All responsibilities and duties of care owed to children are obligatory on the parents of the child.

Homes where the relationship of the parents is intact, questions of custody and guardianship rarely
arise but where the relationship of the parents breaks down, these aspects become highly significant
as the care of the child comes under jeopardy . Therefore, children have been given special
protection under Muslim law with the right to be brought up.
This right of the child imposes duties on both parents. The father has the duty to maintain the child
whereas the mother has the duties of fosterage and custody until the child’s age of infancy. After the
age of infancy, the minor becomes subject to three types of guardianship under Islamic family law; a)
custodian care, b) guardianship of person and c) guardianship of property. The law which governs
this area of law in the subcontinent is the Guardians and Wards Act, 1890. Any applications for the
matters related to the appointment of guardians, persons or property of the minor must be made
under the relevant provisions of the 1890 Act.
Firstly, custodian care encompasses all such practical matters in regards to proper care and control
of the minor, these fall under the obligations of the mother and the person would replace them if
the circumstances required so. Guardianship on the other hand revolves around the legal obligations
on the father of the minor and those who represent the father. As held in the case of Yousaf v
Shamshad, the courts take into account various factors in consideration but the welfare of the child
is the most significant factor out of all the factors.
There is agreement to be found in almost all sects and schools of thought of Islamic family law that
the father has the obligation of guardianship of the person of the child. Where the father is absent
and therefore cannot perform the obligations stated, the responsibility shifts to the next male
kinsmen in the agnatic line which in most cases is the child’s paternal grandfather. This is why in all
most all of the cases, the mother cannot become the guardian of the child but can only go as far as
being a custodian of the child for a finite period of time.
The mother of the child can be a custodian for a finite period and this period is not consistent among
various schools of thought of Islamic family law. Known as Havana, the right is conditional and not
absolute, and the mother has to pass a certain criteria to exercise this right. In order to be the
custodian the mother should be an adult with a sound mind, she needs to be trustworthy and
physically capable of giving the required care to the child. She should not be engaged in anything
immoral to preserve the proper care of the child. Additionally, the mother should not be married to
any man who is not related to the child within the prohibited degree, in such a case the mother may
lose the right of Hadana or custody. Imposing a non-muslim faith on the muslim child fall under the
purview of the above restriction. Same is the case if the mother restricts the child from visiting or
meeting his or her father. The significance of the fathers right over the mother is further expressed
in the case of Bandi v Mustadi, in which the courts held that the mother is not the natural guardian
of the child and the child’s father is their sole executor and the legal guardian or Wali, and or his
immediate representatives after him.
Additional restrictions on Hadana are found in between various schools of thought which are divided
over the question of whether or not the custody of the muslim child can be give to a mother who is
a non-muslim herself. The Malikis and Hanafis schools of thought agree that the custody of the child
could be given to the mother regardless of her own faith as long as she does not impose a non-
muslim faith on a Muslim child.
The doctrine followed by the hanafi school of thought gives the right of custody to the mother until
the age of 7 in case of a boy and until the age of 9 for a girl. According to the Malaki school.of
thought the Hadana lasts until the boy reaches the age of puberty and for the girl until she is
married.
l Whereas according to shafi and Hanbali schools, there’s an absolute restriction to allow custody of
the child with the non-muslim woman regardless of whether or not she’s the mother of the child.
The Hadana lasts until the child attains the age of reason, commonly assumed to be 7, after which
the child is given the choice of who the want to live with, the father or the mother. In hanabli law
this option is given only to boys and not girl once they reach the age of 7.
In order to bring harmony to these differences, the Indian Majority Act 1975 was amended to bring
on standard age of majority , this was set at 18 years regardless of the child’s guardianship.
There is disagreement as to who is entitled to the custody of the child in case the mother dies or is
already dead. The hanafi and maliki schools of thought follow that the fight of hadana or custody is
granted to the mother and should therefore pass on to the nearest kinswoman of the mother.
Whereas, the Shafi, hanbali and Shai schools.of thought grant significantly try less importance to the
mothers line therefore, after the mother the right passes on to the father and in the fathers
absences to the fathers representatives. The mothers kinsman are disregarded completely in this
regard.
Comparing the fathers right with the mother, the father is the legal guardian of the child and this
right is absolute. The father is responsible from bring up the child and this obligation continues until
the child reaches the age of puberty, and less commonly, in certain schools of though, for girlsl this
right lapses after the child gets married. The mother only owes duty in regards to nurturing the child
and living with the child whereas the father is responsible for all other aspects of the child’s life such
as travel education and marriage etc.
Moving on, the Guardianship of property is also the duty of the father. It was held to be valid in the
case of Syed Shah Mohiuddin v Kamisul for thr father to have appointed an executor in his will as the
Guardian of the child. The Guardianship of property entails a fiduciary relationship between the
guardian of thr property and the ward. The guardian of property has a duty to lookafter and care for
the property of the ward as he would his own. There’s some deviation in the Malaki school of
thought in this regard as this relationship lapses once the child reaches the age of 15 as the child
regardless of their gender reaches a contractual capacity in which they can look after their own
property. Retarded or mentally challenged children are exceptions to this rule and the guardian amy
apply to a Qazi to extend the period if the child lacks the capacity to make informed decisions for
themselves. For girls this fiduciary relationship lasts until they get married and thr marriage is
subsequently consummated.
Recent case law from the subcontinent suggests that the courts give factors like the welfare of the
child great importance but Attia v Sultan Ahmad Khan suggests that the courts give the most weight
in granting custody in accordance with the personal laws of the minor. Still the most significant
factor remains to be the welfare of the child for the courts. The guardian appointed by the court may
be removed if need be or they may ruminate their guardianship themselves on the account of
unfitness for the responsibility of the child’s person or property.