Introduction:
The law regarding guardianship was derived from the Quran. Guardianship is named as ‘Hizanat’. A guardian is any person having consideration of a minor along with his property. A minor is a person who has not reached the age of majority. Currently, Muslims are governed by the Indian Majority Act,1875, excluding issues relating to marriage, dower and divorce. In the cases of wills and waqfs, the minority of a child will end when he attains 18 years. The court will appoint a guardian as provided by the Guardians and Wards Act, wherein the period of minority lasts till the age of 21. Under Muslim law, guardianship is divided into three categories, guardian of a person, guardian of property and guardian for the purpose of marriage.
Kinds of Guardianship
There are three kinds of guardianship
- Guardianship of body of the minor
- Guardianship of property
- Guardianship in marriage
Guardianship in marriage
The competency of the parties will be considered in the case of a Muslim marriage. The parties must have reached the age of puberty but an exception can be made when the marriage is dealt with by the guardian of the minor. A minor’s marriage is known as ‘jabr’. The right of guardianship is known as a ‘wilayat’. In the case of a minor’s marriage, the authority of the father is necessary and is called as ‘bulugh’. The authority to act as a legal guardian for a minor’s marriage lies with the father, father’s father, full brother, other paternal male relations, mother, relations of mother’s side with the restricted degree and the court or the Qazi. Shia law acknowledges the father and the father’s father as guardians for marriage.
Guardianship of body of the minor
In Shia schools the mother exercises guardianship of the minor male till he attains 2 years of age and female child till she reaches seven years of age. In Hanafi school, the guardianship of the body of the minor is with the mother till the male child has attained the age of seven, if it is a female child, till she has attained the age of puberty. If it is an illegitimate child, the mother can hold guardianship till the child reaches the age of seven although the child is not legitimate. Under Hanafi school, a father can hold guardianship of a male child who is more than seven years old and an unmarried girl who has reached the age of puberty. As per Shia law, the father can hold guardianship over a girl child who is seven years old or more and a male child who is over two years old.
Guardianship of minor’s property
‘Wilayat-e-mal’ refers to the guardianship of a minor’s property. It is classified into the following types.
De jure guardianship
A natural guardian of the immovable property has the right to sell the property. In the case of movable property, the guardian holds the capacity to sell or make the promise of the products for the basic needs of the child.
Certified guardianship
A certified guardian is a court-appointed guardian. Such a guardian cannot mortgage, transfer, sell, gift or lease the immovable property without the permission of the court.
De Facto Guardian
A de facto guardian is not a court-appointed guardian; he deliberately becomes the guardian by his own wish. Such a guardian has no right over the child’s property and cannot do anything without the court’s permission.
History of Guardianship
The concept of guardianship arose in pre-Islamic Arabia. The minors and their properties were looked after by the members of the family who acted as guardians. Since there was a lack of proper legal code and rules, misappropriation and fraud were evident. This called for the immediate introduction of rules and stricter laws to protect minors under the Islamic legal system. Only after the birth of the Guardianship of Minor’s Act, 1971 a clear distinction was maintained between guardianship and custody. In the earlier days, the writers and judges could not make such a distinction.
Legal Provisions
- Presently the Muslims are controlled by the Indian Majority Act, 1875. Muslims will be governed by the Indian Majority Act in which the majority age is 18.
- Section 15(1) of the Guardians and Wards Act, 1890 – Provides licenses for the provision for joint guardian so that in case of the death of one guardian the other person should carry on to act as a guardian of the minor.
- Section 19 of the Guardians and Wards Act – Provides for cases where a guardian cannot be appointed.
- Section 6, 19 and 21 – Establishes that the courts cannot meddle with the issue of guardianship in the case where there is a will. If the appointed guardian is not rendering his obligations properly then the court has the ability and authority to terminate him from being a guardian.
- Section 20 of the Guardians and Wards Act – Deals with the duty of the guardian to protect the property and to handle it cautiously and in a fair manner.
- Section 24, 25, 26 of the Wards act – Provides custody of the minor to the court-appointed guardian.
- Section 27 of the Wards act – Provides for duties and constraints on the functions of a guardian.
- Section 31 of the Wards act – Provides the procedure of acquiring permission for the transfer of the minor’s property.
- Section 41 of the Wards act – Provides conditions for cases where the testamentary guardian or the court-appointed guardian has died or in the event of the majority of a minor.
Kinds Of Guardians
The kinds of guardians can be classified into three types namely natural, testamentary, court-appointed guardians and de-facto guardian.
