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Study Of Mohammadan Law With Reference To Guardianship

The source of law of guardianship and custody are certain verses in the Quran and a few hadis.The Quran , the hadis and other authorities on Muslim law emphatically speak of the guardianship of the property of the minor, the guardianship of the person is a mere inference. Guardian includes any person having legal custody or control over child. Under Muslim Law, the notion of guardianship is subsisting from the beginning.

Its source is found in some verses of the Quran and hadis though a little is found about guardianship of a person. For example ,according to Rudd-ul-Mukhtar, the right of guardianship of the minors property belongs to the father and in his absence to his executor, but if an executor has not been appointed, then to the grand-father. After the death of grandfather, the right goes to grandfather's executor, and if the executor has not been appointed by him then to the Kazi who may himself act as such, or may appoint someone to act on his behalf.

Definition of Guardian:

A guardian is a person who acts on behalf of a minor. Such action of a guardian is known as guardianship. The term Guardianship (Wilayat) connotes the guardianship of a minor.

Statutory Definition:

A person who has the legal responsibility for providing the care and management of a person who is incapable, either due to age (very young or even very old or to some other physical, mental or emotional impairment, of administering his or her own affairs. In the case of a minor child, the guardian is charged with the legal responsibility for the care and management of the child and of the minor child's estate. The term guardian has been defined under many Acts and there is almost similarity in the meaning given under these Acts.

Under section 2 of the Children (Pledging of Labour) Act, 1933 guardian includes any person having legal custody of or control over a child. According to section 2(k) of the Children Act, 1960,Guardian in the opinion of the competent authority having cognizance of any proceeding in the relation to a child, has, for the time being, the actual charge, or control over, that child ,According to the section 4(2) of the Guardian and Wards Act, 1890, Guardian means a person having the care of the person of a minor or of his property, or of both his person and property.

Under section 4(b) of the Hindu Minority and Guardianship Act, 1956, Guardian means a person having the care of the person of a minor or his
property or of both his person and property.

Who is a minor?

A minor is one who has not attained the age of majority. Puberty and majority are, in the Muslim Law, one and the same. Puberty is presumed to have been attained on the completion of the fifteenth years. But now the Muslims are governed by the Indian Majority Act,1875, except in matters relating to marriage, divorce and dower. The existing position regarding the age of majority in such cases is given as below: Fifteen years is the age of majority for the purposes of marriage, dower and divorce. At or above this age, he or she is free to do anything in the sphere of marriage dower and divorce.

According to Section 2 of the Child Marriage Restraint Act, 1929 (as amended in 1978), the minimum age for Marriage is 21 years for males and 18 years for females. Fifteen years is the age of majority in general. As regards other matters of guardianship of person and property, a Muslim will be governed by the Majority Act which prescribes 18 years as the age of majority. Thus, in cases of wills, waqfs, etc., minority will terminate on the completion of 18 years. Twenty-one years is the age of majority if the minor is under the Court of Wards, or a guardian of him has been appointed by the Court.

Under Muslim Law, any person who has attained puberty is entitled to act in all matters affecting his or her status or his or her property. But that law has been materially altered by the Indian Majority Act, and the only matters in which a Muslim is now entitled to act on attaining the age of fifteen years, are:
  1. marriage,
  2. dower, and
  3. divorce.
In all other matters, his minority continues until the completion of eighteen years. Until then the Court has power to appoint a guardian of his person or of property or both under the Guardians and Wards Act in which case the age of minority is prolonged until the minor has completed the age of twenty-one years.

Appointment of Guardian

When the Court is satisfied that it is for the elfare of a minor that an order should be made for appointing a guardian of his person or property or both as declaring a person to be such guardian, the Court may make an order accordingly.

