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Concept of Guardianship under Muslim personal Law

The term guardianship (Wilayat) denotes the guardianship of a minor. The Quran is a basic of the law relating to concept of guardianship. Muslim law makes a difference between guardian of the person and the guardian of the property and guardian for the purpose of marriage (Wilayat-ulnikah) In case of minors.

Who is minor?
A minor is one who has not attained the age of majority. Puberty and majority presumed to have been attained on the completion of the of 15 But now the Muslims in India are governed by the Indian Majority Act 1875. Except in the matters of marriage, divorce and Mehr.

The exiting position regarding the age of majority are as:
  1. Fifteen year is the age of majority for the purpose of marriage, dower, and divorce. At this age he or she is free to do anything in contest of these three matters.
  2. As per sec 2 of Child marriage Restrain Act 1929 (as amended in 1978) the minimum age of marriage for male is 21 and for female is 18[1]
  3. Fifteen years is the age of majority is general. As regarding other matters of guardianship of a person attaints the age of puberty and Muslim will be governed by majority act which provide the age of majority is 18[2].
In recognizes three kinds of guardianship:
  • Guardianship in marriage (jabar)
    Marriage is often contracted on behalf of the minors by the guardian. the father can impose status of marriage on his minor children. This power of imposition is named 'jabar', the abstract right of guardianship (wilayat) and therefore the guardian so empowered is understood as 'Wali'.

    The role of guardian is often played by father, father's father, mother, maternal relations, full brother and other male relatives, Qazi, or the Court. Testamentary guardians for marriage do not seem to be recognized and marriage performed by remoter guardian is void. Under the Muslim system, an apostate cannot be a guardian for marriage, that the marriage of a minor girl contracted by her mother against the consent of her father, who was converted to a different faith, was held valid.[3]
  • Guardianship of person of minor for custody
    A mother is only a de facto guardian of the child. The mother in Hanafi law is entitled to the custody of her male chill till the child attain the age of seven year and in case of female child till the child attains the age of puberty. In case shia law, up to two year for the male child and seven year in case of male child. The mother is not entitled to execute Waqt on behalf of the minor.

    Such an execution is void as she has no right relating to it. If the mother fails, the coustody goes to mother's mother, father's mother, full sister, uterine sister, consanguine sister, full sister's daughter, uterine sister's daughter, consanguine sister's daughter, maternal and paternal aunts. This right of the mother is lost if she is living an immoral life, negligent to take proper care of the child, marries a person not related to the child of prohibited degrees, during the subsistence of marriage goes and she is living far from his father's resident.

    If all the above listed female fails in the custody of the minor, then the custody goes to the father and in case father fails the custody goes to the father's relatives. An illegitimate child legally speaking belongs to neither to the father no to the mother of the child and in every sense is filius nullius but for the purpose of its support and the betterment it is left to the mother till the age of seven years and later can make his/her own choice[4]

Guardianship of Property
  1. De-Jure Guardianship (legal or natural guardian)
    The person entitled to be the guardianship of the property of the minor are father, executor appointed by father's will, father's father, executor appointed by the will of father's father. The guardian has the power to sell immovable property to the minor, and it is required for maintenance. The legal guardian can deal with the property of the minor in the following condition:
    1. When there are obligations of the perished and no different methods for paying and the deal is totally vital for work and support
    2. When twofold the cost of the property can be gotten, costs surpass the pay, property falls into rot
    3. Where property has been usurped and the gatekeeper has motivation to expect that there exists no way of reasonable compensation

  2. Certified guardianship
    Without a legitimate watchman, the obligation of selecting a guardian for the assurance and protection of the minor's property tumbles to the Court. The Court takes over the government assistance of the minor. Lawful guardian of the property of a minor have ability to sell or pledge the merchandise and belongings of the minor for the minor's necessities.
  3. De Facto guardian
    A de facto guardian is a mere custodian of the minor's individual, and property however has no authority over the property. He has just duties towards the minor's individual or property or both however no rights in regard thereof. They are normally the family members of the minor yet without rights to be the watchman under the Islamic law. He is an impertinent busybody (Fazooli) with the minor's property and has no status or position to distance it without Court's consent. He has no force or position to estrange the minor's property. A deal by a true gatekeeper of the minor's unflinching property without Court's authorization is void and not just voidable.

