Indeed the court must read the underlying meaning of the rider. Even if the mother must have custody of the child of tender age, till he attains the age of 7 years, the father must not be denied access to the child.
In Imambandi v. Mutsaddi, (1918) 45 I.A. 73, their Lordships of the Privy Council said:
"It is perfectly clear that under the Mahomedan law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or, if he be dead, his executor (under/ the Sunni law) is the legal guardian."
It would appear from the passage quoted above that the father is the primary and natural guardian of his minor children and that the right of custody of the mother and the female relations mentioned below is subject to the supervision of the father which he is entitled to exercise, by virtue of his guardianship. If so, the right of hizanat does not carry with it all the powers which a guardian of the person of a minor has under the Guardian and Wards Act, of 1890.
If the minor's mother remarries, the real father can file an application under section 25 and claim custody on the ground of the remarriage. He is not required to wait till the minor attains the age of 7 years.
Mayank Shekhar
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