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Guardianship And Custody Under Muslim Law: A Critical Analysis

Guardianship - Definition

Guardian is a person who takes care of an individual who is below the age of 18 years and his personal affairs as he is incompetent to manage them on his own under family law.

Father is recognized as the natural guardian of his kid underneath all the schools of Muslim Law. The father's right to act as guardian of a minor is an independent right and is given to him underneath the substantive law of Islam. A natural guardian is additionally known as a legal guardian.

Classification Of Guardianship

  • In Muslim Law, guardians fall under the following four categories:
    • Natural Guardians,
    • Testamentary Guardians, and
    • Guardians appointed by the Court.
    • De-facto Guardian
  1. Natural Guardians:
    • A minor's natural guardian is their primary legal guardian. According to different schools of Muslim law, the father is regarded as the child's natural guardian. According to Islamic substantive law, the father has an unalienable right to serve as a guardian.
    • Grandfather has the legal authority to act as the minor's guardian when the father, who is known as the minor's natural guardian, is not present. Any executor chosen by either of them to serve as guardian in the event that both are absent or deceased may do so. If the father is still alive, a minor cannot be represented by the grandfather.
    • The following individuals are listed in priority order as a minor's natural guardians:
      1. Father
      2. Executor of the father
      3. Grandfather on the father's side
      4. The executor of the paternal grandfather
    • Therefore, a mother, brother, uncle, etc., is not automatically eligible to be the legal guardian of a minor's property.
  2. Can mother act as a guardian or appointed as Guardian of minor?
    • Muslim law prohibits mothers from serving as guardians or having them designated as such. The Honourable Supreme Court ruled in the case of Ghulam Husani Kuttubudin Manner v. Abdul Rashid Abdul Razzak Manner[1] that a minor's mother cannot be designated as his guardian to accept gifts on his behalf while the minor's father is still alive.
  1. Testamentary Guardians,
    • A guardian named by a will is referred to as a testamentary guardian. Only the father can make a will, and if the father and his executors are not present, the paternal grandpa may. This is accepted by both Sunni and Shia schools. Mother, however, has no authority to name testamentary guardians at either of the schools. Non-Muslims are not permitted to be named as testamentary guardians in Shia schools.
    • However, there are no requirements for the appointment of a Testamentary Guardian in Muslim law. A testamentary guardian may be named expressly or implicitly.
    • In the case of Atika Begum v. Mohammad Ibrahim[2], it was decided that the father has no authority to name a guardian for a youngster when the grandfather is present.
  1. Guardians Appointed By The Court:
    • The courts have the authority to name a guardian of the child for the growth and welfare of the minor as well as his or her property when there is no natural or legal guardian present.
    • The Guardian and Wards Act, 1890 is the law that allows courts to appoint guardians for minors. This Act gave district courts the authority to appoint guardians for minors. When naming a guardian, the court takes into account the child's wellbeing and property.
Limitations of Guardian appointed by Courts
  • Although the court-appointed guardian has complete authority to manage the minor's property, there are several restrictions that must first receive court approval. These restrictions include the following:
    • Mortgage;
    • Transfer by sale;
    • Transfer by gift; and
    • Exchange the property.
  • Court approval of such alienation is required in particular situations and in cases of necessity.
Conflict between Guardianship and ward Act 1890 and Personal laws
  • The Guardian and Wards Act of 1890's provisions always take precedence over those of personal law if they conflict with one another.
  • The court ruled that Section 19 of the Wards Act of 1890 will take precedence over Section 17 of the Muslim Personal Law Application Act of 1937 in the case of Rafiq v. Smt. Bashiran[3].
  1. De-Facto Guardian:
    • A de-facto guardian is someone who has considered having custody and protection of a kid but who is neither a legal guardian nor a testamentary guardian.
A de-facto guardian is a person who isn't legally allowed to have custody of a minor's person or property, according to Tyabji. A person who lacks legal guardianship power but yet assumes guardianship duties on behalf of a minor is known as a de facto guardian.

