Custody – Islamic Law - NOTES

 Mothers right to care for infant children – subservient to the rights of the father
rights of mother and father to be discussed. Draw comparison between the two. Fathers right to
guardianship commences at birth and ends at attainment of majority of children. Mothers rights
are for a specific duration only – liable to termination if she fails to fulfill the requirement
imposed upon her by law. Differences of opinion of schools and sects.
 When can mother lose the right of custody of infant children
 Divorced mother has fewer rights over her children
mothers right of custody of infant children only – how long custodial rights law – how that right
can be forfeited – compare with fathers right of guardianship – explaining that mothers right is
merely to take care of her child on day to day basis whereas all important decisions in life of
child to be made by the father
 When marriage fails – mothers right of custody of children is put into jeopardy
 Right of mother to custody of children is always subject to the right of guardianship of father -
rights of mother and father esp when relationship between them has broken down – father has
right of guardianship since birth until majority of males and in some schools females until
marriage – nearest male kinsman if not father – mothers right to custodial care of infants –
requirements to be fulfilled by mother – who will take over if she is denied this right – duration
of her right – why she may be deprived of her right at the instigation of the father – comparison
of right of father and that of mother – (brief discussion of right to guardianship of property ch.
10 subject guide)
 Rights of walayat and haddanah
 Rights and obligations of mother and father of infant children
 Is the welfare of the child the deciding factor in matters relating to the guardianship and
custodial care of a muslim child
fathers right and duty of guardianship – mothers right and duty of custody/haddanah – are they
strictly applied – what other factors overrule welfare of child – caselaw of subcontinent where
judges particularly cases of mothers remarriage.
 When does fathers right to guardianship commence and when does it terminate
 Discuss the mothers right to haddanah in Islamic law
 Mother of child can never make decisions regarding its upbringing – that is responsibility of the
father
 Mothers right of custody is limited

Mothers custody rights + details VS father’s guardianship rights + details

_____________________________________________________________________________________

Custody – Islamic Law – ANSWER

Mothers custody rights + details VS father’s guardianship rights + details

Q. When can mother lose the right of custody of infant children.

Nasir (1990) points out that a child in Muslim law has the right to be brought up which ‘imposes a duty
on the father, namely guardianship and maintenance and another on the mother, namely fosterage and
custody (haddanah) until the end of infancy’. Muslim law makes a distinction between both rights,
custody has to do with practical matters such as care and control of the child while guardianship centers
on the legal obligations of the father (or his representatives). (Bharatiya 1996). All schools of Islamic
thought are in agreement that “the mother, whether she is separated or living with her husband, has
the first claim to custody of her infant” (Nasir 1990). However, through the Islamic law tradition, and
even now in the 21st century, claims have been made that the custodial right of the mother is
subservient to the right of the more overarching right of guardianship that the father has. Manan (1990)
commenting specifically about Pakistan says, ‘the mother’s custody is subordinate custody and is subject
to the control of the father, who is deemed to have the ready custody within the meaning of the
Guardians and Wards Act”. This essay will seek to examine the extent to which this statement can be
deemed accurate and reflective of the situation in the contemporary muslim world, across various
jurisdictions, including the South Asian tradition specifically where, as Menski points out, local customs
and Islamic law work together to strengthen male claims for authority over women and children in a
patriarchal setting. It will seek to argue that while the traditional law may be this way, legislative
reforms and their judicial interpretation has been seen to play an active part in ensuring the adequate
safeguard of the right of the mother against that of the father of the infant.

In Abu Baker Siddique v SMA Bakar the court noted that the rules of custody differ from school to school
as there is no consensus among the jurists. It leaves scope for difference of opinion, ‘there being no
definite rule in the Quran or Sunnah on the matter”. Similarly, there are different opinions on when the
period of a child’s custody comes to an end. In traditional Islamic law, the ages up to which the mother
is entitled to custody of her infant children are varying and contested. E.g. in Hanafi law custody of a
male is up to 7 years and female up to puberty, which is in stark contrast to the Ithna Ashari provision of
a male up to 2 years and a female infant up to 7 years. Maliki law provides for the ages of puberty in
boys and marriage in girls, whenever they may be. These traditional rules may cause problems in cases
of conflict between both parents, although the Hanbali and Shafi schools . Since, however, Menski
makes an observation that Islamic jurisdictions have attempted to cater to these stringent age limits,
after which the father (being the wali) would be entitled to the custody of the child, being the rightful
guardian, and have gradually extended these age limits. For girls this is on the onset of puberty. The
Shafi rule, with its inbuilt flexibility has been adopted in reforms across the muslim world. E.g. Egyptian
law stipulates boys from 7-9 and girls from 9-11, ‘should their interests so require’, and a similar
provision is found in 1953 Syrian Law, and the Somali Family Law of 1975. Sudanese Law, Tunisia (1957)
and Algeria (1984) has also departed from the Hanafi rule.

