Custody (Hizanat)

Custody (Hizanat) in Muslim Law

• Muslim Law recognizes the mother's right to Hizanat, or custody of the child.
• The mother has a preferential right to custody, provided she is not guilty of misconduct.
• According to Radd-ul-Muhtar, the mother's right to custody is upheld regardless of her being a Muslim, a Kitabiya (People of the Book), or a Majusi (fire-worshipper), even if she is separated from her husband. However, she should not be an apostate.
• Hizanat is viewed as the right to rear the children and is not absolute. It terminates at an early age, with distinctions made between sons and daughters.

 Distinction Between Sons and Daughters in Hizanat 

•  For Sons:  The mother's right to custody typically lasts until the son reaches the age of 7 years. After this age, the father may claim custody.
•  For Daughters:  The mother's right to custody generally extends until the daughter reaches puberty, which is usually around 12 to 15 years of age, depending on the individual.

Mother's Right to Custody (Hizanat) of Children

• According to  Fatwai Alamgiri  and the  Hanafis  , a mother has the right to custody of her son until he is  7 years old  .
• Under the  Shia  tradition, a mother is entitled to custody until her son is  weaned  , which is typically around  2 years  .
• According to the  Malikis  , a mother's right to custody extends until her son reaches  puberty  .

 For a Daughter: 

• The  Hanafis  believe that a mother has custody over her daughter until  puberty  .
• The  Malikis  ,  Shaftis  , and  Hanbalis  hold that a mother can retain custody of her daughter until her  marriage  .
•  Ithana Asharis  state that a mother has custody of her daughter until she is  7 years old  .

 Additional Points: 

• A mother has the right to custody of her children, both  legitimate  and  illegitimate  , up to the ages mentioned above.
• The father is responsible for providing the mother with  sufficient maintenance  for the upbringing of the child.

Other Females' Right to Hizanat 

Under Shia law, after the mother, the right to Hizanat (custody) of minor children typically goes to the father. However, among the Hanafis, the following females are entitled to Hizanat, after the mother, for children up to the age for which the mother is entitled:

 Order of Entitlement 

1.  Mother's Mother:  How high so ever.
2.  Father's Mother:  How high so ever.
3.  Full Sister 
4.  Uterine Sister 
5.  Consanguine Sister 
6.  Full Sister's Daughter 
7.  Uterine Sister's Daughter 
8.  Consanguine Sister's Daughter 
9.  Maternal Aunts:  In like order as sisters.
10.  Paternal Aunts:  In like order as sisters.

 Rule:  Among females, the nearer relative excludes the remoter one.

Father's Right of Hizanat

• The father is entitled to Hizanat in two scenarios:
• When the child reaches the age at which the mother is entitled to custody.
• In the absence of the mother or any other female relatives.

 Duration of Father's Hizanat 

• The father's Hizanat continues until the child reaches puberty.

 In the Absence of the Father 

• If the father is absent, custody can be granted to the following individuals, in order:
•  Nearest paternal grandfather 
•  Full brother 
•  Consanguine brother 
•  Full brother's son 
•  Consanguine brother's son 
•  Full brothers of the father 
•  Consanguine brothers of the father 
•  Father's brother's son 
•  Father's consanguine brother's son 

 Differences Among Shias 

• Among Shia Muslims, if the father is absent, only the grandfather is granted Hizanat.
• The process of granting Hizanat in the absence of the grandfather is not clearly defined.

 When a Hazina (mother or other female with custody rights) may lose her right to custody 

• To be a valid Hazina, the woman must be of sound mind, have good moral character, and live in a place where there is no risk of moral or physical harm to the child. If the Hazina is the child's mother and is a minor, her custody is still valid.

 Reasons a Hazina may lose custody 

• Apostasy (renouncing her faith)
• Marrying someone unrelated to the child
• Misconduct, negligence, or cruelty towards the child
• Removing the child from the house for her own benefit
• When the mother separates from the father and returns to her native place

When a Guardian Will Lose Hizanat

• If the guardian is a minor or of unsound mind.
• If the guardian is leading an immoral life.

 Defacto Guardian (Self-Appointed Guardian) 

A defacto guardian, also known as a self-appointed guardian, is someone who, without having the legal right to do so, takes charge of another person's estate and manages it. This continuous conduct can lead to the person being recognized as a defacto guardian or manager.

 Powers of Defacto Guardian:  The powers of a defacto guardian include:

•  Sale or Pledge of Goods:  The guardian can sell or pledge goods for the profit of the minor.
•  Alienation of Immovable Property:  The guardian does not have the power to alienate immovable property.

In the case of Md. Amin v. Vakil Ahmad (1920) 47 Cal 713, the court ruled that a minor is not bound by a family arrangement made by their brother on their behalf.

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