De-facto guardians are in charge of the care of the child and their property, but they have no legal authority over the child or his possessions. A de facto guardian is completely ineligible to alienate a minor's real estate without a court order.

The Supreme Court ruled in Mohammad Amin v. Vakil Ahmad[4] that de facto guardians lack the right to negotiate a family settlement for the benefit of a minor.

Powers Of The Natural And Testamentary Guardians
Practically, there is no difference between the authority of a natural guardian and a testamentary guardian. The power of an executor or testamentary guardian appears to be outlined in Muslim law before the natural guardian is given the same authority. The Muslim law-makers also take into account the requirements of the child when addressing the issue. They categorise the acts and then specify who is authorised to execute specific acts.

These acts may be divided under the following three heads:
  1. Acts which are beneficial or advantageous to the minor;
  2. Acts which are absolutely injurious to the minor; and
  3. Acts which are mid-way between the first two.

As to the acts falling under the first category, any person, whether a guardian or not, in whose care the child is, can perform those acts. Under this category fall such acts, as acceptance of gifts and alms. If the minor is of the age of discretion, he himself can perform them.

No one has the authority to handle matters that would unquestionably harm the minor, such as emancipating a slave or divorcing a wife. Only the father, grandpa, or executor may carry out the third category of acts, such as selling or leasing property for a profit.

Powers of Alienation
Muslim jurists and lawmakers frequently discuss the selling of property owned by minors. Rarely do they discuss any other forms of alienation. The difference between moveable and immovable property is noted. The guardian's authority over the minor's movable property is greater than his authority over immovable property. Only under unusual circumstances may the guardian dispose of the minor's real estate. The Hedaya explains the basis for this distinction as follows: "The sale of mobile property is a form of conservation, as things of this description are subject to decay and the price is much more readily kept than the article itself.

Only where fraud results in inadequate consideration or when inadequate consideration is such that it causes the minor severe loss or harm, even when there is no hint of deception, can a minor avoid selling movable property after reaching majority.

The transaction is voidable at the minor's request in this situation. The guardian is not liable for any unexpected outcomes that negatively impact the interests of the minor, however, if the transaction is carried out in good faith and with due care and diligence.

The consensus of the authorities is that the sale of a minor's immovable property by his legal guardian is valid in the following cases:
  1. When the guardian can fetch the double of its value,
  2. When the sale is to the manifest advantage of the minor,
  3. When there are some general provisions in the Will, such as payment of legacies, which cannot be carried into effect, without the sale of the property,
  4. When there are debts of the testator, and they cannot be liquidated, save by the sale of property,
  5. Where the income of the property is less than the cost of its up keep,
  6. When it is imminent danger of being lost or destroyed by decay, etc,
  7. Where the property is in the hands of an usurper and the guardian has reasonable belief that there is no chance of recovery, and
  8. When the minor has no other property and the sale is absolutely necessary for his maintenance.

Numbers (ii) and (iv) above do not apply in the case of father and grandfather.

An improper alienation made by a legal guardian is not void, but only voidable, and the minor on attaining majority can avoid it.

Under Islamic law, the minor's need or necessity serves as the foundation for the guardian's power of alienation. The Majma-ul-Anhar very aptly states that if such a power is not granted, the life of the minor and his property and chattels may be in danger of harm or destruction due to situations where he may require immediate medical attention, clothing, or nursing, or where he may own slaves or livestock and need to provide food and fodder for them immediately. In such circumstances, the lawful guardian is allowed to incur debts or to raise money on the pledge of the minor's property.

Power to grant Lease
It appears that the Muslim authorities opposed giving the guardian any authority to rent out the minor's property. According to Ameer Ali, the executor may put the minor's property up for lease if necessary and if doing so is in the minor's best interests. If it's essential for the minor's upkeep, he also has the authority to pledge the goods and other movable property of the minor.

The father's position likewise seems to be the same. A guardian of a minor has the authority to lease out the minor's property if it is for the interest of the minor, the court ruled in Zeebunissa v. Danaghar[5]. It would seem that the guardian is prohibited from leasing out minor properties for a time longer than the child's minor years.

