What is Hizanat?
Hizanat refers to the right of custody of a child, particularly after a divorce or separation, under Muslim personal law in India. It’s primarily concerned with determining which parent or relative (usually the mother) gets the custody of a child in cases of divorce or separation. The concept of Hizanat is based on Islamic law and principles and is recognized under the Muslim Personal Law (Shariat) Application Act, 1937.
Key Features of Hizanat:
Custody of Children: Hizanat relates to the custody of children, usually those under the age of 7 years for boys and 9 years for girls, though it may extend in some cases based on the child’s welfare.
Mother's Preference: Under Islamic law, the mother is generally given custody of a child, especially when the child is very young, as it is believed she is best suited to care for them.
Father's Role: The father generally has the right to the child’s guardianship (as the child's legal guardian), which includes decisions regarding education, marriage, etc. However, this does not override the mother’s custody rights during the child's early years.
Best Interest of the Child: Courts in India, while deciding on custody issues related to Hizanat, consider the best interests of the child as paramount. The welfare and happiness of the child become a central factor in these decisions.
Cases related to Hizanat:
1. Mst. Shah Bano v. Mohammad Ahmed Khan (1985)
Facts: This case is widely known for its discussion of maintenance under Muslim personal law, but it also touched upon issues related to Hizanat in cases of divorce. The Supreme Court ruled that the maintenance obligation of a husband extends even after a divorce, and the court also considered the mother's right to custody under Hizanat in the case of children.
Judgment: The court upheld the principle that a mother has the right to custody of her minor children. In divorce cases, custody of children up to a certain age (7 for boys and 9 for girls) should generally be with the mother, as it was in the best interest of the child.
2. Gulam Mohammad v. Smt. Razia Begum (1981)
Facts: In this case, the issue of Hizanat was raised after the mother sought custody of her children following a divorce. The father contested the mother's claim for custody.
Judgment: The Allahabad High Court ruled in favor of the mother, stating that the mother has the primary right of custody over her young children. The court observed that the welfare of the children should be the paramount consideration and that the mother's bond with the child is crucial for emotional and psychological development.
3. Khatija v. M. Usman (1981)
Facts: This case involved the custody of a child after the parents' divorce. The mother was seeking the custody of her young son under the concept of Hizanat, while the father argued that he should have the right to decide on matters of guardianship.
Judgment: The Supreme Court in this case ruled that the mother had the primary right to custody, especially for children under the age of 7. The court considered the child's welfare and concluded that it would be in the best interest of the child to remain with the mother, who had a nurturing and protective environment for the child.
4. Mohammad Ghouse v. Mst. Sardar Begum (1995)
Facts: The issue of Hizanat arose in the case when the father sought to gain custody of his daughter, who was living with the mother. The father argued that as the legal guardian, he should have custody. The mother contended that under the principle of Hizanat, she should retain custody, as the child was under the age limit for such decisions.
Judgment: The court ruled that the mother was entitled to custody of the child under the law of Hizanat, as the child was under 9 years old. The court emphasized that the mother’s custody rights are rooted in the welfare of the child, and the mother should generally have custody in cases where the child is still young.
5. Smt. Mst. Khadeja Begum v. Hussain Ali (2000)
Facts: The question in this case was about the mother's right to retain custody of her child post-divorce under Hizanat. The father argued that the mother was not fit to retain custody because of her marital status and living conditions.
Judgment: The court upheld the mother's custody, ruling that under Islamic law and Hizanat, the mother had the primary right to custody of a minor child (under 7 for boys, 9 for girls), provided there were no compelling reasons to suggest otherwise. The court ruled that the welfare of the child should take precedence, and the mother’s custody was in the child's best interest.
Important Considerations in Hizanat Cases:
Child’s Welfare: The welfare of the child is of utmost importance, and this will always guide the court’s decision. The relationship between the child and the mother, especially in their early years, is an important factor.
Age Limits: In most cases, Hizanat applies to children under the age of 7 (boys) and under the age of 9 (girls). After these ages, the court might consider the child’s preference and other factors.
Mother's Custody Rights: While the mother usually has the primary right to custody, this may change if the court finds that the mother is unfit for some reason (e.g., neglect or inability to care for the child).
Father’s Role: Though the father generally has the right to guardianship, his right to custody may not be automatically superior to the mother's under Hizanat. The father’s rights relate more to decisions on marriage, education, and inheritance, but not to the everyday custody of the child.
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