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Guardianship Under Mohammedan Law

11 min read

By Paromita Maitra

Published on: May 10, 2022 at 07:32 IST

INTRODUCTION

There is a separate guardianship legislation in Muslim law, and the age of minority is also distinct from other laws. As per Muslim law, a minor is 17 years old for boys and till puberty for girls.

Guardianship is the lawful entitlement to supervise the movements and acts of a person who is unable to care for himself and handle his own affairs due to mental flaws, such as an infant, an imbecile, or a lunatic.

It includes the ward’s person custody as well as the authority to deal with the ward’s possessions. Natural, testamentary, and court-appointed guardians are the three types of guardians.

There are three types of guardianship:

  • guardianship of person,
  • guardianship of property,
  • guardianship in marriage.

The welfare of the child plays the most important role in the appointment of the guardian.

Minority and Guardianship

A minor is defined as a person domiciled in the Republic of India who is under the age of eighteen years old, according to Section three of the Indian Majority Act, 1875.

A minor is presumed incapable of safeguarding his or her own rights. Because the youngster is legally incompetent, the law demands that an adult person preserve the minor’s person or property and act on his or her behalf.

A guardian is a person who is legally allowed to look after the person or property of a minor. Guardians are required by Muslim law for the purpose of a wedding, for the protection of the minor’s person, and for the protection of the minor’s possessions.

Guardianship under Muslim Law

The general control of a minor’s temperament is referred to as guardianship. It refers to the child’s care and well-being, as well as the responsibility to care for it. It’s more than just having custody of the child when he or she reaches a certain age.

Guardianship under Muslim law it’s known as HIZANAT in Muslim law. They’re often misinterpreted to mean the same thing. However, under Islamic law, these two components of guardianship are distinct and are governed by separate laws.

A child’s guardianship entails overall responsibility for the child throughout his or her childhood. In the unavailability of the father or his executor, the minor’s natural guardian, the paternal grandpa, is in control of the minor’s person.

On the other hand, ‘Custody of the child’ merely refers to the child’s actual possession (custody) at a given age.

Despite the fact that the mother is not the kid’s natural guardian, she has a claim to custody of the child until the child reaches a certain age under Muslim law. The father or paternal grandpa, on the other hand, has entire power over the minor for the duration of the minority.

Muslim law recognizes the following kinds of guardian:

  • A natural or legal guardian
  • Testamentary guardian
  • Guardian appointed by courts or statutory guardian
  • De-facto guardian (fizuli) is out of vague in modern Muslim law.

Legal or natural guardianship

A Natural Guardian has the authority to control and monitor the work of a minor. Under all schools of Muslim law, the father is acknowledged as the natural guardian of his child.

The right of a father to act as a guardian of a minor is a separate right granted to him by Islam’s substantive law. The father is the single and paramount protector of his offspring as long as he is alive.

Even though a woman is not a natural guardian of her minor illegitimate children, she is entitled to custody under Muslim law.

A Legal Guardian is also known as a natural guardian. However, in the absence of the father, the executor of the father’s will may act as a legal guardian. The executor could be a person named by the father or grandpa to function as the guardian for his minor child.

Therefore, the natural guardian of a minor in order of priority are as follows:

  • Father
  • Executor of father
  • Paternal grandfather
  • The executor of Paternal grandfather

Under Muslim law within the absence of any of the above-mentioned persons, no one else can be recognized as the natural guardian of a minor.

Shia Law

Within the absence of father only paternal grandfather could act as a legal guardian. In the presence of paternal grandfather, the father’s executor has no right to act as legal guardian of a child.

Testamentary Guardian

A Testamentary Guardian is someone who is named as a minor’s guardian in a will.The only person who has the authority to designate a testamentary guardian is the father or, in his absence, the paternal grandfather.

The father’s creation of testamentary guardian is only valid among Shias if the grandpa is deceased. Among both Shias and Sunnis the mothers have no power of appointing testamentary guardian of her children.

It is only in two case that the mother can appoint the testamentary guardian and that is:

  • When she has been appointed as the general executrix by the will of the children father.- She can appoint an executor in respect of her own property which will devolve after the death of her children.
  • A testamentary guardian may also be appointed by a non-Muslim woman.- The appointment of non-Muslim fellow-subjects (zimmi) appears to be lawful, albeit the kazi may overturn it. A zimmi can be legitimately appointed testamentary guardian of the minor’s property, but not of the minor’s person, according to the malikis and the shaifi law.

