Minority and Guardianship under Muslim Law

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Minority and Guardianship under Muslim Law

MINORITY AND GUARDIANSHIP UNDER MUSLIM LAW

INTRODUCTION

This article makes readers understand the notion of guardianship and minority under Muslim law, what it means, the appointment of the Guardian, and the removal of a guardian. ‘Urdu’, the word for a child is ‘walad’ and as stated in the Holy Quran, a ‘walad’ is a God blessing be it a girl or boy. Furthermore, it describes that be it either since they are a blessing the persons must be gratified and satisfied with; however, the case might be.

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

  1. MINORITY UNDER MUSLIM LAW (CUSTODY OF MINOR):
  • A ‘Minor’ in Mohamaden law is a person who has not attained puberty. Generally, the age of puberty is the 15th For a girl, she becomes a major in her 15th year or actual attainment of puberty if it is earlier than that. This is for marriage, dower, and divorce.
  • For all other purposes, the age of the majority is 18 years. E.g., Wills, Warf, etc. if the minor has a guardian under “The Guardian and Wards Act of 1890”, then his age of majority is 21 (in the legal guardian).[1]

TYPES OF GUARDIANSHIP:

The Guardianship in Muslim law arises in the following three cases:

  1. For the physical custody and upbringing of the minor and the overall supervision of the minor’s person (hizanat)
  2. Supervision of the minor’s properties
  3. For entering into contracts for the minor’s marriage.

Guardianship of person of a minor (Hizanat):

The minor of tender age is under the custody of the mother and in her absence, female relatives of the mother shall be entrusted with the custody of the female child. The female relatives may be the mother’s mother, how high so ever, father’s mother, full sister, uterine sister, daughter of full sister how low so ever, daughter of uterine sister, maternal aunt, uterine maternal aunt, paternal aunt how so ever.

If the mother and maternal relatives are not there, the father is the guardian, and if he is not there, the nearest male paternal relative within the prohibited degree of relationship shall be the custodian. If there is no relative for the minor, then the court shall appoint a guardian for the minor.

Even if the father is there, but he is unfit for acting as a guardian for the minor, the Court shall appoint a guardian. For both son and daughter, the mother is the first guardian till they attain 7 years of age. But in the case of the daughter, it extends till the daughter attains puberty.

After attaining puberty, the father becomes the first guardian till marriage. After marriage, the husband becomes the first guardian. After marriage, the husband becomes the first guardian. In case of divorce, the custody of the infant children is given to the mother only. But the court also takes into account the interests of the minor and in some cases, the custody is given to the father.

If the son or daughter is below 7 years and if the mother is a lunatic or has died, the other relatives as given in the above list become the guardian, in the order of priority. Only after the 7th year of the boy or girl, the father gets custody of the child.

If the child is illegitimate, the mother is the first guardian, irrespective of age. After her, relatives and not the father becomes the guardian. In the case of a minor wife, the husband is not the guardian, till she has attained puberty. Till she attains puberty, her mother and her mother’s mother are entitled to the custody of the girl.

In Shia law, the mother is the guardian for both male and female children till the weaning period of 2 years, and after that, the custody in the case of a male child goes to the father and the female child rests with the mother.

After the 7th year, both the male and the female child are under the father’s guardianship and if both the father and mother are not present, the paternal grandfather gets custody of the child. It is not clear as to who shall be the guardian in the absence of the father’s father.[2]

The Guardian and Wards Act, 1890: (Types and powers of guardian in Muslim law):

The guardianship in Muslim law is governed by the Guardians and Wards Act, 1890, for all aspects except the marriage of a minor. The Civil Courts are empowered to appoint guardians called Statutory Guardians over the person and on the property of a minor.

In appointing the guardians, the Court will look into the welfare of the minor. The person who desires or claims to be the guardian of a minor must make an application to the concerned Civil Court. The Statutory Guardian is appointed only in the absence of Natural Guardians and Testamentary guardians.

