The source of law of guardianship and custody are certain verses in the
Quran and a few hadis.The Quran , the hadis and other authorities on Muslim law
emphatically speak of the guardianship of the property of the minor,
the guardianship of the person is a mere inference. Guardian includes any person
having legal custody or control over child. Under Muslim Law, the notion of
guardianship is subsisting from the beginning.
Its source is found in some
verses of the Quran and hadis though a little is found about guardianship of a
person. For example ,according to Rudd-ul-Mukhtar, the right of guardianship of
the minors property belongs to the father and in his absence to his executor,
but if an executor has not been appointed, then to the grand-father. After the
death of grandfather, the right goes to grandfather's executor, and if the
executor has not been appointed by him then to the Kazi who may himself act as
such, or may appoint someone to act on his behalf.
Definition of Guardian:
A guardian is a person who acts on behalf of a minor.
Such action of a guardian is known as guardianship. The term Guardianship
(Wilayat) connotes the guardianship of a minor.
A person who has the legal responsibility for providing the care and
management of a person who is incapable, either due to age (very young or even
very old or to some other physical, mental or emotional impairment, of
administering his or her own affairs. In the case of a minor child, the guardian
is charged with the legal responsibility for the care and management of the
child and of the minor child's estate. The term �guardian
has been defined
under many Acts and there is almost similarity in the meaning given under these
Under section 2 of the Children (Pledging of Labour) Act, 1933 guardian
includes any person having legal custody of or control over a child. According
to section 2(k) of the Children Act, 1960,Guardian in the opinion of the
competent authority having cognizance of any proceeding in the
relation to a child, has, for the time being, the actual charge, or control
over, that child ,According to the section 4(2) of the Guardian and Wards Act,
1890, Guardian means a person having the care of the person of a minor or of
his property, or of both his person and property.
Under section 4(b) of the Hindu Minority and Guardianship Act, 1956,
Guardian means a person having the care of the person of a minor or his
property or of both his person and property.
Who is a minor?
A minor is one who has not attained the age of majority. Puberty and majority
are, in the Muslim Law, one and the same. Puberty is presumed to have been
attained on the completion of the fifteenth years. But now the Muslims are
governed by the Indian Majority Act,1875, except in matters relating to
marriage, divorce and dower. The existing position regarding the age of majority
in such cases is given as below: Fifteen years is the age of majority for
the purposes of marriage, dower and divorce. At or above this age, he or she is
free to do anything in the sphere of marriage dower and divorce.
According to Section 2 of the Child Marriage Restraint Act, 1929 (as amended in
1978), the minimum age for Marriage is 21 years for males and 18 years for
females. Fifteen years is the age of majority in general. As regards other
matters of guardianship of person and property, a Muslim will be governed by
the Majority Act which prescribes 18 years as the age of majority. Thus, in
cases of wills, waqfs, etc., minority will terminate on the completion of 18
years. Twenty-one years is the age of majority if the minor is under the Court
of Wards, or a guardian of him has been appointed by the Court.
Under Muslim Law, any person who has attained puberty is entitled to act in all
matters affecting his or her status or his or her property. But that law has
been materially altered by the Indian Majority Act, and the only matters in
which a Muslim is now entitled to act on attaining the age of fifteen years, are:
- dower, and
In all other matters, his minority continues until the completion of eighteen
years. Until then the Court has power to appoint a guardian of his person or of
property or both under the Guardians and Wards Act in which case the age
of minority is prolonged until the minor has completed the age of twenty-one
Appointment of Guardian
When the Court is satisfied that it is for the elfare of a minor that
an order should be made for appointing a guardian of his person or property or
both as declaring a person to be such guardian, the Court may make an order
Section 15(1) of the Guardians and Wards Act, 1890 permits for the appointment
of joint guardian where the Court has appointed joint guardian and any one
of them has died, the survivor continues to act as guardian. Section 19 of the
Act says that in case the superintendence of the property of a minor has been
assumed by a Court of wards under any local law in force:
- The Court shall not be able to appoint a guardian of property under the
Guardians and Wards Act.
