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. The welfare of the child plays the most important role in the appointment of the guardian. There is a difference between a custodian and a guardian. It is the duty and responsibility of the custodian to look after the child and ensure the overall development of the child. The guardian on the other hand is given the power to take major decisions for the future of the child, ranging from education to marriage, to career choices. He takes all decisions on behalf of the minor and supervise the child even when he/she is in custody of the mother or any other female relatives. In this article, we shall study guardianship under Muslim Law.

Who is minor under Muslim Law?

There are two different legal concepts in Muslim Law–bulugh (puberty) and rushd (majority). The former may be decisive for matrimonial matters; the latter may be required for legal capacity in all other matters.

According to Section 3 of the Indian Majority Act, 1875, someone domiciled in the Republic of India who is below the age of eighteen years, is a minor. In regard to the other aspects governed by Muslim Law- succession, wills, pre-emption, gifts, etc- for which the age of majority is not fixed by the Muslim Law, the Majority Act applies, and, therefore, in these areas majority for the Muslims now means eighteen years.

As per Muslim law, a minor is 17 years old for boys and till puberty for girls. A minor is assumed to have no capacity to protect his or her own interests. Law thus, requires that some adult person must safeguard the minor’s person or property and do everything on his or her behalf because such a minor is legally incompetent. A person who is authorized underneath the law to guard the person or property of a minor is called a guardian. 

Custody of Child Under Muslim Law:

Custody of the child means the child’s actual possession (custody) at a given age. The principles governing custody (hadanah) are as follows:

According to the Hanafi school, in case of a boy, the mother shall be the custodian by default if the child is below the age of seven years. Whereas in case of a girl, mother gets custody till the time girl attains puberty. After which the custody and the guardianship of a boy above seven years of age and of unmarried girl above puberty is transferred to the father.

In the absence of the mother, following female relations are entitled for the custody of the minor in order.

• Mother’s mother, how high so ever;
• Father’s Mother, how high so ever;
• Full Sister;
• Uterine Sister;
• Consanguine Sister;
• Full Sister’s Daughter;
• Uterine Sister’s daughter;
• Consanguine Sister Daughter;
• Maternal aunts in the same order as sisters;
• Mother’s father;
• Paternal aunts in the same order as sisters;
• Paternal aunts of mother and father in the same order, and in the absence of them.

to the following female paternal relations in order;

• Father;
• Nearest paternal grandfather;
• Full brother;
• Consanguine brother;
• Full brother’s son;
• Consanguine brother’s son;
• Full paternal uncle;
• Consanguine paternal uncle;
• Full paternal uncle’s son;
• Consanguine paternal uncle’s son, and in the absence of them.

to the following relation in order:

• Uterine brother;
• Uterine brother’s son;
• Father’s uterine brother;
• Maternal uncle; and
• Mother’s uterine brother.

Provided that a male relation be within the prohibited degrees of a girl.

The rules applicable in Shia law, are different. Here, the mother is entitled for the custody of a boy until the age of two years and of the girl until she attains seven years of age. The custody after the prescribed period dwells upon the father and after him to the grandfather how highsoever. The rationale given is that after birth, a two-year period is sufficient for breastfeeding a boy, after which he needs the guidance of his father.

Wife loses her right of custody in following situations:

• If she leads an immoral life.
• If she neglects to take proper care of the child.
• If she remarries.
• If, during the marriage, she goes and resides at a distance from the husband’s place.

Guardianship Under Muslim Law:

A Guardianship may be defined as a right to control the movement and actions of a person who, owing to mental defects, is unable to take care of himself and to manage his own affairs; for example, an infant, an idiot, a lunatic. It extends to the custody of the person and the power to deal with the property of the ward.

Under Muslim law, Guardianship is called Hizanat.  The mother might have the custody of the child but the father has the guardianship. Entitling him for the right to take any decision for the future of the child. He has the ultimate authority to decide matters regarding future of the child be it his/her education, or contracting marriage. That is why mother living far from the residence of the father was one of the grounds for the disqualification of the mother for taking custody. 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.

During the lifetime of the father, mother cannot technically accept a gift for the minor, or take any other decision for the welfare of the child as a guardian. The role prescribed here indicates the typical division of the labour based on gender. It flows from the notion that a man is provider of the family and he has the ultimate responsibility to protect them; on the other hand, a woman is to look after the house and the needs of the children.

In Gulamhussain Kutubuddin Maner v. Abdulrashid Abdulrajak Maner, (2000) 8 SCC 507 case, the Supreme Court, observed that during the lifetime of the father, mother cannot be the guardian of the minor to accept a gift on his behalf.

