trying to abort the child in pregnancy
4 years ago
As there is pregnancy complication my husband and inlaws tried to abort the child and left me in my parents home when i refused to do so and after baby is 7 years my inlaws want her and want my child custody what to do. please advise me my child is 31/2 years old now according to muslim law am not earning can i get custody of my child if yes up to what age and how should i file the case as husband ran outof states after divorce.
Shreyash Mohta
Responded 4 years ago
A.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 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. Among the Malikis following females are entitled to custody in the absence of mother.
This right is lost in the following conditions: -
i) of sound mind
ii) good moral character
iii) living at such a place where there is no risk, morally or physically to the child
iv) of such a age which would qualify her to bestow on the child the care it may need (not applicable to the mother)'
Under such circumstances, you have a strong case and all that you need to prove is that the above 4 pointers don't get applied to you.
Thanks & Regards
Adv. Shreyash Mohta
'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. Among the Malikis following females are entitled to custody in the absence of mother.
This right is lost in the following conditions: -
i) of sound mind
ii) good moral character
iii) living at such a place where there is no risk, morally or physically to the child
iv) of such a age which would qualify her to bestow on the child the care it may need (not applicable to the mother)'
Under such circumstances, you have a strong case and all that you need to prove is that the above 4 pointers don't get applied to you.
Thanks & Regards
Adv. Shreyash Mohta
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