Guardianship under Muslim Law

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This article was written by Surima Singh, a student of Christ Academy Institute of Law

A guardian may be a one that is liable for a minor’s person, property, or both. as a result of the sacred text is that the foundation of guardianship law, there’s very little space for disagreements between Sunni and sect faculties. A child’s guardianship entails broad management of the minor throughout his or her childhood.

The phrase ‘Guardianship’ (wilayat) refers to a minor’s guardianship. A minor is somebody World Health Organization has not reached the age of majority. In Muslim law, majority and pubescence area unit one and therefore the same. At the age of fifteen, someone reaches pubescence. In any event, except from wedding, dower, and divorce, the Muslims area unit presently ruled beneath the Indian Majority Act, 1875. The Indian Majority Act, that stipulates AN 18-year-old majority age, can govern Muslims. As a result, in cases involving wills, waqfs, and other similar documents, the minority will terminate after the 18-year period has passed. Until then, under the Guardians and Wards Act, the court has the power to appoint a Guardian of his person, property, or both, and the minor’s time of minority is extended until he reaches the age of 21.

Appointment of guardians

When it’s determined that AN order for the appointment of a guardian is critical for the minor’s well-being, the court appoints one. Section 15(1) of the Guardians and Wards perform of 1890 authorizes the appointment of a twin guardian within the event that one in all them dies, the opposite continues to act because the minor’s guardian:

When a guardian can’t be appointed, Section 19 of the Act addresses the case. It states that if a court of wards accepts the administration of a minor’s property underneath any native legislation in result, (i)the court won’t have the choice of appointing a guardian of property underneath the Guardian and Wards Act.

(ii) if the court has been asked to appoint a guardian for the minor, the Guardians and Wards Act makes it tough for the court to try to therefore.

The major purpose of these courts is to determine ward courts and supervise their formation, operation, and power. The Guardian and Wards Act provides that if a minor is laid out in a can, the courts shouldn’t interact within the question of guardianship. If a guardian fails to fulfil his obligations, the court has the authority to get rid of him from his position as a minor’s guardian.

The guardian’s duty underneath Section twenty of the Act is to safeguard the ward’s property and to treat it fairly and diligently. The minor’s custody is assigned to the guardian selected by the court underneath sections 24, 25, and 26 of the Act. The guardian’s responsibility is to make sure that the minor’s health and education are safeguarded. The obligations and restrictions of the guardian’s position are printed in Section 27. Section 31 of the Act makes the strategy of getting guardian approval to transfer the minor’s property public. Section 41 describes however the written document guardian or the court-appointed guardian are often pink-slipped in bound circumstances, like death or the bulk of minors.

When examining many concerns, the court ought to appoint a guardian. If the minor is of age, the court might take into consideration his or her up on preference. The court will contemplate the minor’s age, gender, and faith, also because the character and limits of the potential guardian, any existing or past relationships between the planned Guardian and therefore the kid or his property, and therefore the needs, if any, of an terminated parent.

Types of Guardianship

Guardianship in Marriage- The age of time of life for each parties is one in every of the necessities for Muslim wedding. there’s associate exception once the wedding is handled on behalf of the child by the guardian. The imposition of wedding on minors is cited as jabr, wali is that the guardian appointed to minors, and wilayat is that the power of guardianship. As a result, bulugh refers to a father’s ability to consent to a wedding on behalf of his minor youngsters in Muslim law.

In the order of enumeration, the following people have the ability to serve as a guardian in the case of a minor’s marriage:

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

For the needs of wedding, Shia Islam law recognizes solely the daddy or, if he’s not gift, the father’s father as guardian of the minor. once a so much guardian permits a boy or a woman to marry whereas the nearer guardian is gift, the legitimacy of the wedding is dependent on the latter’s confirmation and agreement.[1] As a result, the latter is thought to be the minor’s correct guardian.

Guardianship of body of the minor- The minor’s age and relationship standing with the guardian square measure thought-about during this variety of guardianship (Hizanat).

Mother – According to the Hanafi college, the hizanat, or guardianship of the juvenile body to the custody, is with the mother till the minor male reaches the age of seven, and within the case of a feminine, till she reaches pubescence. However, in sect faculties, the mother is that the guardian of the child till he’s 2 years previous and therefore the girl till she is seven years previous.

Despite the actual fact that the kid has no legal rights from anyone, the mother retains guardianship of associate bastard till the kid reaches the age of seven. “An illegitimate belongs lawfully chatting with neither of its folks and is in each sense of the word filius nullius (son of nobody), aside from the aim of securing its due nourishment and support, it need to be left responsible of the mother till it reaches the age of seven years,” the common law argues. After that, it should opt for that of the oldsters it needs to measure with, or it should live severally of them.”[2] within the absence of the mother, the subsequent persons hold guardianship or custody beneath the Hanafi school:

1. 1. Father’s mother
   2. Mother’s mother
   3. Full sister
   4. Full sister’s daughter
   5. Consanguine sister
   6. Consanguine sister’s daughter
   7. Uterine sister
   8. Uterine sister’s daughter
   9. Paternal aunt
   10. Maternal aunt

If a mother lives associate degree immoral and dishonest life, she loses her right to hizanat. She either fails to adequately administrate the child in her possession or stays together with her father off from the small fry when receiving custody. “The mother loses custody of the minor female offspring if she remarries with another person not associated with the kid among prohibited degrees of kinship,” the court declared in Rahima Khatoon v. Saburjanessa[3] during this case, the court gave the maternal granny a certificate of guardianship over the minor’s persons and possessions.”