- in case the Court has been empowered to appoint a guardian of person for the
minor, the same cannot be done by a Court under the Guardians and Wards Act.
State Governments are also empowered to appoint Court of Wards. The main aim of
these courts is to constitute ward courts for the purpose of regulating,
constitution, working and powers of Court of Wards.
Sections 6, 19 and 21 of the Guardian and Wards Act provides that in the
following matters, the courts should not interfere with the question of
guardianship of a minor: Where a guardian of the minors person, property or both
has been lawfully appointed under a will in accordance with the law to which the
minor is subject.
Section 41 of the above Act says that a guardian appointed by the Court or
testamentary hail cease to be guardian on the happening of any one o the
- in the case of the death, removal or discharge of the guardian;
- on attaining majority by the minor.
- in the case of guardianship of person, a guardian shall cease to have
- on the marriage of the minor, if female to a person not unfit to be guardian
of her person;
- on attaining majority by the minor;
- in the case of guardianship of person, a guardianship shall cease to have
- on the marriage of the minor, if female to a person not unfit to be
guardian of her person;
- revival of guardianship right of the person in whose disability another
person acted as the guardian;
- in the case of a guardianship of property a guardian shall not be entitled
to act as guardian on the assumption of the superintendence of the minors
property by a Court of wards.
Classification Of Guardian:
Muslim law recognises following kinds of guardians:
In all schools of both the Sunnis and the Shias, the father is recognized as
guardian which term in the context is equivalent to natural guardian and the
mother in all schools of Muslim law is not recognized as a guardian, natural or
otherwise, even after the death of the father. The fathers right of guardianship
exists even when the mother, or any other female, is entitled to the custody of
the minor. The father has the right to control the education and religion of
minor children, and their upbringing and their movement. So long as the father
is alive, he is the sole and supreme guardian of his minor children.
The fathers right of guardianship extends only over his minor legitimate
children. He is not entitled to guardianship or to custody of his minor
illegitimate children. In Muslim law, the mother is not a natural guardian even
of her minor illegitimate children, but she is entitled to their custody.
the Sunnis, the father is the only natural guardian of the minor children. After
the death of the father, the guardianship passes on to the executor. Among the
Shias ,after the father, the guardianship belongs to the grand-father, even if
the father has appointed an executor, the executor of the father becomes the
guardian only in the absence of the grandfather. No other person can be natural
guardian, not even the brother. In the absence of the grand-father, the
guardianship belongs to the grand-fathers executor, if any.Natural guardians
are legal guardian or de jure guardian.
Under Muslim law, father is the natural guardian, of the minor or lunatic and
its property, though the expression natural guardian has never been used by
the jurists and law givers, mother is not recognized as a guardian not even
after the death of the father.
Natural guardian is a person who has a legal
right to control and supervise the activities of a child. Father is recognized
as the natural guardian of his child under all the schools of Muslim law. The
fathers right of guardianship exists even when the minor is in the custody
of its mother or any other person. He is the sole and supreme guardian of his
minor children until his death.
In a significant ruling, the Delhi High Court has said that the maternal
grandmother is not the natural guardian of a child under Mohammedan law as long
as his or her father is alive. May be that under the Mohammedan law
the maternal grandmother be entitled to the custody of the minor up to a certain
age but even according to Mohammedan Law, she is not the natural guardian in the
presence of the father, a division Bench comprising Justice Devinder Gupta and
Justice Mukul Mud gal has ruled.
Dismissing an appeal by mother-in-law of Suhaib
Ilyasi, producer of popular television crime serial India's Most Wanted, for
the court's intervention in a single judge bench order restraining her from
taking custody of his three-year-old daughter Aailya, the court said the father
alone is the natural guardian of the child.
