Guardianship and custody (hizanat) under Muslim law - Family Law II - Mohammedan Law

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1. Custody (hizanat): the mother's right
2. Who takes custody after the mother
3. Loss of the right of hizanat
4. Guardianship of the person
5. Guardianship of property: the legal guardians
6. De facto guardians
7. Guardians appointed by the court: the Guardians and Wards Act, 1890
8. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Three kinds of guardianship. Muslim law separates guardianship of the person (with custody, or hizanat, as its most important part), guardianship of property, and guardianship in marriage (jabr, now largely displaced by the Prohibition of Child Marriage Act, 2006). The mother has the first claim to custody; she has no claim at all, as of right, to guardianship of property. Most exam answers turn on that contrast.

1. Custody (hizanat): the mother's right

The mother is entitled to the custody of her minor children, whether or not the marriage subsists, until the child reaches a certain age. The right belongs to her for the child's benefit, and she cannot be deprived of it except for misconduct. Even the father cannot take the child from her during that period.

Hanafi law. Custody of a son until he completes seven years; of a daughter until she attains puberty.
Maliki law. A son until puberty; a daughter until her marriage.
Shafi and Hanbali law. Until seven years for both, after which the child may choose.
Shia (Ithna Ashari) law. A son until he is weaned, that is, two years; a daughter until seven years.

After these ages custody passes to the father, who as natural guardian is entitled to the person of the child.

2. Who takes custody after the mother

In the absence or disqualification of the mother, Hanafi law gives custody to female relations in this order: mother's mother (how high soever), father's mother (how high soever), full sister, uterine sister, consanguine sister, and then aunts. Failing all females, custody goes to the father, then the paternal grandfather and other paternal male relations within prohibited degrees. Under Shia law the father comes immediately after the mother.

3. Loss of the right of hizanat

A woman entitled to custody loses it:

if she marries a person not related to the child within prohibited degrees (marriage to a near relation of the child, such as the paternal uncle, does not disqualify her);
if she leads an immoral life, for example as a prostitute;
if she neglects the child or is otherwise unfit to take care of it;
if, during the marriage, she goes to reside at a distance from the father's residence so that he cannot exercise supervision;
under the old texts, if she ceases to be a Muslim (apostasy). Courts now give weight mainly to the welfare of the child on this point.

Once the disqualification is removed (for example, the second marriage ends), the right may revive.

4. Guardianship of the person

The father is the natural guardian of the person of his minor children. He remains guardian even while the mother has custody; she has the physical care, and he retains the right of supervision and control and the duty to maintain. After the father, the father's executor, and under Hanafi law the paternal grandfather, may act. The mother is not a natural guardian of the person under classical law, though the court may appoint her.

5. Guardianship of property: the legal guardians

This is the January 2026 short note (“Legal guardians”). Under Sunni (Hanafi) law the following, in this order, are legal (de jure) guardians of a minor's property:

the father;
the executor appointed by the father's will;
the father's father (paternal grandfather);
the executor appointed by the paternal grandfather's will.

Under Shia law the father comes first, then the paternal grandfather, then the executor of whichever of them died last. No other relation, not even the mother or brother, is a legal guardian of property. The mother may, however, be appointed executrix by the father, or appointed guardian by the court.

Powers of the legal guardian. He may sell or pledge the minor's movables for the minor's necessities. He cannot sell immovable property except in the cases recognised by the texts, such as where a buyer offers double its value, where the minor has no other means of support, where there are debts of the deceased or legacies that cannot otherwise be paid, where expenses exceed the income from the property, where the property is falling into decay, or where it is in danger of being usurped. The father has somewhat wider latitude than other guardians, but the transaction must always be for the benefit of the minor.

6. De facto guardians

A de facto guardian is a person who, without legal authority, has voluntarily taken charge of the minor and his property, such as the mother, a brother or an uncle. In Imambandi v. Mutsaddi (1918), the Privy Council held that a de facto guardian under Muslim law has no power to alienate the minor's immovable property, and that such a transfer is void, not merely voidable. He may deal with movables for the minor's necessities and manage the property, and he is accountable as a trustee.

7. Guardians appointed by the court: the Guardians and Wards Act, 1890

Where there is no legal guardian, or the father is unfit, the court may appoint a guardian of the person or property under the Guardians and Wards Act, 1890, which applies to all communities.

Section 7 empowers the court to appoint or declare a guardian where it is satisfied that this is for the welfare of the minor.
Section 17 requires the court to be guided by what appears to be for the welfare of the minor, consistently with the law to which the minor is subject. The age, sex and religion of the minor, the character of the proposed guardian, his nearness of kin, and the wishes of the parent are relevant; the minor's own preference may be considered if he is old enough.
Section 19 bars the court from appointing a guardian of the person of a minor whose father is living and, in the court's opinion, not unfit.
Section 29 forbids a court-appointed guardian of property from mortgaging, charging, selling, gifting or exchanging the minor's immovable property, or leasing it for more than five years or beyond a year after majority, without the court's previous permission.

The personal law rules on hizanat are applied through section 17, but the welfare of the child controls. Courts have therefore left a child with the mother after the Hanafi age limits, or refused custody to a father, where welfare required it.

Trap. Do not list the mother as a legal guardian of property. She is first in line for custody, but for property she is at most a de facto guardian, an executrix or a court-appointed guardian. Writing “father, mother, grandfather” is a common error that costs marks.

8. Problem

After her husband's death, Zubeida sells a house belonging to her eight-year-old son to pay for his school fees. The husband left no will and his father is alive. Is the sale valid?

Issue. Whether a mother, who is not a legal guardian of property, can sell her minor son's immovable property.

Law. The legal guardians of property are the father, his executor, the paternal grandfather and his executor. A de facto guardian cannot alienate immovable property (Imambandi v. Mutsaddi). A court-appointed guardian needs the court's permission (section 29, Guardians and Wards Act).

Application. With no executor, the paternal grandfather is the legal guardian. Zubeida is at most a de facto guardian and was not appointed by the court.

Conclusion. The sale is void. Zubeida should apply to the court to be appointed guardian and obtain permission under section 29, or the grandfather, as legal guardian, may sell if one of the recognised grounds of necessity exists.

How this is examined

The January 2026 paper set “Legal guardians” as a short note: list the four Hanafi guardians in order, the Shia order, their limited power over immovables, and the contrast with the de facto guardian (Imambandi). A 10-mark essay on “Hizanat” or “Guardianship under Muslim law” covers the mother's right and its ages, the order after her, loss of the right, and the welfare rule under section 17 of the Guardians and Wards Act.