The Court also will take into consideration the age, sex, religion of the minor, the wishes of the minor’s deceased parents, the preference of the minor (in case of sufficient mental maturity), and the willingness of the proposed guardian.[3]

Guardianship of Property:

There are three types of guardians for the property of a minor.

Legal guardian:

Father has the power of guardianship of the minor’s property unless the Court declares him unfit for the purposes. After the father’s death, his executor becomes the guardian.

In the absence of an executor, the guardianship of property passes to the other male relationship in the order of closest blood relationship example, the father’s father and the executor appointed by the grandfather’s will, etc.

The powers of a legal guardian are confined within legal limits and are subject to conditions of necessity or benefit of a minor. The minor’s property cannot be alienated unless there is an absolute necessity for the minor’s benefit. There must be an absolute justifiable reason for selling any minor’s property.

E.g., legal debts, expenses exceeding the income of the property, property becoming damaged, and the property cannot be restituted from a trespasser, etc. the same rule is applicable for mortgaging or leasing the property. Even compromises or settlements are valid only if they are for the minor’s benefit. The terms ‘necessity’ and minor’s ‘benefit’ depend on the nature and circumstances of each case.

Testamentary guardian: The father and the father’s father who are legal guardians of the minor have a right to appoint an executor by a will and such executor appointed using a will is called the “Testamentary guardian” of the minor’s property.

Certified Guardian or Guardians appointed by Court: (De Jure Guardian):

If the legal guardian fails to appoint a testamentary guardian, the Court may appoint a guardian for the property of a minor taking into consideration the welfare of the person and property of the minor. On appointing a Certified guardian, the Court shall consider the age, sex, and religion of the minor, and the relatedness of the proposed guardian to the minor.

Powers of Certified guardian:

  1. A The guardian appointed by the Court should get the previous permission of the Court for any alienation of the immovable property of the minor. Any alienation without the Court’s permission is voidable at the option of the affected party or the minor.
  2. He can lease the minor’s property for 5 years or for one year beyond the date on which the minor attains majority, whichever is earlier.

De Facto Guardian:

Such a guardian is not recognized by the Court of law. He is a non-legal guardian having possession or custody of a minor.

He has no powers to transfer the minor’s immovable property and any transfer made by him is void ab initio and not merely voidable. He is not competent to refer a minor’s property disputes to arbitration nor has he got the right to compromise or partition or enter into a family settlement or give consent to write a will or enter into any transaction involving pecuniary liability to the minor.

The minor cannot ratify the defacto guardian’s acts even after attaining a majority.

Guardian Ad litem:

Under the amended Civil Procedure Code, every suit on behalf of a minor must be instituted by the next friend. The Statutory Guardian can act as a next friend provided it is for the minor’s welfare such a next friend is called Guardian ad litem and his powers are defined in Civil Procedure Code.

He is a guardian only for Court matters. The guardian cannot (i) create a charge, (ii) mortgage, (iii) sell or, (iv) gift, (v) exchange or, (vi) lease any part of the immovable property for exceeding 5 years or 1 year beyond the date of his attaining majority.[4]

Imambandi Vs. Mutasaddi:

Zohra, one of the three widows of one Ismail Ali Khan, conveyed the shares of herself and her minor children for Rs. 10000/- and the sale was opposed in a suit by the two other widows and children.

In this case, it was held that a de facto guardian cannot convey to another any right or interest in the immovable property which the transferee can enforce against the infant; such transferee, if let into possession of the property under such unauthorized transfer, cannot resist an action in ejectment as a trespasser on behalf of the infant.

The mother is entitled only to the custody of the minor child up to a certain age according to the sex of the child. But she is not the natural guardian; only the father, or if he is dead, his executor is the legal guardian.[5]

Guardianship for a marriage (Jabr):

Marriage by a minor, i.e., one who has not attained puberty is void but he can contract a marriage by a guardian. The pure Muslim consists of the provision regarding guardianship for a Mohammedan marriage. Such a marriage guardian is called “wali”.

