Muslim Law:- GUARDIANSHIP

CHAPTER

GUARDIANSHIP

1. DEFINITION OF GUARDIAN

The term ‘guardian’ is defined in the Guardians and Wards Act as “a person having the care of the person of a minor or of his property, or of both his person and his property’.

2. MEANING OF GUARDIANSHIP—

The term ‘Guardianship’ (Wilayat) connotes the guardianship of a minor.

Guardianship means to guard someone incapable of taking responsibility or is not mature enough to protect his interests or rights. Guardianship is a responsibility created by state law under which the court gives a duty to a person or an entity to make decisions for the benefit and best interest of the ward. Under Muslim law, the guardianship is called Hizanat.

In the Arabic language, guardianship is known as ‘Wilayat’ whereas custody is known as ‘Hidhanat/ Hizanat’.

Hidhanat refers to the possession of the child and holding the responsibility for its upbringing. Wilayat refers to protect and defend.

A minor can be said to be a human incapable of protecting his interests and rights due to a lack of diligence while making decisions. A minor is hence safeguarded by a person known as a ‘guardian’. This is done to fulfil the minor’s legal competency and to make decisions for his benefit on the minor’s behalf.

According to Section 3 of the Indian Majority Act, of 1875, a minor is a person who is domiciled in India and is below 18 years of age.

He is deemed to be incapable of making decisions on his own for his own interest. Hence, the law requires a major and legally competent person to make decisions for his interest and benefit and to take care of his health, needs, education, and other essential needs.

A guardian is a person who is primarily responsible for a child’s health, needs, education, and other essential needs.

According to Section 4 of the Guardians and Wards Act, of 1890, a guardian is a person having the care of the person of the minor or his property or both. For a limited purpose of marriage, the person having the right and duty to dispose of the marriage of a girl or a boy is deemed to have care of his or her person.

Under Muslim law, a father is a natural guardian, and in his absence or at his death, the paternal grandfather becomes the guardian of the child.

A guardianship is a responsibility to take care of the child’s person and his property for his benefit and interest, and the person to whom such responsibility is given is known as a guardian.

The guardian is legally responsible for the child. When someone is given merely the custody of the child till he reaches a certain age, he is termed as ‘Hizanat’.

A mother is not a natural guardian of a child under Muslim law but may claim custody of the child till he reaches a certain age, i.e., she can claim for hizanat.

As per the principles of Muslim jurisprudence, the natural guardian of a child is his father, known as the ‘Wali’ of the minor’s person and property.

Sharia law gives importance to both parents i.e. it considers the equal role of both parents for the custody of the child. Hence, a mother is given preference while deciding on the custody of a child under seven years of age. All Sunni schools of thought have a consensus on this.

The Muslim law discusses four concepts of guardianship in the context of the family responsibilities towards the child:

1. Hizanat (custody of child)

2. Wilayat-e-nafs (guardianship of person)

3. Walayat-e-mal (guardianship of property)

4. Walayat-e– Nikah (guardianship in marriage)

NOTE: The Quran is the foundation for the concept of guardianship; hence, there is a minor difference between the Shia and Sunni schools.

PROVISIONS RELATING TO APPOINTMENT OF A GUARDIAN UNDER MUSLIM LAW

When a court deems fit to appoint a guardian in favour of a child for the best interest of his person or his property, it may make an order regarding such an appointment.

The appointment of guardians is dealt with under the Guardians and Wards Act, of 1890.

The following are the provisions relating to the appointment of a guardian:

SECTION 6 OF GUARDIANS AND WARDS ACT

This Section provides that the question of guardianship shall not be interfered with by the court if the appointment of the guardians of the minor’s person or property or both has been made lawfully under a will.

SECTION 15(1) OF GUARDIANS AND WARDS ACT

As per Section 15(1), the court may appoint the joint guardianship of a child’s person or his property or both. Where one of the guardians dies, the other one may continue to be a guardian of the child.

SECTION 21 OF GUARDIANS AND WARDS ACT

As per this Section, a minor cannot act as a guardian for another minor. He can be the guardian for his wife or child.

SECTION 24 OF GUARDIANS AND WARDS ACT

This Section talks about the duty of the guardian. The guardian must protect the interest of the minor and take every possible step in the best interest of the minor. He shall take care of the minor’s health and education and will provide every necessary support to him.

SECTION 25 OF GUARDIANS AND WARDS ACT

The guardianship will not be terminated on the ground that the ward lives with someone who is not their legal guardian and does so against the will of their guardian.

SECTION 26 OF GUARDIANS AND WARDS ACT

This Section restricts the guardian from removing the ward without the court’s permission from the jurisdiction of the court by which he was appointed or declared.

