CHILDREN
Introduction:
Guardianship is defined as the carrying of a decision affecting a third person whether the latter wishes or not. Minor children are subject to three types of guardianship:
• Custodial care (hadannah).
• Guardianship of the person (also including marriage guardianship).
• Guardianship of the property.
I.) Custodial Care:
In Islamic law, according to all schools and sects, guardianship of the person of the child belongs primarily to the father and, in the absence of the father, to the next male kinsman in the agnatic line, the first person having priority after the father being the paternal grandfather.
The mother may never be the guardian of her infant children. The right of the mother is restricted to keeping her children in her custodial care. Custody under the Sharia is defined as the caring for the infant during the period when it cannot do without the woman in a prohibited degree who have the right to bring it up.
If the mother is dead, however, or deprived of the right, there is disagreement among the schools as to who is entitled to the custody of the infant child:
• The Hanafis and Malikis hold that the hadannah is the right of females, and accordingly the right will pass to the kinswomen of the mother.
• In Shafi and Hanbali law, if mother has no surviving female ascendant, the right of custody passes to the father and in his absence to his ascendants.
• In Shia law, the mother’s right passes in all cases to the father of the child and in his absence to the paternal grandfather.
1.) Qualifications of the Custodian:
All the schools and sects are agreed that certain conditions must be fulfilled before a person is given the right of custody. Two self-evident requirements are that the custodian should be adult and of sound mind, i.e. neither insane nor feeble-minded. The person having the right to hadannah must be trustworthy. She must not pursue a life in any way immoral. Finally, the custodian of the child should physically be able to take proper care of the child. All the schools and sects are agreed that the custodian must not be married to a man who is related to the child within the prohibited degrees. During the mother’s period of custody, the overall control of the child is in the hands of the father e.g. he alone decides on the child’s education and whether the child may travel. The right of the mother is merely to keep the child in her custodial care, to have it live with her on a day-to-day basis. The mother will lose her right to custody if she attempts to take the child away from the father’s “sphere of influence”, i.e. if she removes the child to a place so distant that the father cannot visit the child on a daily basis to oversee its welfare.
If the mother of the child is a Christian or a Jew the schools are divided on whether such a non-Muslim mother may have the custody of her Muslim child:
• The Hanafis and Malikis hold that the custodian of the child need herself be Muslim. However, such a mother will lose the right to hadannah if she attempts to impose her faith upon the child.
• According to the doctrine of Shafis and Hanbalis, a non-Muslim mother may never have the custody of a Muslim child.
II.) Guardianship of the Person:
How long does the mother have the right of custody for her children?
• According to the Hanafi doctrine, the mother has the right of custody until the male children attains the age of seven years and the female child attains the age of nine years.
• In Maliki law the mother’s custodial right lasts in the case of a boy, until he attains puberty, and in the case of girls, until they are married and are able to begin married life.
• The Shafi school gives both girls and boys at seven years – the option of choosing whether to remain with the mother or to live with the father.
• In Hanbali law, this right to choose is given only to boys at seven years.
• In Ithna Ashari law, the mother's right lasts until her son is two years and her daughters seven years.
The father is the natural guardian of the child, gaining priority over the mother. However, a father may also appoint a testamentary guardian for his child, in the vent of the death of the father. But the testamentary guardian will only take over if the mother has dies or lost her legal capacity.
The guardianship of the person of the minor ends on the boy reaching puberty unless he is insane, when it will continue by the same guardian even if he is not the guardian of the property or the maintainer.
The guardianship of the person of the girl is either in respect of marriage, or in respect of care and protection. The matter form of guardianship comes to an end on the girl reaching the age at which she can fend for herself and is no longer in need of anybody to protect her from dangers that threaten her dignity and honour. Such a guardian is also deemed to terminate on marriage, with the husband providing the care and protection under the marriage relationship, rather than by way of guardianship of the person.
However, guardianship of the person shall be resumed on the occurrence of any mental defect that renders the person in question of no or of defective legal capacity.
III.) Recent Laws on Custody & Guardianship:
In Arab world, considerable changes have taken place regarding the right of hadannah. According to them, the period of custody will come to an end on the minor attaining the following ages:
• Syria: Boys 9 years and Girls 11 years.
• Tunisia: Boys 7 years and Girls 9 years.
• Jordan: Boys 9 years and Girls 11 years (If custody belongs to any other female than the mother) and in case of mother, the hadannah will continue until the children reach puberty.
• Egypt: Boys 10 years and Girls 12 years.
In South Asia, instead of altering the ages, the courts have been more concerned about what is in the best interest of the minor. The laws on custody and guardianship are governed by the Guardians & Wards Act 1890. In the Indian case of “Muhammad Shafi v. Shamim Banoo”, a marriage broke up and the wife sought the return of her two children under the Guardians & Wards Act. It was held that even during the marriage the custody of the minor children is with the wife. Thus, the custody of the children was granted to the mother.
In Pakistan, classical law rules have not been where they seem not to operate in the best interests of the minor concerned. In “Niaz Bi v. Fazal Ilahi”, the judge reluctantly gave custody of minor children to the father because of the mother’s poor health.
Also in
“Grace Haqani v. Abdul Haqani”, the mother of the child was a Muslim convert, when she commenced an affair with another man and left the matrimonial home. The father filed an application for custody of the child. Under classical rules, custody belongs to the mother or the maternal aunt after her. However, it was deemed in the child’s best interest to be brought up as a Muslim and thus the custody was given to the father.
IV.) Guardianship of Property:
The guardianship of property is the father’s right. In all the schools, the guardianship of property continues, with the exception of Maliki law, until the child, whether male or female, attains majority. Upon attaining majority, males and females alike may deal with their own property and will acquire contractual capacity with regard to civil and commercial contracts. In Maliki law, however, though guardianship will cease in case of males, females get contractual power only upon consummation of a valid marriage.
According to the classical Sharia rules, a father he is known to be reliable and of good business sense shall have full legal capacity to dispose of his ward’s property as if it was his own, but cannot make a gift for no consideration as it would be disadvantageous to the ward.
In both Iraqi and Jordanian laws, a disposition by the father or agnate grandfather of the minor’s property will be valid if it is of the same value or slightly less. If, however, they are found to be of poor management sense, the judge may restrict or cancel their guardianship.
In Syria, property guardianship is the sole right and duty of the father and agnate grandfather, from whom it shall not be withdrawn unless their dishonesty or poor management is proven. Neither may make a gift of any of the minor’s property without permission of the judge who must be convinced of the sound grounds.
In South Asia, the general principle is that after the father’s death, guardianship falls on the father’s executor, next the parental grandfather’s executor. The guardian stands in a fiduciary relationship to his ward. Only in the most exceptional circumstances, when it is in the best interests of the child, will the court allow a guardian to buy or sell a ward’s property.
In
“Imambandi v. Mutsaddi”, it was held by the Privy Council that the legal powers of a guardian are subject to strict conditions as to immovable property. While a mother, as de facto guardian, had the power to incur debts or to pledge the minor’s goods and chattels for the minor’s imperative necessities, such as food or clothing, she had no power at all to deal with the minor’s immovable property. Even a legal guardian has no power to sell the immovable property of the minor except in a case where he can obtain double its value or where the minor has no other property, and it is necessary to sell the property for the child’s maintenance.