Kinds of Guardianship:

Under Muslim law, guardians are needed for the aim of a wedding, for protecting the minor’s person and for protecting the minor’s property.  Thus, there are three types of guardianship:

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

Guardianship of Person:

Under Muslim law, Guardianship is called Hizanat.  The mother might have the custody of the child but the father has the guardianship. Entitling him for the right to take any decision for the future of the child. According to the Hanafi school, in case of a boy, the mother shall be the custodian by default if the child is below the age of seven years. Whereas in case of a girl, mother gets custody till the time girl attains puberty. After which the custody and the guardianship of a boy above seven years of age and of unmarried girl above puberty is transferred to the father.  Under Shia Law, the mother is entitled for the custody of a boy until the age of two years and of the girl until she attains seven years of age. The rules of mother’s guardianship of person are similar to those of custody of minor.

When court will interfere with father’s Guardianship:

The following are the grounds where a court will interfere with the father’s guardianship of his children:

1. If he is unfit in character and conduct.
2. If he is unfit as regards to external circumstances.
3. If he waives his right.
4. If he enters into an agreement to the contrary.
5. If he is out of justification of court and intents to go abroad.

Here it must be clearly understood that there is a vast difference between mother’s right of custody (Hizana) and father’s right to be the legal guardian of his minor children.

In Imambandi v. Sheikh Haji Mutsaddi, (1918) 20 BOMLR 1022 case, the Privy Council held that under Muslim law “the mother is entitled only to the custody of the person of her minor child up to certain age depending upon the sex of the child. But she is not the natural guardian; the father alone, or, if he be dead, his executor (under the Sunni law) is the legal guardian.”

The father’s supervision over the child continues in spite of the child being under the care of female relations, because the burden of providing maintenance to the child rests exclusively on the father. The mother’s right of custody is not lost merely by her being divorced. But where she marries a second husband, the custody of children normally belongs to her former husband.

In Mir Mohd. Bahauddin v Mujibunnisa Begum, AIR 1952 Mad 280 case, where the husband and wife were living separately in Madras itself, on account of some property dispute. They had four children of different ages ranging from 10 months to 7 years. All the four were living with the mother. The husband married a second wife, but soon divorced her by Khula. One day the husband forcibly removed one daughter of 5 years and the son aged 10 months. The wife sued for the custody of both the children. The Madras High Court held that the wife was entitled to the custody of the children and her staying apart from the husband did not constitute any substantial disqualification.

In Sundari v Mohammad Fafoo, Appeal No. 2 of 1970 case, the Jammu & Kashmir High Court held that a Muslim mother may lose her preferential right of hizanat by her marriage with a gair – mahram, she may still be appointed a guardian by the court in the interest of the child, for such marriage does not disqualify her for a judicial appointment, if otherwise found suitable, the welfare of the child being of paramount importance.

Termination of guardianship of persons:

In the following instances the guardians right of hizanat comes to end;

1. Death of the guardian.
2. His removal (or her removal).
3. Court of wards lacking over the superintendence of the minor’s person.
4. The minor attaining majority.
5. The minor girl marrying a person capable to her hazin.

Guardianship of Property:

If a minor owns movable or immovable property, a guardian is necessary to manage it. The guardianship of the property of minor may be classified as follows-

1. Legal Guardian
2. Guardian Appointed by the Court
3. De-facto Guardian

A Natural or Legal Guardians:

Under Hanafi Law, the following are the legal guardians of minor’s property, in order of priority:

1. father;
2. executor appointed by father’s will;
3. father’s father;
4. executor appointed by paternal grandfather;

Etymologically, a natural guardian is a person who shall be naturally or by the virtue of being a parent shall be responsible for the child. Under all schools of Muslim law, the father is the natural guardian of the child. In absence of father, father’s father has that right. This right is derived from the Substantive Muslim law. The mother has no power to appoint by will a guardian of the property of her minor child. It must be remembered that mother, brother, uncle etc are not legal guardians. However, there is nothing to prevent the father or father’s father from appointing the mother, brother or uncle etc as executor, and on such appointment she or he will be as much competent as any other person to manage the property.

The executor of the father’s will, according to Hanafi law, has preference over the grandfather. In Shia law however, some hold that the father cannot appoint an executor in the presence of a grandfather, who will have preference over father’s executor in superintending the property. According to Shafi law, the grandfather has preferential rights over the father’s executor in matters of property management.

In Imambandi v. Sheikh Haji Mutsaddi, (1918) 20 BOMLR 1022 case, the Privy Council held that a legal guardian has power to sell or pledge the goods and chattels of the minor for the minor’s imperative necessities, such as food, clothing, or nursing.

In Mohan Lal v Mohd. Adil AIR 1926 Oudh 88 case, the Court held that a legal guardian cannot however sell or mortgage immovable property of the minor except for imperative necessity.

