Islamic law distinguishes between guardianship (wildya) and the custody of minor children (hadana).
Having regard to the interest of the minor, who needs the proximity of a woman, it lays down that the mother has the best title to hadana, provided that she meets the conditions of eligibility to this task, viz., that she is adult, of sound mind, honest, responsible and capable of seeing to the minor’s education and well-being and is not an apostate (murtadda).
ADVERTISEMENTS:
The mother’s right is independent of the legal relationship between the parents; it does not lapse on her divorce. But if after her divorce she marries a stranger, i.e. a man not a mahram (a kinsman of the child within the forbidden degrees), she is denied the right to hadana so long as the marriage exists.
Where there is not a mother or where the mother is denied the right to hadana for any reason, that right passes to the maternal grandmother and to other female cognitive relatives in the order of degrees of kinship and then to female agentive relatives in the same order: only in the absence of eligible women does the right pass to the father and then to male agnatic relatives (‘asabat) entitled to succession, again in the order of degrees of kinship.
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The period of hadana ends when the child is seven in the case of a son or nine in the case of a daughter, whereupon the child passes into the charge of the father. The custody of the children in no way affects the father’s natural guardianship over their persons. He owes them maintenance during the hadana period.
The Women’s Equal Rights Law, which grants the mother the status of a natural guardian of the children, does not refer expressly to custody, but although Section I provides that “a man and a woman shall have equal status with regard to any legal act,” the mother’s precedence over the father in the matter of custody remains unimpaired owing to Section 6, which provides that “this law shall not derogate from any provision of law protecting women as women.”
ADVERTISEMENTS:
The Capacity and Guardianship Law, 5722-1962 expressly includes the right to the custody of the children in the guardianship of the parents (Section 15); but again, equality in this sphere between father and mother does not do away with the mother’s precedence as to custody, although it introduces certain deviations from shar’i law.
The law provides that where the parents of a minor live separately for any reason they may, with the approval of the court, agree between themselves which of them is to have custody of the minor, and in the absence of such an agreement or if the agreement is not carried out, the court may determine matters of custody at its discretion, having regard to the interest of the minor, “provided that children up to the age of six shall be with their mother unless there are special reasons for directing otherwise” (Section 25).
In other words, the hadana period has been shortened and like treatment has been prescribed for sons and daughters.