Guardianship Of Minor
In India laws the period of guardianship is divided into three categories
  1. A person under 15 as per Muslim Law
  2. A person under 18 year under the Indian Majority Act[5].
  3. A person under 21 who has a guardian appointed by the Court[6]

In India, extensively talking, a minor is an individual who has not finished the age of eighteen years. In Muslim law minors between the ages 15 and 18 can act freely of any gatekeeper in marriage, dower and separation. For example, Muslim spouse of 16 may sue for separate without the mediation of the guardian.[7]

All applications for the arrangement of a watchman of individual or property of a minor should be made under the arrangements of the Guardians and Wards Act, 1890. The court will, if fundamental, make the request reliably with the government assistance of the minor.

In making such request the court will be guided by:
  1. What, reliably with the law to which the minor is subject, is for the government assistance of the minor.
  2. Age, sex and religion of the minor, the character and limit of the proposed watchman, and the desires of a perished parent; and
  3. Inclination of the minor if adequately old structure a preference[8]

Although the mother has the custody of the child of tender year this does not imply that the father has no right whatever. The nature and extent of the mother's right to the custody was considerable by the Privy Council in Imambandi V. Mutsaddi and it was held it is perfectly clear that the Muslim law the mother is totally entitled only to the custody of the person of her minor child till the certain age as per the sex of the child. But she is not the natural guardian of the hold. The father is the only natural guardian of the child[9].

Thus, in case father and mother are residing together their child must stay with them and the spouse can't remove the youngster with them and the husband can't remove the kid with him; nor can mother remove it without the authorization of the dad in any event, during the time frame when she is qualified for the guardianship of the kid. Where the youngster is in the care of one of its folks the other isn't to be kept from seeing and visiting it. The father's management preposterous continues in the spite of the child being under the care of the female relatives, for it the father has to maintain his child.

As respects the mother or a female watchman, union with an individual not identified with the youngster inside the restricted degrees is a bar to guardianship; so additionally, corruption, infidelity, or disregard to deal with the kid. 'An individual isn't qualified to be believed who is persistently proceeding to leave the youngster hungry'. The old specialist would clearly have disliked an advanced society mother would goes out for extension (or social assistance) toward the beginning of the day, eats with a companion, and returns home late in the evening after a dance at the club.

A mother doesn't lose the care of her baby youngsters just on the grounds that she is not, at this point the spouse of her previous husband; however, where she weds a subsequent husband, particularly where he is usually a fit and legitimate individual to be named a gatekeeper of the individual of his children; and surprisingly a stage cousin can be liked by the court.

In case of Zynabi Bi V. Mohammad Ghouse
There were four children of the marriage, three daughters and one son the youngest child. Their ages were seven, five, three daughters and one year and ten months, respectively. After some time Ghouse married a second wife but the marriage was dissolved by Khula. All the children resided with the mother but one day the husband came and forcibly took away two of the children, a girl aged five and the boy aged one year and ten months. Zynab there upon preferred a petition under the Guardian and Wards Act for the custody of her two children. It was held that she was entitled to her children and the fact that she stayed separately from her husband was not a disqualification[10]

Other relation:
In case the mother in failing for the custody of the minor the following female are entitled for the custody of the minor:
  1. Mother's mother, how high so ever
  2. Father's mother, how high so ever; and
  3. Full sister and other female relations including aunts.[11]

A female relative of a minor on marring a husband a stranger does not suffer an absolute disqualification she loses her preference right and where there is no suitable person is not available for the custody of the minor.[12]

The custody of the minor given to the paternal home on priority bases:
  1. The father
  2. Nearest and another paternal guardian
  3. Full brother
  4. Consanguine brother and other paternal relatives [13]
The custody of the minor goes to the nearest male paternal relatives, as per the same order as for inheritance.[14] In case father fails in taking the custody of the child the custody of the child goes to the paternal relative as mentioned above. The general principle is that no male is entitled for the custody of the minor unless he is related to her consanguinity within the prohibited degree.