The Shias share this viewpoint. It appears that if two people are named as guardians and one of them disqualifies the ten, the other can take over as guardian.

A profligate, or someone with a notoriously terrible reputation in the public eye, cannot be appointed as a guardian. Acceptance of the appointed guardianship is required, whether it is expressed or implicit. However, if the guardianship is accepted, it can only be revoked with the court’s permission. Appointments can be made either in writing or orally.

The aim to appoint a testamentary guardian must be clear and unmistakable in every situation. A testator’s testamentary deposition may be invalid, yet the executor may be appointed in a generic or specific manner. The testor must be over the age of 18 and of sound mind, with all of his senses intact.

In Shia Law a non- Muslim cannot be chosen as a testamentary guardian.

Guardians appointed by Court

In the absence of a natural or legal document guardian, the court has the power to appoint a guardian for the minor’s person, property, or both. The Guardianship and Wards Act, 1890, governs the court’s appointment of a guardian, and it applies to all Indians, regardless of religion.

The district court is given the authority to appoint or declare anyone as a guardian under this statute. The district court may designate any individual as the guardian of the minor and his property whenever it deems it necessary for the minor’s welfare, taking into account the child’s age, sex, and wishes.

De-facto guardian

A de-facto guardian is someone who has taken on the custody and care of a child without being a legal guardian, testamentary guardian, or statutory guardian. A de-facto guardian, according to Tyabji, is an unlicensed person who, in fact, has control of a minor’s person or his property.

A de facto guardian is someone who, despite not having the legal power to act as a guardian, has taken on the role of a minor’s guardian under the circumstances.

Natural and testamentary guardianship powers

There is no practical distinction between natural and testamentary guardianship powers. The power of an executor or testamentary guardian appears to be established first by Muslim lawgivers, who then assert that the natural guardian has the same powers.

Muslim law-givers take a similar approach to the problem, focusing on the needs of minors. They specify what action can be done by whom after categorizing the acts.

These acts may be divided under the following three points:

  • Acts which are beneficial or advantageous to the minor
  • Acts which are absolutely injurious to the minor
  • Acts which are mid-way between the two.

Any individual, whether a guardian or not, in whose care the child is can perform the activities that come under the first category. Acceptance of gifts and alms are examples of acts that fit into this category. If the minor is of legal age, he can conduct them himself.

No one has the authority to act on behalf of a minor in matters that are absolutely harmful to the minor, such as emancipating a slave or divorcing a wife. Only the father, grandpa, or executor can perform acts that fall under the third category, such as selling or renting property for profit.

Power of alienation:

The majority of the jurists discuss the sale of minority property. They differentiate between moving and fixed assets. The guardian’s power over movable property is greater than his control over immovable property.

Only in extraordinary circumstances is the guardian permitted to dispose of the minor’s property. It becomes obvious that the sale of movable property is justified on the grounds of conservation rather than the necessity of the minor.

The sale of moveable property by a minor after reaching majority can be avoided only if there is fraud resulting in insufficient consideration, or if the inadequacy of consideration causes severe loss or injury to the minor, even though there is no proof of fraud.

In such a case the transaction is voidable at the instance of the minor. On the other hand the transaction is entered into bona fides with due acre and diligence then the guardian is not responsible for any unforeseeable consequences adversely affecting the interest of the minor.

The power of alienation of immovable property are limited.

The consensus of the authorities is that the sale of a minor’s immovable property by his legal guardian is valid in the following cases:

  1. When the guardian can fetch the double of its value.
  2. When sale is to manifest advantage of the minor.
  3. When there are some general provision in the will, such as payment of legacies, which cannot be carried into effect, without the sale of the property.
  4. When there are debts of the testator, and they cannot be liquidated, save by the sale of the property.
  5. Where income of property is less than the cost of its upkeep.
  6. When it is imminent danger of being lost or destroyed by decay.
  7. Where the property is in the hands of an usurper and the guardian has reasonable belief that there is no chances of recovery.
  8. When minor has o property and sale is absolutely necessary for its maintenance.

