Custody ,Guardianship and Legitimacy

Hizanat (Custodial Care)

• The right to take care and look after the child ensuring physical and
psychological security.

• Muslim law recognizes that a mother is of all persons most desirable to have
the custody of an infant, so that proper care can be taken care of.

• There is no Quranic verse fixing the age limit of custody of children and no
evidence from the practice of the prophet recorded.

• The Prophet said, a mother has better rights over child till she does not
remarry and does not separate the mother from her child. (Al-Baihaqi: Al
Sunan)

• In the moral sphere it is specified in the Holy Quran that the mother should
breast feed her offspring for two whole years. This moral injunction implies in the
ethical sense that custody in the first instance belongs to the mother. (2:233)

Hanafi Law

• The Hanafi school entrusts the mother to have custody of her daughter until she
attains puberty and of her son till he is seven years. (A child after attaining 7
years can be given choice/ Sunan Nasa'I)

• Hanafi law of custody is based on Hanafi hadith which orders children to

observe prayers at the age of seven, making it obligatory for the father to start
religious education at the age of seven. Hence, the father could take over
custody at the age of seven. But mother is preferred even then until the child can
lead life without help and with own discretion.
 Other schools

• Shafi, Maliki and Hanbali school entitles the mother to have custody of a
female child until her marriage. And male as same as Hanafi.

• In Ithna Ashari law the custody of her male child till the age of two years and of
her female child till the age of seven years are entrusted to the mother.

Limitation on the right

• Cannot take life decisions e.g. study, marriage, property etc.

• Cannot move to unknown places.

• Must allow the father to visit reasonably and vice-versa.

• Restricted traveling without necessity.

• However, a mother cannot be compelled to take custody and can claim wages
for it after divorce and fulfilling iddah.

Disqualification for Right to Custody

• The right of mother to the custody of her children continues even when she is
divorced by the father of her children. She needs to have physical and mental
capacity, be an adult. Non-Muslim or Kitabia are allowed to an extent. But she
forfeits the rights by:

1. Marrying a stranger i.e. not related to the child within prohibited degrees, (Not
ipso-facto and for father as well)

2. If she lives in the subsistence of the marriage at a distance from the father's
place of residence;

3. if she is leading an immoral life as where she is a prostitute;

4. if she neglects to take proper care of the child (Shia).

In absence of mother

• If the mother forfeits the rights or is absent, the following relations are entitled to
custody in order of priority:

i. Mother's mother how high so ever

ii. Father's mother how high so ever

iii. Full, consanguine, uterine sisters (maternal then paternal)

iv. and other female relations including aunts (maternal then paternal).

Some argues that, maternal aunts will get priority over half sisters (Hedaya).

In absence of female relations

• Failing the mother and female relations, the following male relations are entitled
to the custody of a Muslim child in order of priority:

i. Father

ii. Nearest Paternal Grandfather

iii. Full Brother

iv. Consanguine brother and other paternal relations But, they will have to be
within prohibited degrees. (Hanafi, Hedaya)

If no one exists, court will appoint a suitable one.