All the schools of Muslim law recognize the right of the father to the custody of his minor children in the following two cases: (i) on the completion of the age by the child upto which mother or other females are entitled to its custody, and (ii) in the absence of the mother or other females who have the right to hizanat of minor children. The father cannot be deprived of the right of hizanat of his male child of seven years if he is not found to be unfit.
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The father’s right of hizanat continues till the child attains puberty. It appears that among the Shaffis and the Hanbalis, the father is entitled to the custody of his female children till they are married.
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Whether or not the father can deprive the mother, or any other female entitled to the custody of a child by appointing a guardian by his Will, is not free from doubt. In Baillie’s Digest it is stated that the father has the power to entrust the custody of his children to the executor appointed by his Will.
On the other hand, the courts have taken the view that father has no power to deprive the mother or any other female relation from hizanat of the child upto the age to which she is entitled to the custody. In our submission, the father, undoubtedly, has the power of appointing a testamentary guardian and entrusting him with the custody of his children, but the mother or other females will be entitled to the custody of the children upto the specified ages. The testamentary guardian will be entitled to the custody of the minor children only in those cases where the father is entitled to it.
Other male relations entitled to hizanat:
In the absence of the father in both the aforesaid cases, the following persons are, according to the Hanafis, entitled to the custody of children:
(i) Nearest paternal grandfather,
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(ii) Full brother,
(iii) Consanguine brother,
(iv) Full brother’s son,
(v) Consanguine brother’s father,
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(vi) Full brother of the father,
(vii) Consanguine brother of the father,
(viii) Father’s brother’s son, and
(ix) Father’s consanguine brother’s son.
Among the above, the rule is that the nearest excludes the remoter. Among the Shias, hizanat belongs, in the absence of the father, to the grandfather. As to who is entitled to hizanat after the grandfather, the Shia authorities are not clear.
In no case a person not related to the child within the prohibited degrees is entitled to the custody. Among the Malikis the persons entitled to the custody after the father are the father’s executor, the father’s son, the father’s nephew, the father’s uncle, and the father’s cousin.2
In Athar Hussain v. Syed Siraj Ahmed, it has been held that in case of custody of minor, if personal law overrides statute the personal law would have to yield to the yardstick of welfare of minor paramount consideration principle.