While the mother has first rights of custody, different schools of muslim jurisprudence differ widely on
the person on whom custody of child should pass when the mother is dead or unable or unable to care
for the infant child. There are however certain situations in which it is necessary to remove the child
from the care of the mother. In particular the custodian must be sane, trustworthy, and of good morals.
This is linked to the hadith that the right to custody is lost when the mother remarries a person not in
prohibited degrees of the child.

The general rule is that a close female relative of the mother takes charge, or failing that, the obligation
passes to the child’s paternal female relatives. That the custody doesn’t pass directly from the mother to
the father is a strong indication of the stress Islamic law places on the vitality of the infant to be taken
care of by the mother or close female in its tender years.
The nature and extent of the mother’s rights to custody are discussed in the seminal case of Imambandi
v Mustaddi: a woman does not lose the right to custody just because she stops being the wife of the
minors father. This case also pointed out that upon remarriage, it is likely that she would lose custody of
her children to her former husband, since he remains the guardian of the child. She doesn’t get
disqualified, but merely loses her preferential right.

In the contest between competing rights of the mother and father, Abid 1993 well reminds us that in
such cases ‘it is the Personal law that should guide, subject only to the welfare of the minor”, and this
matter of relations between personal and general law can be seen to be heavily contested e.g. under
the Guardianship and Wards Act 1890. This appears to preserve personal law while applying all over
secular India. Under s. 17(1) of the Guardians and Wards Act 1980 the court is to be guided by the
welfare of the minor is all circumstances, and the age, sex, religion of the minor as well as the character
and capacity of the proposed guardian 17 (2). What is notable here is that the personal law of the minor
doesn’t seem to be relevant, as long as the welfare of the child is. In Pakistan, the case of Atia Waris v
Sultan Ahmed Khan laid out the presumption that the minors welfare was in according custody
according to the personal law of the minor. Kaikus J in Muhammad Bashir v Ghulam Fatima stated that:
Under Pakistani law, the religion of the father is followed. In this case, the child was given to the
paternal grandparents instead of the mother to ensure that the child was bought up muslim. Although,
in some cases, it is difficult to decide what is the personal law.

Moselle Gabby v Ahmad Said was a case of international child abduction in which the father took the
children from the mothers custody and took them to Pakistan from Calcutta, India. Despite this, the
court granted custody to the father since it was “improper to give them to a Jewess mother”. The
conflict here was in deciding between following the religion of the father (under Islamic law) and that of
the mother (under Jewish law). What is noteworthy is that the court in refusing custody to the mother,
simply claimed jurisdiction over the future of the children and did not consider possible views from
Indian law perspective. Grace Abdul Hadi v Abdul Hadi The court held that it was in the interest of the Commented [NR1]: is another Pakistani case on selection
childs welfare to be bought up muslim, and joint custody was given to father and paternal grandmother. of personal law under Guardians and Wards Act 1890.
Mother continued to attend church non withstanding
The fact that the minor (born muslim) had since been baptized did not change her religion, highlighting Islamic converstion, and later, child was baptized, and
the extent to which Pakistani courts staunchly hold the approach that the best interest of the minor is to parents signened statement on catholic education of the
be consistent with his personal law. Similarly, Balchin 1990 and Bharattiya 1996 both point out that child. Wife had affair while husband was in prison.
apostasy on part of the mother is a sufficient ground of taking custody away from the mother of her
infant children. Thus, cases like Atia Wwaris, Grace, and Moselle highlight that in Pakistani courts, the
general welfare of the child, (interpreted as such to be consistence with his personal law) overrides the
provision in the Caste Disabilities Removal Act 1980 which provides that apostasy itself isn’t a sufficient
ground for denying the rights of the mother or the father.