Power to carry on Business
The Hedaya stipulates that, providing the trade or business is not speculative or of a risky nature, the guardian has the authority to conduct it on behalf of the minor just as a person of ordinary prudence can do so with regard to his own business.

An executor is permitted by the Fatwai Alamgiri to invest a minor's property in a partnership and to form a partnership with others. The Privy Council ruled in Saffar v. Standard[6. that even if the guardian had the authority to join into a partnership on the minor's behalf, the minor was only liable to the extent that he had a share in the partnership; in no event was the minor personally liable.

Power to incur debts and enter into Contracts
The ability of the guardian of a minor to incur obligations on the minor's behalf in an emergency seems to have been clearly established. A debt that the minor enters into voluntarily is not legally binding. It seems that in circumstances where incurring debt is appropriate, the guardian also has the authority to sign a promissory note on the minor's behalf.

In India, there has been disagreement among judges about the question of whether a minor's guardian can enter into a contract on their behalf (under both Hindu and Muslim law) and if such a contract is particularly enforceable against the minor.

In the case of Mir Savarjan v. Fakhruddin[7], the Privy Council was asked whether it was possible to order the specific performance of a contract that had been legally signed on behalf of a minor. The Privy Council ruled that the guardian did not have the authority to bind the estate of the minor by contract for the acquisition of real estate.

Power to make Partition
The guardian's power to divide is limited. The guardian must never divide up each minor's portion; doing so is illegal and invalidates the entire partition. The executor may distribute the shares to the legatees and keep the remaining assets in his possession if all the heirs are minors. If a guardian is appointed by the court with broad authority to handle every aspect of the minor's life, that guardian has the authority to partition the property.

Others power of the Guardian
The guardian has the authority to assert a right of pre-emption on behalf of the minor, as well as to decline or accept an offer of a share in furtherance of such right, and the minor will be bound by such act, if done in good faith, according to the Bombay and Allahabad High Courts.

Debts owed by the minor may be acknowledged by the de jure guardian.

Can A Guardian Be Removed?
A guardian may indeed be dismissed by the court. The court has the authority to remove a guardian, whether de jure or de facto, if doing so is required for the minor's best interests. The following grounds are listed by the court for removing a guardian:
  • Misuse of Trust
  • Fail to perform duties
  • Incapacity
  • Ill treatment of minor
  • Adverse interest in minor's property
These are some of the major grounds on which removal of guardianship can takes place.

Concept of Gift or Hiba under Muslim Law- Our Legal World.
Classification Of Custody
Of all the persons, the first and foremost right to have the custody of children belongs to the mother, and she cannot be deprived of her duty so long as she is not found guilty of misconduct. Mother has the right of custody and care of children during the period laid down in Muslim Law, so long as she is not disqualified. This is called the right of hizanat and can be enforced against the father or any other person.

Muslim Law considers the right of hizanat as no more than the right of rearing of the children, it terminates at an early age of the child.

The Son. In the Hanafis, it is an established rule that the mother's right of hizanat over her son terminates on the latter's completing the age of seven years.

The Shias hold the view that the mother is entitled to the custody of her son until he is weaned, i.e., has completed the age of two years.

According to the Malikis, the mother's right of hizanat over her son continues till the child attains the age puberty. The rule among the Shafiis and the Hanabalis is the same as among the Hanafis. But these schools hold the view that on completion of the age of seven years, the child is given a choice of living with either parent. But in every case, the father is entitled to the custody of his son when it attains puberty.

The Daughter. In the Hanafis, the mother is entitled to the custody of her daughters till the age of puberty. Among the Malikis, the Shafis and the Hanabalis, the mother's right of custody over her daughters continues till they are married.

The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate.

