When the question of guardianship does arise under Muslim Law?

Where Father and Mother are living together, their child must stay with them. The Husband cannot take away the child with him nor can the mother take away child without the permission of the father. Where the child is in the custody of one of its parents, the other is not prevented from seeing and visiting it. The question of Guardianship or custody of Child would arise only if the two spouses live separately or if either of them (or both of them) is living alone.

A. Guardianship of Person (Custody of Child)-Wali

(a) Custody of Child

Firstly, it may be noted that ‘Guardianship of Person’ is also referred to as the ‘Custody of Minor’. Since Child is Minor, ‘Custody of Minor’ is also referred to as the ‘Custody of Child.’ In other words, ‘Guardianship of Person’ means the ‘Custody of Child’ or ‘Custody of Minor’ and there should not be any confusion when different terminologies are used.

Secondly, it should also be noted that ‘Custody of Child’ is always given to Mother, but only till certain age inasmuch as, thereafter, a reverts back to the father. The Guardianship of Property is always with the Father. As aforesaid, the as aforesaid, the custody of an infant child belongs to the mother. This right is known as Hidna (Hiznat). But the Custody of Child is only for a certain period for the benefit and welfare of child and different Schools of Law give different periods of Custody of Child as under:

After father, his following relations are entitled to the custody of the child in accordance of the sex of the child but subject always to the right of mother and her relations:

Father’s father, full Brother, Consanguine Brother, Full Brother’s Son, Consanguine Brother’s son, or the other paternal relative, reckoning the proximity in the order of inheritance.

The Husband is not entitled to the custody of the wife who has not attained puberty and in that eventuality, wife’s mother will be entitled to the custody of her person.

Sex: The general principle is that no male is entitled to the custody of female minor and that no female is entitled to the custody of male minor unless related within the prohibited degree.

(b) Mother when Disqualified

The mother’s right of custody of her minor child is lost on the following grounds:

1. If she is wicked or guilty of immorality or lives in adultery.

If she changes her religion. However, this ground in India will not be valid, more particularly, because of the provisions of Freedom of Religion Act, 1950.

If she is unworthy of trust and neglects the child, for example, if a mother is working or frequently goes out for parties and picnics, keeping the child at home.

If she marries a person not related to the child within the prohibited degree.