Write a short note on Guardianship of person of minor for custody [Hizanat].
The concept of guardianship is based upon the principle of incapacity. According to our legal system, Guardian is a person who take care of person of minor or his property or both i.e. his person and property. Basically, minor is a person who has not attained the age of majority i.e. 18 years and because of this he has not enough maturity to look after himself or his own property. Due to the lack of maturity, he cannot decide what is good for him or what is bad for him. So, for taking care of minor or his property, the Guardian is appointed. Guardian may be natural guardian, de-facto guardian or it may be certified guardian.
According to Muslim religion, father is the natural guardian of a child. It is his responsibility to take care of his a child and his property. But according to this religion till a particular age mother of a child is entitled to the custody of that child. She has a right of hizanat.
According to Hanafi law, a mother has right to have custody of a male child until he has completed the age of seven years and in case of female child until she has attained puberty. But, according to Shia law, a mother is entitled to have custody of a male child till the age of two years and in case of female child, till the age of 7 years.
According to Muslim law, it is a general rule that till particular age, mother will have the custody of a child but if she loses her right i.e. if she leads an immoral life or she neglects to take proper care of the child or she marries a person who is not related to child within the prohibited degree, then in such a case, the other female relatives of mother have right to the custody of a minor child.
But according to Hanafi law, if mother or other female relatives loses the right of custody then in such a case other male relatives of father of a child have right to the custody of minor but no male relative is entitled to the custody of an unmarried girl unless he stands within the prohibited degree of relationship to her.
In the leading case of Imambandi vs. Mutsaddi [(1918) 45 IA 73], it was held that, “it is specifically clear that under Muslim law, the mother is entitled only to the custody of the person of minor child upto a certain age according to the sex of the child but she is not the natural guardian, the father alone or if he is dead, his executive is the legal guardian.”
According to Muslim law, the natural guardian of a child is father and father is entitled to the custody of a boy over seven years and of an unmarried girl who has attained puberty and in Shia law, he is entitled to the custody of a boy over two years and of an unmarried girl over seven years of age.
According to Muslim law, an illegitimate child belongs to neither of his parents. But for the proper nourishment and support, he will be in the charge of his mother until he attains the age of seven years. After this age, he can decide that with whom he wants to live. Moreover, he can decide to live apart from them.