A mother is considered to be disqualified for the physical possession of the infant, and her right to the custody is lost in the following circumstances:
(a) Where the divorced or the widowed mother, having custody of a child, has remarried another husband.
(b) Where the mother leads an immoral life or is of bad character or is otherwise found guilty of such conduct which is against the interest of the child.
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(c) Where she is unable to take proper care of the child. In certain cases, the mother’s inability to take proper care of her child might be due to her own self-created problems for example, over-business in her career or, her modem style of life.
According to Fyzee: “the ancient doctors would obviously have frowned upon the modem society mother who goes out for bridge (playing cards) or social service in the morning, has lunch with a friend and comes home late in the evening after a dance at the club”.
In the absence of mother, or where she is disqualified on account of the abovementioned grounds, the following female relations of the child are entitled to the custody, in the order of priority given below:
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(i) Mother’s mother;
(ii) Father’s mother;
(iii) Mother’s grandmother;
(iv) Father’s grandmother;
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(v) Full sister;
(vi) Uterine sister;
(vii) Full sister’s daughter;
(viii) Uterine sister’s daughter;
(ix) Full maternal aunt;
(x) Uterine maternal aunt, and
(xi) Full paternal aunt.
It may be noted that although the paternal aunt and the paternal grand-mother have been included but, neither the consanguine sister nor consanguine sister’s daughter find place in the list of female relations entitled to the custody of the child in absence of the mother. According to Mulla the omission is accidental. Another significant point to be noted is that the order of preference is to be followed strictly. Unless a female relation mentioned in the list is found to be disqualified, she cannot be ignored in preference of a relation below her.
Although the father is a natural guardian of his minor child, yet he has no right to appoint any testamentary guardian, for the period during which custody should be with mother or other female relation, so as to derogate from the rights of the persons entitled to act as guardians.
Shia Law:
Under the Shia Law, a mother is entitled to the custody of her infant son only up to two years, and of her daughter upto the age of seven years. If the mother dies before the son attains two years, or the daughter attains seven years, the custody is to be given to the father. In the absence of the father, the father’s father is entitled to the custody of the infant child.