Guardianship under Muslim Law

Author: Divya Vishal, NUSRL

Guardianship under Muslim Law

A guardian is an individual having the consideration of the person of a minor or of his property, or of the both. The Quran is the premise of the law related to guardianship and, subsequently, there is next to no space for contrasts among Sunni and Shia schools. The guardianship of a kid implies that general oversight of the child all through its minority.

The term ‘Guardianship’ (wilayat) indicates the guardianship of a minor. A minor is one who has not accomplished the majority age. Majority and puberty are in the Muslim law indeed the very same. Puberty is attained at the age of fifteen years. In any case, presently the Muslims are controlled by the Indian Majority Act, 1875, apart from issues related to marriage, dower, and divorce. Muslims will be administered by the Indian Majority act which recommends 18 years as majority age. Hence, in instances of wills, waqfs, and so on, the minority will end on the consummation of 18 years. Until then the court has the capacity to select a Guardian of his person or of property or both under the Guardians and wards act in which case the period of minority is drawn out until the minor has finished the age of 21 years.

I-Appointment of guardians

The court appoints a guardian when it is content that an order for appointment of a guardian is needed for the well- being of the minor. Section 15(1) of the Guardians and Wards Act, 1890 licenses for the provision for joint guardian so that in case the demise of one of them happens, the other person should carry on to act as guardian of the minor.

Section 19 of the Act discusses the cases when a guardian cannot be appointed. It says that on the off chance that the administration of the property of a minor has been accepted by a court of wards under any local law in power:

(i)The court will not have the option to appoint guardian of property under the Guardian and Wards Act. ,

(ii) in case the court has been engaged to designate a guardian of the person for the minor, the same is impossible by a court under the Guardians and Wards Act.

The primary point of these courts is to establish ward courts to manage, constitution, working, and authority of courts of wards. Section 6, 19 and 21 of the Guardian and Wards Act gives that the courts ought not to meddle with the topic of guardianship of a minor in the case where the minor has been named under a will. In the event that a guardian isn’t performing his obligation appropriately, the court has the authority to terminate him as guardian of a minor.

Section 20 of the Act deals with the duty of the guardian to protect the wards property and handle it cautiously and fairly. Section 24, 25, and 26 of the Act give the custody of the minor to the person appointed by the court as guardian. The duty of the guardian is to protect minor’s health and education. Section 27 gives duties and constraints on functions of guardian. As per Section 31 of the Act lays down the process of getting permission for transfer the minor’s property by the guardian. Section 41 talks about the conditions in which the testamentary guardian or the guardian appointed by the court is terminated like death, majority of minor.

The court should appoint guardian keeping into consideration various aspects. If the minor is old enough to form an intelligent preference, the court may consider that preference.[1] The court will have to consider the minor’s age, sex and religion, the character and the limit of the proposed guardian, the desires, assuming any, of an expired parent, and any current or past relations of the proposed Guardian with the minor or his property.

II-Types of Guardianship

1. Guardianship in Marriage-The competency of the parties is one of the requirements of Muslim marriage and for the party must have attained the age of puberty. But an exception to it is when the marriage is dealt with by the guardian on behalf of the minor. The imposition of marriage on the minor is called jabr, the guardian appointed to minor is called wali and the right of guardianship is called wilayat. Therefore the authority of the father under Muslim law to give consent for marriage on behalf of his minor children is known as bulugh.

Persons who have the authority of acting as a guardian in the case of minor’s marriage in the sequence of enumeration are-

  1. The father.
  2. The father’s father
  3. Full brother and other paternal male relations
  4. Mother
  5.  Relations from mother’s side within restricted degree
  6. The court or the Qazi

The Shia law only acknowledges father or if not him then father’s father as guardian of the minor for the purpose of marriage. The rule of Muslim law is that when a remote guardian allowed a boy or a girl to marry when the nearer one is present, the validity of the marriage is dependent upon the latter’s ratification and consent.[2] Therefore, the latter is considered as a proper guardian to the minor.

