This article has been written by Ms. Mahek Choudhury, a 3rd year student at South Calcutta Law College, Calcutta University.

ABSTRACT 

When a matter is brought to trial, particularly relating to custody, litigants often try to argue for the rights of their client. But often, in such cases, especially, in Islamic law such rights are given to a female caretaker i.e., the mother of the child, and in the absence of the mother, the right is given to the father but the primary right remains with the mother. 

Using the doctrinal research method, the author delves into the aspect of child custody under Islamic law, the legal standpoint of Islamic law concerning custody, discusses various provisions, and case laws and finally gives an opinion on the same. The author also examines the role of women in Islamic institutions of custody. A custody battle is a sensitive issue, it has to be dealt with with patience and kindness and doing what is best for the child. 

• INTRODUCTION 

In family law courts, the phrase “child custody” designates a kid under the age of 18’s legal guardianship. Child custody is frequently a problem that the court has to decide during divorce or marital annulment procedures. Most of the time, one parent receives physical custody of the children while the other parent still shares legal custody. Family law courts often consider the best interests of the kid or children when making judgments, rather than just weighing the strengths of each parent’s case.

Generally speaking, the parent with the most financial stability, the best parenting abilities, and the least amount of disturbance to the kid gets physical child custody from the court. Until the youngster reaches the age of 18 or is granted formal emancipation, both parents are still granted joint custody of them. Legal custody gives either parent the authority to decide on everything about the child’s well-being, including insurance claims, medical procedures, and religious beliefs. Physical child custody designates that one parent is principally in charge of providing the kid with shelter, food, and educational necessities. The non-custodial parent often retains visiting privileges. Numerous Indian faiths have their own set of rules and have distinct ideas on child custody.

• CUSTODY OF CHILDREN UNDER MUSLIM LAW 

According to Lisan Al-Arab the verb “Hadana”, when used literally, means to take someone by the arm, to embrace, or to hug; nevertheless, it may also signify to nurse, raise, or carry a kid. “The office, or occupation, of carrying and rearing or fostering a child” is another definition that has been added. “Kafalah”, which also refers to raising and taking care of a kid, is another name for “Hadanah”. Hadanah is more closely associated with the emotional nurturing and caring of the child.

The mother has the primary right to child custody, which cannot be taken away from her as long as she is not proven to have committed any wrongdoing. As long as she is not disqualified, the mother is entitled to custody. This is called the “right of hazmat,” and it is enforceable against the father as well as everyone else. The mother’s right to hizanat was only acknowledged for the benefit of her children; it is not an unqualified right. 

In most cases, there is a distinction made between the custody of a son and a daughter in cases of divorce. Although the main custodial rights rest with the mother, after the son attains the age of puberty, such rights are transferred to the father. 

SON- It is a well-established custom among the Hanafis that a mother’s privilege of hizanat over her kid ends when the boy reaches the age of seven. According to the Shias, a woman has the right to custody of her kid until he is weaned. In the Maliki community, a mother’s hizanat over her son lasts until the youngster reaches puberty. The Shafiis and Hanabalis still follow the same rules. 

DAUGHTER- Mothers of Hanafis are entitled to custody of their daughters until they reach puberty, whereas mothers of Malilikis, Shafiis, and Hanabalis are entitled to custody of their daughters until they get married. The mother is entitled to custody of her daughters until they become seven years old, according to Ithna Ashari law. Regardless of whether the kid is genuine or illegitimate, the mother is entitled to custody of them until the ages listed in each school. No one, not even the child’s father, or her husband, can take away a mother’s rights. According to the Shia school, the father owns the hizanat after the mother. Grandfather has the right to custody if both parents are absent or if they are not eligible. The following female Malikis are eligible for custody if their mother is absent:

1. Maternal grandmother
2. Maternal great grandmother
3. Maternal aunt and great aunt
4. Full sister
5. Uterine sister
6. Consanguine sister
7. Paternal aunt

So, from the above, we have seen that the main right of custody is vested in the mother for the best interests of the child. However, certain rights are also granted to the father. 

All schools of Muslim law acknowledge a father’s right to hizanat, subject to two requirements:

• The kid must complete the age at which the mother or other females are entitled to custody; otherwise, the father may not use his right.
• Father has the authority to name a testamentary guardian and provide him custody of his children if the mother or other female relatives who are entitled to hizanat of minor children are not present. Additional men who are eligible for hizanat are: 

1. Nearest paternal grandfather
2. Full brother
3. Consanguine brother
4. Full brother’s son
5. Consanguine brother’s father
6. Full brother of the father
7. Consanguine brother of the father
8. Father’s full brother’s son
9. Father’s consanguine brother’s son

Among the Shias, hizanat belongs to the grandfather in the absence of the father.”

• CONDITIONS FOR CUSTODY AND GUARDIANSHIP 

When we talk about the right to take care of a child, certain conditions need to be fulfilled before the court entrusts the guardian with the care of the child. The court will not grant custody to any person even if competent, but not in the best interest of the child. 

