The term guardianship (Wilayat) denotes the guardianship of a minor. The
Quran is a basic of the law relating to concept of guardianship. Muslim law
makes a difference between guardian of the person and the guardian of the
property and guardian for the purpose of marriage (Wilayat-ulnikah) In case of
Who is minor?
A minor is one who has not attained the age of majority. Puberty and majority
presumed to have been attained on the completion of the of 15 But now the
Muslims in India are governed by the Indian Majority Act 1875. Except in the
matters of marriage, divorce and Mehr.
The exiting position regarding the age of majority are as:
In recognizes three kinds of guardianship:
- Fifteen year is the age of majority for the purpose of marriage, dower,
and divorce. At this age he or she is free to do anything in contest of
these three matters.
- As per sec 2 of Child marriage Restrain Act 1929 (as amended in 1978)
the minimum age of marriage for male is 21 and for female is 18
- Fifteen years is the age of majority is general. As regarding other
matters of guardianship of a person attaints the age of puberty and Muslim
will be governed by majority act which provide the age of majority is 18.
Guardianship of Property
- Guardianship in marriage (jabar)
Marriage is often contracted on behalf of the minors by the guardian. the
father can impose status of marriage on his minor children. This power of
imposition is named 'jabar', the abstract right of guardianship (wilayat)
and therefore the guardian so empowered is understood as 'Wali'.
The role of
guardian is often played by father, father's father, mother, maternal relations,
full brother and other male relatives, Qazi, or the Court. Testamentary
guardians for marriage do not seem to be recognized and marriage performed by
remoter guardian is void. Under the Muslim system, an apostate cannot be a
guardian for marriage, that the marriage of a minor girl contracted by her
mother against the consent of her father, who was converted to a
different faith, was held valid.
- Guardianship of person of minor for custody
A mother is only a de facto guardian of the child. The mother in Hanafi law is
entitled to the custody of her male chill till the child attain the age of seven
year and in case of female child till the child attains the age of puberty. In
case shia law, up to two year for the male child and seven year in case of male
child. The mother is not entitled to execute Waqt on behalf of the minor.
an execution is void as she has no right relating to it. If the mother fails,
the coustody goes to mother's mother, father's mother, full sister, uterine
sister, consanguine sister, full sister's daughter, uterine sister's daughter,
consanguine sister's daughter, maternal and paternal aunts. This right of the
mother is lost if she is living an immoral life, negligent to take proper care
of the child, marries a person not related to the child of prohibited degrees,
during the subsistence of marriage goes and she is living far from his father's
If all the above listed female fails in the custody of the minor, then the
custody goes to the father and in case father fails the custody goes to the
father's relatives. An illegitimate child legally speaking belongs to neither to
the father no to the mother of the child and in every sense is filius nullius
but for the purpose of its support and the betterment it is left to the mother
till the age of seven years and later can make his/her own choice
Guardianship Of Minor
- De-Jure Guardianship (legal or natural guardian)
The person entitled to be the guardianship of the property of the minor are
father, executor appointed by father's will, father's father, executor
appointed by the will of father's father. The guardian has the power to sell
immovable property to the minor, and it is required for maintenance. The
legal guardian can deal with the property of the minor in the following
- When there are obligations of the perished and no different methods for
paying and the deal is totally vital for work and support
- When twofold the cost of the property can be gotten, costs surpass the
pay, property falls into rot
- Where property has been usurped and the gatekeeper has motivation to
expect that there exists no way of reasonable compensation
- Certified guardianship
Without a legitimate watchman, the obligation of selecting a guardian for the
assurance and protection of the minor's property tumbles to the Court. The Court
takes over the government assistance of the minor. Lawful guardian of the
property of a minor have ability to sell or pledge the merchandise and
belongings of the minor for the minor's necessities.
