Introduction
Custody of children, especially in the event of divorce or separation, is one of the most emotionally sensitive and legally intricate matters in personal law. In Islamic jurisprudence, this concept is known as Hizanat, which refers to the right of physical custody and care of minor children. While traditional Muslim law accords this right primarily to the mother during early childhood, the ultimate objective across all schools of thought remains the same — the welfare of the child.
In modern India, courts no longer adhere strictly to classical interpretations. Instead, they weigh the broader concerns of child welfare, psychological stability, and constitutional values like equality and dignity. This blog delves into the foundations of Hizanat under Islamic law, its evolution through Indian case law, and the modern-day application of child custody principles in Muslim families.
🔗 Also read: Right of Children to Maintenance under Muslim Law
Concept and Origin of Hizanat
The term Hizanat originates from the Arabic root word “Hadanah” meaning “to embrace,” signifying the maternal care and nurturing essential in a child’s early life. In Islamic law, it refers to the right of a woman (typically the mother or maternal relatives) to keep the minor child in her custody.
Importantly, Hizanat pertains only to physical custody and not legal guardianship (Wilayat), which includes decisions about the child’s education, property, or marriage. That remains typically with the father or paternal male relatives unless the court rules otherwise.
The Prophet Muhammad (PBUH) once ruled in a matter where a mother approached him during a dispute over her child:
“You have more right to him so long as you do not marry.”
(Sunan Abu Dawood)
This Hadith forms the traditional basis for granting custody to the mother, especially when she is unmarried and morally upright.
Duration of Custody in Islamic Jurisprudence
Under traditional Muslim law, the duration for which the mother retains custody depends on the gender of the child and the particular school of thought:
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Hanafi School (widely followed in India):
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Boy: Up to 7 years
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Girl: Until puberty
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Shia (Ithna Ashari) School:
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Boy: Up to 2 years
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Girl: Up to 7 years
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Maliki School:
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Both boy and girl: Until puberty or even later if the mother is deemed fit
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However, these are guidelines rather than rigid rules. The underlying principle remains that the mother’s custody is valid as long as it is in the best interest of the child.
Indian courts have consistently reiterated that these personal law rules cannot override the paramount concern of child welfare.
Mother’s Right and Its Limitations
Although the mother is generally considered the first natural custodian of minor children, certain conditions may lead to the forfeiture of this right:
- Remarriage to a non-mahram (stranger) of the child
- Immoral or questionable character
- Neglect or inability to care for the child
However, Indian courts have moved away from strictly enforcing such disqualifications. In Zohra Khatoon v. Mohd. Ibrahim, the court held that remarriage alone does not disqualify the mother, unless it's proven that the new household environment is harmful to the child.
In Rukhsana v. Bashir Ahmad (1981), the Jammu & Kashmir High Court upheld the mother's custody even after the traditional age limit because the child's welfare was better served with her.
Father’s Role and Custodial Rights
In Islamic law, the father is recognized as the natural guardian (Wali), which means he makes legal decisions about the child's upbringing, education, marriage, and property. His custodial rights, however, are secondary to the mother during early childhood.
Once the period of maternal Hizanat ends, the father typically becomes eligible for custody. Yet, this is not an automatic transition. Indian courts assess:
- Emotional stability and environment at the father’s home
- His relationship and bond with the child
- Educational continuity and financial support
In Imambandi v. Mutsaddi (1918), the Privy Council clarified the difference between:
- Custody (Hizanat) — Right of physical upbringing
- Guardianship (Wilayat) — Legal and property rights
Thus, while fathers retain guardianship, they don’t automatically gain physical custody unless it serves the child’s welfare.
Modern Judicial Approach: Child Welfare Is Supreme
Indian courts have made it unequivocally clear that the welfare of the child is the guiding principle in all custody disputes — irrespective of religious law.
In Githa Hariharan v. Reserve Bank of India (1999), the Supreme Court held that both parents can be natural guardians, reinforcing the position of mothers as equally responsible decision-makers.
The principle of “Parens Patriae” — where the state assumes the role of a parent — is also applied by courts to ensure that children's rights are protected when parental decisions or religious practices conflict with their well-being.
Indian courts consider:
- The child’s emotional attachment
- Educational needs and environment
- Financial stability
- Health and mental welfare
- Wishes of the child (if mature enough)
Custody after Divorce or Separation
After a divorce, determining child custody becomes a contentious issue. Muslim personal law lacks codified rules for joint custody or shared parenting, but Indian courts have stepped in to create equitable arrangements.
Courts now offer:
- Sole custody with visitation rights to the non-custodial parent
- Joint custody where both parents share physical and legal responsibilities
- Supervised custody in high-conflict cases
In Shabana Bano v. Imran Khan, the court ruled that even if the mother has custody, the father’s duty to maintain the child continues.
🔗 Also read: Maintenance of Divorced Muslim Women: Shah Bano Case to Muslim Women Act, 1986
Maintenance and Custody: A Legal Relationship
Custody and maintenance are legally distinct. Even if the father is not the custodial parent, he is obligated under Muslim law and Section 125 CrPC to financially support his children.
In Iqbal Bano v. State of UP, the court held that the father cannot escape his obligation to maintain children under the care of the mother. The mother can claim maintenance for herself (if divorced) and for her minor children in a single petition.
🔗 Also read: Right of Children to Maintenance under Muslim Law
Guardians and Wards Act, 1890: Secular Legal Safeguard
When religious laws fail to protect the best interests of the child, the Guardians and Wards Act, 1890 becomes applicable. It is a secular law that applies to all Indians regardless of religion and empowers courts to appoint guardians when necessary.
Under Section 17 of the Act, the welfare of the minor is the decisive factor. The court is empowered to override any personal law or custom if it does not serve the child’s well-being.
The Act also allows courts to:
- Determine who should be the guardian
- Revoke custody based on misconduct
- Set terms for visitation and relocation
The Changing Face of Hizanat in India
India’s interpretation of Muslim custody law has steadily shifted towards a child-centric and rights-based framework. While classical Islamic rules form the foundation, Indian courts now rely on constitutional values of equality, dignity, and the right to life under Article 21.
Modern rulings have:
- Upheld custody with mothers post age limits
- Nullified disqualification solely due to remarriage
- Prioritized child’s emotional needs over financial considerations
- Promoted shared custody and co-parenting
This evolving jurisprudence reflects a conscious move toward progressive, compassionate, and practical justice.
Conclusion
The principle of Hizanat in Muslim law has its roots in compassion, care, and maternal affection. However, in the Indian context, its application has been shaped by secular principles and constitutional mandates. Custody is no longer about strict age rules or parental privilege — it is about the child’s right to love, security, education, and growth.
In balancing personal law with the Indian legal framework, courts have ensured that children are placed at the center of all decisions. Hizanat has thus become a legal mechanism not just of custody but of child protection and empowerment.
To understand how children inherit from their family under Muslim law, read our next blog here.
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