The court said under the Guardian and Wards Act, the word guardian is used in a
wide sense. It does not necessarily mean a guardian duly appointed or declared
by the court. Ilyasis mother -in-law Rukma Singh, who lives with her daughter
in Canada, had challenged the single judge bench order restraining her from
taking forcible custody of Aailya.
The main contention of Rukma Singh, a Hindu,
was that she was entitled to custody of the daughter of Ilyasi, who is a Muslim
,as under Mohammedan law maternal grandmother has such a right. Ilyasi
challenged her writ on the ground that he and his wife Anju had a registered
marriage in 1993 in a London Court and therefore provisions of Mohammedan Law
would not be entirely applicable in this case.
however, said the question whether personal law on the minor would or would not
be applicable or as to who was entitled to have her care and custody up to a
particular age would have to be gone into and decided upon in appropriate
proceedings in a competent court of law. The court further said that it was not
dealing with the complicated questions like welfare of the minor or whether the
petitioner, who did not have physical control of the child when the suit was
filed, was entitled to an interim injunction.
Under the Sunni law, after the
death of the father his executor becomes the guardian. But under the Shia law,
after the death of the father the grand-father becomes the natural guardian even
though an executor has been appointed by the father. The father's
executor becomes the guardian only in the absence of the grandfather. Once a
grand-father becomes the guardian, he may appoint his executor who will be the
guardian in his absence.
Thus, the natural guardian of a minor, in order of
priority, are as under:
- Executor of father
- Paternal Grand-father
- Executor of paternal grand-father. Under Muslim law, in the absence of any of
the above mentioned persons, no body else is recognised as the natural or legal
guardian of a minor. valid only if the grand-father is not alive. The
grandfather too ,has the power of appointing a testamentary guardian. No other
person has any such power.
Under both the laws, another has no power of
appointing a testamentary guardian for her minor children except in two cases:
- When the father of the minor appoints her by his Will, an executor, then
she has power to appoint a testamentary guardian;
- In the case of her own property while Will devolve on her children after
her death, she can appoint a testamentary guardian. The mother can be
appointed a testamentary guardian or executrix by the father, or by the
grand-father. It seems that the appointment of non-Muslim fellow-subject (Zimmi)is valid, though
it may be set aside by the Kazi. It appears that when two persons are appointed
as guardians, and one of them is disqualified, the other can act as guardian.
profligate ,i.e. ,a person who bears in public walk of life a notoriously bad,
character, cannot be appointed as guardian: Acceptance of the appointment of
testamentary guardianship is necessary, though acceptance may be express or
implied. But once the guardianship is accepted, it cannot be renounced save with
the permission of the court. A testamentary deposition made by a testator may be
invalid, but appointment of the executor may be general or particular. The
testator must have the capacity to make the Will at the time when it was
executed. This means, that the testator should be major and of
sound-mind, i.e., at the time of execution of the Will, he should be in full
possession of his senses.
Kinds of guardianship
Muslim Law makes a distinction between guardian of the person, guardian of the
property and guardian for purposes of marriage
(Wilayat-uI-nikah) in the case of minors. Mohammedan Law recognises three kinds
of guardianship They are as follows:
- Guardianship in marriage (jabar)
- Guardianship of person of the minor for custody (Hizanat).
- Guardianship of property which has been sub-divided into:
- Dejure guardianship.
- defacto guardianship.
- certified guardianship.
Power of a guardian for Marriage:
- Power to contract marriage of a minor or lunatic:
A guardian for marriage may give minor or a lunatic in marriage and such
marriage is valid, though it may be repudiate by the minor by way of
option of repudiation of option of puberty. A minor's or a lunatic's marriage
without the consent of a guardian is not valid.
- Power to contract of dower:
A guardian may contract for dower in the marriage of a minor or lunatic. A
father or a grandfather may contract an inadequate dower which is binding on
the parties to a marriage, but such inadequate contract made by any other
guardian is not valid.