- De Facto guardian
A de facto guardian is a mere custodian of the minor's individual, and property
however has no authority over the property. He has just duties towards the
minor's individual or property or both however no rights in regard thereof. They
are normally the family members of the minor yet without rights to be the
watchman under the Islamic law. He is an impertinent busybody (Fazooli) with the
minor's property and has no status or position to distance it without Court's
consent. He has no force or position to estrange the minor's property. A deal by
a true gatekeeper of the minor's unflinching property without Court's
authorization is void and not just voidable.
In India laws the period of guardianship is divided into three categories
- A person under 15 as per Muslim Law
- A person under 18 year under the Indian Majority Act.
- A person under 21 who has a guardian appointed by the Court
In India, extensively talking, a minor is an individual who has not finished the
age of eighteen years. In Muslim law minors between the ages 15 and 18 can act
freely of any gatekeeper in marriage, dower and separation. For example, Muslim
spouse of 16 may sue for separate without the mediation of the guardian.
All applications for the arrangement of a watchman of individual or property of
a minor should be made under the arrangements of the Guardians and Wards Act,
1890. The court will, if fundamental, make the request reliably with the
government assistance of the minor.
In making such request the court will be
- What, reliably with the law to which the minor is subject, is for the
government assistance of the minor.
- Age, sex and religion of the minor, the character and limit of the
proposed watchman, and the desires of a perished parent; and
- Inclination of the minor if adequately old structure a preference
Although the mother has the custody of the child of tender year this does not
imply that the father has no right whatever. The nature and extent of the
mother's right to the custody was considerable by the Privy Council in Imambandi
and it was held it is perfectly clear that the Muslim law the mother
is totally entitled only to the custody of the person of her minor child till
the certain age as per the sex of the child. But she is not the natural guardian
of the hold. The father is the only natural guardian of the child.
Thus, in case father and mother are residing together their child must stay with
them and the spouse can't remove the youngster with them and the husband can't
remove the kid with him; nor can mother remove it without the authorization of
the dad in any event, during the time frame when she is qualified for the
guardianship of the kid. Where the youngster is in the care of one of its folks
the other isn't to be kept from seeing and visiting it. The father's management
preposterous continues in the spite of the child being under the care of the
female relatives, for it the father has to maintain his child.
As respects the mother or a female watchman, union with an individual not
identified with the youngster inside the restricted degrees is a bar to
guardianship; so additionally, corruption, infidelity, or disregard to deal with
the kid. 'An individual isn't qualified to be believed who is persistently
proceeding to leave the youngster hungry'. The old specialist would clearly have
disliked an advanced society mother would goes out for extension (or social
assistance) toward the beginning of the day, eats with a companion, and returns
home late in the evening after a dance at the club.
A mother doesn't lose the care of her baby youngsters just on the grounds that
she is not, at this point the spouse of her previous husband; however, where she
weds a subsequent husband, particularly where he is usually a fit and legitimate
individual to be named a gatekeeper of the individual of his children; and
surprisingly a stage cousin can be liked by the court.
In case of Zynabi Bi V. Mohammad Ghouse
There were four children of the marriage, three daughters and one son the
youngest child. Their ages were seven, five, three daughters and one year and
ten months, respectively. After some time Ghouse married a second wife but the
marriage was dissolved by Khula. All the children resided with the mother but
one day the husband came and forcibly took away two of the children, a girl aged
five and the boy aged one year and ten months. Zynab there upon preferred a
petition under the Guardian and Wards Act for the custody of her two children.
It was held that she was entitled to her children and the fact that she stayed
separately from her husband was not a disqualification
In case the mother in failing for the custody of the minor the following female
are entitled for the custody of the minor:
- Mother's mother, how high so ever
- Father's mother, how high so ever; and
- Full sister and other female relations including aunts.
A female relative of a minor on marring a husband a stranger does not suffer an
absolute disqualification she loses her preference right and where there is no
suitable person is not available for the custody of the minor.
