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Minority and Guardianship

In Muslim law there is a different law of guardianship and the age of minority is also different from other law. Minor age according to Muslim law for boys are 17 years and for girls is until they attain puberty.

Guardianship is 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 power to deal with the property of the ward.

There are three kinds of guardians: natural, testamentary and court-appointed.

There are three kinds 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 guardia

Who is a minor:
According to Section three of the Indian Majority Act, 1875, someone domiciled in the Republic of India who is below the age of eighteen years, is a minor.

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 property.

Age of majority:

Muslim law: 15 years- marriage, dower and divorce
18 years- guardianship and other matters.

Indian law: 18 years- Indian majority act, 1875
21 years- guardianship and wards act, 1890

Guardianship under Muslim Law

Guardianship of a minor person means the overall supervision of the minor's temperament. It means that the care and welfare of the kid together with the liability to take care of it. It is more than mere custody of the kid upon a particular age.

What is Guardianship?

Under Muslim law, it is called HIZANAT. They are sometimes taken to mean the same thing. But underneath Muslim law, these two aspects of the guardianship are different and are governed by the different laws.[1]

The guardianship of a child means that overall oversight of the kid throughout its minority. Father or his executor or in his absence, the paternal grandfather, being the natural guardian, is in charge of the minor's person. On the opposite hand, ‘custody of the child' simply means a physical possession (custody) of the child upon a certain age.

Although the mother is not the natural guardian of the child under Muslim law, she has a right to the custody of the child, until the child attains a specific age. But the father or the paternal grandfather encompasses control over the minor throughout the complete interval of the minority.

Muslim law recognizes the following kind of guardian:

  1. A natural or legal guardian
  2. Testamentary guardian
  3. Guardian appointed by courts or statutory guardian
  4. De-facto guardian (fizuli) is out of vague in modern Muslim law.[2]

Natural or Legal Guardian

Natural guardian is a one that encompasses a right to regulate and supervise the activities of a minor. Father is recognized as the natural guardian of his kid underneath all the schools of Muslim law. The father's right to act as guardian of a minor is an independent right and is given to him underneath the substantive law of Islam. As long as the father is alive he is sole and supreme guardian of his children[3].

In Muslim law mother is not a natural guardian even of her minor illegitimate children but she is entitled to their custody.[4]

A natural guardian is additionally known as a legal guardian. But within the absence of the father, the father's executor might also act as a legal guardian. The executor could be one who is appointed by the father or grandfather to act as the guardian of his minor kid on his behalf.

Thus, the natural guardian of a minor in order of priority are as follows:
  1. Father
  2. Executor of father
  3. Paternal grandfather
  4. The executor of Paternal grandfather[5]
Under Muslim law within the absence of any of the above-mentioned persons, no one else is 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 Guardians

A testamentary guardian may be a one that is appointed as guardian of a minor beneath a will. Only father or, in his absence, paternal grandfather has the right to appoint a testamentary guardian. Among shias, the fathers appointment of testamentary guardian is valid only if the grandfather is not alive. 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 non-Muslim and a feminine might also be appointed as a testamentary guardian.
It seems that the appointment of non-Muslim fellow-subject(zimmi) is valid, though it may be set aside by the kazi. According to the malikis and the shaifi law, a zimmi can be validly appointed testamentary guardian of the property of the minor, but not of the person of the minor. The shias also take the same view. It appears that when that when two persons are appointed as guardian and one disqualifies the ten the other can act as the guardian.[6]

A profligate, that is a person who bears in public walk of life a notoriously bad character cannot be appointed as guardian.

Acceptance of the appointed guardianship is necessary, though the acceptance may be express or implied. But once the guardianship is accepted, it cannot be renounced, save with the permission of the court. Appointment may be made written or orally.