Mother cannot surrender her right to any person, including her husband, the father of the child. Further, the mother cannot be deprived of her right of hizanat on the ground it is for the father of the child to provide her with sufficient funds for the maintenance of the child.
  1. Mother's mother, how high soever,
  2. Father's mother, how high soever,
  3. Full sister,
  4. Uterine sister,
  5. Consanguine sister,
  6. Full sister's daughter,
  7. Uterine sister's daughter,
  8. Consanguine sister's daughter,
  9. Maternal aunts, in like order as sisters, and
  10. Paternal aunts, in like order as sisters.
Under the Shia school, after the mother, the hizanat belongs to the father. In absence of both the parents, or on their being disqualified, the grandfather is entitled to the custody.
  • the maternal grandmother,
  • the maternal great grandmother,
  • the maternal aunt and grand-aunt,
  • the full sister,
  • the uterine sister,
  • the consanguine sister, and
  • the paternal aunt.
Father's right of hizanat. All the school of Muslim Law recognized the right of the father to the custody of his minor children in the following two cases:
  1. on the completion of the age by the child up to which mother or other females are entitled to its custody, and
  2. in the absence of the mother or other females who have the right to hizanat of minor children.
The father cannot be deprived of the right of hizanat of his male child of seven years if he is not found to be unfit.

The father's right of hizanat continues till the child attains puberty. It appears among the Shafiis and Hanabalis, the father is entitled to the custody of his female children till they are married. The testamentary guardian will be entitled to the custody of the minor children only on those cases where the father is entitled to it.

Other male relations entitled to hizanat. In the absence of the father in both the aforesaid cases, the following persons are, according to the Hanafis, entitled to the custody of children:
  • nearest paternal grandfather,
  • full brother,
  • consanguine brother,
  • full brother's son,
  • consanguine brother's father,
  • full brother of the father,
  • consanguine brother of the father,
  • father's full brother's son,
  • father's consanguine brother's son.

Among the Shias, hizanat belongs, in the absence of the father, to the grandfather. As to who is entitled to hizanat after the grandfather, the Shia authorities are not clear.

When Right of Hizanat may be lost by a Hazina
All the schools of Muslim Law agree that a hazina should be:
  1. of sound mind,
  2. of good moral character,
  3. living at such a place where there is no risk, morally or physically, to the child, and
  4. of such an age which would qualify her to bestow on the child the care it may need - this will not apply to mother.
All the school of Muslim Law also agree the hazina will forfeit her right of hizanat in any of the following cases:
  1. by her apostasy,
  2. by marrying a person not related to the child within the degrees of prohibited relationship,
  3. by her misconduct, such as negligence or cruelty towards the child, and
  4. by her going away and residing, during the subsistence of marriage, at a distance from the father's place of residence.

Insanity and minority. Insanity is a disqualification, and no person of unsound mind is entitled to the custody of a child. Minority is also a disqualification, but a minor mother is entitled to the custody of her children.

Apostasy. A non-Muslim mother is entitled to the custody of her minor children, and she cannot be deprived of this right on the ground that she belongs to another faith, provided she was a non-Muslim at the time of her marriage.

It is submitted that apostasy is no longer a bar to the right of hizanat after the coming into force of the Caste Disabilities Removal Act, 1950.

Subsequent marriage of hazina. The Muslim Law-givers of all the schools have laid down that a hazina who marries a person who is not related to the child within the degrees of the prohibited relationship, forfeits her right of hizanat. The below notion of this rule is that in the home of her new husband (if a stranger), she will not be able to look after the child with the same love and affection. On this there is some controversy.

The present law may be stated thus:
  1. A Muslim female who marries an ahram does not lose her right of hizanat.
  2. If a Muslim female has married a ghair-mehram, then she may lose her preferential right of custody if a person preferentially entitled to it is suitable, in all respects.
  3. A mother or a female who has married a ghair-mehram may also be appointed as a guardian of the minor child by the court if otherwise found suitable.
  4. In all cases, the question is to be considered mainly from the point of view of the welfare of the child.

The cardinal principle of hizanat in Muslim Law, as in most of the modern systems of law, is the welfare of the child. However, her right of hizanat cannot be lost on account of her poverty or wants of funds to maintain the child.

Amar Illahi v. Rashida[8], in such a case if hazina has no house where she can live with the child, then it is the duty, of the father to provide her with a house and with funds, together with such attendants, within his means, which are necessary for the maintenance of the child.

