In India all the Muslims are governed by the Muslim Personal Law Application Act, 1937. This law deals with succession, inheritance, marriage, succession and charities among all Muslims. The Dissolution of Muslim Marriages Act, 1939 deals with the situation in which Muslim women have a right to obtain divorce and rights of women who have been divorced by their husbands and to provide for related matters. These laws are not applicable in state of Goa where in Goa, the Goa Civil Code is applicable for all persons irrespective of religion. These laws are not applicable to those Muslims who are married under the Special Marriage Act, 1954. The first and primary right to have the custody of child belongs to the mother and the mother cannot be deprived of her right so long as she is not found guilty of any misconduct. Mother has the right of custody of her child so long as she is not disqualified. This right is known as right of hizanat and this right can be enforced against the father or any other person. This right of hizanat was exclusively recognized in the interest of the children and in no sense this right is an absolute right. Under the Hanafi law the mother’s right over her son terminates at the completion of age of seven years. In Shias the rule has been established rule that the mother has the custody of her son till he is weaned. Among the Maliki School the right of a mother continues till the son has reached the age of puberty. The rule among the Shafiis remains the same.In case of daughters Hanafi law entitles the custody to the mother of their daughters till they complete the age of puberty and among the Maliki, Shafi and the Hanbali law the mother’s right to custody of their daughters continues till the daughters are married. Whereas in ITHNA ASHARI LAW,the mother is entitled to the custody of daughters till they complete the age of 7. Under these laws mother has the right of custody of her children up to the ages specified in each school irrespective of the fact that whether the child is legitimate or illegitimate. Muslim mother cannot surrender her right to any person including her husband or the father of the child. Under the Shia law, after the mother hizanat belongs to the father. In the absence of both mother and father or on their being disqualified the grandfather is entitled to custody of the children. Among the Malikis following females are entitled to custody of the children in the absence of mother:
- Maternal great grandmother
- Maternal grandmother
- Maternal aunt and great auntFull sister
- Uterine sister
- Consanguine sister
- Paternal aunt
In all the schools of Muslim law it is agree that a Hazina should be of sound mind, good moral character, living at such a place which poses no kind of risk or threat morally or physically to the child and of such age that would qualify her to bestow the needed care on the child (it is not applicable to the mother) The main issue is that who is the natural guardian of the minor child, what the statute provides, the hierarchy among the two natural guardians i.e. the mother and the father, the exceptions provided by the law itself and the principles developed by the courts regarding the guardianship of a minor.
INHERITANCE RIGHTS OF A MOTHER
The next concern is the inheritance rights of a mother. Does a mother inherit anything from the estate of her children. Under Muslim law a mother has the right to inherit from the estate of her children. Provided the children are independent and not dependent on any person. The Islamic law permits the mother to inherit 1/6 of her deceased child’s property even her son is a father as well. The law further gives the right to a mother to inherit or succeed to the property of her children to 1/3rd share in case there are no grandchildren. It is also permissible under the personal law that a mother can inherit/succeed a property from any relationship and she could become the complete owner of her share and she has the right to dispose off the inherited property at her own will. The personal law does not permit a woman to give away more than 1/3 share of her property and if her husband is the only heir, she can give 2/3 of the property by will. We most of the times assume that Muslim/Islam that the rights of women are almost negligible. Whereas on the contrary the laws are liberal and give women as mothers rights to not only custody and guardianship of the children and that to the property of the deceased child.