In every case, the intention to appoint a testamentary guardian must be clear and unequivocal. A testamentary deposition made by testor may be invalid, but appointment of the executor may be general or particular. The testor should be major and of sound mind, he should be in full possession of his senses. The executor of the testamentary guardian is designated variously by Muslim lawgivers indicating his position and powers. He is commonly called, wali or guardian. He is also called amin that is a trustee. He is also termed as kaim-mukam that is personal representative of the testator.

Shia Law

A non- Muslim cannot be chosen as a testamentary guardian.

Guardians appointed by Court

In case of the absence of a natural and legal document guardian, the court is authorized to appoint a guardian for the aim of the minor's person or property or for both. The appointment of a guardian by the court is ruled by the Guardianship and Wards Act, 1890 which is applicable to all the Indians irrespective of their religion. According to this act the power of appointing or declaring any person as guardian is conferred on the district court. The district court may appoint any person as the guardian of the minor as well as his property whenever it considers it necessary for the welfare of the minor, taking into consideration the age, sex, wishes of the child as well the wishes of the parents. Such guardians are also called Statutory Guardian.

De-facto Guardians

A de-facto guardian is a person who is neither a legal guardian nor a testamentary guardian or statutory guardian, but has himself assumed the custody and care of a child. According to Tyabji a l and 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.[7]

Powers of the natural and testamentary guardians:

Practically, no distinction exists between the powers of natural and testamentary guardian. It seems that the Muslim law-givers first lay down the power of an executor or testamentary guardian and then state that the natural guardian has the same powers. The Muslim law-gibers also approach the subject from the point of the view of the needs of the minor. After classifying the acts, they state which acts can be performed by whom.

These acts may be divided under the following three points:

  1. Acts which are beneficial or advantageous to the minor
  2. Acts which are absolutely injurious to the minor
  3. Acts which are mid-way between the two.
As to the act falling under the first category any person whether guardian or not, in whose care the child is, can perform those acts. Under this category fall such acts, as acceptance of gifts an alms. If the minor is of the age discretion he himself can perform them.

The facts which are absolutely injurious to the minor, such as emancipating a slave, or divorcing a wife, no person is empowered to do them on behalf of the minor. As to the acts under the third category, such as sale or hiring of the property for profit, they can be done only by the father, grandfather or the executor.

Power of alienation:

The jurists mostly talk of sale of minority's property. They make distinction between movable and immovable property. The power of guardian over property is wider than his powers over immovable property. The guardian is allowed to dispose of the minor's property only in exceptional cases. It appears to be clear that sale of movable property is justified not for the necessity of the minor, but on basis of conservation.

The sale of movable property can be avoided by minor on attaining majority only on the ground of fraud resulting in adequacy of consideration, or when inadequacy of consideration is such as to cause serious loss or detriment to the minor, though there is no indication 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 fide 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.[8].

Kinds of guardianship:

Muslim law recognizes three kinds of guardianship, namely:

  1. Guardianship of person
  2. Guardianship of property
  3. Guardianship of marriage.

Guardianship of person:

Under Muslim law ‘minors' between the ages of 15 and 18 can act independently of any guardian in marriage, dower and divorce. A Muslim wife of 16 may sue for divorce without the intervention of a guardian.[9] It must be clearly understood that there is vast difference between mother's right custody(hizanat) and fathers right to be the legal guardian.

Explaining this difference it was observed by privy council in Imambandi v Mutsaddi[10] that under Muslim law “ the mother is entitled only to the custody of the person of her minor child up-to a certain age according to sex of the child. But she is not the legal guardian father alone or if he be dead his executor is the legal guardian.”

