Guardianship of the minor’s person means an overall supervision of the minor’s personality. It means care and welfare of the child including the liability to maintain it. It is more than simply the custody of the child upto a certain age. Under Muslim law, ‘guardianship of the minor’s person’ is called Wilayat-e-nafs and the ‘custody of the minor’ is called Hizanat.
They are sometimes taken to mean the same thing. But, under Muslim law, these two aspects of the guardianship are different and are governed by distinct rules. The guardianship of a child’s person means overall supervision of the child during its minority. Father (or his executor) or in his absence, the paternal grandfather, being the natural guardian, are in charge of the minor’s person.
On the other hand ‘custody of the child’ (Hizanat) simply means a physical possession (custody) of the child up to a certain age. Although mother is not natural guardian under Muslim law, but she has a right to the custody of her child till the child attains a specific age. But, father or the paternal grandfather has a control over the person of the minor during the whole period of minority. Tahir Mahmood states thus:
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“The guardianship of person in relation to a child belongs primarily to its father, the mother’s being only a pre-emptive right to keep the father away for a legally prescribed period only from a particular aspect of guardianship of person, namely, the custody and physical upbringing of the child”.
It may be said therefore, that mother has a right to the custody of her child for some time, because except her, no one else can nurse and handle a child during its infancy. But her custody of the child is subject to the supervision of the father who, as a legal guardian, is under an obligation to provide means for upbringing of the child.