Section 15(1) of the Guardians and Wards Act, 1890 permits for the appointment of joint guardian where the Court has appointed joint guardian and any one of them has died, the survivor continues to act as guardian. Section 19 of the Act says that in case the superintendence of the property of a minor has been assumed by a Court of wards under any local law in force:
  1. The Court shall not be able to appoint a guardian of property under the Guardians and Wards Act.
    1. in case the Court has been empowered to appoint a guardian of person for the minor, the same cannot be done by a Court under the Guardians and Wards Act. State Governments are also empowered to appoint Court of Wards. The main aim of these courts is to constitute ward courts for the purpose of regulating, constitution, working and powers of Court of Wards.

      Sections 6, 19 and 21 of the Guardian and Wards Act provides that in the following matters, the courts should not interfere with the question of guardianship of a minor: Where a guardian of the minors person, property or both has been lawfully appointed under a will in accordance with the law to which the minor is subject.

Section 41 of the above Act says that a guardian appointed by the Court or testamentary hail cease to be guardian on the happening of any one o the following incidents:

  1. in the case of the death, removal or discharge of the guardian;
  2. on attaining majority by the minor.
  3. in the case of guardianship of person, a guardian shall cease to have any power:
    1. on the marriage of the minor, if female to a person not unfit to be guardian of her person;
    2. on attaining majority by the minor;
    3. in the case of guardianship of person, a guardianship shall cease to have any powers
      1. on the marriage of the minor, if female to a person not unfit to be guardian of her person;
      2. revival of guardianship right of the person in whose disability another person acted as the guardian;
    4. in the case of a guardianship of property a guardian shall not be entitled to act as guardian on the assumption of the superintendence of the minors property by a Court of wards.

Classification Of Guardian:

Muslim law recognises following kinds of guardians:

Natural guardian

In all schools of both the Sunnis and the Shias, the father is recognized as guardian which term in the context is equivalent to natural guardian and the mother in all schools of Muslim law is not recognized as a guardian, natural or otherwise, even after the death of the father. The fathers right of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The father has the right to control the education and religion of minor children, and their upbringing and their movement. So long as the father is alive, he is the sole and supreme guardian of his minor children.

The fathers right of guardianship extends only over his minor legitimate children. He is not entitled to guardianship or to custody of his minor illegitimate children. In Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody.

Among the Sunnis, the father is the only natural guardian of the minor children. After the death of the father, the guardianship passes on to the executor. Among the Shias ,after the father, the guardianship belongs to the grand-father, even if the father has appointed an executor, the executor of the father becomes the guardian only in the absence of the grandfather. No other person can be natural guardian, not even the brother. In the absence of the grand-father, the guardianship belongs to the grand-fathers executor, if any.Natural guardians are legal guardian or de jure guardian.

Under Muslim law, father is the natural guardian, of the minor or lunatic and its property, though the expression natural guardian has never been used by the jurists and law givers, mother is not recognized as a guardian not even after the death of the father.

Natural guardian is a person who has a legal right to control and supervise the activities of a child. Father is recognized as the natural guardian of his child under all the schools of Muslim law. The fathers right of guardianship exists even when the minor is in the custody of its mother or any other person. He is the sole and supreme guardian of his minor children until his death.

In a significant ruling, the Delhi High Court has said that the maternal grandmother is not the natural guardian of a child under Mohammedan law as long as his or her father is alive. May be that under the Mohammedan law the maternal grandmother be entitled to the custody of the minor up to a certain age but even according to Mohammedan Law, she is not the natural guardian in the presence of the father, a division Bench comprising Justice Devinder Gupta and Justice Mukul Mud gal has ruled.

Dismissing an appeal by mother-in-law of Suhaib Ilyasi, producer of popular television crime serial India's Most Wanted, for the court's intervention in a single judge bench order restraining her from taking custody of his three-year-old daughter Aailya, the court said the father alone is the natural guardian of the child.

The court said under the Guardian and Wards Act, the word guardian is used in a wide sense. It does not necessarily mean a guardian duly appointed or declared by the court. Ilyasis mother -in-law Rukma Singh, who lives with her daughter in Canada, had challenged the single judge bench order restraining her from taking forcible custody of Aailya.

