Just as under the personal law of any other community, so also under Muslim law in determining all questions relating to minor children, including custody, the welfare of the child is the paramount consideration.
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In Sodamat Ali v. Majjo Begum, the Allahabad High Court observed that under the personal law if mother is entitled to custody of a minor she should normally get, but the court should also consider whether in so doing it would be for the welfare of the minor.
ADVERTISEMENTS:
If evidence shows that she would not be a fit person to have the custody or that it would not be in the welfare of the child to give her custody, the court should not give effect to the personal law, but should be guided by the paramount consideration of the welfare of the child.
Prophet Mohammed enjoined upon a person to maintain his children. The Fatwai Kazi Khan holds that a poor person shall not be compelled to maintain other than four classes of persons, his minor children, his daughters who have attained puberty, whether unmarried or thayyiba, wife and slaves.
The primary obligation of maintaining children rests on the father. According to the Hedaya, The maintenance of minor children rests on their father, and no person can be an associate or partner in furnishing it”.
In Muslim law a person has no obligation to maintain his illegitimate children. The Hanafis recognize the nurture in respect of illegitimate children upto the age of seven. No school of Muslim law recognizes any obligation whatever of maintaining illegitimate children on either of the parents. The father’s obligation to maintain his illegitimate children exists under S. 125, Criminal Procedure Code, 1973.