The father or paternal grandfather how high soever can contract an irrevocable marriage, whereas brothers and other remote male paternal and maternal relatives, or if all of these relatives are not present, the state can act as guardian for the marriage of a minor and such marriage can be repudiated at the option of the minor.

REMOVAL OF GUARDIAN

Any guardian appointed by the Court, or by a will or other instrument may be removed by the Court on the application of any interested person or by itself on the following grounds:

  1. Failure to perform duties.
  2. Incapacity to perform duties.
  3. Not abiding by the provisions of the Guardians and Wards Act or any other order of the Court.
  4. If he is convicted of an offense that implies that he is not fit to be a guardian
  5. If he has an adverse interest to that in the minor’s welfare.
  6. In the case of bankruptcy or insolvency
  7. If the minor ceases to be a minor
  8. For abuse of his position of trust
  9. If the guardian neglects or illtreats the ward
  10. If the minor resides outside the jurisdiction of the guardian.

 

Discharge of a guardian from his duties is done on application by the guardian that he is willing to resign his post. Based on reasonable cause, the Court may discharge the guardian.[6]

CONCLUSION

A guardian is mandatory for a minor, since, the minor alone is not efficient to look after himself and as well as not sufficiently grown to contemplate his/ her good and bad and take hold of decisions appropriately. A youngster must be in quality conditions, where he is pleasant and can be brought up appropriately. Hence, the guardian needs to be that individual who can duly look after the child. While nominating the guardian the major focus is the well-being of the child.

BIBLIOGRAPHY:

  • VIKAS, A., Minor and Guardianship under Muslim Law Legal Bites – Law and Beyond, https://www.legalbites.in/minor-guardianship-muslim-law/ (last visited Jun 21, 2022)
  • LAW, W., Kinds of Guardianship in Muslim Law – Marriage, Minor, Minor’s property WritingLaw, https://www.writinglaw.com/guardianship-under-muslim-law/ (last visited Jun 21, 2022)
  • Guardians and Wards Act, 1890: An act protecting rights of a minor – India Get legal India, https://getlegalindia.com/guardians-and-wards-act/#:~:text=Guardianship%20and%20Wards%20Act%2C%201890%3B%20Islamic%20laws%20and,and%20came%20into%20force%20on%201st%20July%201890. (Last visited Jun 21, 2022)

 

[1] VIKAS, A., Minor and Guardianship under Muslim Law Legal Bites – Law and Beyond, https://www.legalbites.in/minor-guardianship-muslim-law/ (last visited Jun 21, 2022)

[2] LAW, W., Kinds of Guardianship in Muslim Law – Marriage, Minor, Minor’s property WritingLaw, https://www.writinglaw.com/guardianship-under-muslim-law/ (last visited Jun 21, 2022)

[3] Guardians and Wards Act, 1890: An act protecting rights of a minor – India Get legal India, https://getlegalindia.com/guardians-and-wards-act/#:~:text=Guardianship%20and%20Wards%20Act%2C%201890%3B%20Islamic%20laws%20and,and%20came%20into%20force%20on%201st%20July%201890. (Last visited Jun 21, 2022)

[4] VIKAS, A., Minor and Guardianship under Muslim Law Legal Bites – Law and Beyond, https://www.legalbites.in/minor-guardianship-muslim-law/ (last visited Jun 21, 2022)

[5] IMMAMBANDI AND OTHERS V. HAJI MUTSADDI AND OTHERS casemine.com, https://www.casemine.com/judgement/in/56b49614607dba348f0167f9 (last visited Jun 21, 2022)

[6] Guardianship under Muslim Law – Indian Legal Solution, https://indianlegalsolution.com/guardianship-under-muslim-law/ (last visited Jun 21, 2022)

Author: Adithya Narayanan
5YR BBA-LLB,
SDM Law college, Mangalore, Karnataka

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