The main contention of Rukma Singh, a Hindu, was that she was entitled to custody of the daughter of Ilyasi, who is a Muslim ,as under Mohammedan law maternal grandmother has such a right. Ilyasi challenged her writ on the ground that he and his wife Anju had a registered marriage in 1993 in a London Court and therefore provisions of Mohammedan Law would not be entirely applicable in this case.

The Bench, however, said the question whether personal law on the minor would or would not be applicable or as to who was entitled to have her care and custody up to a particular age would have to be gone into and decided upon in appropriate proceedings in a competent court of law. The court further said that it was not dealing with the complicated questions like welfare of the minor or whether the petitioner, who did not have physical control of the child when the suit was filed, was entitled to an interim injunction.

Under the Sunni law, after the death of the father his executor becomes the guardian. But under the Shia law, after the death of the father the grand-father becomes the natural guardian even though an executor has been appointed by the father. The father's executor becomes the guardian only in the absence of the grandfather. Once a grand-father becomes the guardian, he may appoint his executor who will be the guardian in his absence.

Thus, the natural guardian of a minor, in order of priority, are as under:
  1. Father
  2. Executor of father
  3. Paternal Grand-father
  4. Executor of paternal grand-father. Under Muslim law, in the absence of any of the above mentioned persons, no body else is recognised as the natural or legal guardian of a minor. valid only if the grand-father is not alive. The grandfather too ,has the power of appointing a testamentary guardian. No other person has any such power.

    Under both the laws, another has no power of appointing a testamentary guardian for her minor children except in two cases:
    1. When the father of the minor appoints her by his Will, an executor, then she has power to appoint a testamentary guardian;
       
    2. In the case of her own property while Will devolve on her children after her death, she can appoint a testamentary guardian. The mother can be appointed a testamentary guardian or executrix by the father, or by the grand-father. It seems that the appointment of non-Muslim fellow-subject (Zimmi)is valid, though it may be set aside by the Kazi. It appears that when two persons are appointed as guardians, and one of them is disqualified, the other can act as guardian.

      A profligate ,i.e. ,a person who bears in public walk of life a notoriously bad, character, cannot be appointed as guardian: Acceptance of the appointment of testamentary guardianship is necessary, though acceptance may be express or implied. But once the guardianship is accepted, it cannot be renounced save with the permission of the court. A testamentary deposition made by a testator may be invalid, but appointment of the executor may be general or particular. The testator must have the capacity to make the Will at the time when it was executed. This means, that the testator should be major and of sound-mind, i.e., at the time of execution of the Will, he should be in full possession of his senses.

Kinds of guardianship

Muslim Law makes a distinction between guardian of the person, guardian of the property and guardian for purposes of marriage (Wilayat-uI-nikah) in the case of minors. Mohammedan Law recognises three kinds of guardianship They are as follows:
  1. Guardianship in marriage (jabar)
  2. Guardianship of person of the minor for custody (Hizanat).
  3. Guardianship of property which has been sub-divided into:
    1. Dejure guardianship.
    2. defacto guardianship.
    3. certified guardianship.

Power of a guardian for Marriage:

  1. Power to contract marriage of a minor or lunatic:
    A guardian for marriage may give minor or a lunatic in marriage and such marriage is valid, though it may be repudiate by the minor by way of option of repudiation of option of puberty. A minor's or a lunatic's marriage without the consent of a guardian is not valid.
     
  2. Power to contract of dower:
    A guardian may contract for dower in the marriage of a minor or lunatic. A father or a grandfather may contract an inadequate dower which is binding on the parties to a marriage, but such inadequate contract made by any other guardian is not valid.
     
  3. Power of contracting conditions:
    A guardian may at the time of marriage, enter into certain matrimonial conditions. But such condition should be lawful and reasonable. For example, an authority to pronounce Talaq given to the wife in a marriage contracted by the guardian of a minor is binding.
     
