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.
Kinds of guardianship under
Muslim law:
Muslim law makes a distinction
between guardian of the person, guardian of the property and guardian for
purposes of marriage in case of minors.
(1) Guardianship
in marriage (jabar)- the following persons can act as guardians in the marriage
of a minor, in the order of enumeration:-
(i)
Father
(ii)
Father’s father
(iii)
Full brother and other male relations on the
father’s side
(iv)
Mother
(v)
Maternal relations within prohibited degrees
(vi)
Qazi or the court
Shia law recognizes only the
father and failing him the father’s father howsoever high as guardian in the
marriage of a minor.
The rule of Muslim law is that
when a remote guardian allowed marriage, when the nearer one is present, the
validity of the marriage is dependent upon the latter’s ratification and
consent. A marriage by a remoter guardian when the nearer guardian is present
and has given his consent is not only irregular but void.
(2) Guardianship
of person of the minor for custody (hizanat)
(i)
Mother- under hanafi school, mother is quardian
of her minor till he attains age of 7 years and of her daughter till she
reaches puberty. Under shia school, mother is guardian of her son till he
attains the age of 2 years and of her daughter till she attains the age of 7
years.
An illegitimate child is left in the charge of mother
till the age of 7 years but legally belongs to neither of his parents.
In the absence of mother, under hanafi school, custody
belongs to:
(a)
Mother’s mother
(b)
Father’s mother
(c)
Full sister
(d)
Uterine sister
(e)
Consanguine sister
(f)
Full sister’s daughter
(g)
Uterine sister’s daughter
(h)
Consanguine sister’s daughter
(i)
Maternal aunt
(j)
Paternal aunt
However, the right of hizanat of
the mother and other female relations is lost if she leads an immoral life or,
neglects to take proper care of the child or, marries a person not related to
the child within prohibited degrees or, if during the subsistence of marriage,
she goes and resides at a distance from the father’s place.
In Rahima Khatoon v Saburjanessa,
the court held that the mother loses the guardianship of the minor daughter if
she remarries with a person not related to the child within prohibited degrees.
In this case, the court granted the certificate of guardianship to the child’s
paternal grandmother.
In default of
mother and other female relations, hizanat belongs to:
(a)
Father
(b)
Nearest paternal grandfather
(c)
Full brother
(d)
Consanguine brother
(e)
Full brother’s son
(f)
Consanguine brother’s son
(g)
Full brother of the father
(h)
Consanguine brother of the father
(i)
Son of father’s full brother
(j)
Son of father’s consanguine brother
(ii)
Father- father is the defacto guardian of son
over the age of 7 years under Hanafi school and 2 years under Shia school and
unmarried daughter over the age of 7 under Shia school and who has attained
puberty under hanafi school.
The court will interfere with the father’s guardianship of
his children only if he is unfit in character and conduct or is unfit as
regards external circumstances or waives his right or enters into an agreement
to the contrary or is out of jurisdiction of the court or intends to go abroad.
Illegitimate child- the mother of
an illegitimate daughter is entitled to its custody.
Termination of hizanat
(a) General
disqualifications- minor and non muslim
(b) Disqualifications
affecting females- immoral, has married a stranger, resides at large distance
from father, neglects the child.
(c) Disqualifications
affecting males- no male entitled custody of female child who is not within
prohibited degree.
(d) Disqualifications
affecting parents- The court will interfere with the father’s guardianship of
his children only if he is unfit in character and conduct or is unfit as
regards external circumstances or waives his right or enters into an agreement
to the contrary or is out of jurisdiction of the court or intends to go abroad.
The mother does
not lose her right to the custody of the children by divorce by the father of
the children.
(e) Disqualifications
affecting husband- if the wife has not attained puberty, mother has greater
right over her.
(3) Guardianship
of property
(a)
Dejure guardianship- legal or natural guardian
order of persons entitled to guardianship of the property of a minor:-
(i)
Father
(ii)
Executor appointed by father’s will
(iii)
Father’s father
(iv)
Executor appointed by the will of father’s
father
(b)
Certified guardianship- guardian appointed by
the court- in absence of legal guardians, the duty of appointing a guardian
falls on the court.
(c)
De facto guardianship- a person who is neither a
legal guardian nor a guardian appointed by court but has voluntarily placed
himself in charge of the person and property of a minor is known as de facto
guardian. He is a mere custodian of the person and property of the minor and
has no right over them.
Removal of guardian
A guardian can be removed in the
interest of the minor. The court may remove a guardian appointed or declared by
court or a guardian appointed by will or other testament if:
(1) He
abuses trust
(2) Fails
to perform his duties
(3) Incapacity
to perform duties
(4) Ill-treatment
or neglect of ward
(5) Continuous
disregard of provisions of Guardianship and Wards Act or of any order of the
court
(6) Conviction
of an offence showing moral turpitude
(7) Having
interest adverse to his duties as a guardian
(8) Ceases
to reside within limits of the court
(9) Goes
insolvent (guardian of property)
(10)Cease
to be under the law to which the minor is subject
Cessation of
authority of guardianship
(A) Guardian
of person
(1)
Death, removal or discharge
(2)
By the court of wards assuming superintendence
of the person of the minor
(3)
Ward ceases to be minor
(4)
In case of female, her marriage
(5)
In case of minor whose father was unfit for
guardianship, with father ceasing to be so.
(B) Guardian
of property
(a)
Death, removal or discharge
(b)
By the court of wards assuming superintendence
of the property of the minor
(c)
Ward ceases to be minor
Difference between shia and sunni
law
(1) Under
shia law, only father and true grandfather are guardian for marriage while
under sunni law, a number of other relations are also guardians.
(2) Under
shia law, marriage by any other guardian is ineffective unless ratified while
under sunni law it maybe repudiated upon attaining majority.
(3) Under
shia law, mother is guardian of son upto age of 2 years and of daughter upto
age of 7 years while under sunni law, she is guardian of son upto the age of 7
years and of daughter till she attains puberty.