There are some exceptions to this general rule where the guardians can alienate the immovable properties.

• Where the sale may fetch double the value of the property;
• Where the minor has no other property, and sale is necessary for minor’s maintenance.
• Where there are no other means of paying debts of the deceased;
• Where there are no other means of paying legacies (under will);
• Where the income is less than the expenses of the property;
• Where the property is falling into decay;
• Where the property has been usurped (i.e., wrongfully seized or encroached upon), and the guardian fears that there is no chance of fair restitution.

So, in all these situations the legal guardian has power to alienate the immovable as well because it is an imperative necessity of ward.

Guardian appointed by courts or statutory guardian:

In the absence of legal guardians, the court is competent to appoint guardians for the protection and preservation of minor’s property. Guardianship and Wards Act, 1890 comes into play when the guardian of the minor child is appointed by the court. The Rules and procedure are highlighted under this Act. This Act is applicable to Hindus, Muslims, Parsi and persons of every religion and this is a Specific Legislation specifically dealing with the policy of guardianship and ward.

Under Muslim law, when the father of the child is not there and there is an absence of legal documents specifical absence of a will then the court shall have the authority to appoint the legal guardian of the minor child. A district court shall be the court who shall decide and appoint the guardian of a minor child. This is done in consideration of the age of the child, the sex of the child and the way the child has been brought up till this point of time. It also needs to be asserted that the High Court also has the powers to appoint a Guardian.

A guardian of the property of a minor appointed by the court under the guardians and wards Act, 1890, is bound to deal movable properties as carefully as a man of ordinary prudence would deal with his own property that is, he may alienate only in cases of grave necessities. He cannot alienate immovable property of minor-

• without the permission of the court; and
• without necessity or advantage of the minor,

With the prior permission of the court, he may –

• Mortgage, sell, gift away or exchange the property.
• Lease any part of that property for a term extending more than one year beyond the date on which the ward will cease to be a minor.

Any alienation in contravention of the above provisions is voidable at the instance of minor or any person affected by such an alienation. He may not, for example lease a house of the minor for 6 years, or when the minor is of 6 years, or when the minor is 16 years of age, lease it for 4 years, without the courts permission.

Removal of court – appointed guardian:

The court may, on the application by any person interested or suo motu, remove a testamentary or court – appointed guardian on any of the following grounds:

1. Abuse of the trust reposed in him.
2. Persistent failure to perform his duties.
3. Incapacity to execute the obligations of the trust.
4. Ill–treatment or neglect of the ward.
5. Contumacious disregard of the provisions of the guardians and wards Act, 1890, or of the orders of the court.
6. Conviction of an offence which the court regards as a defect of character as unfits him to continue as a guardian.
7. Entertaining adverse interest conflicting with faithful performance of his duties.
8. Shifting his residence away from the jurisdiction of the court.
9. Bankruptcy or insolvency of the guardian of property.

De-facto guardian:

This mode of guardianship comes into play when the person assumes the role of guardian without any legal or statutory authority. Therefore, a person who by way of circumstances is in the guardianship of a minor child not either by way of testament or statutorily then these types of guardianship is called a De-facto guardianship.

A de facto guardian has the same power to sell or pledge the goods and chattels of the minor in his charge as a legal guardian of his property. But he cannot enter into any contract whereby the minor would be saddled with any pecuniary liability.

A de facto guardian has no right to alienate immovable property of a minor. Such a transfer is void.

In Mohd. Amin v Vakil Ahmad 1952 SCJ 538 case, the Court held that if the property has been sold in execution of a decree and is purchased at an auction by a bonafide purchaser, the sale cannot be set aside.

Testamentary guardian:

Lexically, testamentary would mean ‘by the will’. Hence, a testamentary guardian is a person who shall be appointed as the guardian of the minor child. This appointment is carried out by the father of the minor child. And under a circumstance where the father is not alive then the paternal grandfather shall have the authority to decide the guardian.

This mode of appointment is an alternate mode of appointment of a testamentary guardian. According to usual practice, the testamentary guardian is appointed by way of will which encloses who shall be the guardian to the minor child in case the natural guardian i.e. the father is not alive. A testamentary guardian can also be a non-muslim person or a female. However, specifically under Shia Law, a female can never be a testamentary guardian.

