Islam and Human Rights — Page 154
Isl am and Hum an R ights 154 beyond its capacity. . . Be always mindful of your duty to Allah and remember that Allah sees what you do” (2:234). In addi tion to all this there is the general exhortation: “For div orced women provision shall be made according to what is fair-an obligation on the God-fearing. Thus does Allah make His commandments clear to you that you may under stand” (2:242-243). Muslim jurisprudence has been very solicitous that while the welfare of a minor should be fully safeguarded and should be the primary factor in determining questions of guardianship and custody where they arise, due regard should be had to the claims and feelings of the parents in such cases. The Judge has a certain margin of dis cretion in every case, as circumstances may demand or indicate, but the general rule is that the guardianship of a minor (male or female) shall vest in the father, and fail ing him in the paternal grandfather, paternal uncles and male cousins in the paternal line in order of propinquity. But in the Muslim system of jurisprudence guardianship does not include the right to the custody of the minor. The right to the custody of a male up to the age of seven years and the custody of a female throughout minority vests in the mother, and failing her in the maternal grandmother maternal aunts and female cousins in the maternal line of propinquity.