Guardianship of a Muslim wife - who has not attained the age of Puberty

          According to para 352 of "Mulla's Principles of Mohammedan Laws” 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.

 

          Thus, the mother of a married girl who has not attained puberty, is entitled to the custody of the girl as against the husband of the girl.

 

           The court has no power under the Guardian and Wards Act, 1890 [section 19(10)] to appoint a guardian of the person of a minor, where the minor is a married woman, and her husband is not in the opinion of the court unfit to be the guardian of her person. If it be a rule of the Mohammedan law that a husband is not entitled to the custody of the wife until she has attained puberty, it must be taken to rest on the hypothesis that he is unfit by that law for that custody. If so, the court may hold under section 19 of the Guardian and Wards Act that a Mohammedan husband is 'unfit' within the meaning of that section to be the guardian of his wife until she has attained puberty, and may, consistently with the provisions of that section, appoint her mother as her guardian until she attains puberty.

 

FAQ (Frequently Asked Questions)

 

1. Who has guardianship over a Muslim wife below the age of puberty?

The mother has the right to custody (hizanat) of her minor daughter until she attains puberty, even if the girl is married but not yet capable of consummation.​

 

2. Can the husband claim guardianship before the wife attains puberty?

No. If the minor wife has not attained puberty or is not of an age for consummation, the mother or in her absence, maternal female relatives, have priority for custody over the husband.​

 

3. What is the mother’s right in different schools of law?

 

s Hanafi School: Mother’s custody lasts until puberty for girls.

 

s Shia School: Right extends up to seven years of age only for girls.

 

s Other Sunni Schools: Generally, the mother retains custody till puberty.​

 

4. Who is the natural/legal guardian under Muslim law?

The father is the legal (de jure) guardian of the minor’s person and property, but not necessarily for day-to-day custody where the mother’s right is recognized until puberty.​

 

5. What happens if the mother is disqualified or absent?

If the mother is absent, remarried (to someone not related within prohibited degrees), or otherwise disqualified, custody passes to female relatives in a specific order (e.g., grandmother, maternal aunt), before the husband is considered.​

 

6. Can the minor wife repudiate her marriage when she reaches puberty?

Yes. Under the option of puberty (khayar-ul-bulugh), if a marriage was contracted by a guardian before puberty, the minor can ratify or annul the marriage upon attaining puberty, as long as the marriage hasn’t been consummated.​

 

7. Does guardianship for marriage differ from custody?

Yes. Guardianship for marriage (jabr) allows certain persons usually father or male guardians to contract marriage for a minor. Custody (hizanat) is about the daily care and control of the minor’s person, usually the mother's right until puberty.