CUSTODY AND GUARDIANSHIP

After the marriage is ended, perhaps the biggest problem that exist in
the most cases is the decision regarding the care of the children. For
the purpose Muslim law differentiates between the custody and
guardianship.
CUSTODY
As opposed to Western law who is more concerned with the types of
guardians rather than types of guardianship, Islamic law acknowledges
two different types of guardianship.
The first is custody (hadanah) which comes from Arab word hadana
which implies a meaning to nurse, to bring up or to raise a child (Lisan
Al-Arab). Whereas guardianship (Wilayah) is a power in accordance
with which a person will be able to establish contracts and other legal
conducts, execute them and bear the consequences thereof (Al
Zuhayli).
In Islamic law recognized three stages of childhood. First is the period
of weaning which is from birth to 2 years of age. Second period is of
custody which ends at the age of majority and the third period is the
age of sponsorship which ranges from the age ofdiscretion to full sexual
maturity.
Generally all Islamic legal schools have a harmonious opinion that by
their nature Wilaya is a matter predominantly of father. In the absence
of father guardianship belongs to the next male kinsman in the agnetic
line (succession line).
With regards to custody, it is primarily a right of the mother of the
child. In case she is dead or, is for other reasons, deprived of the right,
there is discord among the among the different Islamic legal schools as
to whom the custody of the child should pass.
1) Hanafi and Maliki consider hadanah as a right of the female
therefore according to them the right should pass to the
kinswomen of the mother.
2) Shafi and Hanbali contend that if the mother has no surviving
female ascendants, the right of custody shall pass to the father
and in his absence to his ascendants.
3) In Shia law if the mother is dead or has lost her right of hadannah,
her right passes in all cases to the father of the child and in his
absence to the paternal grandfather.

Children were considered as property of the father in Arabia in

the pre-Islamic times and had very few rights. Islam introduced
the various rights of children. According to Islam the children
need to be fed, clothed and protected in their childhood. They
must be shown love and affection and according to a hadith “to
be fair and just in terms of gifts you offer your children” should be
treated equally among their siblings vis a vis financial gifts. A
hadith also emphasizes children’s right to education saying that a
“father gives nothing better than eduation”. Parents are
recommended in Islam to provide adequately in inheritance.

As per Nasir child’s right to be brought up makes father

responsible of providing maintenance and the mother of
fosterage and custody until the end of infancy. As per Sunni and
Shia accord the first right to custody of a child is of the mother.
After that maternal grandmother takes the charge or otherwise it
passes to child’s paternal female relatives or indeed the father
who would then need to identify a suitable female carer for the
child.

QUALIFICATION OF A CUSTODIAN
There is a concurrence among all the schools that in order to
secure the child’s welfare there need to be a criteria that a
custodian has to fulfil in order to attain the right to custody. The
custodian must be adult, sane, trustworthy with regards to care of
the child and physically able to take care of the child. There is a
further requirement for a custodian that on which all sects have
accorded i.e. the custodian must not be married to a man who is
not related to the child within the prohibited degrees. If a women
becomes wicked, apostate or unworthy she loses her right to
hadannah. (Fatawa-e-Alamgiri)

During the period of the mother’s custody, the overall control is in

the hands of the father (or grandfather, or other male agnates)
and makes important decision regarding upbringing of the child
e.g. child’s education. The importance of father right of
guardianship is evident from the fact that the mother loses her
right to custody if she attempts to take the child away from the
father’s sphere of influence. In the case of Rashia Begum it was
decided that a mother loses her right to custody if she remarries.

There has been a great concern over whether a non-Muslim

mother may have the custody of her Muslim child.
1) Hanafis and Maliki hold that the custodian of the child need
not herself be Muslim but is not allowed to impose her faith on
the child.
2) Shafi and Hanbali law contend that non-Muslim even being the
mother cannot have the custody of the child.

The views are also divergent as far as the time of ending of

custody is concerned. According to the traditional view mother is
primarily entitle to the care of child in their first few years.
1) According to Hanafi law it is 7 for boys and 9 for girls.
2) In Maliki law it the time of puberty for boys and marriage for
girls.
3) In Hanabli law the age is 7 for both boys and girls after which
they have a choice to choose between the parents.
4) Shafi law allows does not define an age and allows the child to
choose between the parents.
5) For Ithna Asharis the period of custody is 4 years for boys and 7
years for girls.
In case of conflict father retains the overall rights and indeed
powers of guardianship.

REFORMS
Shafi was in favor of “age of reason” has been pivotal in the
process of reforms in the Muslim countries. In Egypt the period
of custody now ends when a boy is 10 and the girl is 12.
Sudanese law followed Malikis and after 1932 allows the
mother to keep custody up to puberty for boys or marriage for
girls.
SOUTH ASIAN CUSTODY LAW
South Asian countries have always upheld the welfare and best
interest of the child as a guiding principle in determining law
relating to custody of the child. The nature, extent and scope
was discussed in detail by the Privy Council in Imambandi v
Mustaddi (1980). In Rashida Begum it was held that upon
disserting the father, the mother does not automatically lose
custody of the child however she is likely to lose the custody to
the father in case she remarries because the father remains the
guardian of the child.

Islamic law does not deprive the women who has married
another man from her right to custody. What it does it that it
removes the women from the preferential position in regard to
that right. Therefore it is claimed that personal law should be
seen as guidance for the welfare of the child.
Guardian and Wards Act 1890 which, seems to preserve
personal law despite being a family law, applies to all religious
communities in South Asia laying down procedure for
appointment of guardians. The procedure entails requirements
related to welfare of the child followed by age, sex and religion
of the minor and character and capacity of the guardian.

PAKISTAN
The Pakistani courts seem to have a view that welfare of a child
lies is relational to granting custody in accordance with minor’s
personal laws. Mahmud J in Atia Waris was of the view that the
personal law must be given preference in deciding custody of
child but if the welfare of the child lies elsewhere the court
must decide according to the demand of welfare of the child.

The child’s personal law was upheld in Moselle where it was

held that it would be improper to grant custody of Muslim
children to a Jewish mother. The case of Abdul Hadi Hakani
went further in this regard where Faruqi J. was of the view that
when a child was born Muslim any act by their parent could not
change her religion unless after coming of age the child chose
to do so. The Judge held that it was in favor of welfare of the
child and in consistency with the child’s personal law that she
be brought up Muslim.

In Muhammad Bashir following a hadith the court decided that

the mother lost the right to custody when she married who
was not related to the child within the prohibited degrees.

In the case of Fahimda Begum the court departed from the

traditional personal law. The judge despite knowing the
custody rules under personal law went onto decide in the best
interest of children rather than adhering to personal law.