2. Guardianship of body of the minor-This type of guardianship (Hizanat) is examined with regards to the minor’s age and the relationship status with the guardian.

i) Mother– Under Hanafi school, the hizanat or the guardianship of the body of the minor to the custody is with mother till the minor male has attained 7 years of age and in case of female, till she has attained the puberty. But in the case of Shia school, the mother holds the guardianship of the son till he gains the age of 2 years and daughter till she reaches 7 years of age.

In the cases of an illegitimate child, the mother holds the guardianship until the child attains 7 years of age although the child is not legally entitled by both the parents. Even in common law it is contended, “an illegitimate child belongs Legally speaking to neither of its parents and it is in every sense of the word filius nullius (son of nobody) but for the purpose of securing its due nourishment and support, it should, until It has attained the age of 7 years, be left in charge of the mother. After that, it may make his own election with which of the parents it will reside, or it may live apart from them altogether.”[3] Under Hanafi school, in the guardianship or custody is held by the following people in the absence of mother-

(a) Father’s mother

(b) Mother’s mother

(c) Full sister

(d) Full sister’s daughter

(e) Consanguine sister

(f) Consanguine sister’s daughter

 (g) Uterine sister

(h) Uterine sister’s daughter

(i) Paternal aunt

 (j) Maternal aunt

This right of hizanat is lost by the mother if she lives an unethical and dishonorable life. She does not properly supervise the child in custody or after taking the custody lives at her father’s place away from the minor. In Rahima Khatoon v. Saburjanessa[4], the court held that “The mother loses the guardianship of the minor daughter in case she remarries with another person not related to the child within prohibited degrees of relationship. In the present case, the court granted the certificate of guardianship to the parental grandmother with regard to the minor’s persons and property.”

Hizanat in the absence of these maternal relations goes to-

a) Father

(b)Paternal grandfather

(c)Full brother

(d) Full brother’s son

(e) Consanguine brother

 (f)Consanguine brother’s son

(g)Full brother of the father

(h) Son of father’s full brother

(i) Consanguine brother of the father

(j)Son of father’s consanguine brother

ii) Father-Under the Hanafi School of law, a father holds the custody or guardianship of the minor male who is above 7 years of age and an unmarried girl who has reached the age of puberty. He is the de facto guardian. In the case of Shia law, the girl who has reached the age of 7 years or more and a minor male who is above the age of 2 years. The Court in the case of Farzanabi v. S.K. Ayub Dadamiya[5] held that “there is no doubt that under Muslim law the father is entitled to the custody of a son over 7 years of age. The court observed that as far as possible the ordinary rule of Muslim law should be adhered to.”

In case the father is unable to hold the guardianship, it passes on to the other paternal relations as mentioned above. When there is an absence of both mother and father and other paternal or maternal relations, then the court has to appoint the guardian for the person of the minor child.

Cessation of Hizanat- There are different types of disqualifications for the cessation of Hizanat:-

  1. General Disqualification-Aperson fails to act as a guardian if he is:
  2. Minor
  3. If the person is non-mulsim. In such a case the other parent will get the custody or guardianship of the child.
  4. Disqualifications concerning males- It is a general rule of Muslim law that no male qualifies for the care or guardianship of a female minor who isn’t identified with him inside the restricted degree of relationship. There is no such notice of this preclusions either in the Shia Books or in the Guardians and Wards Act. The Court is required by section 25 of the Guardians and Wards Act to be guided in selecting or announcing guardian by what seems, by all accounts, to be for the well-being of minor.
  • Disqualifications concerning females- A female is disqualified as guardian of a minor child if she is unchaste or unethical, has married an unfamiliar person, lives at a place far away from the father, dismisses or do not take proper care the kid.
  • Disqualifications concerning parents-In case of guardianship of person of minor, the court cannot appoint a guardian when the minor’s father is alive as he is the natural guardian of the child. His guardianship can only be interfered by the court in the cases when he is immoral in character or actions or if he enters into a contract to the contrary or is outside the ambit of the court or expects to travel to another country. On the other hand, mother does not lose her guardianship in case of divorce by the father.
  • Disqualification concerning the husband- The husband under the muslim law isn’t qualified for the custody or guardianship of his minor wife in inclination to her mother except if she achieves puberty or to such age as would grants the culmination of marriage. The mother is entitled to the custody of the minor married girl as against her husband.[6]

3. Guardianship of Minor’s property- In case a minor under Muslim law owns a movable or immovable property, then there is a requirement of guardian to minor’s property to take care of it. The guardianship of minor’s property is also known as Wilayat-e-mal.