1. Capacity of the guardian– The caretaker must be mentally competent and, according to certain jurists, have achieved puberty and maturity to be granted custody. The caretaker needs to be sane as well otherwise; they would need care from others. A person who is insane but whose madness is cyclical and only lasts a short while (like one day a year) would not be excluded.
2. Dependability– To be qualified for custody, the custodian needs to adhere to a reasonable moral norm. If an individual commits one or more major transgressions or persists in committing minor transgressions, they will not be eligible for custody (such as consuming alcohol, committing adultery, or failing to deliver the appropriate prayers). Given that the kid may, and often will, follow the lifestyle of the person granted custody, this provision may be an attempt to guarantee that the person receiving custody is someone of high morality and character. Therefore, for the child’s well-being, the child should be with someone of excellent character.
3. Muslim– Muslim jurists believe that a non-Muslim cannot take up the custody of a Muslim child. They disprove the possibility of non-Muslims having any influence over Muslims. Here, there’s a chance that the child reared under a non-Muslim’s hadanah will take up their lifestyle
4. Limitations on Marriage– A requirement that a female caretaker must follow is that she cannot be married while she is responsible for the child. If she marries during this period, she will no longer be eligible, regardless of whether the kid in her care is a male or a girl.

1.5 CASE ANALYSIS 

If we take a closer look at the cases below, we find that in almost all the cases the court has placed reliance on the custody of the mother rather than the father for the best interests of the child but that however, does not imply that a father cannot or is not competent to take care of the child. 

In the case of Akbal Ahamd vs Jamila Khatoon And Another, it was held by the Allahabad High Court that the mother’s custody of the children will best suit their interests and wellbeing. The court opined that interfering with a male child’s custody is undesirable. It is also preferable that the mother of the girl be granted custody of her. As a result, the lower court’s decision to provide the mother exclusive custody of the girl until the girl reaches adulthood and to retain sole custody of the boy ought to stand.

In Smt. Farzanabai v. Ayub Dadamiya; the Bombay High Court held that the father is the primary guardian of a child; the mother has the pre-emptive right to prevent the father from participating in some aspects of the guardianship, such as the child’s physical rearing and custody, for a length of time specified by law. Consequently, it might be argued that a woman has a temporary right of custody because no one else is capable of caring for and nursing a kid during the early stages of life to save the mother. However, as the kid’s legal guardian, the father has the authority to supervise her custody of the child and must provide for the child’s upbringing. 

Furthermore, in the case of Farah Khan vs State Gnct Of Delhi And Ors 2022, the same decision was made. The court opined that in the paramount welfare of the child, the custody should rest with the other of the child. 

Therefore, from the cases analyzed, we can conclude that courts have often given custody preference to the mother of the child since the court believes they are more equipped to deal with nursing and care of the child. 

CONCLUSION 

A child needs someone to take care of his/her requirements. The custody rules of granting custody to the other are not derived from any divine law but are instead based on assumptions that naturally a mother would be a better caretaker of the child. This is not just the ideology of Islamic law. Often, in cases of custody of other religions as well, reliance is placed on the maintaining capacity of the mother even if the father earns more. 

The person who is entitled to the child’s hadanah is not as significant as the laws of custody. Secondary indicators such as the child’s direct birth link, inheritance order of priority, and close kinship have also been used. The views of a child who has reached the age of discernment are one of the variables that might be considered. To guarantee the most efficient performance of the hadanah office’s obligations, the caretakers must fulfill specific qualifications and possess attributes, including complete legal ability, sound physical health, and admirable moral values and character.

 For the best interests of the child, it is always necessary to reach to an agreement. When we talk about mental health impacts, we also need to look into the child’s well-being to avoid developmental risks to the child. Parents, in cases of brutal custody battles, need to ensure that the child’s mental health comes first. A child should never be on the receiving side of it without any fault of their own. 

REFERENCES

ARTICLES 

1. Hans Wehr, ibid., p. 185; see also Al-Jarjani, Ali bin Muhammad, Kitab al-Tarthat, Dar al-Kutubal-‘IlIIiiyy, Beirut, 1995, p.88
2.  Lane, E.W, Arabic-English Lexicon, Vol. 1, The Islamic Texts Society, Cambridge, England)1984, p.591
3. This article was originally written by Zahraa, M., & Malek, and published in Arab Law Quarterly. The link for the  same is herein-  http://www.jstor.org/stable/3381578 
4. This article was originally written by Mohit Agrawal & Romit Agrawal, and published on Legal Service India. The link for the same is herein- https://www.legalserviceindia.com/article/l34-Custody-Laws.html
5. This article was originally written by Yash Jha, and published on The Amikus Qriae. The link for the same is herein- https://theamikusqriae.com/an-overview-of-custody-under-islamic-law/

CASE LAWS 

1. Akbal Ahamd vs Jamila Khatoon And Another, FIRST APPEAL DEFECTIVE No. – 27 of 2016. 
2. Smt. Farzanabai v. Ayub Dadamiya, AIR 1989 Bom. 357
3. Farah Khan vs State Gnct Of Delhi And Ors 2022, W.P.(CRL) 2285/2022, CRL.M.A. 19906/2022 (Exemption) & CRL.M.A. 20058/2022 (Stay)