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Dr.

ram Manohar Lohiya


National law university
Lucknow

Final Draft
Family Law-1
Topic- Muslim Law on Custody and Guardianship
Submitted By:-

Under the guidence of

Jayant Kumar

Ms. Samreen Hussain

Semester 4th

Astt. Professor

Section:- B

Dr. Ram Manohar Lohiya

Roll No.: 164

National law University, Lucknow

TABLE OF CONTENTS

TABLE OF STATUTES.............................................................................- 2 TABLE OF CASES....................................................................................- 3 INTRODUCTION......................................................................................- 4 CUSTODY IN ISLAM...............................................................................- 9 THE PROVISIONS FOR GUARDIANSHIP..........................................- 12 A TEST FOR SECULARISM..................................................................- 16 CONCLUSION........................................................................................- 18 BIBLIOGRAPHY....................................................................................- 19 -

TABLE OF STATUTES
1.) Caste Disabilities Removal Act, 1850.
2.) Guardians and Wards Act, 1890.
3.) Juvenile Justice (Care and Protection of Children) Act, 2000.
4.) Shariat Act, 1937.
5.) Oudh Estates Act, 1869.

TABLE OF CASES
1.) Ahmadullah v. Hafizuddin Ahmed, AIR 1973 Gau 56.
2.) Ayub Hasan v. Mst. Ansari, AIR 1963 All 525.
3.) Imambandi v. Mustsaddi, AIR 1953 SC 358.
4.) Khatija Begum v. Gulam Dastagir, AIR 1976 AP 128.
5.) Muhammad Allahdad v. Muhammad Ismail, ILR (1888) 12 All 289.
6.) Salamat Ali v. Majjo Begum, AIR 1985 All 29.

INTRODUCTION
India is a secular republic and article 14 of the Indian Constitution guarantees
equality before the law to everyone.
Personal laws cannot be tested against the touchstone of the Constitution.
These two seemingly contradictory statements aptly encompass the debate that has raged
on the need for a Uniform Civil Code-as enshrined in the Constitution in the Directive
Principles of State Policy. Without much ado, however, I shall come to the point. Muslim
law has always faced severe criticism for its retrogressive nature in many aspectsespecially regarding personal laws. It is often seen as going against the tents of
secularism.
This project has two facets. The first is a description of the Muslim laws regarding
custody and guardianship. The second is the evaluation of these laws against the standard
of secularism-hence the opening statements of this introduction and the reference to the
need for a Uniform Civil Code.
The rules regarding guardianship and custody are considerably different from those
prescribed for other religions-these are dealt with in the second and third chapters. For
the most part, these are not codified as Hindu law for the same is. The historical origins
of Muslim law regarding some of the aforementioned topics have been traced. Wherever
these are statutorily governed, it has been duly mentioned-under the Guardians and Wards
Act, 1890 and the Juvenile Justice (Care and Protection of Children) Act, 2000

CUSTODY IN ISLAM
Custody and Guardianship in Muslim law are closely interrelated. The rules regarding
guardianship of a minors person are laid out in great detail whereas those for the
guardianship of a minors person are not so exhaustive. However, rules for the custody of
a minor of very young years are laid down clearly in favour of the mother. Such custody
is known as Hizanat.1 It is this aspect of Muslim law that is discussed in this chapter.
Let us first consider the law regarding Hizanat as laid down in the classic commentary on
Muslim law-the Hedaya.2 In any case where the question of the custody of an infant child
arises, the right of custody or Hizanat rests with the mother. The prophet himself had laid
down this rule. Down the ages this rule developed and now various schools have evolved
their own variations to it. In keeping with the scope of this project, I shall limit the
discussion to the Hanafi and Shia views. All schools are, however, unanimous in the
opinion that the primary and foremost right lies with the mother 3-even if she be an
infidel4. The Hedaya goes on to detail the provisions regarding the duration of Hizanat
and to which persons this right devolves in the absence of the mother. After the mother
come the maternal grandmother and then the paternal grandmother. After these is the
childs sister. There are detailed provisions for this list to go on!5
The woman who has such custody of the child is known as Hazina.6 The woman entitled
to be the childs Hazina is disqualified from getting the Hizanat if she is an apostate, or
wicked, or unworthy to be trusted.7 These terms must of course be interpreted according
to prevailing social conditions. If the Hazina is of unsound mind then too she cannot get
the right of Hizanat. These conditions also abrogate the right of Hizanat in case they
1

