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Guardianship under Muslim Law

Children are known as messengers of God. It is significant to take care of and provide proper nourishment to them for their overall development. It is the first and foremost duty of the parents to fulfil all the basic needs of a child which leads to a dignified and prosperous life. A child below the age of 18 years is known as a minor1. But in the case of absence or death of parents, guardianship takes place. Guardian is appointed by the parents as well as Courts for the sole intent i.e. welfare of the child. In Muslim law, there are different kinds of Guardians which we are going to discuss in the article.

Meaning of Guardianship

Guardianship of a minor can be defined as overall supervision of the minor's growth and welfare. Guardianship empowers a guardian to have custody of a minor for a certain period.
The term 'Guardian' is defined in Guardian and Ward Act as "a person having the care of a person of a minor or of his property, or of both his person and his property"2.

Tahir Mahmood defines guardianship in Muslim law as "Guardianship of a person to a child belongs primarily to its father, the mother's being only a pre-emptive right to keep the father away for a legally prescribed period only from a particular aspect of the guardianship of the person, namely, the custody and physical upbringing of the child."
Under Muslim law, Guardianship of a minor is known as Hizanat.

Types of guardianship

Muslim law recognizes various types of Guardianship which are as follows:
  1. Natural or legal Guardian
  2. Testamentary Guardian
  3. Guardian appointed by courts
  4. De-facto Guardian

Natural Guardian

A natural guardian is defined as the first legal guardian of the minor. Under various schools of Muslim law, the father is considered the natural guardian of the minor. The father's right to act as guardian is an absolute right which is given to him under the substantive law of Islam.

Father is known as the natural guardian of the minor but in his absence instead of his mother, the grandfather has the authority to act as guardian of the minor. If both are not present or dead then any executor who is appointed by any of them can act as guardian. A minor cannot be represented by a grandfather if the father is alive.

The natural guardian of a minor in order of priority is as follows:
  1. Father
  2. Executor of father
  3. Paternal grandfather
  4. The executor of a paternal grandfather
Thus, the mother, brother, uncle etc are not entitled to of right to be the legal guardian of the property of a minor.

Can the mother act as a guardian or be appointed as guardian of the minor?

Mother can neither act as a guardian nor be appointed as a guardian under Muslim law. In the case of Ghulam Husani Kuttubudin Manner v. Abdul Rashid Abdul Razzak Manner 4, the Hon'ble Supreme Court held that a mother of a minor cannot be appointed as his guardian to accept the gift on his behalf during the lifetime of the minor's father.

Testamentary Guardian

A testamentary guardian can be defined as a guardian appointed by a will. Will can be made by the father only and in absence of a father and his executors, the Paternal grandfather can do so. Both schools Shia and Sunni approve of this. But in both the schools, the mother has no right to appoint testamentary guardians. In Shia schools, Non-Muslim cannot be appointed as a Testamentary guardian.

However, Muslim law does not lay down any formalities regarding appointing of Testamentary Guardian. Appointment of the testamentary guardian may be express or implied.
In the case of Atika Begum v. Mohammad Ibrahim 5, it was held that in presence of a Grandfather, the father has no right to appoint a guardian for a minor.

Guardian appointed by courts

When there is the absence of a natural or legal guardian of a minor, Courts have the power to appoint a guardian of the minor for the development and welfare of the minor as well as his/ her property.

The Act which empowers Courts to appoint guardians of minors is named as Guardian and Wards Act, 1890. This Act granted powers to District courts to appoint Guardian of minors. While appointing Guardian, Court considers the welfare of the child and his/her property.

Limitations of Guardian appointed by courts

Though a guardian appointed by the courts has full right to take care of the property of the minor but certain limitations are also prescribed in which prior permission of the Courts is required which are as follows:
  • Mortgage;
  • Transfer by sale;
  • Transfer by gift; and
  • Exchange the property.
Permission for such alienation should be given by the court in certain circumstances and cases of necessity.

The conflict between the Guardianship and ward Act 1890 and Personal laws

If the provision of personal law is contrary to the provision of the Guardian and Wards Act 1890, the latter will always supersede the prior one.
In case of Rafiq v. Smt. Bashiran6, the court held that Section 19 of Wards Act 1890 will prevail over section 17 of Muslim personal law application Act, 1937

De facto Guardian

A de-facto guardian is a person who is neither a legal guardian nor a testamentary guardian but has himself considered the custody and protection of a child.

According to Tyabji "a de-facto guardian means that an unauthorized person who 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".

De-facto guardian has the responsibility toward minor welfare as well as his/her property but no rights take place against the minor and his property7. Alienation of a minor's immovable property without the authority of the court by a de facto guardian is void.

Can a guardian be removed?

Yes, a guardian can be removed by Court. A guardian whether de jure or de facto is removable by the court if it is necessary for the interest of the minor. Following grounds are laid on which Court can remove the guardian which is as follows:
  • Misuse of Trust
  • Fail to perform duties
  • Incapacity
  • Ill-treatment of minor
  • Adverse interest in minor's property.

These are some of the major grounds on which removal of guardianship can take place

Guardianship of the property of the minor is needed for the welfare and protection of the minor's property. Different schools of Muslim law differ in many provisions but all made coherence in Guardianship as the welfare of the child and protection of his property is of utmost importance. Guardianship and Wards Act 1890 is an act of Legislation which came with a notion of the welfare of children.

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