SECTION 27 OF GUARDIANS AND WARDS ACT

This Section talks about the duty of the guardian to take every essential step in the favour of the minor’s person or his property as it is his own. He is obligated to act prudently. He has the responsibility to perform all the acts that are adequate and necessary for the realisation, protection, or benefit of the property.

TYPES OF GUARDIANS UNDER MUSLIM LAW

The law of guardianship in Muslims came from certain verses in the Quran and a few hadiths. Under Muslim law, the following are the types of guardians:

1. NATURAL GUARDIAN

A natural guardian is a person who has all the legal rights and powers to control the activities of a child.

It is also known as De-jure guardian or guardian by law.

The natural guardian of a child under Muslim law is considered to be the father only, and the mother is not considered a natural guardian even after the death of the father.

The father is considered to be the only natural guardian of the child, even if the custody of the child is not with him. Even then, he has control over all the decisions relating to the child.

In Sunnis, the father is the natural guardian of a child, and after the father’s death, the guardianship is passed on to the executor.

An executor is a person appointed by the father or grandfather to act as guardian on their behalf.

In Shias, the natural guardian is the father, but after the father’s death, the guardianship is passed on to the grandfather, if alive.

If the grandfather is alive, then the guardianship will be vested upon him even though the father has appointed an executor. The executor of the father has no right to act as a legal guardian of the child.

The Father’s right to be a natural guardian is inevitable even if the custody of the child is given to the mother since the mother cannot be considered to be the natural guardian of the child; hence, she has no right to enter into the property of the child.

The executor would become the guardian only in two cases, either the death of the grandfather or his absence.

If the grandfather appoints an executor before his death, then after his death, the executor appointed by the grandfather becomes the guardian.

The guardianship of the father is extended only to his legitimate children.

He has no guardianship entitlement over the illegitimate children.

He cannot claim the custody of such children even after the death of the mother except when the court declares him guardian of such child.

A Muslim mother cannot be the guardian of the illegitimate children. Rather, she is only allowed to have custody of such children.

2. TESTAMENTARY GUARDIAN

Testamentary guardianship refers to guardianship pertaining to a will.

A testamentary guardian is a guardian who is appointed under a will.

A testamentary guardian is also known as wali, guardian, amin, or kaim-mukam.

As per both the school of thought, the father can appoint a testamentary guardian.

He shall be competent to be a guardian, i.e., he shall be an adult sane person.

The acceptance of the testamentary guardianship is an essential part.

This acceptance can be expressly or implied, but it is not allowed to be renounced or refused without the permission of the court once it has been accepted.

A non-Muslim can be made a testamentary guardian; however, this is not allowed under Shia law.

In Sunnis, the father has full power to appoint a testamentary guardian.

The grandfather is empowered to be appointed as a testamentary guardian in the absence of the father or his executor.

The executor is also known as wali or the guardian of the minor.

As per the Shias, the appointment of the guardian would be valid only if the grandfather has died.

Otherwise, the grandfather is empowered to appoint the testamentary guardian.

In both Shias and Sunnis, the mother has no power to appoint a guardian for her children except in two cases:

1. By the father’s will, she has been appointed as executrix.

2. She is the owner of a property that will devolve to her children after her death.

By the will of the father or grandfather, a mother can be appointed as a testamentary guardian or executrix of a child.

In Sunnis, a non-Muslim mother can be made a testamentary guardian, but in Shias, a non-muslim mother cannot be appointed as a guardian.

This school of thought (shia) believes that a non-muslim cannot be a guardian of the person as well as his property.

According to all Muslim authorities, a non-muslim person cannot be appointed as a testamentary guardian; if such an appointment is made, it is null and void.

However, it may be set aside by the Kazi according to the Malikis and the Shaif law.

A zimmi (a protector as per Muslim law) can be a validly appointed testamentary guardian of the minor’s property but not of the minor’s person. The Shias also take the same view.

3. GUARDIAN APPOINTED BY THE COURT

In the absence of natural and testamentary guardians, the court is empowered to appoint a guardian of a child known as a statutory guardian or certified guardian.

The appointment of a child’s guardian belonging to any community is governed by the Guardians and Wards Act, of 1890.

Interestingly, since the guardian for marriage has been nowhere discussed in this Act, the court cannot appoint a guardian for it.

When there is a conflict between two laws, i.e., the Muslim personal law and the Guardians and Wards Act of 1890, then the latter shall prevail.

