Indian Kanoon - Search engine for Indian Law

3. The custody, or what is called 'hizanat' of a minor girl until she attains puberty and of a minor boy until he attains the age of 7 years is with the mother. But even then the legal guardian is only the father. The right to the custody of the minor girl until-she attains puberty continues with the mother, though she is divorced by the father of the child. However, the mother cannot continue to have the custody of the child, if she marries a second husband, in which case the custody belongs to the father. This is the proposition that has been laid down in 'Ulfat Bibi v. Bafati', 49 All 773, Mulla in his book on Principles of Mahomedan Law's 13th Edition, page 295 states as follows:

"The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father."

The principle laid down in 'Ulfat Bibi v. Bafati, 49 All 773 has been approved by the author in his book, referred to. There is no dispute as to the Petitioner being the legal guardian. But it is contended on behalf of the Respondent that the mother is entitled to hizanat or custody until the minor attains puberty and that this right is not taken away, even if she marries a second husband. That is contrary to what is laid down in 'Ulfat Bibi v. Bafati', 49 All 773. But the learned counsel relies on certain observations made in 'Jumina Khatun v. Gaharajan Bibi', 76 Cal L Jour 303 at p. 305. In that case a maternal aunt was held to have a preferential right to the custody of the minor over that of paternal grandmother. It - was held that having regard to the welfare of the minor, a maternal aunt' who has married a stranger, in the absence of any preferential person, is not disqualified from being appointed guardian o the minor, that the Mahomedan Law does not lay down that a woman who had- m'arried a stranger to the minor is disqualified from being appointed a guardian under any circumstances-and that it merely lays down that such a woman loses any preferential right which she had by virtue of her relationship to the minor. The-question that arises in this case is not whether by reason of the marriage to a stranger the mo-