Who is entitled to guardianship of a Muslim wife who has not attained the age of puberty?

Question: Who is entitled to guardianship of a Muslim wife who has not attained the age of puberty? [HJS 1988]

Find the question and answer of Muslim Law only on Legal Bites. [Who is entitled to guardianship of a Muslim wife who has not attained the age of puberty?]

Answer

Under Muslim law, Guardianship is called Hizanat. They are sometimes taken to mean the same thing. But underneath Muslim law, these two aspects of guardianship are different and are governed by different laws.

The guardianship of a child means overall oversight of the kid throughout its minority. Father or his executor or in his absence, the paternal grandfather, being the natural guardian, is in charge of the minor's person. On the opposite hand, 'custody of the child' simply means physical possession (custody) of the child at a certain age.

Although the mother is not the natural guardian of the child under Muslim law, she has a right to custody of the child, until the child attains a specific age. But the father or the paternal grandfather encompasses control over the minor throughout the complete interval of the minority.

It was observed by Privy Council in Imambandi v. Mutsaddi, (1918)45 IA 73, that under Muslim law

"the mother is entitled only to the custody of the person of her minor child up to a certain age according to sex of the child. But she is not the legal guardian of father alone or if he is dead his executor is the legal guardian."

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.

Thus, in regard to the guardianship of a Muslim wife who has not attained the age of puberty, the husband is not entitled to the custody of his minor wife unless she attains puberty or such an age as would permit the consummation of marriage. The mother is entitled to the custody of the minor married girl as against her husband.

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