If a mother fails to be the guardian due to absence or disqualification, then the following female relations in priority are entitled to guardianship:

1. Mother’s mother

2. Father’s mother

3. Full sister and other female relations, including aunts.

NOTE: The district court is empowered under the Act to appoint a guardian after considering the age, sex, wishes of the child, wishes of the deceased parents, and welfare of the child. The High Court also has inherent power to appoint a guardian for a minor, which the court sparingly exercises.

4. DE-FACTO GUARDIAN

Such a person who is neither a natural guardian, testamentary guardian, statutory guardian, etc, and has placed himself in charge of the minor’s person or his property is known as a de facto guardian.

He has no right over the person or property of the minor and is merely a custodian of the person and his property.

A de facto guardian is generally a relative of the child, and hence he has no right to alienate the property without being appointed as the guardian by the will or by the court.

He is thus an officious intermeddler known as ‘fazooli’ and has no right to alienate the property without the permission of the court.

5. GUARDIANSHIP IN MARRIAGE (JABR)

This is the most vibrant feature of Islamic law since it gives the power to the father to impose the status of marriage on his minor children.

This power is called ‘jabr’, the right of guardianship is called ‘wilayat’, and the guardian is called ‘wali’.

The essential for a valid marriage is that the parties to the marriage have attained the age of puberty. An exception to this general rule is that the marriage is contracted on behalf of minors by the guardians.

Under all the schools of Muslim law, the father has this exclusive right to tie his minor children in the relation of marriage without their consent till the age of attaining puberty, known as ‘bulugh’.

since the guardian for marriage has been nowhere discussed in the Guardians and Wards Act, the court cannot appoint a guardian for the same.

The following is the list of priorities in the appointment of guardians for marriage under Sunni law:

1. The father.

2. The father’s father, how high so ever.

3. Full brother and other male relations on the father’s side, in order of inheritance given under residuary.

4. Mother.

5. Maternal relations within the prohibited degree.

6. The Qazi or the court.

Under Shia law, only the father has the right to become the guardian in marriage and, in his absence, the father’s father.

POWERS OF NATURAL AND TESTAMENTARY GUARDIANS UNDER THE MUSLIM LAW

The powers of the natural guardians and testamentary guardians are nearly the same

1. POWER OF ALIENATION

The guardian has the power to alienate the property of the minor for his utmost benefit.

The immovable property of the minor can be sold out for the conservation of the minor, but this sale can only be made under exceptional circumstances.

In the case of Meethiyan Sidhiqu Vs. Muhammed Kunju Pareeth Kutty and Ors. (1996), the apex court stated that the father, as a natural guardian, has the right to sell the property of the minor but the sale of the property by the mother is void.

2. POWER TO GRANT A LEASE

The executor has the power to grant the property of the minor on a lease; this may be done for the advantage of the minor.

The property may be given on lease for the maintenance of the minor.

The guardian may also pledge the goods or movable property for the benefit of the minor but not for a longer period than his minority.

In the case of Zeebunnissa Begum vs. Mrs H. B. Danagher and Anr (1936), the Madaras High Court held that the guardian has the power to lease out the property of the minor for his benefit, but he cannot let it on lease for a period extending the minority of the minor.

3. POWER TO CARRY ON BUSINESS

The guardian has the power to carry on business and enter into partnerships on behalf of the minor.

In the case of Jafferali Bhaloo Lakha vs. Standard Bank of South Africa Ltd. (1929), the court held that the liability of the minor is to the extent of his share in the partnership, i.e., he cannot be held personally liable for any liability.

4. POWER TO INCUR DEBTS AND ENTER INTO CONTRACTS

The guardian has the power to incur debts and enter into contracts on behalf of the minor only when necessary.

5. POWER TO MAKE PARTITION

The guardian has the power to make the partition of the property on the behalf of the minor.

In case the guardian is appointed to deal with all the matters of the minor, the executor may then make the partition of the property and separate the share of the minor.

6. OTHER POWERS

The guardian holds the right of preemption on behalf of the minors.

It can refuse or accept an offer of a share under such right, and if done in good faith, the minor will be bound by such an act.

DUTIES OF A GUARDIAN UNDER MUSLIM LAW

1. DUTY TO SUPPORT

The guardian must support the ward and should take due care of the education, health, and every necessary facility for the ward. He must take due care of the ward in the legal matters as well. He shall act as the parent of the ward.

2. DUTY TO DEFEND THE MINOR

The guardian must defend the minor in every aspect possible.

It is his duty to use reasonable and necessary force to protect the infant. He shall take all the necessary steps for the protection of the minor.

3. DUTY TO FILE SUITS

The guardian shall have the duty to file the suit on behalf of the minor.

4. DUTY FOR ARRANGING THE MARRIAGE OF THE WARD

The guardian must arrange the marriage of the ward and make all the necessary arrangements for his marriage.

