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.
De Facto Guardian:
A de facto guardian is a concept under which past act results in present status and a de facto guardian is a self appointed guardian. Tayabji defines a de facto guardian as “an (unauthorized) person who as a matter of fact has the custody and care of the person and/or of his property.” A de facto guardian has no power of alienation of a minor’s property and that such an alienation is void. He has no power to convey any right of interest in immovable property which the transfer can enforce against the minor. A partition of property effected by the de facto guardian is void and not binding on the minor. The period of limitation to set aside a transfer by the de facto guardian is 12 years.