grandfather to take over responsibility and not that of the executor. Both schools, however, agree
that father while alive is the sole guardian. Mother is not recognised as a natural guardian even
after the death of the father. As regards rights of a natural guardian, there is no doubt that father’s
right extends both to the property and person of the child. Even when mother has the custody of
minor child father’s general right of supervision and control remains. Father can, however,
appoint mother as testamentary guardian. Thus, though mother may not be recognised as natural
guardian, there is no objection to her being appointed under the father’s will.
The Muslim law recognizes that mother’s right to custody of minor children is an absolute
right. Even the father cannot deprive her of it. Misconduct is the only condition which can
deprive the mother of this right. As regards the age at which the right of mother to custody
terminates, the Shia school holds that mother’s right is only during the period of rearing which
ends when the child completes the age of two, whereas Hanafi school extends the period till the
minor son has reached the age of seven. In case of girls, Shia law upholds mother’s right till the
girl reaches the age of seven and Hanafi school till she attains puberty.
The general law relating to guardians and wards is contained in the Guardians and Wards
Act, 1890. It clearly lays down that father’s right is primary and no other person can be
appointed unless the father is found unfit. This Act also provides that the court must take into
consideration the welfare of the child while appointing a guardian under the Act. Though The
Personal Laws (Amendment) Act, 2010, the Guardians and Wards Act, 1890 was amended so as
to include the mother along with the father as a fit person to be appointed as a guardian of a child
so that the courts shall not appoint any other person as a guardian of a minor if either of the
parents is fit to be the guardian of such minor.
Obligation of a husband to maintain his wife arises out of the status of the marriage. Right
to maintenance forms a part of the personal law. Under the Code of Criminal Procedure, 1973,
right of maintenance extends not only to the wife and dependent children, but also to indigent
parents and divorced wives. Claims of the wife, etc., however, depends on the husband having
sufficient means. Claim of maintenance for all dependent persons was limited to ₹ 500 per
month. But, this limit was removed by the Code of Criminal Procedure (Amendment) Act, 2001.
Inclusion of the right of maintenance under the Code of Criminal Procedure has the advantage of
making the remedy both speedy and cheap. However, divorced wives who have received money
payable under the customary personal law are not entitled to claim maintenance under the Code
of Criminal Procedure.
Under the Hindu Law, the wife has an absolute right to claim maintenance from her
husband. But she loses her right if she deviates from the path of chastity. Her right to
maintenance is codified in The Hindu Adoptions and Maintenance Act, 1956. In assessing the
amount of maintenance, the court takes into account various factors like position and liabilities
of the husband. It also judges whether the wife is justified in living apart from husband.
Justifiable reasons are spelt out in the Act. Maintenance (pending the suit) and even expenses of
a matrimonial suit will be borne by either, husband or wife, if the other spouse has no
independent income for his or her support. The same principle will govern payment of
Under the Muslim Law, The Muslim Women (Protection of Rights on Divorce) Act, 1986
protects rights of Muslim women who have been divorced by or have obtained divorce from