Guardianship under Muslim Law- Our Legal World
Children are known as messenger of the God. It is significant to take care and provide proper nourishment to them for their overall development. It is the first and foremost duty of the parents to fulfill all the basic needs of a child which lead to a dignified and prosperous life. Child below the age of 18 years is known as minor1. But in the case of absence or death of parents, guardianship takes place. Guardian are appointed by the parents as well as Courts for the sole intent i.e. welfare of the child. In Muslim law, there are different kinds of Guardians which we are going to discuss in the article.
Meaning of Guardianship
Guardianship of a minor can be defined as an overall supervision of minor’s growth and his welfare. Guardianship empowers guardian to have custody of a minor for a certain period of time.
The term ‘Guardian’ is defined in Guardian and Ward Act as “a person having the care of a person of a minor or of his property, or of both his person and his property”2.
Tahir mahmood defines guardianship in Muslim law as “Guardianship of a person in relation to a child belongs primarily to its father, the mother’s being only a pre-emptive right to keep the father away for a legally prescribed period only from a particular aspect of the guardianship of person, namely, the custody and physical upbringing of the child.”
Under Muslim law, Guardianship of minor is known as Hizanat.
Types of guardianship
Muslim law recognizes various types of Guardianship which are as follows:
1- Natural or legal Guardian
3-Guardian appointed by courts
Natural guardian is defined as first legal guardian of the minor. Under various schools of Muslim law, father is considered as natural guardian of the minor. The father’s right to act as guardian is an absolute right which is given to him under the substantive law of Islam.
Father is known as natural guardian of minor but in his absence instead of mother, grandfather has the authority to act as guardian of the minor. If both are not present or dead then any executor who is appointed by any of them can act as guardian. A minor cannot be represented by grandfather if father is alive.
The natural guardian of a minor in order of priority is as follows:
2- Executor of father
4- The executor of paternal grandfather
Thus, mother, brother, uncle etc is not entitled as of right to be the legal guardian of the property of minor3.
Can mother act as a guardian or appointed as Guardian of minor?
Mother can neither act as a guardian nor appointed as a guardian under Muslim law. In case of Ghulam Husani Kuttubudin Manner v. Abdul Rashid Abdul Razzak Manner4, Hon’ble Supreme Court held that a mother of minor cannot appointed as his guardian to accept gift on his behalf during lifetime of minor’s father.
Testamentary guardian can be defined as guardian appointed by a will. Will can be made by father only and in absence of father and his executors, Paternal grandfather can do so. Both schools of Shia and Sunni approve this. But in both the schools, mother has no right to appoint testamentary guardians. In Shia school, Non Muslim cannot be appointed as a Testamentary guardian.
However, Muslim law does not laid down any formalities regarding appointing of Testamentary Guardian. Appointment of testamentary guardian may be express or implied.
In case of Atika Begum v. Mohammad Ibrahim5, it was held that in presence of Grandfather, father has no right to appoint guardian of minor.
Guardian appointed by courts
When there is absence of natural or legal guardian of minor, Courts has the power to appoint guardian of the minor for the development and welfare of the minor as well as his/ her property.
The Act which empowers Courts to appoint guardian of minor is named as Guardian and Wards Act, 1890. This Act granted powers to District courts to appoint Guardian of minor. While appointing Guardian, Court considers welfare of the child and his/her property.
Limitations of Guardian appointed by courts
Though guardian appointed by the courts has full right to take care of the property of the minor but certain limitations are also prescribed in which prior permission of Courts are required which are as follows:
• Transfer by sale;
• Transfer by gift; and
• Exchange the property.
Permission of such alienation should be given by court in certain circumstances and in case of necessity.
Conflict between Guardianship and ward Act 1890 and Personal laws
If the provision of personal law is contrary to the provision of Guardian and Wards Act 1890, the latter will always supersede over prior one.
In case of Rafiq v. Smt. Bashiran6, court held that Section 19 of Wards Act 1890 will prevail over section 17 of Muslim personal law application Act, 1937
De facto Guardian
A de-facto guardian is a person who is neither a legal guardian nor a testamentary guardian, but has himself considered the custody and protection of a child.
According to Tyabji “a de-facto guardian means that an unauthorized person who, as a matter of fact, has custody of the person of a minor or his property. A de facto guardian could be a person having no authority for the guardianship however underneath the circumstances has taken the responsibility to act as the guardian of a minor”.
De-facto guardian has the responsibility toward minor welfare as well as his/her property but no rights takes place against the minor and his property7. An alienation of minor’s immovable property without the authority of the court by a de facto guardian is absolutely void.
In Mohammad Amin v. Vakil Ahmad, Supreme Court held that De facto guardians have no authority to enter into a family settlement in respect of minor’s benefit.
Can a guardian be removed?
Yes, a guardian can be removed by Court. A guardian whether de jure or de facto is removable by the court if it is necessary in the interest of the minor. Following grounds are laid on which Court can removed guardian which are as follows:
• Misuse of Trust
• Fail to perform duties
• Ill treatment of minor
• Adverse interest in minor’s property.
These are some of the major grounds on which removal of guardianship can takes place.
Guardianship of property of minor is needed for the welfare and protection of the minor’s property. Different schools of Muslim law differ in many provisions but all made coherence in Guardianship as welfare of the child and protection of his property is of utmost importance. Guardianship and Wards Act 1890 is an act of Legislation which came with a notion as welfare of child.
MULLA Principles of Mahomedan Law 22nd edition.
1-Indian majority Act, 1875
2- Section 4(2) of Guardian and Wards Act, 1890
3- Syed Shah Gulam Ghose v. Syed Shah Ahmed AIR 1971 SC 2184
4- (2000)8 SCC 507
5- AIR 1916 PC 250
6- AIR 1963 Raj 239
7- Section 27 of Guardian and Wards Act, 1890