Guardianship under Hindu and Muslim law

Guardianship under Hindu and Muslim law

The Dharmashastras never include the law of guardianship it was developed by the courts during the British rule. It was established that the father is the natural guardian of the children and after Father’s​ death, the mother will be the natural guardian and no one else can be the natural guardian of minor children. Hindu law of guardianship is codified law whereas the muslim law of guardianship’ is not codified. Hindu law Testamentary guardians have also introduced: The prime guardianship of the minor children puts in the hands of the State as the legal protector and was exercised by the courts. This guardianship of minor children has been codified and reformed by the Hindu Minority and Guardianship Act, 1956.

Guardianship of the person

As per section 4(b) of the Hindu Minority and Guardianship Act, 1956, minor means a person who has not completed the age of eighteen years. They are considered to be a person who is physically and intellectually imperfect & immature and hence needs someone’s protection.

Guardian can be defined as “a person having the care of the person of the minor or of his property or both person and property.” Guardians are essential for the protection and care of the child and for its welfare as the welfare of the child is paramount consideration which includes both physical and moral well-being.

Guardians may be of the following types : 

1. Natural guardians,

2. Testamentary guardians, 

3. Guardians appointed or declared by the court. 

There are two other types of guardians, existing under Hindu law, de facto guardians, and guardians by affinity.

Natural Guardians

Only three persons are recognized as natural guardians in Hindu law  father, mother, and husband, 

     • “Father is the natural guardian of his minor legitimate children, sons, and daughters.”   As per Section 19 of the Guardians and Wards Act, 1890, ” father cannot be deprived of the natural guardianship of his minor children unless he has been found unfit.’ & as per Section 13 of the Hindu Minority and Guardianship Act “welfare of the minor is of paramount consideration and father’s right of guardianship.

• The mother is the natural guardian of the minor illegitimate children doesn’t matter whether the father is alive or not. Mother is entitled to the custody of the child below 5 years unless the welfare of the minor requires otherwise.

In Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya, It was held by the Supreme Court that under certain circumstances, even when the father is alive mothers are allowed to act as a natural guardian. 

The natural guardian has the following rights in respect of the minor child.

(a) Right to custody & to  establish the religion of children,

(b) Right to education,

(c) Right to control movement,

(d) Right to reasonable chastisement

Guardians also have obligations for the maintenance of their minor child.

Testamentary Guardians

Under the Hindu Minority and Guardianship Act, 1956, testamentary power of appointing a guardian has now been conferred on both parents.’ The father may appoint a testamentary guardian but if the mother survives, his testamentary appointment will be invalid and the mother will be the natural guardian only. In the next scenario suppose If the mother appoints a testamentary guardian, her appointee will become the testamentary guardian and the father’s appointment will continue to be invalid. In case of mother does not appoint, the father’s appointee will become the guardian. It seems that a Hindu father cannot appoint a guardian. of his minor illegitimate children even when he is entitled to act as their natural. guardian, as per  Section. 9(1) confers testamentary power on him in respect of legitimate children. In respect of illegitimate children and Section 9(4) confers such power on the mother alone.

A testamentary guardian can be appointed only by a will. It is essential for the testamentary guardian to accept ‘the guardianship’ which may be express or implied. A testamentary guardian may refuse to accept the appointment or may disclaim it at the intial stage, but after the acceptance, they cannot refuse except with the permission of the court.

Guardians Appointed by the Court

Under the Guardians and Wards Act, 1890 the courts are empowered to appoint guardians.

The court may appoint a person as the guardian if they consider it essential in the subject matter of the welfare of a child.

The District Court has the power to appoint or declare a guardian in respect of the person as well as separate property of the minor. The High Courts have the power to appoint guardians of the- person as well as the property of minor children. This power also covers the undivided interest of a coparcener.

The guardian appointed by the court is known as a certificated guardian.

*Powers of certificated guardians are controlled by the Guardians and Wards Act, 1890. Only a few acts which he can perform without the permission of the court.  powers are co-extensive with the powers of the sovereign. A certificated is under the supervision, guidance, and control of the court.

Guardianship by affinity

The guardian by affinity “guardian of a minor widow”. 

In Paras Ram v. State was held that the father-in-law of a minor widow forcibly took her away from her mother and married her forcefully with some monetary interest to an incapable person against her consent. The question arises before the court was whether the father-in-law was guilty of removing the girl forcibly. The Allahabad High Court held that he was not, since he was the lawful guardian of the widow.

De Facto Guardian

A person who takes lots of continuous interest in the subject matter of the welfare of the minor person or in his property without any authority of law.  

To make a person a de facto guardian a continuous course of action is required. In simple words, a de facto guardian is a person who is not a legal guardian, who has no authority in law to act as such but nonetheless he himself has assumed, the management of the property of the child as though he were a guardian. It is a concept where past acts result in present status.

Guardianship Under Muslim Law:

The source of the law of guardianship under Muslim laws is from Koran and a few ahadis. In Muslim law, guardians fall under the following three categories : (i) Natural guardians,

(ii) Testamentary guardians, and

(iii) Guardians appointed by the court.

Natural Guardians

In schools of both the Sunnis and the Shias, the father’s are  recognized as guardian and the mothers​ are not recognized as a guardian, natural or otherwise, even after the death of the father. 
The father’s right of guardianship exists even when custody of the minor is entitled to mother or any other female. The father enjoys the right to control the religion & education of minor children, their movement & upbringing. As long as the father is alive, he is the only and prime guardian of his minor children.

In Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody.

In Sunnis, the father is the only natural guardian of the minor children. If the father died, then guardianship passes to the executor. In Shias, after the father died, the guardianship belongs to the grandfather, if the father has already appointed an executor, the executor of the father receives the guardianship only in the absence of the grandfather and in the absence of the grandfather, the guardianship belongs to the grandfather’s executor.

Testamentary Guardian

In Sunnis, the father enjoys the full power of making a testamentary appointment of a guardian. In the absence of the father and his executor, the grandfather has the right of appointing a testamentary guardian. In the case of Shias, the father’s appointment of a testamentary guardian is effective only if the grandfather is dead. The grandfather, too, has the power of appointing a -testamentary guardian. No other person has any such power. In Shias and the Sunnis, the mother has no power of appointing a testamentary guardian. 

Acceptance of the appointment of testamentary guardianship is compulsory,  acceptance may be express or implied. After the acceptance, it cannot be rejected without the permission of the court.

Their is no specific formalities for the appointment of testamentary guardians. It may be made in writing or orally. In every scenario, the intention to appoint a testamentary guardian must be clear and unequivocal.

The executor of the testamentary guardian is designated variously by Muslim lawgivers, indicating his position and powers. He is commonly called, wali or guardian. He is also called amin, i.e., a trustee. He is also termed as kaim-mukam, i.e., the personal representative of the testator.

Guardian appointed by the Court:-

The High Courts also have inherent powers of appointment of guardians, though the power is exercised very in a restricted manner.

Under the Guardians and Wards Act,1890, the power of appointing, or declaring any person as guardian is conferred on the District Court. The District Court may appoint or declare any person as guardian of a minor child’s person as well as property whenever it is required for the welfare of the minor, taking into consideration the age, sex, wishes of the child as well ‘as the wishes of the parents and the personal law of the minor.

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