Charles Hamilton The Hedaya-Commentary on the Islamic Laws 138 (2nd edition, New Delhi, Kitab
Bhavan, 1870, Rep. 1994).
2
Id.
3
Supra. note 1 at 125.
4
Supra. note 10 at 139.
5
Supra. note 10.
6
Paras Diwan Law of Adoption Minority Guardianship and Custody 783 (3rd edition,
Delhi, Universal
Law Publishing Co., 2000).
7
Neil B.E. Baillie A Digest of Moohummudan Law 435 (3rd edition, Lahore, Premier Book House, 1957).

come true during the period of Hizanat. In case the parents are separated, the right of
Hizanat is lost on the Hazina marrying a stranger, i.e. a man who is not within degrees of
prohibition with the child.8 Minority is not a ground for disqualification and a minor
mother is entitled to Hizanat. 9 If the disqualifying factor is removed, the womans right
to Hizanat is revived.10
The period for which the right of Hizanat subsists is seven years in the case of a male
child and for a girl child it is till she attains the age of puberty. This is so in Hanafi law.
Notably, the Court of Algiers has applied the Maliki doctrines and allowed the girl childs
mother to retain custody till the latter gets married. 11 In Shia law, the male childs custody
is with the mother till he is two years old and for the girl child this age is seven years. The
father can, if he so wishes, allow the mother to retain custody of the children even after
they attain the said ages.12
Let us detail the case of a non-Muslim mother. In such a case the mother continues to
exercise the right of Hizanat as a Muslim mother would. This is so because the right of
Hizanat rests with the mother in her capacity as mother and is not contingent upon her
religion. But, as mentioned above, the right of Hizanat is lost by a Muslim mother who
becomes an apostate.13
If there is no female relation of the child who may be granted its Hizanat, then the same
devolves upon the childs paternal relations. The first is the childs father, then the
paternal grandfather how highsoever; then the full brother, then the half-brother by the
father. and so on. However, no male has a right to the custody of a female child unless
he is within the prohibited degrees of relationship to her. A profligate has no right
whatsoever.14 In the absence of any natural guardians who are willing or qualified to take
8

Supra. note 14 at 785.


Supra. note 14 at 784.
10
Supra. note 15.
11
Syed Ameer Ali Muhammadan Law 223 (7th edition, Vol. II, Raja Said Akbar Khan ed., New Delhi, Kitab
Bhavan, 1976, Rep. 1986).
12
Ibid. at 225.
13
Supra. note 20 at 228.
14
Supra. note 15 at 437.
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the childs custody, such custody rests with the judge who should give the child to the
care of a trustworthy person of the same sex as that of the child.15
In the case of an illegitimate child, the custody is with the mother till the child is seven
years old for the purposes of nourishment though legally it belongs to no one. After
attaining this age, such a child may elect to live with either parent or decide to live with
neither of them.16
Where the parents marriage is still subsiding, neither parent may take the child away
from the other. This means that even though the mother has custody of the child by
reason of its being an infant, she cannot take it away without the fathers consent.

17

When the child is in the custody of one parent the other must not be prevented from
visiting it. Also, the fathers supervision over the child continues despite it being in the
custody of a female relation 18; this stems from the father being recognized in Muslim law
as the natural guardian of the child.
The case of Salamat Ali v. Majjo Begum19 deserves mention here. It reinforced the Best
Interest Principle for Muslims too. According to this principle, custody of the child
should be given to the person in whose custody the childs best interest lies. The
Allahabad High Court observed in this case that the mother should normally get the
childs custody under the personal law but the court must also consider whether granting
such custody would result in the minors welfare. If the evidence on record shows that it
would not be in the interest of the minor to give his or her custody to the mother then the
same must not be done. Hence the provisions of personal law would be applied in
accordance with the corresponding provisions of the Guardians and Wards Act, 1890.

15

Supra. note 20 at 228.