The custody of
the minor given to the paternal home on priority bases:
- The father
- Nearest and another paternal guardian
- Full brother
- Consanguine brother and other paternal relatives 
The custody of the minor goes to the nearest male paternal relatives, as per the
same order as for inheritance. In case father fails in taking the custody of
the child the custody of the child goes to the paternal relative as mentioned
above. The general principle is that no male is entitled for the custody of the
minor unless he is related to her consanguinity within the prohibited degree.
In case of Illegitimate child.
A bastard belongs legally speaking to neither of its parents and it is very
sense of the word filius nullius; but for the purpose of securing its due
nourishment and support it should, until it has attained the age of seven years
be left in charge of the mother. After that age it may make its own election
with which the parents it will reside, or it may live apart from them
In case of Gohar Begum v. Suggi alias Nazma Begum
; Gohar Begam was a singing
lady in the keeping of one Trivedi, a Hindu. She was the unmarried Muslim mother
of a characteristic girl, Anjum, recognized by Trivedi as his little girl. Anjum
was shipped off say with a companion that she had extraordinary friendship for
the youngster and had adequate intends to care for Anjum.
The apex court held:
Guardianship Of Property
- The mother of an illegitimate child is in Muslim law entitled for his
- Refusal to re-establish the kid to its mom was illicit confinement
inside the significance of Section 491 of the Criminal Procedure Code
- A debate as to paternity of a kid was disrespectful with the end goal of
- Prior to making the request for guardianship the court will think about
the government assistance of the youngster
- The way that an individual has a cure under the Guardians and Wards Act
has no legitimization for denying him the cure under Section 491 of the
Criminal Procedure Code.
- It is grounded in England that in giving a writ of habeas corpus a court
has power on account of a baby to guide its care to be set with someone in
- The Supreme Court will meddle with the optional forces of the High Court
if the circumspection was not judicially worked out.
- The request for the High Court of Bombay was switched and Anjum was given
over to her mom Gohar Begum.
If a minor owns movable or immovable property, a guardian is required to manage
the property of the minor. The Muslim prescribed certain person in an order of
preference who can be the guardian of minor's property as per Muslim law as
- Legal Guardian
- Guardian appointed by the court
- De facto guardian
The person who is entitled in the order mentioned below to be the guardian of
the property belongs to the minor are:
- The father
- Father's executer
- Paternal grandfather
- Paternal grandfather's executor.
It may be said that the substantive law of Muslim does not recognise any other
relative such as mother, uncle and brother as legal guardian of the child.
Only the father or father's father may appoint them or any other person for the
purpose of taking care of minor's property.
Except father and father's father no other person is entitled even not mother is
legally entitled to appoint by will, any person as executor of minor's property.
In case of Gulam Husani Kutubuddin Manner Vs Abdul Rashid Abdul Rajak Maner
the Supreme Court of India has held that a mother of a minor child cannot be
appointed as his guardian for the purpose of accepting gift on the behalf of
minor during the lifetime of minor's father.
In case of Amar Ahmad Khan V. Shamim Ahmad Khan
. the Jharkhand High Court
held that on the death of a Mohammadan his property immediately divided into the
heirs of the property separately to the extent of share they are entitled under
Muslim personal laws. Each of the heir become the absolute owner of the
The minor can be entitled to have immovable property.
The following rules are applied:
Power of legal guardian regarding immovable property:
- The lawful guardian can't sell the steady property of the minor aside
from where he can acquire twofold its worth; or where it is vital for the
support of the minor; or where there are obligations and inheritances to be
paid and there are no methods; or where the costs of the property is falling
- A guardian is selected by the court has no ability to sell or home loan
without the authorization of the court. An improper removal as opposed to
the arrangements of the Guardians and Wards Act 1890 is voidable. Nor
can a watchman buy property for the benefit of the minor.