It is classified into following types-

i) De jure guardianship- It is also known guardianship under as legal or natural guardian. Father is perceived as the natural guardian of his child. His entitlement to go about as guardian of a minor is an autonomous right and is given to him underneath the meaningful law of Islam. The following people in the order given can act as legal or natural guardian of minor’s property-   

a) Father

b) Paternal grandfather

c) Executor appointed by father’s will

d) Executor appointed by the will of paternal grandfather

A natural guardian of the property of a minor can sell the minor’s immovable property, when the deal is fundamental for the maintenance of the property and when the minor has no other property. With respect to movable property, the Legal guardian of the property of a minor has the capacity to sell or promise the products and assets of the minor for the basic necessities of the child, for example, food, shelter, and clothing. The supreme court of India in the case of Ghulam Husani Kutubuddin Maner v. Abdul Rashid Abdul Rajak Maner has held that a mother of the minor cannot be appointed as his guardian to accept the gift on his behalf during the lifetime of minor’s father.[7]

ii) Certified guardianship- Certified guardianship refers to the guardians appointed by the court. In case there is no natural or legal guardianship, the responsibility of appointing a guardian lies in the hands of the court. While appointing a guardian the court takes into consideration the welfare of the minor and, as such, may appoint mother instead of paternal uncle, as the guardian of the property of the minor.[8] Without the past consent and authorization of the court a guardian of the property designated by the court can’t mortgage, transfer by sale or gift, lease, or charge the immovable property. The guardian appointed by the court is governed by the Guardianship and Wards Act, 1890 which is relevant to all the Indians regardless of their religion. Such guardians are additionally called Statutory guardians.

iii) De facto guardian-A De facto guardian is a person who is neither a legitimate guardian nor a guardian designated by the court however has deliberately positioned himself responsible for the body and property of the minor. He is a mere custodian of the minor’s person and property but has no right over either.[9] Usually, de facto guardians are relatives of the minor but without the right to be the guardian under Islamic law unless appointed by will or by the court. He is thus an officious intermeddler (fazooli) with the minor’s property and has no status or position to alienate it without the court’s permission.[10]

III-Withdrawal or removal of Guardian by the court

The court has the authority to remove both de jure as well as de facto guardian keeping in mind welfare of the minor in the following cases-

(1) Abuse of his trust;

(2) Failure to perform the duties appointed to him;

(3) Not in capacity to perform the duties;

(4) Neglecting the minor;

(5) Inconsistence with any of provision of the Guardians and Wards Act, or any other command by the court;

(6) Guilty of committing an offence involving immoral character of the guardian;

(7) Interest contrary to the performance of his duties;

(8) Not within the jurisdiction or ambit of the court;

(9)  Bankruptcy or insolvency of the guardian;

(10) Ceasing or being liable to cease, under the law to which minor is subject.

Thus, a guardian to the person and property of the minor can removed on these grounds by the court and the court will further appoint a guardian for the minor.

[1] Section 17 of the Guardians and Wards Act, 1890

[2] Ayub hasan v. Mst. Akhtari, AIR 1963 ALL. 525

[3] Macnaghten, pp. 298-99

[4] AIR 1996 Gau 33

[5] AIR 1989 Bom 357

[6] Nur Kadir v. Zuleikha Bibi, 11 Cal  649.

[7] AIR 2000 SCC 507.

[8] Ali v. Smt. Majjo Begum, AIR 1985 ALL. 29

[9] M. Fiaz v. Iftikhar, AIR 1932 PC 78

[10] Ali Mohammad v. Ram Niwas, AIR 1967 Raj 268