Supra. note 6 at 158.
17
Supra. note 2 at 216.
18
Supra. note 2 at 217.
19
AIR 1985 All 29.
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THE PROVISIONS FOR GUARDIANSHIP


Muslim law on guardianship may be divided into three topics:-guardianship for the
purposes of marriage (Jabar), guardianship of the minors property (this is further
subdivided into de-jure, de-facto and certified guardianship) and the guardianship of the
minors person (Hizanat).20 The last has been discussed in the preceding chapter.
Let us start with guardianship of a minors property, for which Muslim law provides in
great detail. That the father of the child is its natural guardian is a well settled position.
This was established in the case of Khatija Begum v. Gulam Dastagir21 where the court
held that where the father is living and is not unfit to be the childs guardian, he is the
natural guardian. This is in accordance with the provisions of the Guardians and Wards
Act, 1890. The court also observed that the question of the comparative fitness of any
other person as against the father to be appointed the childs guardian does not arise.
Another important aspect of this case was the observance that a fathers second marriage
does not affect his right to be his childrens guardian. The de-jure guardians are those
prescribed by Islam. Amongst Sunnis, the fathers executor is next in line, followed by
the paternal grandfather and his executor. The Shia law gives second place to the paternal
grandfather and only in his absence does the fathers executor become the childs
guardian, following whom the grandfathers executor gets the minors guardianship. In
both systems, the mother has no power to appoint a testamentary guardian of the property
of her minor children with two exceptions. First, if she herself has been appointed as the
general executrix of by the will of her husband and secondly when she has willed her
own property to go to her children after her death she may appoint an executor for this
same will. Jurists of all Muslim schools agree that a profligate cannot be appointed as a
guardian though all acts done by such a person before his removed as guardian are valid
and binding provided they are not against the minors interests.22

20

Supra. note 6 at 153.


AIR 1976 AP 128.
22
Supra. note 1 at 117.
21

The powers of a de-jure guardian as regards the minors property are very different when
it comes to movable and immovable properties. Whilst the guardian may alienate the
former easily when doing so is necessary for the minors maintenance or the propertys
conservation, there are many conditions for the alienation of movable property. These
conditions (under which immovable property of a minor may be alienated) are23
1.)

where double the value can be obtained

2.)

where the minor has no other property and the alienation is


necessary for his maintenance

3.)

where there are debts of the deceased and there is no other way
of paying them

4.)

where there are legacies to be paid and no other ways of paying


them

5.)

where the expenses exceed the income from the property

6.)

where the property is falling into decay

7.)

when the property has been usurped, and the guardian has reason
to fear that there is no chance of fair restitution

In the case of Ahmadullah v. Hafizuddin Ahmed24 the question before the court was
whether a minors immovable property could be sold by his guardian for the purpose of
the wards education. The High Court held that in present day society, education up to the
higher secondary stage cannot be said to be an extravagance.
When there is no legal or de jure guardian the power to appoint a guardian for the minor
rests with the court. The powers and obligations of such a certified guardian are those laid
down in Section 27 of the Guardians and Wards Act, 1890. S. 32 empowers the court to
define, restrict and extend the appointed guardians powers with respect to the minors
property from time to time as it may consider to be in the minors interests. S. 29 lays
down the limitations on the guardians powers in respect to the alienation of the minors
property. It states:
23
24

Supra. note 8 at 294.


AIR 1973 Gau 56.

Limitation of powers of guardian of property appointed or declared by the court


Where a person other than a Collector, or than a guardian appointed by will or other
instrument, has been appointed or declared by the court to be guardian of the property of
a ward, he shall not without the previous permission of the court, (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of
the immovable property of his ward, or
(b) lease any part of that property for a term exceeding five years or for any term
extending more than one year beyond the date on which the ward will cease to be a
minor.
The court may even appoint the mother as the minors guardian if it so deems fit. In such
a case the fact that the mother is pardanasheen will not be an objection to her
appointment as guardian. The court must also keep in mind the wishes of the minors
father and the minors interest and welfare, according to the specificities of the case.25
Let us now discuss the issue of guardianship for the purpose of marriage. A marriage of a
Muslim minor may be contracted by its guardian. Thus the father is empowered to
impose the status of marriage on his children. This power is known as Jabar. The abstract
right of such guardianship is called willayat and the guardian empowered to do so is
known as wali. The persons entitled to Jabar, according to Hanafi law are the father, then
the fathers father how highsoever, then the full brother and other male relations on the
fathers side in order of inheritance give under residuaries, then the mother, then maternal
relations within prohibited degrees and finally the Qazi. Only the father and the fathers
father, how highsoever empowered with Jabar under Shia law. 26
In Ayub Hasan v. Mst. Ansari27 the court decided that in case a remote guardian
contracted the minors marriage in the presence of a nearer guardian, then the marriage is
25

