Guardianship under Muslim law PDF

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Minority and Guardianship under Muslim Law....

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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) (ii) (iii) (iv) (v) (vi)

Father Father’s father Full brother and other male relations on the father’s side Mother Maternal relations within prohibited degrees 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 hanaf 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 hanaf 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) (b) (c) (d) (e) (f) (g) (h) (i) (j)

Father Nearest paternal grandfather Full brother Consanguine brother Full brother’s son Consanguine brother’s son Full brother of the father Consanguine brother of the father Son of father’s full brother 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 hanaf 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) (ii) (iii) (iv)

Father Executor appointed by father’s will Father’s father 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.

Muslim law recognises following kinds of guardians: (1) Natural or legal guardian, (2) Testamentary guardian, (3) Guardian appointed by Court or statutory guardian, and (4) Defacto guardian. 1. Natural Guardians: Natural guardian is a person who has a legal right to control and supervise the activities of a child. Father is recognised as the natural guardian of his child under all the schools of Muslim law. The father’s right to act as guardian of the minor is an independent right, and is given to him under the substantive law of Islam. Natural guardian is also called Dejure or the legal guardian. As stated above, only father is the natural or legal guardian of his child. But in the absence of father, the father’s executor may also act as legal guardian. Executor is a person who is appointed by father or grandfather to act as guardian of his minor child on his behalf. In the absence of father or his executor, paternal grandfather or paternal

grandfather’s executor acts as legal guardian. Thus, the natural (or legal) guardians of a minor, in order of priority, are as under: (i) Father. (ii) Executor of father. (iii) Paternal Grandfather. (iv) Executor of paternal-grandfather. Under Muslim law, in the absence of any of the above mentioned persons, nobody else is recognised as the natural or legal guardian of a minor. Shia Law: According to Shia law, in the absence of father only paternal grandfather may act as natural or legal guardian. Father’s father is known as paternalgrandfather. Thus, in presence of paternal grandfather, the father’s executor has no right to act as legal guardian of a child. 2. Testamentary Guardians: Testamentary guardian is a person who is appointed as guardian of a minor under a will. Only father or, in his absence, paternal grandfather has right to appoint a testamentary guardian. No special formality is required for the appoitntment of a testamentary guardian but, as is obvious, such a testamentary guardian must be competent to act as guardian. That is to say, he should be adult and sane person. A non-Muslim and a female may also be appointed as a testamentary guardian. Shia law: A non-Muslim cannot be appointed as testamentary guardian. 3. Guardians Appointed by Court: In the absence of a natural and testamentary guardian, the court is empowered to appoint a guardian for the protection of the minor’s person or property or for both. The appointment of guardians by court is governed by the Guardians and Wards Act, 1890 which is applicable to all the Indians irrespective of their religion. In India, the courts appoint the guardians for minor’s person or property under this Statute. Therefore, such guardians are also called Statutory Guardians. It may be noted that no provision has been made under this Act for the guardianship for marriage. The result is that except the guardians for marriage, the guardians for a Muslim minor’s person or property may be appointed by a court of law.

In some cases, there may be a conflict between Muslim personal law and the Guardians and Wards Act. In cases of such a conflict, provisions of the Guardians and Wards Act will prevail over the provisions of Muslim personal law. Court here means court of the District Judge. The courts are empowered to appoint the guardians for a minor upon an application. Such application may be made by any of the following persons: (i) Any person desirous of being or claiming to be the guardian of the minor, or (ii) Any relative or friend of the minor, or (iii) The Collector of the district in which the minor generally resides. If the court is satisfied that it is for the welfare of the minor that an order should be made, then it may make an order: (a) Appointing a guardian of minor’s person or property, or both, or (b) Declaring a person to be such a guardian. Section 17(2) of the Act provides that in considering the welfare of a minor, the court shall have regard to the age, sex and religion of the minor; the character and capacity of the proposed guardian and his nearness of kin to the minor; the wishes, if any, of a deceased parent and any existing or previous relations of the proposed guardian with the minor or his property. Moreover, if the minor is old enough to form an intelligent preference the court may consider that preference too. It may be noted that although the Act lays down a uniform rule for the guardianship of all the persons in India irrespective of religion, yet the religion and the personal law of the minor may be taken into account while appointing a guardian. In Smt. Farzanabai v. Ayub Dadamiya, the Bombay High Court observed that under Guardians and Wards Act, the personal law of the parties is a factor which is to be kept in mind by courts subject to the interest of the child. However, as the central idea should be the welfare of the minor; therefore, the rules of Muslim personal law may be considered by the court only where they are conducive to his welfare. 4. De-Facto Guardians: A de facto guardian is a person who is neither a legal guardian nor a testamentary or statutory guardian, but has himself assumed the custody and care of a child. According to Tyabji a de facto guardian means an unauthorised person who, as a matter of fact (defacto) has custody of the person of a minor or of his property. It may be said that a defacto guardian is a person having no authority for the guardianship but under the circumstances has taken the responsibility to act as the guardian of a minor....