Number 2 and 4 do not apply in case of father and grandfather.

Kinds of guardianship:

Muslim law recognizes three kinds of guardianship, namely:

  • Guardianship of person
  • Guardianship of property
  • Guardianship of marriage.

In marriage, dower, and divorce,’minors’ between the ages of 15 and 18 can act independently of any guardian in Muslim law.

A 16-year-old Muslim wife can divorce her husband without the help of a guardian. It must be noted that the mother’s right to custody (hizanat) and the father’s right to be the legal guardian are vastly different.

In Imambandi v Mutsaddi, the privy council observed that under Muslim law, “The mother is only entitled to the custody of the person of her minor kid up-to a specific age according to the sex of the child. However, she is neither the legal guardian father alone, nor is his executor if he is deceased.”

Tyabji determines that where the husband and wife live together, the child must remain with them, and the husband cannot take the child away with him, nor can the mother take the child away without the father’s permission even during the period when she is entitled to custody.

Other female relations:

In absence or disqualifications of the mother, the custody of the male child until he attains the age of 17 and of female child until she attains puberty, belongs to the following person in order of priority

  • Mother’s mother
  • Father’s mother
  • Mother’s grandmother
  • Father’s grandmother
  • Full sister
  • Uterine sister
  • Daughter of full sister
  • Daughter of uterine sister
  • Full maternal aunt
  • Uterine maternal aunt
  • Full paternal aunt

Male relations:

  • Father
  • Nearest parental grandfather
  • Full brother
  • Consanguine brother and other parental relations within the prohibited degrees, reckoning proximity in the same order as for inheritance.

Custody of minor wife and illegitimate child: the custody of n illegitimate child belongs to mother and her relation and to no one else, as held by the supreme court.

The mother’s entitlement to custody does not end just because she is divorced. When she marries a second husband, though, her former husband usually has custody of the children. Her right to custody of her children is not jeopardized by her separation from her husband.

According to the Bombay High Court, there is no absolute prohibition against giving a child’s mother custody if she remarries. The welfare of the child is of paramount importance.Personal rights of either of the parties cannot be permitted to override the welfare of the children- Md. Riazuddin Ahmed v Ms Farida Begum.

Disqualifications of guardianship of person

  1. In case of mother and other female relation:
  2. If she married a person who is not related to the child within the prohibited degrees by consanguinity
  3. If she leads an immoral life
  4. If she resides during the subsistence of marriage at a distance from the father’s place of residence.
  5. If she converts to another religion.
  6. In case of a male: if the minor is an unmarried girl and is not related to him within the prohibited degrees. If a non-agnate within the prohibited degrees, such as a maternal uncle is available he should be preferred over an agnate not within prohibited degrees. The object of this Islamic rule is to avoid the custody of a male hazin who may marry the girl. However this rule is not recognized by the shias.
  7. In case of a husband: if the minor wife hasn’t attained the age of puberty or is not of such an age as to allow consummation of marriage.

Termination of guardianship of person

  • Death of the guardian
  • His removal
  • Court of wards taking over the superintendence of the minor’s person.
  • The minor attaining majority
  • The minor girl marrying a person capable to her hazing
  • The father of the male minor again qualifying to be his guardian.

Conclusion

As per Islamic law, a boy or a girl’s minority ends when they reach puberty, also known as ‘Bulugh’ in Urdu. And the youngster can choose whether or not to marry without any intervention. It is thought that a child reaches adulthood at the age of fifteen in Hanafi and Shia Muslims.

The guardian’s connection with the child is fiduciary in nature. This is to verify that the underage child is acting in their own best interests.

As a result, if the minor kid is unable to care for himself, a guardian must be appointed, who must be an adult and capable of making decisions on behalf and in the best interests of the minor child, whether she is a girl or a male. In Urdu, the word ‘Hizzanat’ means ‘Guardianship.’

Guardianship under Muslim Law is an important element of people’s personal laws, and it has been codified via legislation over time. The Guardians and Wards Act is a piece of legislation passed by Parliament that deals with guardianship rules and procedures in India.

Edited by: Tanvee Jain, Publisher, Law Insider

REFERENCE

Minority and Guardianship