Supra. note 6 at 165.


Supra. note 6 at 154.
27
AIR 1963 All 525.
26

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valid only if the latter consents and ratifies it. This is an example of an irregular marriage
which becomes valid upon such consent being given. This is however, applicable only
when the remoter guardian comes directly after the nearer one in terms of proximity to
the minor. Otherwise the marriage is void.28
De-facto guardians are those persons who are neither de-jure nor certified guardians of
the minor. A de-facto guardian may (as may any other person) undertake any act which is
advantageous or beneficial to the minor. However, a de-facto guardian is unauthorized
and has no powers over the minors property29. It is a settled position that alienation of a
minors property by such a guardian is void. This was decided in the landmark case of
Imambandi v. Mustsaddi30.
In case the father converts or becomes an apostate, his right to be a guardian for his
childrens marriage stands annulled. In a Calcutta High Court decision, it was held that
the marriage of a minor girl contracted by her Muslim mother against the consent of her
converted father was still valid.31 A.M. Bhattacharjee is, however, of the opinion that the
fathers right to guardianship must not be affected by his conversion or apostasy as it
would be in conflict with the provisions of the Caste Disabilities Removal Act, 1850,
especially since the courts have held that the expression rights in the said Act include
the rights to guardianship and custody.32

28

Supra. note 6 at 155.


Supra. note 1 at 132.
30
AIR 1953 SC 358.
31
Supra. note 6 at 156.
32
A.M. Bhattacharjee Muslim Law and the Constitution 161 (2nd edition, Calcutta, Eastern Law House,
1994, Rep. 1995).
29

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A TEST FOR SECULARISM


The word secular means detached from religion, simply said. In other words secular
characteristics imply a logical and common-sense construction instead of religious
dogmas being used for determining aspects of our lives. As far as personal law goes in
India, it may be said that any enactment by Parliament (or any other competent
legislature, as the case may be) which codifies and standardizes rules of personal law is
based on secular considerations, more often than not. Such codification is done with the
object of rationalizing the personal law being codified and freeing it from the
irrationalities of religion (if any) as far as possible. As against a secular law, a law which
is not secular can be said to have no other justification except that religion demands it to
be the way it is. This is not to say, however, that any law which is in accordance with the
tenets of religion is necessarily non-secular. Statutory as well as non-statutory law (e.g.
custom, usage) may or may not be secular. The Guardians and Wards Act of 1890 is, for
example, a piece of secular legislation. The provision for granting custody of an infant
child to the mother in Muslim law, irrespective of her religion is an example of a secular
law but given in the religion itself. With this framework and understanding of secularism,
let us analyze Muslim law pertaining to adoption, custody and guardianship and try and
comment on whether they fall outside the purview of secular law.
The strict prohibition of adoption, in my opinion, has no other justification than it being
so set down in the Quran. There can be emotional reasons, for example, due to which
persons might wish to adopt children. This prohibition then is illogical and definitely not
secular.
The provisions regarding custody of infant children i.e. Hizanat are much more logical
and rest on the basis that during its tender years, the child can be better cared for by its
female relations. The transfer of custody to male relations on the attainment of the
stipulated ages by the child too stems from the belief that after a certain age the further
education and training can be better carried out by the father/male relations. Hence these