Hizanat in the absence of these maternal relations goes to-

1. Father
2. Paternal grandfather
3. Full brother
4. Full brother’s son
5. Consanguine brother
6. Consanguine brother’s son
7. Full brother of the father
8. Son of father’s full brother
9. Consanguine brother of the father
10. Son of father’s consanguine brother

Father- According to the Hanafi school of law, a father has custody or guardianship of a juvenile boy over the age of seven UN agency has noninheritable puberty from a mateless female global organization agency. He’s the real de facto guardian. A minor feminine UN agency has reached the age of seven years or a lot of and a minor male UN agency has reached the age of 2years square measure each thought of minors in Shiah Islam law. In Farzanabi v. S.K. Ayub Dadamiya[4] the Court expressed, “There is not any question that below Muslim law, the father is entitled to custody of a son on the far side the age of seven.” The court expressed that “the regular rule of Muslim law ought to be followed as way as practicable.”

If the father is unable to function guardian, the guardianship is passed on to the opposite paternal relatives listed higher than. once each the mother and father area unit absent, furthermore as different paternal or maternal relatives, the court should appoint a guardian for the minor child’s person.

Disqualifications for Hizanat Cessation- There are several types of disqualifications for Hizanat Cessation: –

1. General Disqualification- A person fails to acts as a guardian if he is:
2. Minor
3. If the person is non-Muslim. In such a case the other parent will get the custody or guardianship of the child.
4. Disqualifications concerning males- No male qualifies for the care or guardianship of a feminine juvenile isn’t related to him at intervals the restricted degree of relationship, in line with Muslim law. Neither the Shia Books nor the Guardians and Wards Act give any such notification of those prohibitions. Section 25 of the Guardians and Wards Act needs the Court to be directed in choosing or appointing a guardian by what appears to be the minor’s best interests.
5. Female guardianship disqualifications- If a feminine guardian of a young kid is straightforward or unscrupulous, has married Associate in Nursing unknown person, lives isolated from the daddy, dismisses or fails to adequately look after the kid, she is disqualified.
6. Disqualifications concerning parents- When it involves minor guardianship, the court cannot appoint a guardian whereas the minor’s father continues to be living as a result of he’s the child’s natural guardian. If he’s immoral in his character or acts, or if he enters into a contract to the contrary, or if he’s outside the court’s jurisdiction, or if he intends to depart to a different country, the court can solely intervene together with his guardianship. The mother, however, retains her guardianship within the event of the father’s divorce.
7. Disqualification concerning the husband- the husband isn’t qualified to possess custody or guardianship of his minor woman in preference to her mother until she reaches pubescence or reaches the age once wedding is complete. In distinction to her husband, the mother has the correct to custody of the underage married girl.[5]
8. Guardianship of Minor’s property- In Muslim law, if a minor has mobile or unmovable property, a guardian is needed to make sure that it’s properly cared for. The guardianship of a minor’s property is thought as wilayat-e-mal.

It is classified into following types-

1. De jure guardianship- It is conjointly noted as legal or natural guardianship. the daddy is considered his child’s natural guardian. His power to act as a guardian of a minor could be a self-contained right that he’s granted in Islamic law. within the order listed, the subsequent folks will act as legal or natural guardians of a minor’s property
   • Father
   • Paternal grandfather
   • Executor appointed by father’s will
   • Executor appointed by the will of paternal grandfather

A natural guardian of a minor’s property can sell the minor’s immovable property if the transaction is necessary for the property’s upkeep and the minor has no other assets. In the case of movable property, the legal guardian of a minor’s property has the authority to sell or pledge the minor’s products and assets in exchange for the child’s fundamental needs, such as food, shelter, and clothing. The Indian Supreme Court control in Ghulam Husani Kutubuddin Maner v. Abdul Rashid Abdul Rajak Maner that a minor’s mother cannot be selected as his guardian so as to receive a present on his behalf whereas the minor’s father remains alive..[6]

1. Certified guardianship- Certified guardianship refers to a court-appointed guardianship. within the absence of natural or legal guardianship, the court is liable for appointing a guardian. The court analyses the minor’s welfare when appointing a guardian, and also the mother, instead of the paternal uncle, is known as because the guardian of the minor’s property. A guardian of the property chosen by the court cannot mortgage, transfer via sale or gift, lease, or charge the immobile property while not the previous consent and authorization of the court. The Guardianship and Wards Act of 1890 governs the court-appointed guardian, that applies to all or any Indians, no matter religion. Statutory guardians also are observed as these guardians.

• De facto guardian- – A de facto guardian is somebody WHO isn’t a fiduciary or a guardian appointed by the court, however has consciously placed himself accountable of the minor’s body and property. he’s merely the minor’s guardian of his person and his belongings, however he has no management over either. de facto guardians area unit typically the minor’s relatives, however they do not have the legal ability to be the guardian unless they are chosen by a will or a court. As a result, he’s associate degree intrusive negotiant (fazooli) with the minor’s property, having no legal standing or authority to alienate it while not the court’s approval.[7]

Withdrawal or removal of Guardian by the court

In the following instances, the court has the proper to get rid of each the American state jure and factual guardians, bearing the minor’s welfare in mind:

1. Abuse of his trust;
2. Failure to perform the duties appointed to him;
3. Not in capacity to perform the duties;
4. Inconsistence with any of provision of the guardians and Ward Act, or any other command by the court;
5. Neglecting the minor;
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 subjected.

As a result, the court will take away a guardian of the minor’s person and property on these grounds, and therefore the court can appoint a guardian for the minor.

[1] Ayub Hasan v. Mst. Akhtari, AIR 1963 ALL. 525

[2] Macnaghten, pp. 298-99

[3] AIR 1996 Gau 33

[4] AIR 1989 Bom 357

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

[6] AIR 2000 SCC 507.

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