- A de facto guardian has no ability to sell the property of a minor; such
a deal is a nullity. A de facto can't allude questions identifying with
unfaltering property to arbitration, nor can a Muslim mother who has no
position to go about as a watchman of the property of the minor allude
matters to assertion without leave of court and without getting delegated as
a lawful guardian.
As per Muslim laws a legal guardian of the property of a minor is entitled to
sell the immovable property which belongs to the minor when the sale in required
for the maintenance and when the minor has no other property. The word
maintenance does not exclude other essential expenses for the mental and
physical requirement of the minor for the betterment of the minor. In the
present world which is rapidly advancing in all the direction education up to
higher secondary stage cannot be set aside. So as be excluded from maintenance.
In the following circumstances the legal guardian is entitled to deal with the
- When there are debts of the deceased, and no other source of paying them
- When the minor has no other means of livelihood and the sale is only way
for his maintenance of the minor
- When double the price of property can be obtained by it,
- Where the expenses exceed the income of the property
- When the property is falling into decay
- When the property has been usurped and the guardian has reason to fear
that there is no chance of fair restitution
- When there are legacies to be paid and no other means of paying
The leading case on the subject is Imambadi V. Mutsadd:
One Ismail Ali khan died in the year of March 1906 while having the possession
of considerable amount of property. He left three widows- A, B and Zohra –
several children by each of the widow. Zohra has two children, which are a son
and a daughter. In June 1906 Zohra conveyed for Rs. 10000 the shares of herself
and her children to certain purchasers. The purchasers applied for mutation of
the names in the names in the local register and two widows A and B and their
children opposed them.
The buyers from Zohra recorded a suit guaranteeing that
Zohra was the recognized spouse and her youngsters the real offspring of Ismail
Ali Khan and that Zohra, following up on her own and her kids' sake, could
legally estrange the property. It was held by the Privy Council that the mother
had no ability to distance the property for she was not the lawful gatekeeper.
Ameer Ali in conveying the judgment of the Board set out that the mother in
Muslim law is simply qualified for the care of a minor and isn't the
characteristic watchman. The dad is the legitimate guardian34.
accepted watchman he said:
It is hard to perceive how the circumstance of an unapproved watchman is
bettered by depicting him as a 'accepted' gatekeeper. He may by his accepted
guardianship accept significant obligations according to the minor's property,
yet he can't subsequently dress himself with legitimate ability to sell it.
The judgment at that point continues to set down who are the lawful gatekeepers
without the dad and the significant qualification which the Hedaya makes between
managing the enduring and the portable property of the minor.36 Curiously
enough, one who between interfered with the property of another was known by the
term 'fazuli' in right on time but then is known by the unmeritedly honourable
named of true watchman in present day law.
Summarizing, he said
For the prior extensively their Lordships are of assessment that under the
Mahomedan law an individual who has the charge of the individual or property of
a minor without being his legitimate gatekeeper, and who may, in this manner, be
advantageously called a 'accepted watchman', has no ability to pass on to
another any privilege or interest in relentless property which the transferee
can implement against the new born child; nor can such transferee; whenever let
into ownership of the property under such unapproved move, oppose an activity in
ejectment for the benefit of the baby; nor can such transferee, whenever let
into ownership of the property under such unapproved move, oppose an activity in
ejectment for the new born child as an intruder. It follows that, being he
without title; he can't look to recuperate property in the property in the
ownership of another similarly without title.
Guardian Appointed by court
In the absence of a legal guardian the court is entitled to appoint a guardian
for the betterment of the minor. The duty of appointing a guardian for the
safeguard and prevention of the property belongs to the minor falls in the
court. While appointing a guardian the court take into the consideration the
betterment of the minor and as such may appoint mother instead of paternal
uncle, as the guardian of the minor's property. 
The court also look at the will of the father if in case the mother is appointed
as the guardian of the minor's property the fact, she is a pardanashin lady will
not be considered as an objection for the purpose of appointment.
