Preferential Custody Rights Under Muslim Personal Law

In Writ Petition No. 3109-H of 2024, the Lahore High Court, Bahawalpur Bench, addressed a custody dispute involving Sadia Aziz (petitioner) and Zain-ul-Abideen (respondent). The petitioner, a mother, sought the custody of her minor son, Muhammad Shahzain, who was allegedly in the illegal custody of the father. The court examined the principles of custody (Hizanat) and guardianship (Walayat) under Muslim law.

Key Areas:

Background of the Case: The petitioner was expelled from her home following a family dispute, leaving her son with the father. The petitioner argued for the interim custody of her son, emphasizing the child's tender age and need for maternal care. The respondent contended that the petitioner had abandoned the child and was too occupied with professional duties to provide proper care.

Legal Principles of Hizanat: Under Muslim law, the mother has a preferential right to custody of a minor child, especially of tender age. The right of Hizanat is based on the need for the child's care, love, and affection, essential for their development. This right is upheld unless the mother is disqualified under specific conditions, such as remarriage to a stranger or leading an immoral life.

Distinction Between Custody and Guardianship: The court emphasized the difference between Hizanat (custody) and Walayat (guardianship). While the father is the natural guardian of the child's person and property, the mother's right to custody is prioritized for the child's early years, ensuring proper nourishment and upbringing.

Judicial Precedents: The court referred to several precedents to support its decision including Mst. Haseena Bibi vs. Abdul Haleem (PLD 2024 SC 291) which reinforces the mother's right to custody unless disqualified; Mst. Razia Rehman vs. Station House Officer (PLD 2006 SC 533) which highlights the conditions under which the mother retains custody rights and Miss Hina Jilani vs. Sohail Butt (PLD 1995 Lahore 151) which emphasizes the importance of maternal care for children of tender age.

Court's Decision: The court granted interim custody to the mother, recognizing her right of Hizanat. The order was subject to final determination by the Guardian Court, ensuring the child's welfare and best interests are paramount.

Conclusion: The judgment underscores the importance of maternal care in a child's early years under Muslim personal law and reaffirms the judicial support for mothers' custody rights unless legally disqualified.

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