When mother agree with her husband for Custody of children.and she wrote in divorce deed that The Custody of the child will remain with father . But thereafter, she file a case for Custody of child..so, can she take a custody of child ? Both are muslims and age of child 2 years old ,divorce deed executed before advocate notry....
Plz answer me
The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified. This right is known as the right of hizanat and it can be enforced against the father or any other person. The mother's right of hizanat was solely recognized in the interest of the children and in no sense, it is an absolute right''
Son—''Among the Hanafis, it is an established rule that mother's right of hizanat over her son terminates on the latter's completing the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son till he is weaned. Among the Malikis, the mother's right of hizanat over her son continues till the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same.''
Daughter- Among the hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mother's right of custody over her daughters continues till they are married. Under the Ithna Ashari law the mother is entitled to the custody of her daughters till they attain the age of 7. The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Mother cannot surrender her right to any person including her husband, the father of the child. Under the Shia school after the mother hizanat belongs to the father. In the absence of both the parents or on their being disqualified the grandfather is entitled to custody.
All the schools of Muslim law recognize father's right of hizanat under two conditions that are:
• on the completion of the age by the child up to which mother or other females are entitled to custody.
• In the absence of mother or other females who have the right to hizanat of minor children.
• Father undoubtedly has the power of appointing a testamentary guardian and entrusting him with the custody of his children.
Regards,
Anaita Vas
