Guardianship
Muslim law is clear on the issue of custody as Nasir states,it is the child’s right to be brought [Link]
guardianship and custodial care are different [Link] guardianship remains with the father of child
and custodial care with mother after dissolution of [Link] duty of maintenance lies with the
father and duty of mother is to fosterage.
Custodial care is also known as [Link] child remains with mother and the mother cannot
send him anywhere without fathers [Link] Hadannah is a restricted right which is limited to
taking care of a child when he moves to his father and it is the father or paternal grandfather or other
male kin who is wali of child and who make all important decisions in upbringing of a child such as
regarding travelling,marriage,education [Link] schools of thought agree that custody of child rests with
mother and if mother dies after divorce then any nearest female relative of mother has the first claim of
custody and in absence of them it is the fathers duty to arrange a care taker.
Gradual changes have been made in the law of Pakistan which observed traditional Islamic view of
custody of a girl retained by mother extended from nine years till the age of puberty.
The cases best illustrates where the childs best interest will be looked into is the case of Imambandi V
Mustadee that if divorce happens mother does not lose custodial rights how ever if she marries some
one else the rule is that she will lose custodial [Link] principle of best interest would apply if childs
best interest is to live with mother then custodial rights remain with [Link] court established in the
case of Atia Waris V Sultan Ahmad Khan that the welfare of child is to be kept in consideration and may
depart from the general principle (Muhammad Bashir V Ghulam Fatima).
There is a conflict between the school of thoughts on the issue of next kin to look after. Hanafi says that
child stays with mother in case of a boy it is 7 years and if girl then 9 years. Maliki how ever differs that
boy shall remain with mother till the age of puberty and girl till the [Link] ever Hanbali says that
both boy and girl shall remain with mother till seven years but after seven years the child is given a
[Link] Shafi there is no age limit and when the child reaches the age of discretion the children have
on it with whom they want to [Link] believe that a boy shall remain with mother for 2 years and a girl
for 7 years.
Egyptian law adopts Shafi approach and the custody of child would come to an end at the age of ten
years for boys and 12 for the [Link] as Suddani law adopts Maliki approach Shifting from Hanafi
school.
The term Wilayat is referred to as guardianship of [Link] to Islam orphans and children were
kept away from [Link] Islam many restrictions were imposed on the guardians to protect
minors [Link] guardianship of property is more of a duty then as a [Link] is a natural
guardian in absence of father and testator (appointed by father) then grandfather will be guardian and if
he is also not available then fathers brother will be guardian.
There are some restrictions placed on a guardian,the guardian may appoint any guardian regardless of
natural guardian or any testator if he is spend [Link] South Asia Child and Guardians and Wards Act
1890 plays a significant [Link] is always in a fiduciary relationship with minor regarding
[Link] is a defacto guardian and minors benefit shall be considered as it was satisfied in the
case of Imam Bandi V Mustadee and in the case of Rafique V Basheeran it held that if there is a conflict
between personal law of Child and Guardians and Wards Act then personal law shall prevail.
In the case of Ahmed Ullah V Mafizudin Ahmad the question was raised that whether education
amounted [Link] court held that legal guardian of property may sell for the necessities of [Link]
is the fathers liability to maintain the child and to keep distinction between the wife and [Link] South
Asia if father fails to maintain then he will lose the right of [Link] Ghulam Fatima V Bashir it is the
child’s interest to stay with the mother till age of 13,court also found out that it is the father’s duty to
maintain child but duty does not extended to provide maintenance if getting from another person.