The Fatwai Alamgiri puts it thus: “The mother is of all persons the best entitled to the custody of her infant children during connubial relationship as well as after its dissolution”. The term hizanat is applied to the woman to whom belongs the right of rearing up a child.
Of all the persons, the first and foremost right to have the custody of children belongs to the mother, and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody and care of children during the period laid down in Muslim Law, so long as she is not disqualified from retaining them. The mother’s right of hizanat is recognised in the sense that it can be enforced against the father or any other person, but it is a right to which obligations, are attached. The mother’s right of hizanat is solely recognized in the interest of children, and, in no sense, it is an absolute right; she cannot exercise it the way she likes to exercise it.
Mother’s right of hizanat is, in fact, a right of rearing up of children. If she is not found suitable to bring up the child, or her custody is not conducive to the physical, moral and intellectual welfare of the child, she can be deprived of it. Since Muslim law considers the right of hizanat as no more than the right of rearing of the children; it terminates at an early age of the child.
In this regard Muslim law makes a distinction between the son and the daughter.
According to the Fatwai Alamgiri, the mother is entiUed to the custody of a boy until he is independent of her care, that is, until he is seven years old. Among the Hanafis, it is an established rule that the mother’s right of hizanat over her son terminates on the latter’s completing the age of seven years. The Shias hold the view that the mother is entitled to the custody of her son until he is weaned. (This is considered to be the completion of two years), and that during this period the mother cannot be deprived of the custody of her son under any circumstances whatever, except with her own consent.
On the completion of the age of two by the son, the mother’s right of custody terminates. According to the Malikis, the mother’s right of hizanat over her son continues till the child attains puberty. The rule among the Shaffls and the Hanbalis is the same as among the Hanafis. But these schools hold the view that on completion of the age of seven years, the child is given a choice of living with either parent.
But in every case, the father is entitled to the custody of his son when it attains puberty.
Among the Hanafis, the mother is entitled to the custody of daughters till they attain the age of puberty. Among the Malikis, the Shafis and the Hanbalis, the mother’s right of custody over her daughters continues till they are married. On the other hand, under the Ithana Ashari law, the mother is entitled to the custody of her daughters till they attain the age of seven. In all the schools of Muslim law, the mother has the right to the custody of her married daughter below the age of puberty in preference to the husband.
The mother has the right of custody of her children upto the ages specified in each school, irrespetive of the fact whether the child is legitimate or illegitimate. Since the right of hizanat of the mother is a right of rearing up of children given to her in the interest of children, she cannot surrender her right to any person, including her husband, the father of the child. For instance, if she obtains khula from her husband on the stipulation that she would surrender her right of hizanat to the father of the child, the khula will be valid and the stipulation will be void. Further, the mother cannot be deprived of her right of hizanat on the ground of her properly; it is for the father of the child to provide her with sufficient funds for the maintenance of the child.
Other Females who are entitled to hizanat:
Among the Hanafis, the following females are, after the mother, entitled to hizanat of the minor children of the age upto which the mother is entitled to it (the list is as given by Mulla): (a) Mother’s mother, how high soever, (b) Father’s mother, how high soever, (c) Full sister, (d) Uterine sister, (e) Consanguine sister, (f) Full sister’s daughter, (g) Uterine sister’s daughter, (h) Consanguine sister’s daughter, (i) Maternal aunts, in like order as sisters, and (j) Paternal aunts, in like order as sisters. Tayabji and Ameer Ali give a different list. The rule is that among the females, the nearer excludes the remoter.
Under the Shia school, after the mother the hizanat belongs to the father. In the absence of both the parents, or on their being disqualified, the grandfather is entitled to the custody. Authorities are not clear as to who is entitled to the custody after the grandfather. Some Shia authorities have laid down certain rules of preference on the basis of which the text book writers have compiled a list of persons who are entitled to the custody of minor children, in the absence of the grandfather. Ameer Ali holds the view that after the grandfather, hizanat belongs to the grandmother, after her it belongs to the ascendants, then to collaterals within the prohibited degrees, the nearer excluding the remoter. Among the Malikis, the following females are entitled to the custody of minor in the absence of the mother: (a) the maternal grandmother, (b) the maternal great grand-mother, (c) the maternal aunt and grand-aunt, (d) the full sister, (e) the uterine sister, (f) the consanguine sister, and (g) the paternal aunt.