Removal of the child of the hazina. The Muslim authorities lay down that the home where the husband and wife live together is the place where the child should be brought up. In the following two cases, she may remove the child from the matrimonial home:
  1. when the change or residence has been made with a view to benefitting the child, or on account of unavoidable circumstances. Thus, exigencies of her employment may compel a hazina to change her place of residence;
  2. when the mother of the child separates from the father of the child, then she is entitled to return to her native place wherever it might be. If the mother has to live away at a distant place for a justifiable reason, she cannot be deprived of her right of custody.

When Right to Hizanat may be lost by Hazin
A male entitled to the custody of the child is known as hazin. The Muslim law-givers have not dealt with disqualifications of a hazin in any detail but it seems to be clear that, just as in certain cases, a hazina may be deprived of the custody of the child, similarly, a hazin may also be deprived of it. Thus, a hazin who is a minor, or of unsound mind, has no right to the custody of the child. A hazin who is leading an immoral life, or who is a profligate, has no right to the custody of the child.

Welfare of the child is paramount consideration
Just as under the personal law of any other community, so also under Muslim law, in determining all questions relating to minor children, including custody, the welfare of the child is the paramount consideration. In Salamat Ali v. Majjo Begum[9], the Allahabad High Court observed that under the personal law, if mother is entitled to the custody of a minor child, she should normally get it, but the court should also consider whether in so doing, it would be for the welfare of the minor.

If evidences shows that she would not be a fit person to have the custody or that it would not be in the welfare of the child to give her custody. The court should not give effect to the personal law, but should be guided by the paramount consideration of the welfare of the child.

For the wellbeing of the minor and the defence of the minor's possessions, guardianship is required. Different schools of Islamic law have different rules in some areas, but they all agree on the need of guardianship for the wellbeing of the kid and the preservation of his property. The Guardianship and Wards Act of 1890 is a piece of legislation that was created with the idea of promoting child welfare.

Although the mother is not the natural guardian of the child under Muslim Law, she has a right to the custody of the child, until the child attains a specific age. But the father or the paternal grandfather encompasses control over the minor throughout the complete interval of the minority.

Table of Cases
  • Ghulam Husani Kuttubudin Manner v. Abdul Rashid Abdul Razzak Manner, MANU/SC/2742/2000.
  • Atika Begum v. Mohammad Ibrahim, AIR 1916 PC 250.
  • Rafiq v. Smt. Bashiran, AIR 1963 Raj 239.
  • Mohammad Amin v. Vakil Ahmad, AIR 1952 SC 358.
  • Zeebunissa v. Danaghar, ILR (1936) 49 Mad 942.
  • Jajfar v. Standard Bank Ltd, AIR 1928 PC 130.
  • Mir Savarjan v. Fakhruddin, AIR (1912) 39 IA 1.
  • Amar Illahi v. Rashida, PLD (1955) Lah 501.
  • Salamat Ali v. Majjo Begum AIR 1985 ALL 29.
  • Sec � Section
  • v. � Verses
  • AIR � All India Reports
  • SC � Supreme Court
  • Ltd. � Limited
  • Lah � Lahore
  • PLD � Programmable Logic Device
  • ILR � Indian Law Reports
  • Mad � Madras
  • PC � Police Constable
  • IA � Interlocutory Application

  1. Ghulam Husani Kuttubudin Manner v. Abdul Rashid Abdul Razzak Manner, MANU/SC/2742/2000.
  2. Atika Begum v. Mohammad Ibrahim, AIR 1916 PC 250.
  3. Rafiq v. Smt. Bashiran, AIR 1963 Raj 239.
  4. Mohammad Amin v. Vakil Ahmad, AIR 1952 SC 358.
  5. Zeebunissa v. Danaghar, ILR (1936) 49 Mad 942.
  6. Jajfar v. Standard, AIR 1928 PC 130.
  7. Mir Savarjan v. Fakhruddin, AIR (1912) 39 IA 1.
  8. Amar Illahi v. Rashida, PLD (1955) Lah 501.
  9. Salamat Ali v. Majjo Begum AIR 1985 ALL 29.

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