In case of Illegitimate child.
Macnaughten says:
A bastard belongs legally speaking to neither of its parents and it is very sense of the word filius nullius; but for the purpose of securing its due nourishment and support it should, until it has attained the age of seven years be left in charge of the mother. After that age it may make its own election with which the parents it will reside, or it may live apart from them altogether.[15]

In case of Gohar Begum v. Suggi alias Nazma Begum; Gohar Begam was a singing lady in the keeping of one Trivedi, a Hindu. She was the unmarried Muslim mother of a characteristic girl, Anjum, recognized by Trivedi as his little girl. Anjum was shipped off say with a companion that she had extraordinary friendship for the youngster and had adequate intends to care for Anjum.

The apex court held:
  1. The mother of an illegitimate child is in Muslim law entitled for his custody
  2. Refusal to re-establish the kid to its mom was illicit confinement inside the significance of Section 491 of the Criminal Procedure Code
  3. A debate as to paternity of a kid was disrespectful with the end goal of the application
  4. Prior to making the request for guardianship the court will think about the government assistance of the youngster
  5. The way that an individual has a cure under the Guardians and Wards Act has no legitimization for denying him the cure under Section 491 of the Criminal Procedure Code.
  6. It is grounded in England that in giving a writ of habeas corpus a court has power on account of a baby to guide its care to be set with someone in particular
  7. The Supreme Court will meddle with the optional forces of the High Court if the circumspection was not judicially worked out.
  8. The request for the High Court of Bombay was switched and Anjum was given over to her mom Gohar Begum.[16]

Guardianship Of Property
If a minor owns movable or immovable property, a guardian is required to manage the property of the minor. The Muslim prescribed certain person in an order of preference who can be the guardian of minor's property as per Muslim law as follows:
  1. Legal Guardian
  2. Guardian appointed by the court
  3. De facto guardian
Legal Guardian
The person who is entitled in the order mentioned below to be the guardian of the property belongs to the minor are:
  1. The father
  2. Father's executer
  3. Paternal grandfather
  4. Paternal grandfather's executor.[17]

It may be said that the substantive law of Muslim does not recognise any other relative such as mother, uncle and brother as legal guardian of the child.[18] Only the father or father's father may appoint them or any other person for the purpose of taking care of minor's property.

Except father and father's father no other person is entitled even not mother is legally entitled to appoint by will, any person as executor of minor's property.

In case of Gulam Husani Kutubuddin Manner Vs Abdul Rashid Abdul Rajak Maner[19] the Supreme Court of India has held that a mother of a minor child cannot be appointed as his guardian for the purpose of accepting gift on the behalf of minor during the lifetime of minor's father.

In case of Amar Ahmad Khan V. Shamim Ahmad Khan. [20]the Jharkhand High Court held that on the death of a Mohammadan his property immediately divided into the heirs of the property separately to the extent of share they are entitled under Muslim personal laws. Each of the heir become the absolute owner of the property.

The minor can be entitled to have immovable property.

The following rules are applied:
  1. The lawful guardian can't sell the steady property of the minor aside from where he can acquire twofold its worth; or where it is vital for the support of the minor; or where there are obligations and inheritances to be paid and there are no methods; or where the costs of the property is falling into decay.[21]
  2. A guardian is selected by the court has no ability to sell or home loan without the authorization of the court. An improper removal as opposed to the arrangements of the Guardians and Wards Act 1890 is voidable. [22]Nor can a watchman buy property for the benefit of the minor.
  3. A de facto guardian has no ability to sell the property of a minor; such a deal is a nullity. [23]A de facto can't allude questions identifying with unfaltering property to arbitration, nor can a Muslim mother who has no position to go about as a watchman of the property of the minor allude matters to assertion without leave of court and without getting delegated as a lawful guardian.[24]

