Guardianship under Muslim law

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[1], 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.[2]

 

(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.

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[1] AIR 1996 Gau 33

[2] Nur Kadir v Zuleikha Bibi