The Right of Custody of Minor: A Comparative Study of Sharī‘ah and Pakistani Legal System

Abstract

In Islamic law, custody (hazanat) is looking after a person who is unable to look after himself, i.e., a person of unsound mind or a minor, but Pakistani statutory provisions do not define the concept. However, from judicial dicta, one can infer that ‘guardianship of person’ be equitant to the term custody, and it is possession of person of ward for purpose of protection, either actual or constructive. This paper aims to compare the right of custody of minor in Sharī’ah and legal system of Pakistan as poses certain recommendations to bring the Guardian and Wards Act, 1890 in line with Islamic law of custody of minor. This paper will compare, differentiate and resolve the conceptual clashes between the Guardian and Ward Act, 1890 under legal system of Pakistan and Sharī’ah prospective of the right of custody of minor.

Keywords: guardianship, custody, hadanah, minor, visitation, wishes of the minor, qualifications of custodian