Guardianship in Marriage (Jabr):

“A Guardian for marriage is a person authorized by law to make a valid contract for effecting the marriage of a minor or person of unsound mind.” Muslim marriage is contract. It is one of the essentials of a valid marriage that the parties are competent to enter into a marriage, which means they must have attained the age of puberty. This general rule admits one exception- where the marriage is solemnised on behalf of the minor by the guardian. The guardian has the right to contract the marriage of a minor. If the guardian is of the opinion that the marriage is for the welfare of the minor, then he has the right to contract such marriage. Even the consent of the minor, whose marriage is to be contracted, is not relevant. This form of marriage is called “jabar” marriage. Under this the guardian can impose the marriage on the minor, before he/she attains puberty. However, this too would be covered by the overriding effect of the Prevention of Child Marriages Act, 2006. The Court is not entitled to appoint a guardian for the marriage, though it can appoint a guardian for person or property. In some cases, the kazi can act as a guardian for the purpose of marriage. Under Muslim law, testamentary guardian for marriage is not recognised. A father has no power to appoint any person as guardian for marriage by his will.

Under Hanafi school the father has the right to contract the marriage of the minor. After him the right dwells upon the father‘s father, how highsoever. In the absence of these two relations, the right is further given to the brother and other male relations on the father‘s side in the order of inheritances. In the absence of all the above-mentioned male relations the right belongs to the mother, maternal uncle or aunt. Under Shia law, however, the right is vested upon the father and after him the father‘s father how highsoever. Maliki Law recognizes only father.

The consent of the minor is not relevant, even the consent of the mother is not acknowledged. The right of the mother over her child is given preference when there is no male relation from paternal side. Allocation of right in such a manner indicates as underlying assumption that a mother is not capable of taking the decision for the welfare of the child and therefore if there is any possibility of locating a ‘male’ member, preference is given to him, to exercise the right. However, after the Prohibition of Child Marriage Act, 2006, the child marriage has been prohibited and also made punishable. Now, the father or the grandfather or as the case may be, do not have any ‘right’ to give their minor children in marriage.

In Javaid Ghorashian v State of Maharashtra and another AIR 2002 Bom 1 case, the Court held that in appointing a person as guardian; protection of minor’s interest and its welfare should always be a paramount consideration. In cases where a person has expressed his desire to get himself appointed as the guardian of person and property; the court should keep in mind that the minor’s interest is of paramount consideration. The court should find out the material for the purpose of enabling it to judge whether such person should be permitted to be the guardian of person and property of the minor or whether his prayer should be rejected. When it is coupled with the prayer of permitting such person to adopt such child, the court should be careful enough to see whether the said desire expressed by the said person is bonafide or is motivated with some other intention which would not be beneficial to the future of the said child. In this context, the following factors are very much important: –

• Whether such person and his spouse is having criminal anticidants.
• Whether such person and his spouse are well placed in their life and are capable of shouldering responsibility of upbringing the said child.
• Whether the said child would get proper atmosphere to grow physically, mentally and intellectually in association with the same person and his spouse and his family members.
• Whether the said person, his family members would show on such child the humanly love and affection so as to create a good life in future for such child.
• Whether such child would get proper education and would get future opportunities of having better life and social status. 

While considering all these factors, the court should be always careful for protecting the interest of such minor child and its welfare would always be a paramount consideration.

Removal of Guardianship Under Muslim Law:

There are certain duties which are imposed upon a guardian that is required to be performed by the guardian. On the failure of which the guardian can be removed. This removal is usually taken place in the court.

Court’s Power of Removal of Guardian:

The Court can remove guardian in the following situations:

• If the husband has abused the trust of the woman
• He has not performed any duties as the husband
• The husband does not have any capacity to perform the duties
• That the husband has not treated the woman well
• That there is no regard to the orders of the court by the husband and he is also not regarding the provisions of the Guardianship Act
• When the husband has been found guilty for moral turpitude
• Have different interests as a guardian
• That the wife ceases to be a minor.

Conclusion:

As per Muslim law, a minor is 17 years old for boys and till puberty for girls. A minor is assumed to have no capacity to protect his or her own interests. Law thus, requires that some adult person must safeguard the minor’s person or property and do everything on his or her behalf because such a minor is legally incompetent. A person who is authorized underneath the law to guard the person or property of a minor is called a guardian.  Under Muslim law, guardians are needed for the aim of a wedding, for protecting the minor’s person and for protecting the minor’s prop erty.  Thus, there are three types of guardianship: a) Guardianship of person, b) Guardianship of property, and c) Guardianship in marriage.

The mother might have the custody of the child but the father has the guardianship. Entitling him for the right to take any decision for the future of the child. However, it cannot be ignored that personal laws are based on customs and need to be taken into consideration. Considering this, the Bombay High Court in Smt. Farzanabai v. Ayub Dadamiya AIR 1989 Bom 357 case, clearly held that personal law and beliefs of the parties need to be kept in mind by the adjudicating bodies whenever they hear any matter of guardianship.

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