Custody

Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. During divorce or marriage annulment proceedings, the issue of child custody often becomes a matter for the court to determine. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent.

 

In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child's housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights. Many of the religions practicing in India have their own personal laws and they have their different notion of custody.'

 

Custody Under Muslim Law:

The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified. This right is known as right of hizanat and it can be enforced against the father or any other person. The mother's right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right''

'Son—''Among the Hanafis, it is an established rule that mother's right of hizanat over her son terminates on the latter's completing the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son till he is weaned. Among the Malikis the mother's right of hizanat over her son continues till the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same.''

 

Daughter- Among the hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mother's right of custody over her daughters continues till they are married. Under the Ithna Ashari law the mother is entitled to the custody of her daughters till they attain the age of 7. The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Mother cannot surrender her right to any person including her husband, the father of the child. Under the Shia school after the mother hizanat belongs to the father. In the absence of both the parents or on their being disqualified the grandfather is entitled to custody. Among the Malikis following females are entitled to custody in the absence of mother:

1. maternal grandmother

2. maternal great grandmother

3. maternal aunt and great aunt

4. full sister

5. uterine sister

6. consanguine sister

7. paternal aunt

 

Father's right of hizanat- All the schools of Muslim law recognize father's right of hizanat under two conditions that are:

• on the completion of the age by the child up to which mother or other females are entitled to custody.

• In the absence of mother or other females who have the right to hizanat of minor children.

• Father undoubtedly has the power of appointing a testamentary guardian and entrusting him with the custody of his children. Other male relations entitled to hizanat are:

1. nearest paternal grandfather

2. full brother

3. consanguine brother

4. full brother's son

5. consanguine brother's father

6. full brother of the father

7. consanguine brother of the father

8. father's full brother's son

9. father's consanguine brother's son

Among the Shias hizanat belongs to the grandfather in the absence of the father.''

 

 

When Right if Hizanat may be lost by Hazina or Hazin. All the schools of Muslim law agree that a hazina should be:

i) of sound mind

ii) good moral character

iii) living at such a place where there is no risk, morally or physically to the child

iv) of such a age which would qualify her to bestow on the child the care it may need (not applicable to the mother)'

The Shia law is very categorical and lays down that a person who has ceased to be muslim is not entitled to the cutody of the child. Also hazina who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of hizanat. The cardinal principal of hizanat in muslim law is the “welfare of the child”. The rights of hizanat cannot be lost on account of her poverty or want of funds to maintain the child. Also neither the father nor the mother has the right to remove the child from the matrimonial home. Hazin may be deprived of the custody of the child if he is a minor or of unsound mind. Also hazin who is leading an immoral life or who is a profligate has no right to the custody of the child.