Right of an Indian Muslim Woman for the Custody of her Minor Child – Explained!

There is ample evidence of women of different marital status demanding that the court confirm their right to custody of their children, reject attempts from various quarters to deprive them of this right, or direct that children who were taken from them against their, the women’s will be returned to them.

A woman sometimes stressed that her right to custody of her children was based on both religious and secular law, and she might enlist the help of the execution office or the welfare officer to realize it.

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In dozens of cases of divorce by agreement it was expressly indicated that the children were to remain in the custody of the mother and that the father was to pay maintenance for them or custody money to the mother. In one case, the father undertook to transfer some land and a house to the children.

If the divorce agreement does not indicate that the wife renounced her right to custody—and most divorce agreements do not—it means that she continued to have custody. Moreover, a mother sometimes had custody of her children even after the expiration of the hadana period. This appears from cases in which a relative demanded to take charge of them on the shar’i ground that the period had expired.

Several years sometimes passed under these circumstances before application was made to the court for relief against a woman who seemed to be unwilling to give up her children.

It may be assumed that retention of the children beyond the hadana period was more frequent than would appear from the sijills.

It was especially likely to occur in cases where the mother brought them up and provided for all their needs by her own efforts or at any rate did not claim maintenance from the father.

In many dozens of cases, the wife at the time of the divorce renounced the custody money or maintenance for the children, provided that they remained in her custody, and she might undertake to keep them at her own expense even after the expiration of the hadana period; sometimes it was stipulated that if she went back on this undertaking she would have to pay monetary compensation to the husband,” and occasionally she renounced everything due to her by virtue of a shar’ia right, i.e., maintenance for the children, accumulated maintenance for herself, dower and maintenance for the waiting-period, provided the children remained with her. Renunciation as aforesaid was particularly frequent where the wife’s right to custody had lapsed for any reason.

In many cases, the mother concluded an agreement with the father as to the custody of the child. Most of these agreements were made incidentally to divorce. The agreement might relate to the realization of the wife’s shar’i right.

Thus, for instance, a wife might reserve to herself the choice between keeping the child until he no longer needed her or until the expiration of the hadana period.

The agreement might provide that the wife should keep the child even after that period; usually it imposed certain conditions, such as a limitation of the period of custody, the provision of education during the period of custody, permission for the father to see the children from time to time, careful protection of the children and abstention of the mother from remarrying, and prohibition of the mother (and the child) from living outside the father’s place of residence without his consent.

A frequent arrangement between the parents was the division (tawzi or taqsim) of the children between them: the girls might be handed over to the mother and the boys to the father,” but the opposite might also occur.

The mode of division seems to have depended on the circumstances of the case; anyhow, there was a tendency to give young children to the mother. Sometimes the child, on reaching puberty, was allowed to choose the parent with whom he would live.

A woman might on divorce undertake to assume custody of her husband’s children by another wife in addition to her own children and even to pay compensation if she infringed the undertaking.

These conditions were probably forced on the woman, who strove to her utmost to attain her release, in return for the husband’s consent to divorce her.”

The proportion of endogamous wives enjoying the right to hadana was particularly high in rural society, but it is doubtful whether there was a causal connection between endogamy and the exercise of this right.

In fact, if endogamy indeed had any effect here it should have been in the opposite direction, for blood-relationship between the spouses restricts the wife’s freedom of action as compared with the position in exogamous marriages.

The main factor here was the woman’s economic and social position, which was especially significant in the case of divorced and widowed women.

A certain measure of economic independence, freedom of movement and social contact is essential to a woman’s ability to bring up her children.

In traditional society, the structural solution of such problems is the divorced or widowed woman’s return to her father’s or brother’s house, where she stays until—as soon as possible—she marries again (although she loses her right to hadana if she marries a stranger) this solution is to be understood in terms of kinship and property relations.24 But in recent years, widows and divorced women have shown an increasing tendency not to return to their fathers’ or brothers’ houses.

Rosenfeld discerned this tendency in the Galilean villages he studied. He notes that widows of all ages were then permitted to keep their children without remarrying. He attributes this to the rapid transition from the extended to the nuclear family.

The economic and social position of women varied according to their type of settlement: in the towns, especially the mixed towns, they enjoyed greater economic independence and freedom of social contact than in other types of settlement, a fact which is reflected in the sijills.

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