Power of legal guardian regarding immovable property:
As per Muslim laws a legal guardian of the property of a minor is entitled to sell the immovable property which belongs to the minor when the sale in required for the maintenance and when the minor has no other property. The word maintenance does not exclude other essential expenses for the mental and physical requirement of the minor for the betterment of the minor. In the present world which is rapidly advancing in all the direction education up to higher secondary stage cannot be set aside. So as be excluded from maintenance.

In the following circumstances the legal guardian is entitled to deal with the minor's property
  1. When there are debts of the deceased, and no other source of paying them
  2. When the minor has no other means of livelihood and the sale is only way for his maintenance of the minor
  3. When double the price of property can be obtained by it,
  4. Where the expenses exceed the income of the property
  5. When the property is falling into decay
  6. When the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution
  7. When there are legacies to be paid and no other means of paying them.[25]

The leading case on the subject is Imambadi V. Mutsadd:
One Ismail Ali khan died in the year of March 1906 while having the possession of considerable amount of property. He left three widows- A, B and Zohra – several children by each of the widow. Zohra has two children, which are a son and a daughter. In June 1906 Zohra conveyed for Rs. 10000 the shares of herself and her children to certain purchasers. The purchasers applied for mutation of the names in the names in the local register and two widows A and B and their children opposed them.

The buyers from Zohra recorded a suit guaranteeing that Zohra was the recognized spouse and her youngsters the real offspring of Ismail Ali Khan and that Zohra, following up on her own and her kids' sake, could legally estrange the property. It was held by the Privy Council that the mother had no ability to distance the property for she was not the lawful gatekeeper. Ameer Ali in conveying the judgment of the Board set out that the mother in Muslim law is simply qualified for the care of a minor and isn't the characteristic watchman. The dad is the legitimate guardian34.

Talking about accepted watchman he said:
It is hard to perceive how the circumstance of an unapproved watchman is bettered by depicting him as a 'accepted' gatekeeper. He may by his accepted guardianship accept significant obligations according to the minor's property, yet he can't subsequently dress himself with legitimate ability to sell it.

The judgment at that point continues to set down who are the lawful gatekeepers without the dad and the significant qualification which the Hedaya makes between managing the enduring and the portable property of the minor.36 Curiously enough, one who between interfered with the property of another was known by the term 'fazuli' in right on time but then is known by the unmeritedly honourable named of true watchman in present day law.

Summarizing, he said
For the prior extensively their Lordships are of assessment that under the Mahomedan law an individual who has the charge of the individual or property of a minor without being his legitimate gatekeeper, and who may, in this manner, be advantageously called a 'accepted watchman', has no ability to pass on to another any privilege or interest in relentless property which the transferee can implement against the new born child; nor can such transferee; whenever let into ownership of the property under such unapproved move, oppose an activity in ejectment for the benefit of the baby; nor can such transferee, whenever let into ownership of the property under such unapproved move, oppose an activity in ejectment for the new born child as an intruder. It follows that, being he without title; he can't look to recuperate property in the property in the ownership of another similarly without title.[26]

Guardian Appointed by court
In the absence of a legal guardian the court is entitled to appoint a guardian for the betterment of the minor. The duty of appointing a guardian for the safeguard and prevention of the property belongs to the minor falls in the court. While appointing a guardian the court take into the consideration the betterment of the minor and as such may appoint mother instead of paternal uncle, as the guardian of the minor's property. [27]

The court also look at the will of the father if in case the mother is appointed as the guardian of the minor's property the fact, she is a pardanashin lady will not be considered as an objection for the purpose of appointment.

