The right to a child’s custody is given solely to a mother till she is as fit guardian under Muslim personal law, this is called the power of Hizanat also it can be enforced against any person including the father.
One thing that must be taken under consideration is that the mother’s right to child custody is not absolute and exists only if such power is in the interest and benefit of her children. Thus, the welfare of the children is at the forefront of Muslim law. The first and foremost right to have the custody of children belongs to the mother, and she cannot be deprived of her liberty so long as she is not found guilty of misconduct. Mother has the right to custody so long as she is qualified. This right is known as the right of Hizanat, and it can carry out against the father or any other person. The mother's power of Hizanat was recognised in the interest of the children and no sense; it is an absolute right.''
Son: Among the Hanafis, it is an established rule that the mother's right of Hizanat over her son ends following her son completes the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son untill he is accustom. Among the Malikis, the mother's right of Hizanat over her son continues until the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same.''
Daughter: Among the Hanafis, the mother is entitled to take custody of her daughters till the age of puberty, and among the Malikis, Shafiis and the Hanabalis the mother's right of custody over her daughters continues till they are married. Under the Ithna Ashari Law, the mother is entitled to the custody of her daughters until they attain the age of 7. The mother has the right of custody of her children up to the periods specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Mother cannot surrender her right to any person including her husband, the father of the child. Under the Shia school after the mother, Hizanat belongs to the father. In the absence of both the parents or on their not being qualified the grandfather is qualified to custody. Among the Malikis following females are allowed to take charge in the absence of mother:
- Maternal grandmother
- Maternal great grandmother
- Maternal aunt and great aunt
- Full sister
- Uterine sister
- Consanguine sister
- Paternal aunt
Father's right of Hizanat-
All the schools of Muslim law recognise the father's power of Hizanat under two conditions that are:
• On the completion of the age by the child up to which mother or other females are qualified to custody.
• In the absence of a mother or other females who have the right to Hizanat of minor children. Father undoubtedly has the powers of selecting a testamentary guardian and entrusting him with the custody of his children. Other male relations entitled to Hizanat are
- Nearest Paternal Grandfather
- Full Brother
- Consanguine Brother
- Full Brother's Son
- Consanguine Brother's Father
- Full Brother of the Father
- Consanguine Brother of the Father
- Father's Full Brother's Son
- Father's Consanguine Brother's Son
Among the Shias, Hizanat belongs to the grandfather in the absence of the father.''
The Shia law is very definite and lays down that a person who has ceased to be Muslim is not entitled to the custody of the child. Also, having who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of Hizanat. The cardinal principle of Hizanat in Muslim law is the “welfare of the child”. The rights of Hizanat cannot be taken away on account of her insufficiency or want of money to maintain the child. Also, neither the father nor the mother has the right to remove the child from the marital home.