5. DUTY TO CONTROL THE ACTS OF THE WARDS

The parents generally must engross good values in the minor, but in the absence of the parents, the guardians are duty-bound to teach them good values. They must take care of the conduct of the wards.

6. DUTY OF THE FATHER TO TAKE CHARGE

Under Muslim law, the father is considered the natural guardian of the child but the mother has the right to take custody of the child up to a certain age.

After reaching that age the father must take custody of the child and make all the necessary arrangements for a good upbringing of the child.

7. DUTY OF THE GUARDIAN TO NOT USE THE WARD’S PROPERTY

The guardian should not make any profit out of the property of the minor.

He is not allowed to sell his own property to the minor to make a profit out of that sale.

Though he can use the property for the benefit of the minor.

8. DUTY TO MAINTAIN RECORDS

It is the duty of the guardian to make a record of his income and expenditures for the benefit of the minor. He shall make these records with utmost honesty.

CUSTODY OF THE CHILDREN UNDER MUSLIM LAW

The custody under Muslim law is known as ‘Hizanat’, and usually, the mother has the right to custody for a period prescribed under Muslim law.

The mother’s interest is recognised for the welfare of the children.

The right to hizanat under Muslim law is considered a right to rearing (bring up and care for (a child) until they are fully grown).

Under Muslim law, the legal guardians are entitled to the physical custody (tahwil) and upbringing of the minor (tarbiyat) of the minor.

The right of the mother to the custody of the child continues even if she has separated from her husband, except she has not apostate

The Muslim law made a distinction in the custody of a boy and a girl. The following is the distinction between the custody of sons and daughters.

FOR SONS:

As per the Hanafi, Shafi, and Hanabali schools, the mother’s right to keep the hizanat of the son is seven years.

As far as Maliki school is concerned, the right exists up to the age of puberty, and after the completion of this age, the right is shifted to the father.

As per Shia school, the right of the mother exists until the son attains two years of age and then the right shifts to the father.

FOR DAUGHTERS:

As per Hanafi School, the right of a mother exists up to the puberty of her daughter.

As per Maliki, Shafi, and Hanabali schools, the mother has the right till the girl is married.

As per Shia school, especially the Ithna-Ashari school, the right extends up to seven years of age.

GROUNDS OF REMOVAL FROM GUARDIANSHIP

A guardian, whether de jure or de facto, can be removed from the duty of guardianship.

The court holds all the powers to remove the award from the custody of guardianship of the guardian. Following are the grounds for removal of the guardians under Section 39 of the Guardians and Wards Act, 1890:

If the guardian has committed an abuse of trust which resulted in adverse effects on the minor.

When the guardian has failed to perform his duty and responsibilities towards the ward.

When the guardian becomes incapable of performing his duties and responsibilities.

When the guardian is negligent in taking proper care of the ward and omits his duties and responsibilities towards the ward.

He can be removed on the grounds of violation of the provisions of the Guardian and Wards Act.

When the guardian has some adverse interest in fulfilling his duties and responsibilities towards the ward.

When the guardian stands convicted for some offence punishable by law,

When the guardian ceases to reside within the local limits of the court’s jurisdiction.

When the guardian is declared to be insolvent or bankrupt.

DIFFERENCE BETWEEN SUNNI AND SHIA GUARDIANSHIP

SUNNI

There can be several relations other than that of the father and grandfather, who can be the guardians of marriage.

The mother is entitled to the right of guardianship up to 7 years of age in the case of a boy and up to the age of puberty in the case of a girl.

SHIA

Only the father and grandfather are guardians of the marriage

The mother is the guardian of the son up to 2 years of age and of the daughter up to 7 years of age.

CAN THE GUARDIAN UNDER MUSLIM LAW DELEGATE HIS DUTIES TO THE OTHER PERSON?

Yes, the guardian under the Muslim law can delegate his duties to relatives, caregivers etc., as far as the benefit of the minor is not affected. Such delegation should not be violative of Islamic principles and beliefs.

WHAT ARE THE RIGHTS OF THE WARD UNDER THE GUARDIANSHIP UNDER MUSLIM LAW?

According to Islamic teachings, a ward has the right to be treated with dignity and respect, proper education, good care, maintenance, and other necessary support from the guardian. He has the right to be represented and protected, and the right to inheritance.

HOW CAN A PERSON CHALLENGE THE APPOINTMENT OF A GUARDIAN UNDER MUSLIM LAW?

An interested person may challenge the appointment of a guardian if he feels that the guardian has breached his responsibilities and duties. The court will then review the evidence and adjudicate the matter thereon.