248 . . . THE LAW REIiATING TO .STATUS•.

.marri~ge, the Judge may -lawfully grant him pernussion to marry,

either' specifying a particular woman;' or leaving the permission
,gene~al, and if he should be impatient, and contraCt ~imself before
obtaining'the petniission, being in the' condition before mentioned,
the marriage would be' valid; but if the dower be more than what'
is proper for a person of .the same ,condition as the woman, it
-would be void as to the excess." .

NOTE.
The Indian readers of this treatise w~1I perhaps find it of some interest
to know that, under, the French 'l,aw, a man cannot marry until he has
atfaimid the age of eighteen, nor a woman until she is fifteen. The consent
of both parents is required, by a son under twenty-five 'years of age, and
a .daughter, under twenty-one. If the parents disagree as to the consent,
the father's sanction is held sufficient. If the parents are dead; then the
consent of the grandfather and grandmother is requisite to contract a valid'
marriage. In their absence, the consent of the family council (coHscil de
famille) (1) must be obtained. .
Even when a nian has /attained his twenty-
fi fth year, and the woman her twenty-first, both are still bound to ask,
by a formal notification, the consent of their parents, and until the ptan
has attained, his thirtieth year and the, woman her twenty-fifth, this for~al
~,.t must be repeated thrice at the interval of one month; and one' month
after: the third application, it is lawful for the parties to marry with or
without con!lent. After the age of thirty a man or woman ~ay legally
marry without the consent of his or her 'natural guardians, a' month aftet
formal notice has been served upon them by two notaries or by one notalY
and. two ·witnesses. . ' .
Under' the ltnglish Law, a person, whether' ~alc,or female, cannot
marry without the consent I of the parents until· the age. of twenty, though
,I .amongst the operatives and coIners' in Lancashire and amongst. the 'agri-
the~' do contract'such marriages
;
... cultural labourers in England,
. . . "
in thousallds.

CHAPTER V.

. . .~. . ' .' .., A . '.

'THE CU~TODY OF CHILDREN ,(AL-HIZANAT).
\ .
TH£' ha:;ina," says the' Tammr-u[:..Absar, is the woman
. It U

to-\vhom belongs the rearing up of a'child." ,And Khair~U:d-din

'R~m1i ',(the author of Jhe Khairiyeh) says that the -ebnditions of'
hiian~t are. that the /l(lzina)sh01ild be free, adult, 'trustworthyan<l .
'. .' -~ . - .
~", .

"(lrCode~~pol~, Art. l83~

 I'r:--

Q' '

THE OUSTODY OF CHILDREN'. , 249

'capable (of bringing, up the 'child, and not, married, to '~

stranger. (1 )
[The word hizanatis give~ as Haianat ,in ,the Misbah~ th~'
Bahr-ur-Reik and the Nahr-td-Fdik.]
It The mother is of aU persons," says the Fat~<.V~i Alamglri,
.. the, best entitled, to the custody. of her infant children.
during the connubial 'relationship as well as after .its ~~~er.
dissolution." (2) . .
So' also the Radd-u,l-M uhtdr :-" The right of the' mother to
the custody of her child is estahlished whether' she be a oslema"'.' ¥
or Kitdbia or a Majoosia,(3) arid even though she be separated
~rom her huSband. But it does' not belong _to one who is an
,apostate."
It will thus be seen that ~his right belongs tODer qUi! mother,' ,
and nothing can take it away from, her:. except" her~· ow~
misconduct.
The ~aternal' power, over the infant children' discussed in,
..I, the previous chapter. is based on the assumption that it is for"
their benefit.' Similarly when the tende~nessoftheirage,or t4e
weakness of their sex" renders a mother's care necessary~ the
Mahommedan Law supports the. mother's natural right to' the'
custody of her children an~ a1l9ws it to' take pt:ecedenceof the.
J
1 paternal right for a certain specified time.
:'1 When the children arena longer dependent on the :mother's.:
...;
,)~
,'
,~. care, th~ father has, a right to educate and take charge of them,'
,,'
",~: , and is "entitled to the guardianship of their person in prefereri<£
,to the mother.