Natural Guardian
A natural guardian is also known as De jure guardian. Under Muslim law the father is the natural guardian of his legitimate children, however, the term “natural guardian” is not used in Muslim law. In the case of illegitimate children, a father will have no right even after the passing of the mother. He can become the guardian only if he is appointed by the court. The mother is not considered to be the natural guardian even if her children are legitimate or illegitimate even if the husband is alive or not. Therefore, under Muslim law, the father is the natural guardian. He can control and take care of the child’s upbringing and religious beliefs. Under Sunni Law, the guardianship will pass on to his executor in the event of the father’s death. Under Sharia Law, guardianship will pass on to the grandfather after the father’s death.
Testamentary Guardian
The person executing the will is called as ‘wasi’(guardian). A testamentary guardian refers to a person who is appointed as a legal and natural guardian by the form of testaments or will. The mother does not have any power to appoint a guardian under Shia as well as Sunni law. As per the Sunni system, the father, his executor and lastly the grandfather will have the power to appoint a testamentary guardian. Under Shia law the executor does not have the power to designate a guardian and the father does not have the power to appoint a guardian by wills or testaments if the grandfather is alive. The grandfather will have the power to appoint a guardian only in the event of the father’s death. A non- Muslim person cannot be designated as a testamentary guardian.
Requirements for testamentary will
- The testament can be made orally or in writing.
- No other formality is required.
- The person making the testament is the testator. The testator must be of sound mind while making the will.
- After the testamentary guardianship is obtained and accepted, it cannot be refused or renounced without the permission of the court.
- The intent to appoint a testamentary guardian is to be made clear.
Court-appointed guardian
A court-appointed guardian is also known as a statutory guardian. The court will appoint a guardian if there is no natural or testamentary guardian. According to the Guardianship and Wards Act, 1890 the District Court holds the power to appoint a guardian. The District Court will appoint a guardian for a minor after taking into account his credentials such as his age, sex and wishes.
De Facto guardian
A De facto guardian refers to a person who is not a legitimate guardian nor is he a court-appointed guardian. He is someone who deliberately makes himself responsible for the minor. He can only act as a custodian of the minor and his property but cannot exercise any further rights.
Removal of Guardianship Under Muslim Law
The court has the power to remove a guardian under the following circumstances:
- If the guardian does not render his duties diligently.
- If the court orders have not been followed properly by the guardian.
- If the guardian is found guilty of moral turpitude.
- If his interests vary from that of a guardian.
- If the guardian does not have the capacity to perform his duties.
- If the husband breaks the trust of his wife.
- If he has not rendered his duties as a husband.
- If the wife ceases to be a minor.
Case Laws
- In Imambandi V Mutsaddi[1] it was held that the mother of the minor child has the right to custody only up to a certain age depending on the sex of the child but she cannot act as a legal guardian, only the father is considered to be a legal guardian.
- In the case of Md. Riazuddin Ahmed V Ms Farida Begum[2] the Bombay High Court held that there is no bar on giving custody of a child to its mother in the case where she remarries. The court further stated that the welfare of the child is of utmost importance. The personal rights of the parties cannot disrupt the welfare of the child.
- In Yusuf V Sakeena[3]the High Court of Kerala approved the principle according to Mulla, where the mother has the right to custody of her male child until he has completed the age of seven and in the case of a female child, till she has attained puberty. Such right can be exercised by the mother even if she is divorced by the child’s father, till she remarries in which case the custody would shift to the father of the child.
The court held that the application of the mother is acceptable as the child’s interests were best served in the mother’s care. In this case, it was found that the mother took care of the educational interests of the children in a better way compared to the father. The father was not denied visitation rights. To exercise visitation rights, he would have to seek permission from the lower courts.
- In Irfan Ahmed V Mumtaz[4]the High Court held that “It is open to the Court to appoint the mother as the legal guardian even if she has married a stranger if the court considers it to be in the best interests of the minor”.
- The Bombay High Court in SmtFarzanabai V AyubDadamiya[5]established that the adjudicating higher bodies must keep in mind the personal beliefs and morals of the parties when they deal with any matter relating to guardianship.
- Khadija Begum V Ghulam Dastagir[6] the Andhra Pradesh High Court held that even if the father marries for the second time he will not disqualify to remain as a guardian unless it hinders the interests of the child.
Conclusion
With the enactment of the Guardians and Wards, the laws relating to guardianship were introduced in India. Guardianship under the Muslim law has been codified by legislation and it is very important to understand the personal laws of the people. Personal laws are based on constructed on the beliefs of the people and such beliefs must be taken into account while handling such cases.
References:
[1] (1918)45 IA 73
[2] (2007) 3 Gau LR 694
[3] 1998(2) K.L.J 573
[4](1997) DMC 511
[5] AIR 1989 Bom 357
[6]AIR 1976 AP 128
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