Further, as can be seen from the hadith mentioned above, a mother may lose her right to custody if she
remarries and the husband isn’t within the prohibited degrees of the child. This case illustrates that so
strong is this principle in ending the mothers right to custody that in Muhammad Bashir v Ghulam
Fatima the best interest of the child was deemed to be with the father even though he had not paid any
maintenance for the child before but claimed custody as soon as she married another man. These rights Commented [NR2]: Kaikus J stated that if the minor lived
however, are not so strictly applied in the contemporary jurisdictions, which means that it often may not well with her father, who was better off financially, she had
a better chance of finding a husband than if she lived with
be the case that the mother loses her right to custody merely because has remarried. In Zohra Begum v
her mother.
Latif Ahmad Munawwar it was stated that it is ‘permissible for the Courts of law to differ.. since there
was no Quranic or traditional text on the point’ and courts, who have taken on the role of Kazis can
reach a decision based upon Ijtihad. This case was relied upon in Fahmida Begum v Habib Ahmad in
which the judge in proceeded to act in the best interests of the children, who all confirmed the desire to
stay with their mother, despite the personal (Islamic) law rules at play. An earlier example of where the
personal law rule was departed from is Amar Ilahi v Rashida Akhtar in which the father had given up all
claims to custody and any reciprocal maintenance and took no further interest until it was time for her
to be married. In this case it was firmly held that remarriage did not prohibit her from becoming both
the daughter’s carer and guardian. This case also highlights that a muslim father who defaults on
maintenance for a minor child can run the risk of forfeiting his traditional right to exercise guardianship
rights. The above cases show that depending on the facts and circumstances of the case, classical law
rules have not been followed in Pakistani case law. This can work both ways for parents. In Niaz Bi v
Fazal Ilahi, the judge very reluctantly gave custody of minor children to father because of the mothers
poor health, but ordered him to allow the mother to see them once every fortnight. This was an
exceptional circumstance, though in ordinary cases, a females right to custody can not be defeated on
the ground of lack of funds to maintain the child. In Hurbai v Usaman it was held that the mere fact that
a mother is poor and has to work for her living can never be allowed to operate to deprive her of her
right of custody of minor children, as a mother can give that love, affection and guidance which are
necessary for the proper development of the child. The court also held that the father has to provide
maintenance, irrespective of whichever parent they stay with. The importance of the mothers right to
custody can be seen in Tahera Begum v Saleem Ahmed the court refused to implement a supposed
private agreement between the parents for the mother to give up custody of the young daughter. This
case highlights the importance of upholding the mothers right to custody, and shows that any such
agreements can not make a mother lose her right.

It is interesting to contrast the Indian cases implementing the Guardians and Wards Act 1890 which
follow the approach that favors the best interests of the child over any consideration of personal law as
was clearly pointed out by the court in Hassan Bibi v Ghulam Bhat (the personal law provisions that
guide the court are subject to s. 17(1) which calls for the best interest of the child). The court also states
that if the interests of a minor cannot be looked after by a person who has preferential custody under
personal law, they will not be granted custody. This is not always the case however. In Imtiaz Bano v
Masood Ahmad Jafri however, the courts granted custody of children under 7 to the mother, taking
note of the fact that the parties were governed by Hanafi muslim law, and the risks of young children
being exposed to a step mother. The court took special note of the fact that delays in judicial
proceedings were very relevant when definite age limits of custody come into play. The court held in
Mohammad Shafi v Shamim Bano the provisions of personal law applicable to the parties stand
superseded to the extent to which a provision is made and is inconsistent or contrary with the
Guardians and Wards Act 1890. Since muslim personal law itself accepted that a mother was the best
person to take care of young children, there was no scope for arguing the technical point that the
fathers superior right to guardianship had the affect of ousting the mother from custody. In Khurshid
Gauhar v Siddiqunissa reiterated the position that the mother doesn’t lose the right to Hizanat of her
children just because she is divorced from the husband and living away. In the rival claims of father and
mother the interest of the child cannot be sacrificed.

