Custody Disputes In The Contemporary Era: A Comparative Analysis Between Hindus And Muslims
- IJLLR Journal
- Apr 13
- 2 min read
Muskaan Bellani, United World School of Law (Karnavati University)
Introduction
The idea of guardianship lies at the very center of demarcating the legal rights and obligations of parents and guardians with respect to children. It protects, nurtures, and effectively safeguards the welfare of children by establishing definitive legal provisions in the form of residential rights. Guardianship in India is predominantly based on religious personal law, and therefore there are gigantic differences in the extent to which various communities acknowledge and implement guardianship and custody rights. Hindu and Muslim law in specific illustrate contrasting tendencies in these kinds of things due to centuries-long theology dogma, customary culture, and socio-legal evolution.
In Hindu law, the major law that presides over guardianship is the Hindu Minority and Guardianship Act, 1956. The father is recognized under this Act as the natural guardian of a child, while the mother becomes so only in exceptional situations, i.e., in the absence of the father. This is consistent with traditional patriarchal society in which paternal ascendancy was ever given priority. But the changing legal culture, sparked by innovative judicial constructions, has increasingly been concerned with placing paramountcy on the best interests of the child in custody cases. Courts have been the prime mover in advancing the welfare principle, and thus curbed strict enforcement of gender-stereotypical guardianship norms.1
Contrary to this, Muslim guardianship laws are premised on religious authority in the form of Hadith and Quran. Islamic law differentiates between two concepts, namely guardianship (wilayat) and custody (hizanat). Fathers are usually the natural guardians of the child's financial and legal affairs, while custodial rights are given to mothers, particularly to younger children.2 This differentiation emanates from religious interpretations that aim to reconcile parental roles in conformity with Islamic doctrines. Indian courts, however, despite respect for religious teachings, have often interfered to advance the child's best interests, particularly where a rigid application of traditional principles might result in undesirable outcomes for the minor.3