The guardian appointed by the court cannot be:
  1. Charge the immovable property
  2. Mortgage
  3. Transfer by sale
  4. Transfer by gift
  5. Exchange
  6. Lease any part of immovable property

Thus, the guardian is entitled to lease the property of the minor even without the permission of the court.
  1. For a term not more than 5 year
  2. For a term no more than one year beyond the date on which the minor the minor is ceased to be a minor.[28]

Power of legal guardian regarding movable property:
The legal guardian of the property of a minor has power to sell or pledge the property of the minor for the purpose of necessity of the time for the betterment of the minor such as food, clothing, and nursing and many other. De-facto guardian has same right as a guardian appointed by the court. But the guardian appointed by the court have some extra power as compared to the de-facto guardian. Such guardian is bound to deal with property of the minor as a ordinary man case of his own property.[29]

De Facto Guardian
A person who is neither the legal guardian of the child nor the guardian appointed by the court but has willingly placed himself in charge of the person and property of the minor, is called as de facto guardian A person not being a legal guardian or by the authority given by the court, may place himself in the position of a guardian meddling with the property of the minor.

Such person is called a de facto guardian. A de-facto guardian behaves like a mere custodian of the minor. He has only some responsibilities towards the minor and its property. Mostly the de-facto guardian are relatives of the minor but without right to be the guardian under Islamic laws other than appointed by the will or court.

He is an officious intermedler (Fazooli) with the minor's property and has no power or position to alienate the property belongs to the minor.

No power to alienate immovable property:
The position of the de- facto guardian is some who different from the legal guardian and the guardian appointed by the court. He is not entitled to alienate the property of the minor. The alienation of the minor's property without the prior permission of the court is completely void in case of de-facto guardian.[30]
  1. He is not entitled to refer any dispute regarding the property belong to minor.
  2. He cannot give consent on behalf of minor to validate by the co-heir of the property.
  3. He cannot bind the minor by any kind of bond or lien of his father's property.

Mother, brother and uncle as de-facto guardian
As per Muslim law mother is entitled for the custody of her minor children up to the certain prescribed age -accordingly the sex of the child. But she is not the natural guardian of the minor and his property. The father is alone the natural guardian of the child and in case if he died his executer become the natural guardian of the child. The mother of the child do not have larger power to deal with the child property than any out sider. In case mother is father's executor or is a certified guardian she has all the power of a de-facto guardian.

In Vekama v. SV Chisty,[31] the minor's dad along with other co sharers made a home loan on the suit properties. Afterward, after the dad's demise the mother as watchman of the minor with the other co sharers executed a deal deed. It was held:
  1. That the deal deed executed by the mother was void and broken under the Muslim
  2. Where the Muslim minor tries to recuperate property sold by his unapproved watchman maintaining to follow up for his sake, he looks for arbitration that the deal is void and without such an announcement he can't acquire the property
  3. In such cases the adage that 'he who looks for value should do value' unmistakably applies
  4. The court has power under Section 41 of the Specific Relief Act to grant remuneration if the equity of the case so requires.
A similar High court (Madras) has held that while the distance by a mother of steadfast property of a minor in the same way as other significant beneficiaries the deal is legitimate so particularly far as the portions of the significant beneficiaries is concerned.[32]

However, the Patna High Court has taken an alternate view. In Kharag Narain v.Hamida Khatoon[33] it was held that since such a deed was void no pay should be paid by the minor and no prudence need be practiced under Section 41 of the Specific Relief Act.

Removal Of Guardian
A guardian whether de jure or de facto is removable by the court if it is necessary in the interest of the minor. The court may on the application of any person, or by its own motion remove a guardian appointed by the court, or the guardian appointed by the will or other instrument.

Grounds for the removable of guardian[34]:
  1. Abuse of his trust
  2. Continued failure to perform the duties of his trust.
  3. In capacity to perform his duties regarding the minor.
  4. Ill-treatment, or neglect to take proper care of the minor.
  5. Continuous disregard of any provision as per Guardian and Ward Act
  6. Convicted under any offence, in the opinion of the court,
  7. Ceasing to reside within the jurisdiction
  8. Insolvency

The authority of each minor principally has a place with its mom, while the common watchman of each authentic youngster is customarily its dad. The mother's authority of a female kid ends at the soonest with her marriage in the Shafei Law, on her achieving dominant part in the Hanafi law, and on her finishing seven years in the Ithna asharia law. The mother's care is the legitimate right of the youngster and her own comparing commitment. In case of end of guardianship with the mother or her legitimate substitutes, it goes to the youngster's dad.