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rules are secular as far their justifications go. The rules concerning guardianship of the
minors property and for the purposes of marriage are also well-reasoned out and logicalin the best interests of the child. There cannot be detected any irrationality in these rules
grounded in Islam as such. The only glaring flaw is the strongly male-centric leaning in
these laws.
Though patriarchy as such is not related to religion, its continuance can often be seen in
personal laws due to these being derived from religion. Thus the bias in favour of males
in the laws regarding custody and guardianship in Muslim law can be said to be
continuing because of the rules prescribed by Islam itself. Therefore, in a way this is a
non-secular element of these rules which are otherwise quite secular in the general sense
of the term.
I would agree with Bhattacharjees view that the restrictions imposed under Muslim law
on apostates and converts to other religions go against the Constitution itself as they
make a distinction on the basis of religion. Therefore, these disabilities imposed on
persons giving up Islam are blatantly non-secular provisions of Muslim law.33

33

Supra. note 39 at 162.

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CONCLUSION
I must, at this stage, remark that writing the conclusion to this project has been the
toughest task of all. This is so because Muslim law pertaining to custody and
guardianship is rather detailed (all three together) and is quite complex to say the
least. Therefore, I can hardly provide a summary of these in conclusion!

This project has largely been descriptive. It was a slow build-up leading to a short
analysis in the last chapter-on whether the laws described are secular or not. I took the
liberty of defining secularism as a characteristic which implies logicality, common-sense
and rationality-the loss of these three properties, if at all they are lost, not being
attributable to religion. Hence, in conclusion I would like to briefly reiterate and expand
upon the views I have expressed in the last chapter.
It is submitted that Muslim law governing rights to custody and guardianship of apostates
and converts from Islam are outright against the idea secularism. They are rather illogical
and lack any justification other that they are so required by the Islamic religion.
On the other hand the rules generally regarding custody and guardianship are based on
common-sense and are meant to be in the best interests of the minor. The only drawback
here is the overarching patriarchal structure of these rules. This does not directly imply
that these rules are non-secular. But once again I have taken the liberty of interpreting
secularism broadly and asserting that the very continuation of this male-centric leaning in
these laws is due to them being in vogue as the diktats of religion. Therefore, the
presence of this highly retrogressive element can then be attributed to religion and this,
according to me, is what makes these laws not secular in a sense-which in turn makes
them objects of criticism from the angle of feminist theory as well as from a
consideration of secularism.

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BIBLIOGRAPHY
BOOKS:
1.) A.M. Bhattacharjee Muslim Law and the Constitution (2nd edition, Calcutta,
Eastern Law House, 1994, Rep. 1995).
2.) Ahmad Aqil Text-Book of Muhammadan Law
3.) Asaf A.A. Fyzee Cases in the Muhammadan Law of India, Pakistan and
Bangladesh (2nd edition, Tahir Mahmood ed., New Delhi, O.U.P., 2005).
4.) Asaf A.A. Fyzee Outlines of Muhammadan Law (4th edition, Delhi, O.U.P., 1974).
5.) B.B. Mitra Guardians and Wards Act (14th edition, M.N. Das ed., Calcutta,
Eastern Law House, 1995, Rep. 2000).
6.) Charles Hamilton The Hedaya-Commentary on the Islamic Laws (2nd edition,
New Delhi, Kitab Bhavan, 1870, Rep. 1994).
7.) Faiz Badruddin Tyabji Muslim Law (4th edition, Muhsin Tayyabji ed., Bombay,
N.M. Tripathi Pvt. Ltd., 1968).
8.) M. Hidayatullah and Arshad Hidayatullah Mullas Principles of Mahomedan Law
(19th edition, Bombay, N.M. Tripathi Pvt. Ltd., 1990, Rep. 1997).
9.) Neil B.E. Baillie A Digest of Moohummudan Law (3rd edition, Lahore, Premier
Book House, 1957).
10.) Paras Diwan Law of Adoption Minority Guardianship and Custody (3rd edition,
Delhi, Universal Law Publishing Co., 2000).
11.) Paras Diwan and Peeyushi Diwan Muslim Law in Modern India (6th edition,
Allahabad, Allahabad Law Agency, 1993).
12.) Syed Ameer Ali Muhammadan Law (7th edition, Vol. II, Raja Said Akbar Khan
ed., New Delhi, Kitab Bhavan, 1976, Rep. 1986).

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