In Abdul Kalam v Akhtari Bibi the court rejected the argument of the husband that the Guardians and
Wards Act 1980 did not apply to muslims. In Farjanbi v Sk Ayub Dadamiya the muslim rule that the
father is entitled to cusotody of a son over 7 years was noted and applied; however this was done not in
consideration of personal law but in the best interests of ths childm (who had actually expressed
preference for staying with the mother). “There is no good reason why the ordinary rule of
Mohammaden Law should not be dadhered to inn the present case and it must, in the circumstances,
prevail over the desire of the children’. Abdul Sattar Husen Khudachikar v Shahina Abdul Sattar
Kkhudachikar the court noted that ‘for children of tender years, it is not money alone which matters. It
is the natural love and affection and particularly the care that a mother can give which is more
important and has no substitute”. In this case while, there was no dispute over the principles pf Muslim
law or their applicability and both parents were earning well, the father had had a touring job and
leaving his son to his second wife wasn’t in the best interest of the child. However, the principle of best
interests of the child can work either way and doesn’t necessarily lead to an award of custody to the
mother. In Rahima Khatun v Saburjanessa the court followed that while as in Imambandi that a mother
doesn’t lose her right to custody in this case the child’s interest was in staying with his grandmother, not
its mother.

In the Bangladesh the same issues have been debated and developed along similar lines. In Md. Abu
Baker Siddique v S M Bakar the custody of a minor son with health problem was at issue. The father
alledged that the child’s mother had been cruel, irresponsible and neglectful, whereas in actuality she
had given up a wellpaid job abroad to come and care for her child who needed special attention. The
court considered: courts in these cases seem reluctant to give affects to the automatic rules of Hizanat,
and that the courts power to ennounciate on Hidanat is not limited to the mere observance of the age
rule so as to exclude consideration of interests of the child.

With the fierce contest between the parents often happen cases of international child abduction, which
has become a problem due to the large number of South Asians living overseas in cases where non
muslim foreign mothers claim custody. (cases already discussed above are Moselle and Sara Palmer in
Pakistan). In Christine Brass v Javed Iqbal the father abducted children to Pakistan, and the Pakistani
court held that in line with domestic cases, that the welfare of the child was the paramount
consideration. Emphasiging the rights of the father in muslim law it was held that the father was a
muslim and the children were not living with their father it was in their interests that they should
remain in the custody of their father. In Sara Palmer v Muhammad Asam the father had been instructed
not to remove his children from England and Wales as they were in the custody of their mother. Under
filing the habeus corpus petition the Pakistan courts relied on Christine and said that full custody of the
minors could not be given to the mother since this would entitle her to remove her from the jurisdiction
of Pakistani courts. In Bangladesh Akhtar Jahan Tanzia alia Bab v The State a mother abducted her
daughter from school but the court held that the mother had no right to take away the daughter in the
capacity of her guardian and the action had therefore been illegal. The proceedings against the mother
were however quashed under domestic law provision, but the custody of the minor was still given to the
father. As ‘guardianship of the minor is lost by operation of law as soon as she marries another person
who is not related to the minor girl within the prohibited’. Sharon Laily Begum Jalil v Abdul Jalil the
husband turned violet and bought his wife and children to Bangladesh and left them there without
passports, then the father divorced the mother and the children were taken to the fathers paternal
home. The father argued that it had not been in the interests of the chidren to grow up in Britain, and
then aleldged that the mother had been immoral in his absence. The court refused to go into the details
of the various pleadings and focused on the constitutional elements of the case The mother is the
custodian of children under a certain age and he custody of the three younger children was given to the
mother. In Re S (minor’s abduction) a case of British jurisdiction, the mother had moved the children to
Britian from Paksitan without the knowledge or consent of the father. In view of the facts it was in the
best interests of the minors to be returned to Pakistan.