Tyabji concludes that where the husband and wife are living together the child must stay with them, and the husband cannot take the child away with him nor can the mother even during the period that she is entitled to the custody of the child take it away without the permission of the father.[11]

The mother 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.[12]Staying away from the husband doesn't destroy her entitlement to the custody of her children.[13]

According to Bombay high court there is no absolute bar on giving custody of a child to its mother if she remarries.[14] The welfare of the child is of paramount importance.[15] Personal rights of either of the parties cannot be permitted to override the welfare of the children- Md. Riazuddin Ahmed v Ms Farida Begum.[16]

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[17]:
  1. Mother's mother
  2. Father's mother
  3. Mother's grandmother
  4. Father's grandmother
  5. Full sister
  6. Uterine sister
  7. Daughter of full sister
  8. Daughter of uterine sister
  9. Full maternal aunt
  10. Uterine maternal aunt
  11. Full paternal aunt[18]

Male relations:

  1. Father
  2. Nearest parental grandfather
  3. Full brother
  4. 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.[19]

Disqualifications of guardianship of person[20]

a) In case of mother and other female relation:
  1. If she married a person who is not related to the child within the prohibited degrees by consanguinity
  2. If she leads an immoral life
  3. If she resides during the subsistence of marriage at a distance from the father's place of residence.
  4. If she converts to another religion.
b) 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.

c) 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

  1. Death of the guardian
  2. His removal
  3. Court of wards taking over the superintendace of the minor;s person.
  4. The minor attaining majority
  5. The minor girl marrying a person capable to her hazing
  6. The father of the male minor again qualifying to be his guardian.[21]

Conclusion:
According to Islamic law, minority ceases when the boy or the girl attains puberty that is also called ‘bulugh' in Urdu. And the child can decide to marry and there can be no intervention for the same. In the Hanafi and Shia Muslims, it is assumed that the child attains majority at the age of fifteen. The relationship between the guardian and the child is fiduciary in nature. This is to ensure that the minor child is not acting unfavourably to their own interest.

Therefore, assuming that the minor child is incapable to maintain himself there is need for resorting to the appointment of a guardian who shall be an adult and shall be capable to make decisions on behalf and in the interest of the minor child be it a girl or a boy. The word Guardianship is denoted as ‘Hizzanat' in Urdu.

Guardianship under Muslim Law is an essential part of personal laws of people and with the passage of time, it has been codified by way of legislations. The Guardians and Wards Act is the legislation passed by the Parliament which deals with the laws and process related to guardianship in India.

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.[22] 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.

Bibliography:
  • I.B. Mulla, commentary on Mohammedan law, (2nd edition, dwivedi law agency, 2009, Allahabad)
  • Syed Khalid Rashid, Muslim law,(5th edition, eastern book company, 2009, Lucknow)
  • Asaf AA Fyzee, outlines of Mohammedan law (3rd edition), (London oxford university press, 1964)
  • Dr Paras Diwan - Muslim Law In Modern India, Allahabad Law Agency, (9th edition, 2005 Allahabad)

End-Notes:
  1. Rashid, Syed Khalid, Muslim law, fifth edition 2009, eastern book company, Lucknow
  2. Dr Paras Diwan - Muslim Law In Modern India, Allahabad Law Agency, Allahabad
  3. Immambandi v Mutsaddi, 1918
  4. Gohar Begum v Suggi, 1960
  5. Syed Shah v Syed Shah, 1971
  6. Dr Paras Diwan - Muslim Law In Modern India, Allahabad Law Agency, Allahabad
  7. Dr Paras Diwan - Muslim Law In Modern India, Allahabad Law Agency, Allahabad
  8. Janab v Samsunissa, 1936; Eishu v Ranglal,1973
  9. Fyzee, at p.197
  10. (1918)45 IA 73
  11. Tyabji, at p. 274
  12. Bahauddin v Mujee Bunnisa Begum, 1952
  13. Zynab Bi v Mohd Ghouse, 1952
  14. Irfan Ahmad v Mumtaz, 1999
  15. Sundari v Mohd. Fazoo, 1971
  16. (2007) 3 Gau LR 694
  17. Tyabji, at p. 275
  18. Rashid, Syed Khalid, Muslim law, fifth edition 2009, eastern book company, Lucknow
  19. Goher Begam v Suggi, 1960
  20. Verma, at p. 323-324, hedaya at p. 138-39
  21. K.P. Sharma Muslim law at p. 237-38
  22. 1989 Bom 357.

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