  4. Power to pronounce Talaq:
    Under the Shia law, the guardian of a lunatic who has attained puberty and who is of unsound mind may pronounce a Talaq, if it is necessary in the interest of the lunatic.4 But the guardian of a minor is incompetent to pronounce a Talaq for a minor wife under all the laws.
     
  5. Power to relinquish Dower:
    Under the Shia law, the father or grand-father is entitled to make relinquishment is not fraudulent. The wife's guardian may relinquish of the dower to which she would be entitled in the event of Talaq before consummation. The husband's guardian has no legal power to give up his word's right to half the dower in the event of Talaq before consummation. But either of these guardians cannot discharge the entire dower.

Hon'ble Chief Court of Punjab Gui Mohammad v. Mst Wazir a case where the father had converted from Mohammadanism to Christianity but he was only parent alive of a boy of eight years and a girl of four years and the grandmother of children was contesting for guardianship of the two minors and their property. However, none of these cases is a direct authority on the above subject, i.e., guardianship in marriage.

Hizanat ( Custody)

All Muslim authorities recognize the mother's right of hizanat.
According to the Rudd-uL-Muhtar. The right of the mother to the custody of her child is re-established whether she be a Mosalmart, or a kitabia or a majoosia, even though she be separated from her husband. But it does, not belong to one who Is an apostate. The mother Is of all persons the best entitled to the custody of her infant children during connubial relationship as well as after its dissolution. The term hizanat is applied to the woman to whom belongs the right of rearing up a child.

In this regard Muslim law makes a distinction between the son and the daughter.

The son

According to the Fatwa Alamgirt, the mother is entitled to the custody of a boy until he is independent of her care, that is, until he is seven years old. The Shias hold the view that the mother is entitled to the custody of her son until he is weaned. (This is considered to be the completion of two years), and that during this period the mother cannot be deprived of the custody of her son under any circumstances whatever, except with her own consent. On the completion of the age of two by the son, the mother's right of custody terminates.

The Daughter

Among the Hanalls, the mother is entitled to the custody of daughters till they attain the age of puberty. Among the Malikis, the Shafis and the Hanbalis, the mother's right of custody over her daughters continues till they are married. On the other hand, under the Ithana Ashari law, the mother is entitled to the custody of her daughters till they attain the age of seven.In all the schools of Muslim law, the mother has the right to the custody of her married daughter below the age of puberty in preference to the husband.

The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Since the right of hizanat of the mother is a right of rearing up of children given to her in the interest of children, she cannot surrender her right to any person,including her husband, the father of the child.

For instance, if she obtains khula from her husband on the stipulation that she would surrender her right of hizarzat to the father of the child,the khula will be valid and the stipulation will be void. Further, the mother cannot be deprived of her right of hizanat on the ground of her property; It is for the father of the child to provide her with sufficient funds for the maintenance of the child.

Other Females who are entitled to hizanat

Among the Hanafis, the following females are, after the mother, entitled to hizanat of the minor children of the age up to which the mother is entitled to it (the list is as given by Mulla):
  1. Mother's mother, how high so ever,
  2. Father's mother, how high so ever,
  3. Full sister,
  4. Uterine sister,
  5. Consanguine sister,
  6. Full sister's daughter,
  7. Uterine sister's daughter,
  8. Consanguine sister's daughter.
  9. Maternal aunts, In like order as sisters, and
  10. Paternal aunts, in like order as sisters.
     

Other male relations entitled to hizanat

In the absence of the father in both the aforesaid cases, the following persons are, according to the Hanafi Is, entitled to the custody of children:
  1. nearest paternal grandfather,
  2. full brother,
  3. consanguine brother,
  4. full brother's son,
  5. consanguine brother's father,
  6. full brother of the father,
  7. consanguine brother of the father,
  8. father's brother's son, and
  9. father's consanguine brother's son.

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