Guardianship of Person (Hizanat)
Definition and Importance of Hizanat
Hizanat refers to the custody of a minor child under Muslim personal law. It is a right of the child rather than of the parents, meant to ensure the child’s wellbeing and proper upbringing during formative years.
Custody is primarily concerned with the care and physical possession of the child, distinct from legal guardianship, which includes control over the child’s property and education.
Purpose:
- To protect the interests of the minor
- To ensure proper physical and moral upbringing
- To provide emotional and psychological security
Rules of Custody under Sunni Law
Maternal line priority
Under Sunni law, priority of custody (Hizanat) is given to the mother, and in her absence or disqualification, it passes to other female relatives in a specific order:
| Order of Preference | Eligible Relative |
|---|---|
| 1 | Mother |
| 2 | Maternal grandmother (mother’s side) |
| 3 | Paternal grandmother (father’s side) |
| 4 | Full sister |
| 5 | Maternal aunt |
| 6 | Paternal aunt |
Father's ultimate right
The father is the natural guardian and holds ultimate authority over the education, religion, and property of the child. However, his right to physical custody arises only:
- After the expiry of the mother's custodial period
- If the mother is found unfit (e.g., remarriage to a stranger, immoral conduct)
Age Limits for Custody:
- Boy: Mother has custody until 7 years of age
- Girl: Mother has custody until puberty
Example: Can a divorced Sunni mother retain custody of her 6-year-old son?
Answer:
Yes, under Sunni law, she retains custody of her minor son until he turns 7, unless she forfeits the right through remarriage or misconduct.
Rules of Custody under Shia Law
Paternal line priority
In contrast to Sunni law, Shia law gives greater weight to the paternal line in matters of custody once the mother’s limited custodial right ends.
Mother's right up to a certain age
Under Shia (Ithna Ashari) law, the mother has custody:
- Of a boy child until he attains the age of 2 years
- Of a girl child until she reaches the age of 7 years
After this period, the father takes over custody unless proven unfit. However, courts often override classical rules in favor of the best interests of the child.
Example: In Shia law, who gets custody of a 5-year-old boy after divorce?
Answer:
Since the boy has crossed 2 years, the father becomes entitled to custody under Shia law. However, courts may grant custody to the mother if it is in the best interest of the child.
Guardian of Property
Who is the Guardian of Property?
Father, Executor, Administrator appointed by Court, Natural Guardian
A Guardian of Property is a person legally empowered to manage and administer the movable and immovable property of a minor. Since a minor (below 18 years) is legally incompetent to manage property, a guardian steps in to perform that function.
Under Muslim Law, the following persons may act as guardians of property:
| Type of Guardian | Details |
|---|---|
| Father | Recognized as the primary and natural guardian of the minor’s property. |
| Executor | An individual appointed by the father (via will) to act as guardian after his death. |
| Administrator appointed by Court | If there is no natural guardian or executor, the court can appoint a guardian under the Guardian and Wards Act, 1890. |
| Natural Guardian (in default of others) | In the absence of father or executor, the grandfather may act as guardian, followed by other relatives. |
Note: The mother is not recognized as a guardian of property under traditional Muslim law but may be appointed by court in special circumstances.
Example: Can a mother sell the immovable property of her minor child under Muslim law?
Answer:
Not unless she has been appointed by the court. Under classical Muslim law, the mother is not a guardian of property. A court-appointed guardian would be required to do so lawfully.
Powers and Duties of Guardian of Property
Management of minor's property
The guardian is expected to manage the minor’s property prudently and in the best interest of the minor. His powers are not absolute and are subject to legal checks and balances.
- Collecting rents and income
- Paying taxes and necessary expenses
- Maintaining and protecting the property
- Managing investments and legal obligations
Restrictions on sale or mortgage of property
Muslim law imposes strict limitations on the powers of guardians when it comes to alienation (sale, gift, mortgage) of the minor’s immovable property.
A guardian cannot sell or mortgage the minor's property unless:
- There is urgent necessity
- It is for the benefit of the estate
- It is to pay off the minor’s debts
- With prior approval of the Court (in case of court-appointed guardian)
If a guardian sells property without justification, the sale can be challenged and declared voidable at the option of the minor after attaining majority.
Example: Can a father sell his minor son's house for marriage expenses of his daughter?
Answer:
No, such a sale is not considered legal necessity under Muslim law. The sale would be voidable by the minor after majority.