Final Draft
Family Law-1
Topic- Muslim Law on Custody and Guardianship
Submitted By:-
Jayant Kumar
Semester 4th
Astt. Professor
Section:- B
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
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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
20
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.)
2.)
3.)
where there are debts of the deceased and there is no other way
of paying them
4.)
5.)
6.)
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
10
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
11
12
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
13
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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