The guardian appointed by the court cannot be:
- Charge the immovable property
- Transfer by sale
- Transfer by gift
- Lease any part of immovable property
Thus, the guardian is entitled to lease the property of the minor even without
the permission of the court.
Power of legal guardian regarding movable property:
- For a term not more than 5 year
- For a term no more than one year beyond the date on which the minor the
minor is ceased to be a minor.
The legal guardian of the property of a minor has power to sell or pledge the
property of the minor for the purpose of necessity of the time for the
betterment of the minor such as food, clothing, and nursing and many other.
De-facto guardian has same right as a guardian appointed by the court. But the
guardian appointed by the court have some extra power as compared to the
de-facto guardian. Such guardian is bound to deal with property of the minor as
a ordinary man case of his own property.
De Facto Guardian
A person who is neither the legal guardian of the child nor the guardian
appointed by the court but has willingly placed himself in charge of the person
and property of the minor, is called as de facto guardian A person not being a
legal guardian or by the authority given by the court, may place himself in the
position of a guardian meddling with the property of the minor.
Such person is
called a de facto guardian. A de-facto guardian behaves like a mere custodian of
the minor. He has only some responsibilities towards the minor and its property.
Mostly the de-facto guardian are relatives of the minor but without right to be
the guardian under Islamic laws other than appointed by the will or court.
He is an officious intermedler (Fazooli) with the minor's property and has no
power or position to alienate the property belongs to the minor.
No power to alienate immovable property:
The position of the de- facto guardian is some who different from the legal
guardian and the guardian appointed by the court. He is not entitled to alienate
the property of the minor. The alienation of the minor's property without the
prior permission of the court is completely void in case of de-facto
Mother, brother and uncle as de-facto guardian
- He is not entitled to refer any dispute regarding the property belong to
- He cannot give consent on behalf of minor to validate by the co-heir of
- He cannot bind the minor by any kind of bond or lien of his father's
As per Muslim law mother is entitled for the custody of her minor children up to
the certain prescribed age -accordingly the sex of the child. But she is not the
natural guardian of the minor and his property. The father is alone the natural
guardian of the child and in case if he died his executer become the natural
guardian of the child. The mother of the child do not have larger power to deal
with the child property than any out sider. In case mother is father's executor
or is a certified guardian she has all the power of a de-facto guardian.
In Vekama v. SV Chisty
, the minor's dad along with other co sharers made a
home loan on the suit properties. Afterward, after the dad's demise the mother
as watchman of the minor with the other co sharers executed a deal deed. It was
- That the deal deed executed by the mother was void and broken under the
- Where the Muslim minor tries to recuperate property sold by his
unapproved watchman maintaining to follow up for his sake, he looks for
arbitration that the deal is void and without such an announcement he can't
acquire the property
- In such cases the adage that 'he who looks for value should do value'
- The court has power under Section 41 of the Specific Relief Act to grant
remuneration if the equity of the case so requires.
A similar High court (Madras) has held that while the distance by a mother of
steadfast property of a minor in the same way as other significant beneficiaries
the deal is legitimate so particularly far as the portions of the significant
beneficiaries is concerned.
However, the Patna High Court has taken an alternate view. In Kharag Narain
 it was held that since such a deed was void no pay should
be paid by the minor and no prudence need be practiced under Section 41 of the
Specific Relief Act.
Removal Of Guardian
A guardian whether de jure or de facto is removable by the court if it is
necessary in the interest of the minor. The court may on the application of any
person, or by its own motion remove a guardian appointed by the court, or the
guardian appointed by the will or other instrument.
Grounds for the removable of guardian:
- Abuse of his trust
- Continued failure to perform the duties of his trust.
- In capacity to perform his duties regarding the minor.
- Ill-treatment, or neglect to take proper care of the minor.
