Guardianship in Muslim Law
Muslim Law recognises three kinds of guardianship:-
1. Guardianship in marriage (Jabar)
2. Guardianship of body of the minor (Hizanat)
3. Guardianship of property (Walayat-i-mal). It is classified into three parts-
a. De jure
b. De facto
1. Guardianship in Marriage
It is one of the essentials of a valid marriage that the parties are competent to enter into a marriage, which means they must have attained the age of puberty.
This general rule admits one exception- where the marriage is solemnised on behalf of the minor by the guardian.
Under Muslim law, the father has the power to give his children of both sexes in marriage without their consent to enter into marriage, but it is before the Shariri stage.
Note: Shariri or sariri stage means between 7 to 15 years of age, the father can give consent of marriage.
The list of the persons who can act as a guardian in the marriage of minor in the following order:-
ii. Father’s father, how high so ever.
iii. Full brother and other male relations on father’s side.
v. Maternal relations within the prohibited degree.
vi. Kaazi or the Court.
Under Shia Law, only the father and failing him the father’s father how high so ever, can act as a guardian in the marriage of a minor.
Testamentary Guardian for Marriage
Under Muslim law, testamentary guardian for marriage is not recognised. A father has no power to appoint any person as guardian for marriage by his will.
2. Guardian of the Body of Minor (Hizanat)
The mother is entitled-
1. In Hanafi Law, the custody of her male child until he has completed the age of seven years and of her female child until she has attained puberty.
2. In Shia Law, the custody of her male child till the age of two years and the custody of her female child till the age of seven years. The right continues though she is divorced by the father of the child unless she marries a second husband, in which case the custody belongs to the father.
Where Wife Loses Her Right of Custody
1. If she leads an immoral life.
2. If she neglects to take proper care of the child.
3. If she remarries.
4. If, during the marriage, she goes and resides at a distance from the husband’s place.
II. Female Relations in Default of Mother
On the failing of the mother, the custody of the boy under the age of seven years and of a girl who has not attained puberty (Hanafi school) goes to these female relatives in the following order:-
i. Mother’s mother
ii. Father’s mother
iii. Full sister
iv. Uterine sister
v. Full sister daughter
vi. Uterine sister daughter
vii. Maternal aunt
viii. Paternal aunt
Note: Uterine means related to uterus or womb or born to same mother but not same father.
III. Other Male Relations
In default of the mother and other female relations the right of custody in Hanafi Law belongs to the following persons:-
ii. Nearest paternal grandfather
iii. Full brother
iv. Full brother’s son
v. Full brother’s of father
vi. Son of father’s full brother
Father is entitled in Hanafi Law to the custody of a boy over seven years of age and of an unmarried girl who has attained puberty.
In Shia Law, custody of a male child over two years and an unmarried girl of seven years or more.
When Court Will Interfere With Father’s Guardianship
The following are the grounds where a court will interfere with the father’s guardianship of his children:-
1. If he is unfit in character and conduct.
2. If he is unfit as regards to external circumstances.
3. If he waives his right.
4. If he enters into an agreement to the contrary.
5. If he is out of justification of court and intents to go abroad.
3. Guardianship of Minor’s Property (Wilayat-e-mal)
If a minor owns movable or immovable property, a guardian is necessary to manage it. The guardianship of the property of minor may be classified as follows-
I. Legal or natural guardian
II. Guardian appointed by the court (certified guardian)
III. De-facto Guardian
I. Legal Guardian
The person entitled in the following order as a guardian of minor’s property:-
ii. Executor appointed by the father’s will.
iii. Father’s father
iv. Executor by the will of the father’s father.
The mother, brother, uncle, etc. are not entitled to be the legal guardian of the property of the minor.
In the case of, Ghulam Hussaini Qutubdin Maner vs. Abdul Rashid Abdul Razzaq Maner, 2000, Supreme Court of India has held that the mother of the minor cannot be appointed as his guardian to accept gift on his behalf during the lifetime of the minor’s father.
II. Guardian Appointed by the Court
In the absence of a legal guardian, the duty of appointing a guardian for the protection and preservation of minor’s property fall in the Court. While appointing a guardian, the court takes into consideration the welfare of the minor.
For Example, Court may appoint a mother instead of a paternal uncle as the guardian of the property of the minor.
Without the previous permission of the court, the guardian appointed by the court cannot:-
a. Charge the immovable property of the minor.
c. Transfer by sale
e. Lease any part of the immovable property for a term exceeding five years or for any term extending not more than one year beyond the date when the ward will cease to be a minor.
III. De-facto Guardian
A person who is neither a legal guardian nor a guardian appointed by the court but has voluntarily placed himself in charge of the body and property of the minor.
The position of de-facto guardian is quite different from the legal guardian and the guardian appointed by the court. He has no power or authority to alienate the minor’s property.