Father is entitled to the custody at the following two stages of the child’s minority:
(a) In respect of a minor boy under the age of seven years, and a girl under puberty, the father is entitled to the custody of the child only in the absence (or disqualification) of mother and other female relations of the child.
(b) In respect of a boy over the age of seven years and an unmarried girl over the age of puberty (fifteen years) the father is entitled to the custody of the child as a natural guardian till the child becomes adult, i.e. attains the age of eighteen years.
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ADVERTISEMENTS:
The minority of a child for purposes of its custody by father is divided in two stages. The first stage of minority is up to the age of seven years in the case of male child, and up to puberty where the child is female.
The second stage begins after the age of seven years till the age of eighteen years in case of a male, and after puberty up to eighteen years in the case of a female child, provided she remains unmarried. During the first stage, the custody primarily belongs to the mother and during the second stage it belongs to the father. Thus, father is entitled to the custody of a minor child in two circumstances:
First, where the child is within the age limit, in which mother or female relations are legally authorised to have the custody, but they are either disqualified or not available.
ADVERTISEMENTS:
Secondly, after the age limit beyond which the mother or other female relations have no right to the custody of a child.
It is to be noted that in the circumstances mentioned above, the father is entitled to have the custody and this right is available to him because he is regarded as a natural guardian under the Muslim personal law. The court has no power to appoint any other person to have the custody of a child where the father is alive except where the father is found by the court to be unfit or unsuitable for this purpose.
In Siddiqunnisa v. Nizamuddin, it was held by the Allahabad High Court that under Muslim law, the father’s status is the creation of law, not requiring even a declaration; therefore, in presence of a father, who is not unfit for guardianship, the court cannot appoint any other person as guardian.
The disqualification of a father due to which he is deemed to be unfit for having the custody of a child is a matter of fact to be decided by the court. In deciding that a father it unfit, the courts interpret the word ‘unfit’ as given in Section 19(b) of the Guardians and Wards Act, 1890, in the light of the interests and welfare of the child. However, merely a second marriage by father has not been regarded as a disqualification of the father for having the custody of a child by the first wife.
ADVERTISEMENTS:
In the absence of the father, the custody of a child belongs to the paternal male relations in order of priority given below:
i. Nearest paternal grandfather;
ii. Full brother;
iii. Consanguine brother;
iv. Full brother’s son;
v. Consanguine brother’s son;
vi. Full brother of the father;
vii. Consanguine brother of the father;
viii. Son of father’s full brother; and
ix. Son of father’s consanguine brother.
But the custody by the above mentioned male relations is subject to a condition that no male is entitled to custody of an unmarried girl unless he stands within the prohibited relationship to her. For example, a male child may have the custody of a son of the father’s full brother (i.e. paternal uncle’s son) but a female child cannot be put in his custody.
The reason is that they are not within the prohibited relationship and their marriage is possible under Muslim law. The purpose of this rule is to avoid the possibility of any exploitation of the custody of an unmarried girl.
Father, or in his absence the paternal grandfather, has a right to appoint a testamentary guardian of the minor’s person, provided the father himself was entitled to the custody of that child at the time of execution of the will.
In the absence of the above-mentioned male relations and any testamentary guardian, or where they have been found unfit, the court is empowered to appoint a guardian for the custody of the child under the Guardians and Wards Act, 1890.
