The Curious Case Of Custody

Statutory Law

This secular legislation governs guardianship and custody issues for all children residing in India, regardless of their religious beliefs.

Everyone who identifies as a follower of Buddhism, Hinduism, Jainism, or Sikhism is subject to the two Acts that are covered under“Hindu Law.”

Guardianship and child custody were not covered under classical Hindu law. The Hindu Minority and Guardianship Act, however, has a number of provisions pertaining to guardianship and custody of minor Hindu children in contemporary statutory Hindu law.

Under the Muslim Law, the concept of guardianship is covered under 'HIZANAT'. The concept of guardianship in Islam means the taking care of the overall well-being and an oversight of the child during the years of minority. The idea of custody and Hak-e-Hizanat are to different concepts under Muslim Law. 'Custody' simply means the physical possession of the child up to a certain age, while as 'Hizanat' means the actual guardian of the child.

The mother is not considered as the natural guardian, she only holds the right of custody and not the right of Hizanat. The natural guardianship or the hak-e-hizanat lies the father. The guardianship recognized under the Muslim Law is as under:

A natural guardian has the authority to control and keep an eye on a minor's activities. All schools of Muslim law accept the father as the child's natural guardian. The substantive law of Islam grants the father the independent right to act as a guardian of a young child.

Another name for a natural guardian is a legal guardian. However, the father's executor may also serve as a legal guardian if the father is not present. The executor may be a person designated by the father or grandfather to take on the role of guardian for his minor child.

As a result, the following people are a minor's natural guardians in order of priority:

Muslim law recognizes no one else as a minor's natural guardian if any of the aforementioned individuals are not present.

A person designated in a will as a minor's guardian may be known as a testamentary guardian. The only person who can designate a testamentary guardian is the father or, in his absence, the paternal grandfather.
A testamentary guardian may also be nominated by a non-Muslim woman.

The court has the authority to designate a guardian for the minor's person, property, or both in the event that there isn't a natural or legal guardian. The Guardianship and Wards Act, 1890 governs the appointment of a guardian by the court and applies to all Indians, regardless of religion. Statutory Guardian is another term for these guardians.

A person who has taken on the custody and upbringing of a child without being a legal, testamentary, or statutory guardian is known as a de-facto guardian. Tyabji defines a de-facto guardian as an unapproved individual who, in actuality, has control of a minor's person or belongings. A person who lacks guardianship status but has assumed responsibility for acting as a minor's guardian in certain situations is known as a de facto guardian.

Conclusion:

Islam places a strong emphasis on a child's wellbeing and best interests when it comes to guardianship and custody. Guardianship, which is frequently held by the father, entails being in charge of providing general care, education, and financial assistance. Usually awarded to the mother, custody centers on the child's daily care and nurture, particularly in the early years. The child's welfare is the main factor, hence these positions are not inflexible. Islamic law allows for modifications to these customary positions if the situation indicates that an alternative arrangement better serves the child's interests, with the child's needs always coming first.

Muslim law places a high priority on the wellbeing of the child when determining who gets to keep the child. The child's best interests are always the first priority, even though traditional Islamic norms offer a framework for custody-typically awarding the mother custody during the child's early years and the father custody thereafter. Central to custody decisions is the idea of maslahah, which places the child's welfare first and allows for more flexibility than strict interpretations of personal laws.

Courts' methods have changed over time, with a growing emphasis on the child's welfare as opposed to rigorous adherence to personal laws. A more child-centric approach, where the child's emotional, psychological, and physical needs are carefully examined, has increasingly becoming the norm in court precedents. For example, courts have acknowledged that being able to provide for the child's needs, being stable, and having a loving environment are important considerations when deciding who gets custody. This development is a reflection of a greater realization that a child's best interests may not always be served by the strict application of personal laws.

Views expressed in the article are the author's own and do not necessarily represent the editorial stance of Kashmir Observer

• The author is advocate at the Supreme Court of India and can be reached at [email protected]

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