Custody of minor child; difference between 'Walayat' and 'Hizanat'.

It is essential to highlight that there is difference between Walayat (Guardianship) and Hizanat (Custody); in Muslim Law, as in almost every other system of law, the father is the natural guardian of the person and property of his minor child but Islam recognizes the mother as having prior right of custody, obvious reason is the nourishment, sustenance, patronage and up bringing of a human child so as to make him/her a useful human being. Mother keeps a caring instinct, therefore, is the suitable person for such task. That was the reason, for custody, the term ‘Hizanat’ has been used. The word “Hizanat” is derived from the Arabic word “Hizan” which means ‘lap of the mother’, it denotes giving a child to the mother’s lap for caring and rearing.

Right of hizanat of a mother is recognized in Islam as well as in law; claim of the respondent being guardian of the minor would obviously give way to the right of hizanat till prescribed age of the minor under the law. The waiving of her right of hizanat has no binding force in the eyes of law and mother cannot be held accountable if at one occasion she had given up her right to hizanat on any condition. She will retain her right of hizanat when there is no disqualification in law of her waiver, therefore, is not disentitled for claiming right of hizanat again.

Proceedings under Section 491 of Cr.P.C can be initiated before the Sessions Judge or Additional Sessions Judges and before this Court if any person is in illegal and improper custody; similar relief can also be sought by a party under Article 199 (1)(b)(i) of the Constitution of the Islamic Republic of Pakistan, 1973 through writ of Habeas Corpus when any person is in custody without lawful authority or in unlawful manner. This Article is usually applicable on malfeasance, misfeasance and nonfeasance of any party with respect to custody of a detenu. However, High Court Rules and Orders do not create any difference in the format of petition and style of orders in both types of petitions. Chapter 4-F, Volume-V of High Court Rules & Orders consists of rules framed by the High Court under Section 491(2) of Code of Criminal Procedure, 1898 which regulate the proceedings on petitions under Section 491 Cr.P.C.

Under the law mother has a preferential right for custody of a minor till the prescribed age. Even if divorce has become effective between the spouses, mother does not lose her right of hizanat except in the situations mentioned in Para 354 of Muhammadan Law subject to determination by Gurdian Court.