Under the Muslim law, a legitimate watchman of the property of the minor can sell the unfaltering property, when the sell the unflinching property of the minor, when deal is essential for his support and when the minor has no property.

A minor isn't equipped to contract and if an individual purposely goes into an agreement with a minor, it is nevertheless sensible to individual intentionally goes into an agreement, it is nevertheless sensible to expect that his expectation more likely than not been acquire an unnecessary benefit. He can't subsequently show the pair clean hands that value requests of an individual looking for her beauty.

However, albeit the instance of Imambandi v Mutsaddi, it is for the most part known external legitimate circles, even among Muslims, that the mother of a Muslim minor has no position to sell his property under any conditions, at all. The assumption of legitimate information, while it stretches out to blocking an individual from arguing obliviousness of the law as a pardon to absolve him from the result of his demonstrations, doesn't reach out for requiring the Court to hold, what isn't reality, that, for all expectations, and for all reasons, and altogether conditions, each individual isn't blocked from arguing obliviousness of the law with respect to the inadequacy of a Muslim mother to sell the property of her minor kids to set up his bona fides and convincing the court to hold that equity necessitates that he ought to be repaid to the degree to which the cash profited the gathering getting the undoing of the sale.

Accordingly, from the above arrangements under Muslim we can say that the part of the minors under guardianship is very essential.

  • M. Hidayatullah and Arshad Hidayatullah, Mulla Principles of Mahomedan Law, 19th edition, New Delhi, Lexis Nexis Butterworths, Wadhwa Nagpur.
  • Asaf A. A. Fyzee, Outlines of Muhammadan Law, 5th edition 2008, edited and revised by Tahir Mahmood, New Delhi, Oxford University Press.
  • Aqil Ahmad, Mohammedan Law; twenty Sixth 2016; Central Law Publication
  1. Sec 2 child marriage restrain Act 1929
  2. Sec 3;Indian Majority Act 1875
  3. Mahini Bibi case 1 Beng L.R 160
  4. Ahmed Aqil Mohammedan law pg-214
  5. Sec 3; guardianship and ward act 1890
  6. Ameer Ali II, Mulla 348
  7. Ahmed Sulema V. Bai Fatima 1930
  8. Mulla,349-51
  9. Mulla, 352
  10. Zynab Bi v. Mohammad Ghouse AIR 1952 Mad 284
  11. For details see Tyabji 239; Wilson 107
  12. Lohara Khatun v. Amina Bibi (1957) 62 CWN 357
  13. Mulla 355
  14. Mulla 239
  15. Mulla 358
  16. Gohar Begum v. Suggi Alias Nazma Begam 1960
  17. ibid
  18. Syed shah Gulam Ghoshe V. Syed Shah Ahmad AIR 1971
  19. Gohar Begum v. Suggi Alias Nazma Begam 1960
  20. Amar Ahmad Khan V. Shamim Ahmad Khan
  21. Mulla 362
  22. Mulla 363
  23. Mulla 362
  24. Johara bubi vs Mohammed sadak AIR 1951
  25. Ahmad Aqil pg- 222
  26. Imambandi v.Mutsaddi AIR 1918; Ahmad Aqil pg- 217
  27. Salamat Ali v. Smt.Majjo Begum AIR 1985
  28. Ahmad Aqil pg- 224
  29. ibid
  30. Sec 27 guardianship and ward act 1890
  31. AIR 1951 Mad 399
  32. Maimunnissa BiBi v. Abudul Jabbar AIR 1966
  33. AIR 1955 Patna 475
  34. Ahamed Aqil pg 227

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