- Power of contracting conditions:
A guardian may at the time of marriage, enter into certain matrimonial
conditions. But such condition should be lawful and reasonable. For example, an
authority to pronounce Talaq given to the wife in a marriage contracted by the
guardian of a minor is binding.
- Power to pronounce Talaq:
Under the Shia law, the guardian of a lunatic who has attained puberty and who
is of unsound mind may pronounce a Talaq, if it is necessary in the interest
of the lunatic.4 But the guardian of a minor is incompetent to pronounce a
Talaq for a minor wife under all the laws.
- Power to relinquish Dower:
Under the Shia law, the father or grand-father is entitled to make
relinquishment is not fraudulent. The wife's guardian may relinquish of
the dower to which she would be entitled in the event of Talaq before
consummation. The husband's guardian has no legal power to give up his word's
right to half the dower in the event of Talaq before consummation. But either of
these guardians cannot discharge the entire dower.
Hon'ble Chief Court of Punjab Gui Mohammad v. Mst Wazir
a case where the father
had converted from Mohammadanism to Christianity but he was only parent alive of
a boy of eight years and a girl of four years and the grandmother of children
was contesting for guardianship of the two minors and their property. However,
none of these cases is a direct authority on the above
subject, i.e., guardianship in marriage.
Hizanat ( Custody)
All Muslim authorities recognize the mother's right of hizanat.
According to the Rudd-uL-Muhtar. The right of the mother to the custody of her
child is re-established whether she be a Mosalmart, or a kitabia or a majoosia,
even though she be separated from her husband. But it does, not belong to one
who Is an apostate. The mother Is of all persons the best entitled to the
custody of her infant children during connubial relationship as well as after
its dissolution. The term hizanat is applied to the woman to whom belongs the
right of rearing up a child.
In this regard Muslim law makes a distinction between the son and the daughter.
According to the Fatwa Alamgirt, the mother is entitled to the custody of a boy
until he is independent of her care, that is, until he is seven years old. The
Shias hold the view that the mother is entitled to the custody of her son until
he is weaned. (This is considered to be the completion of two years), and that
during this period the mother cannot be deprived of the custody of her son under
any circumstances whatever, except with her own consent. On the completion of
the age of two by the son, the mother's right of custody terminates.
Among the Hanalls, the mother is entitled to the custody of daughters till they
attain the age of puberty. Among the Malikis, the Shafis and the Hanbalis, the
mother's right of custody over her daughters continues till they are married. On
the other hand, under the Ithana Ashari law, the mother is entitled to the
custody of her daughters till they attain the age of seven.In all the schools
of Muslim law, the mother has the right to the custody of her married
daughter below the age of puberty in preference to the husband.
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. Since
the right of hizanat of the mother is a right of rearing up of children given to
her in the interest of children, she cannot surrender her right to any
person,including her husband, the father of the child.
For instance, if she
obtains khula from her husband on the stipulation that she would surrender her
right of hizarzat to the father of the child,the khula will be valid and the
stipulation will be void. Further, the mother cannot be deprived of her right
of hizanat on the ground of her property; It is for the father of the child to
provide her with sufficient funds for the maintenance of the child.
Other Females who are entitled to hizanat
Among the Hanafis, the following females are, after the mother, entitled to
hizanat of the minor children of the age up to which the mother is entitled to
it (the list is as given by Mulla):
- Mother's mother, how high so ever,
- Father's mother, how high so ever,
- Full sister,
- Uterine sister,
- Consanguine sister,
- Full sister's daughter,
- Uterine sister's daughter,
- Consanguine sister's daughter.
- Maternal aunts, In like order as sisters, and
- Paternal aunts, in like order as sisters.
Other male relations entitled to hizanat
In the absence of the father in both the aforesaid cases, the following persons
are, according to the Hanafi Is, 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 brother's son, and
- father's consanguine brother's son.