(1) Radel-ul-Muhtar,' Vol. II, p~ J042; the'R<Jdd-ul-Muhtar is an,

extremely valuable andautho~itative ~ork on Mahomniedan Law (see
Vol. I, the Introel.)."It'purporuto b~ a'commentary on theDu"~ul­
Mukhtar~ which again is a gloss on' the Tanwir-ul-AQ;ar. :The texts
~uoted in the Raeld~I:"Muhtar ar:e,chiefly fr~m' the' Jatt~r,whoseauthor'
is' referred to as the Author,whil~t the ~uthorof the Durr-ul-M"khto,.. is
referred to l!S the, Co~ment.~~or ' (SMrih). ' The, Radel: represents to a
large extent the dev'etoped Hana{i prinCiples. A~ the Saine time it must
not ,be supposed that. the doctrines it expounds are '.accepted 'in thdr
entirety. "'
, (2) Fattiwai'Alamgiri, Vol. I. p~ 728. ' ,
(3) An example of.a:Majoo.ri~1noth_eris·givenihus:~i.If~th:~~ts '
were M~gians and the father adopted ,Isliai, and,the mother remained
in the (old faith, still themoth~r w~uldbeerititled to theeustodY 'for her
, " , " , ,

matemallove." '

:----~-. --'--._-- .~ ':.:, ~;:..~--- ~----~--,,-._.-

 Jf

THE LAW RELATING TO STATUS'

Mussulman child. (I) The provision in the Guardians andWanls ;, ' ~,

Act (VIII of 1890) which directs the Court in appointing a
guardian· to keep in view the "welfare of the minor" is .in
. harmony with the Mahbmmedan law:
The qualifications necessary for -the exercise of the right of
Qualifica- -. hiz/inat are the following:-(i) that the h/izina(2) should
tions be of sound mind; (ii) that she should be of an age which
~~~~s:r~ would qualify her to bestow on the child the care which
Hlizina. it. may rieed; (iii) that· she should be of good moral
conduct; and (iv) that she should Jive in aplace where the infant
m~y not undergo any risk morally or, physicaily.
Hizanal The right of hizanat or custody, according to all the
how lost. '. sch'ools, is lost-
(I) by the subsequent' marriage of the h/izina, with ap~rson
not related to the infant within theprohibi(ed degrees,'
(2) by her misconduct;
(3) by her changing her domicile So as to prevent the father
or tutor from exefcising the necessary supervision over the child:
and
(4) by he~ abjuration of islam',
(5) ,bv her neglect of or cruelty to the child,
I. . The right of a woman to the custody of an infant child·
is made void by her marriage with a "stranger," the presumption
of law being that a woman entering a new family will not have
the same love or affection for the child as before,(3)
. The author of the Radd-ul-Muht/ir says, "the right of
hiz/inat is lost by the mother (or any other. woman) marrying a
ghair-mahram of the infant, that is, one not .related to the infant
within the prohibited degrees, fora stranger would not be'agree,:"
. able to her bringing up the child with affection and care."
But if she were to marry a . mahram or a relation of the
infant within the prohibited degrees,' the right: of hiz/inat would
not fall to the ground. For example, if a mother were tp marry
the child's paternal uncle, such marriage being valid under tht
Mahommedan Law, she would not forfeit. her right to the custod~'
DO. . •.•

(I) Comp.Durr-ul-MukhlllT. and.fdu v. Amiran. Supra: see also In the matter of

Amel;runnessa (1869),,11 w. R .• 297; Abasi v. uunne \lll/lS), I. L.. n. All.; 698.
(2) i.e.• lhe female of MJZin or person entitled to the hizimal or custody.
(3) See BeedhunBibi v. FuzaJoolah (1873), 20 W.R.~ . . . Mimi,
Fuseehun' v. Mussi. Kaio (1883), J:L.•. IO Cal., 15.