Mother is custodian, guardianship remains with the father. Guardianship of a young person somewhat
coincides with the custody. Guardianship of a person also includes guardianship of property and Commented [NR3]: Guardianship of property
marriage. Nasir 1990 points out the corrupt pre Islamic practices which led to the detriment of orphan
children. Muslim law therefor seeks to protect the interest of the minor against the guardian and places
many restrictions on the guardian authority and powers especially with regards to their property
(Bharatia 1996). The muslin law severely restricts the guardian power over property of child
(Hardkinson 1984)the south Asian courts have upheld the principle that after the fathers death
guardianship falls on the executer and then the paternal grandfather and the guardian stand in a
fiduciary relationship to his warden. Rahim ud Din v. Abdul Malik Bhuyia , the court will allow guardian
to buy or sell a wards property only in the most exceptional circumstances when it is in interest of child.
The leading case on guardianship of property is Imam Bandi v. Mustaddi. While a mother is the de facto
guardian she has no power to deal with the minor’s immovable property despite being able to pledge
the minor’s goods or chattels for imperative necessities such as food or clothing. The court stated that
the mother is not the natural guardian but the father alone or his executor is the legal guardian.
Equating the powers of de facto guardian with those of a legal guardian would wipe out one of the most
important safeguards provided by Mahomedan law for the protection of the interests of infants.

Mata Din v Ahmad Ali and Mohd Amin v Vakil Ahmad are two leading cases that clearly establish that
the paramount consideration is the minors benefit. In Mohd Amin Shah v Ateeka Banu the case
concerned guardianship of two girls above the age of custody whose father died and mother remarried,
in which such guardianship was given to elderly male step cousin instead of mother.

In Ali Mohammad v Ramniwas it was held that any transfer of right or interest (in this case mortgaging
immovable property) of the minor by the de facto guardian was void. In Mammad v Nabeesa = legal
guardian has no power to sell immovable property of minor except where he can attain double its value
or where minor has no other property and sale is necessary for his maintenance or in certain situations
of necessity. This proposition has been greatly circumcised by Rugia Begum v Iqbal Ali Khan which said
that only the minor himself and not the third party can impugn a sale made by the de facto guardian.
Analyze. Problematic if duress or threats etc. The Indian Supreme Court in Mahboob Sahab v Syed Ismail
stated obiter: in Mohammadan Law the mother can not act or be appointed as property guardian of the
minor. She equally can not act as legal guardian.

In terms of British law, the courts do not appear to have much experience. Alhaji Mohamed v Knott was
a case that concerned a woman of Norwegian origin. The judgment demonstrated the liberal approach
of the British courts and there was nothing abhorrent in muslim Nigerian law and there was no reason
for legal intervention in terms of protecting the minors interests since she was a married woman. Pearl
(1986) points out that in most cases the key issues is the question of religious upbringing of the child,
especially where the mother is not a muslim. In Jussa v Jussa the English judges emphasized on the need
of the children to grow up in full awareness of their mixed inheritance. In this case the court ordered the
retention of the closest possible contact with the father (who was a muslim) while remaining in control
and care of their mother. In this spirit of multicultural tolerance, joint custody was given to both
parents. Sir George Baker pointed out that the most important question was what would best promote
the welfare of the minors, which is provided for in s. 11 of the Family Act 1996.

Guardianship – walayat.

 Necessary to assert the principle of best interests of a child against powerful asserions of
patriarchal and religious interests (Balchin)

 In indian law, three periods of guardianship of minors have to be considered – a minor is

1. A person under 15
2. A person under 18 under the Indian Majority Act
3. A person under 21 who has guardianship appointed by the court
 In Mohammaden law, minors are between the ages of 15 and 18 can act independently of any
guardian in marriage, dower and divorce. (Fyzee) e.g. Ahmed Suleman v Bai Fatima = a muslim
wife of 16 may sure for divorce without the intervention of a guardian
 Appointment of a guardian – in India, Pk and Bangladesh – made under the Guardians and
Wards Act VIII of 1890. ‘welfare of minor’ is an important theme throughout that the court has
to consider.
In making such an order, the court is guided by (i) what is welfare of the minor
(ii) age sex and religion of the minor
(iii) character and capacity of proposed guardian
(iv) preference of minor himself if he is old
enough to form a preference
 minor cannot be guardian, except to his own wife or child.

