Source: Allahabad High Court

Why in News?

Justice Karunesh Singh Pawar has observed that under the Muslim Law, a mother is entitled to custody (hizanat) of a male child until he completes the age of 7 years.

• The Allahabad High Court gave this judgment in the case of Takbeer Khan (Minor) Thru. His Mother Rehana v. State of UP Thru. Prin. Secy. Home Lucknow And 3 Others.

What is the Background of Takbeer Khan (Minor) Thru. His Mother Rehana v. State of U.P. Thru. Prin. Secy. Home Lucknow And 3 Others Case?

• In the Habeas Corpus petition, the petitioner asserted that respondent No. 4, her husband, subjected her to physical abuse under the influence of alcohol. So, she returned to her parental home with her son (born in 2020) in the year 2021.
• The petitioner-deponent contended that despite temporarily resuming cohabitation with her husband at her matrimonial home, his behaviour did not change and subsequently, a case under the Protection of Children from Sexual Offences (POCSO) Act,2012 was filed against the husband, leading to his charge-sheeting and approximately a year of incarceration.
• It was her further case that upon his release on bail, he purportedly engaged in an extramarital affair, which was objected to by her. The husband allegedly coerced her to vacate the matrimonial residence, while retaining custody of the detenue, Takbeer Khan, against the deponent's will.
• Consequently, this petition was filed to seek judicial intervention for the custody of Takbeer Khan/detenue.
• The writ of habeas corpus was issued directing the opposite party No. 4 to hand over the custody of the detenue to the deponent of the petition namely, Rehana forthwith.

What were the Court’s Observations?

• The fact remains that the deponent is the mother of the detenue, aged about 3 years and 7 months, and ordinarily the custody of the minor who is just 3 years and 7 months of age vests with the mother.
• The custody of the detenue was liable to be given to the deponent-Rehana.

What is the Landmark Judgment Cited in the Case?

• Nil Ratan Kundu and another v. Abhijit Kundu (2008):
  • The Supreme Court noted that the character of the proposed guardian is required to be considered to determine the suitability of the spouse to have custody of the minor child.

What is the Concept of ‘Custody’ under Muslim Law?

• Who is a Minor?
  • According to Section 3 of the Indian Majority Act, 1875, someone domiciled in the Republic of India who is below the age of eighteen years, is a minor.
  • A minor is assumed to have no capacity to protect his or her own interests. Law thus requires that some adult person must safeguard the minor’s person or property and do everything on his or her behalf because such a minor is legally incompetent.

What is Guardianship?

• • Under Muslim law, it is called ‘Hizanat’.
  • The guardianship of a child means that overall oversight of the child throughout its minority.
  • Father or his executor or in his absence, the paternal grandfather, being the natural guardian, is in charge of the minor’s person.
  • On the opposite hand, ‘custody of the child’ simply means a physical possession (custody) of the child upon a certain age.
  • Although the mother is not the natural guardian of the child under Muslim law, she has a right to the custody of the child, until the child attains a specific age. But the father or the paternal grandfather encompasses control over the minor throughout the complete interval of the minority.