The question raised by you is covered by a decision of Delhi high court in the case of Akhtar Begum v. Jamshed Munir, ILR (1978) 2 Del 249 : AIR 1979 Del 67. It is held in this case as under:
“According to Muslim Law the father is the guardian of his children irrespective of sex but the mother is entitled to the custody of her son till the age of about seven years and of an infant daughter till she attains the age of puberty. The Muslim Law makes a distinction between guardianship and custody of infants and those children who can be said to be free of the mother’s care. The responsibility for maintenance is on the father irrespective of who has the custody; for it is said, in Hedaya that “the Nifka or subsistence of the child is incumbent upon the father.” If the mother refuses to keep the child there is no constraint upon her that she, must have the custody. In such a case the Muslim Law provides that after the mother an infant should be given into the custody of mother’s mother, how high so ever, and so on so forth. The father’s right to the custody of an infant is subject to — (a) the mother not being held entitled to custody owing to some disqualification; and (b) welfare of the child. Custody of an infant child is called Hizanit, literally meaning the care of infant child.”
In the above case, the Delhi high court allowed the temporary custody of the minor daughter to the Muslim mother, reversing the decision of the lower court.
So, you may approach the court under the provisions of the Guardian and Wards Act, 1890, for getting the custody of your minor son of 5 years age. Please contact some local lawyer at your place who can go through the above judgment of the Delhi high court which covers this issue in detail (I have quoted only a few lines from the said judgment).
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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