Mother – Custody

 Custody of an infant child belongs to mother

 Hanafi law male till 7,
female till puberty
 Ithna Ashari – male till 2
female till 7 (Tayabji)
 Baillie= mother is, of all persons , the best entitled to the custody of her infant child during
marriage and after separation from her husband
 Custody of the child of tender years doesn’t imply that a father has no rights whatsoever.
(Fyzee)
 Privy Council in Imambandi v Mustaddi – considered nature and extend of mothers right to
custody – the natural guardians, the father alone, or if dead his executor (under Sunni law) is a
legal guardian
 Where father and mother are living together
child must stay with them, and husband cannot take the child away with him, and the mother
cant take it away without the permission of the father, even when she is entitled to custody of
the child. When the child is in custody other is not to be prevented from seeing it.
  Fyzee= fathers supervision over the child continues in spite of the child being under the care of
female relations for it in for the father to maintain the child.
 With regards to mother or female guardians, marriage to a person not related to the child
within prohibited degrees is a bar to custodial rights of the mother.
 also = immorality, adultery, neglect to take proper care of a child. Bailee = a person is not
worthy to be trusted who is continually going out and leaving the child hungry”.
 Rashida Begum v Shahab Din: mother doesn’t lose the customary of her infant children merely
because she is no longer the wife of her former husband
 Mir Muhammed Bahauddin v Mujee Bunnissa Begum: where she marries a second husband,
custody of such children normally belongs to their father, especially if he is otherwise a fit and
proper person too be appointed guardian of the his children
 Modh. Amin v Ateeka Banu: even a step cousin can be preffered by the court.
 Zynab Bi v Mohammad Ghouse: all four children residing with mother, one day taken away
forcibly by father. Under 5 and boy almost 1 year. Held = she was entitled to custody under
Guardian and Wards Act – separation for husband = not a disqualitication from custody of
children

Custody: other relations

 Failing mother, following female relatives to be custodians in order of priority: mothers

mother, fathers mother, full sister, other female relations including aunts.
 Johata Khatun v Amina Bibi: female relation of minor doesn’t suffer absolute disqualification
upon marrying a minor. Only loses her preferential right; where no other suitable person,
she may be appointed a guardian by court – only in last resort.
 Failing mother and female relations; following male relations entitled to custody: (Tayabji)
father, nearest paternal grandfather, full brother, consanguine brother and other paternal
relations.
Wilson = custody goes to nearest male paternal relatives, in same order as for inheritance.
Mulla points out: if child = female, child goes to nearest male paternal relative within the
prohibited degrees. Boys over seven and females until poverty
 Tyabji: no male is entitled to the custody of a female relation unless he is related to her by
consanguinity and within the prohibited degrees.
 Ilegitimate children: Macnaghten: bastard belongs legally to neither of its parents, until it
has attained the age of seven, it must be left in charge of his mother, and after that can
make his own election, or live apart from them altogether.
 Gohar Begum v Suggi alias Nazma Begum: mother gave prev illegitimate child to friend, after
marriage. Under s. 491 CrPC refusal to hand child over to mother was illegal detention, and
court used write of habeous corpus to direct custody of the child with his mother.

Minors in Marriage: Guardianship

 Tayabji – guardians have right to contract minors in marriage in same priority as inheritance.
 Ameer Ali: walayata-al-jabar not a peculiarity in Islamic law. Empowers a father to impose status
of marriage on his children.
until they are baligh, reached puberty.
 Right recognized by pre-islamic Arabs and Jews, and all schools of Mohammaden law.
 While guardians can be appointed by courts in certain circumstances, in respect of marriage no
wali can be appointed by court. Substantive law declares who possesses the patria potestas.
Though as Tayabji points out in some cases the kazi can himself be marriage guardian.
 Ameer Ali: minority, in the absence of specific proof, terminates at 15.
 Tayabji: guardian must be person who has attained puberty, sound mind and muslim.
 Guardians of marriage in order of priority: father, fathers father, brother and collaterals
according to inheritance law rules, kazi or court.
 Ayub Hasan v Akhtari: minor married with consnent of remoter relation but not of closer legal
guardian. Held: marriage void, even if consummation had taken place.
 as a means of salutary safeguard against unlimited powers of judge or qazi, a judge cant marry
the girl to himself, as it’s a marriage without a guardian. (Fyzee)
 option to puberty. Can be exercised if conditions fulfilled, by minor on attaining majority.
 Right of Jabr: terminates on attainment of puberty. (Hanafis and Ithna Asharis): after that age
the can marry without a guardian.
 Malikis, Shafis, Fatmid Shiites: jabr continues until married and emancipated from paternal
control. Only remedy in this case, according to Muhammad Ibrahim v Gulam Ahmed is to change
to Hanafi school and marry acroding to its tenets.