- Continuous disregard of any provision as per Guardian and Ward Act
- Convicted under any offence, in the opinion of the court,
- Ceasing to reside within the jurisdiction
The authority of each minor principally has a place with its mom, while the
common watchman of each authentic youngster is customarily its dad. The mother's
authority of a female kid ends at the soonest with her marriage in the Shafei
Law, on her achieving dominant part in the Hanafi law, and on her finishing
seven years in the Ithna asharia law. The mother's care is the legitimate right
of the youngster and her own comparing commitment. In case of end of
guardianship with the mother or her legitimate substitutes, it goes to the
Under the Muslim law, a legitimate watchman of the property of the minor can
sell the unfaltering property, when the sell the unflinching property of the
minor, when deal is essential for his support and when the minor has no
A minor isn't equipped to contract and if an individual purposely goes into an
agreement with a minor, it is nevertheless sensible to individual intentionally
goes into an agreement, it is nevertheless sensible to expect that his
expectation more likely than not been acquire an unnecessary benefit. He can't
subsequently show the pair clean hands that value requests of an individual
looking for her beauty.
However, albeit the instance of Imambandi v Mutsaddi
is for the most part known external legitimate circles, even among Muslims, that
the mother of a Muslim minor has no position to sell his property under any
conditions, at all. The assumption of legitimate information, while it stretches
out to blocking an individual from arguing obliviousness of the law as a pardon
to absolve him from the result of his demonstrations, doesn't reach out for
requiring the Court to hold, what isn't reality, that, for all expectations, and
for all reasons, and altogether conditions, each individual isn't blocked from
arguing obliviousness of the law with respect to the inadequacy of a Muslim
mother to sell the property of her minor kids to set up his bona fides and
convincing the court to hold that equity necessitates that he ought to be repaid
to the degree to which the cash profited the gathering getting the undoing of
Accordingly, from the above arrangements under Muslim we can say that the part
of the minors under guardianship is very essential.
- M. Hidayatullah and Arshad Hidayatullah, Mulla Principles of Mahomedan
Law, 19th edition, New Delhi, Lexis Nexis Butterworths, Wadhwa Nagpur.
- Asaf A. A. Fyzee, Outlines of Muhammadan Law, 5th edition 2008, edited
and revised by Tahir Mahmood, New Delhi, Oxford University Press.
- Aqil Ahmad, Mohammedan Law; twenty Sixth 2016; Central Law Publication
- Sec 2 child marriage restrain Act 1929
- Sec 3;Indian Majority Act 1875
- Mahini Bibi case 1 Beng L.R 160
- Ahmed Aqil Mohammedan law pg-214
- Sec 3; guardianship and ward act 1890
- Ameer Ali II, Mulla 348
- Ahmed Sulema V. Bai Fatima 1930
- Mulla, 352
- Zynab Bi v. Mohammad Ghouse AIR 1952 Mad 284
- For details see Tyabji 239; Wilson 107
- Lohara Khatun v. Amina Bibi (1957) 62 CWN 357
- Mulla 355
- Mulla 239
- Mulla 358
- Gohar Begum v. Suggi Alias Nazma Begam 1960
- Syed shah Gulam Ghoshe V. Syed Shah Ahmad AIR 1971
- Gohar Begum v. Suggi Alias Nazma Begam 1960
- Amar Ahmad Khan V. Shamim Ahmad Khan
- Mulla 362
- Mulla 363
- Mulla 362
- Johara bubi vs Mohammed sadak AIR 1951
- Ahmad Aqil pg- 222
- Imambandi v.Mutsaddi AIR 1918; Ahmad Aqil pg- 217
- Salamat Ali v. Smt.Majjo Begum AIR 1985
- Ahmad Aqil pg- 224
- Sec 27 guardianship and ward act 1890
- AIR 1951 Mad 399
- Maimunnissa BiBi v. Abudul Jabbar AIR 1966
- AIR 1955 Patna 475
- Ahamed Aqil pg 227