Custody of a minor means overall supervision of the minor's temperament.
It means the care and well-being of the child along with the duty to take care
of him. It is more than just caring for a child of a certain age. Let's learn
more about guardianship under Muslim law.
Children are known as messengers of God. It is important to take care of them
and provide them with the right nutrition for their overall development. The
primary duty of parents is to fulfill all the basic needs of the child, which
leads to a dignified and prosperous life. A child under the age of 18 is
referred to as a minor1.
But in the absence or death of the parents,
guardianship occurs. The guardian is appointed by the parents and the courts
with the sole intention, i.e. for the welfare of the child. There are different
types of guardians in Muslim law, which we will discuss in the article.
Who Is A Minor?
According to section three of the Indian Majority Act, 1875, a minor is a person
resident in the Republic of India who is below the age of eighteen years.
It is assumed that a minor is not capable of protecting his own interests. Thus,
the law requires some adult to protect the person or property of a minor and do
everything on his behalf, because such a minor is legally incompetent.
The exiting position regarding the age of majority are as:
- Fifteen is the age of majority for purposes of marriage, dowry and divorce. At
this age, he can do anything to fight these three matters.
- Under Section 2 of the Child Marriage Restraint Act 1929 (as amended in 1978),
the minimum age for marriage is 21 for a male and 18 for a female.
- Fifteen years is the general age of majority. In other matters of guardianship
of a person who attains the age of puberty, a Muslim will follow the majority
law which states that the age of majority is 18 years.
Who Is A Guardian? 
Custody of a minor can be defined as the overall supervision of the growth and
well-being of a minor. Guardianship entitles the guardian to have minors in
their care for a certain period of time.
The term "guardian" is defined in the Guardianship and Guardianship Act as "a
person looking after the person of a minor or his property or both his person
and his property"
Tahir Mahmood defines custody in Muslim law as "The custody of a person over a
child belongs primarily to his father, with the mother only having a preventive
right to keep the father away for a statutory period only from a specific aspect
of custody." person, namely entrusting the child to care and his physical
Under Muslim law, guardianship of minors is known as HIZANAT.
A person who is legally authorized to guard the person or property of a minor is
called a guardian. According to Muslim law, guardians are required for the
purpose of marriage, for the protection of the minor's person and for the
protection of the property of the minor.
Muslim Law Recognizes The Following Kind Of Guardianship: 
- A natural or legal guardian
- Testamentary guardian
- Guardian appointed by courts or statutory guardian
- De-facto guardian
Natural Or Legal Guardian
A natural guardian is one who includes the right to regulate and supervise the
activities of the minor. The father is recognized as the natural guardian of his
child in all schools of Muslim law. The father's right to act as the guardian of
a minor is an independent right and is given to him under the substantive law of
A natural guardian is also known as a legal representative. But in the absence
of the father, the executor of the father can also act as a legal
representative. The executor can be the one whom the father or grandfather
appoints to be the guardian of his minor child on his behalf.
Thus, the following are the natural guardians of a minor in order of priority:
- Father's executor
- Paternal grandfather
- Paternal grandfather's executor
Under Muslim law, in the absence of any of the above, no one else is recognized
as the natural guardian of a minor.
Under Shia law:
In the absence of the father, only the paternal grandfather
could act as legal representative. In the presence of the paternal grandfather,
the father's executor does not have the right to act as the child's legal
A testamentary guardian can be someone who is appointed as the guardian of a
minor under a will. Only the father or, in his absence, the paternal grandfather
has the right to appoint a testamentary guardian.
A non-Muslim and a woman can also be appointed as a testamentary guardian.
Under Shia law:
A non-Muslim cannot be chosen as a testamentary guardian.
Guardians Appointed By Court 
In the absence of a physical and legal guardian of documents, the court is
authorized to appoint a guardian for the purpose of the person or property of
the minor, or for both. The appointment of a guardian by the court is governed
by the Guardianship and Wardens Act, 1890, which applies to all Indians
irrespective of their religion. Such guardians are also called statutory
Limitations on a court-appointed guardian:
Although a guardian appointed by the courts has full rights to look after the
property of a minor, certain restrictions are also prescribed which require the
prior permission of the courts, as follows:
- Transfer by sale;
- Transfer by gift; and
- Exchange property.
Under certain circumstances and in cases of necessity, such alienation should be
authorized by the court.
A de facto guardian is a person who is neither a legal guardian nor a
testamentary guardian, or a legal guardian, but has himself assumed the care and
custody of the child. According to Tyabji, a de facto guardian means an
unauthorized person who actually has custody of the minor's person or property.
A de facto guardian can be a person who does not have guardianship authority,
but under the given circumstances has assumed the responsibility to act as the
guardian of a minor.
Is It Possible To Remove A Guardian? 
Yes, the guardian can be dismissed by the court. The guardian, whether de jure
or de facto, can be dismissed by the court if it is necessary in the interests
of the minor.
The following are the grounds on which the court may remove the
- Abuse of trust
- They do not fulfill their obligations
- Mistreatment of minors
- Adverse interest in minor's property.
These are some of the main reasons that custody can be taken away
Guardianship Of Minors
In Indian laws, the period of custody is divided into three categories:
- A person under the age of 15 under Muslim law.
- A person below 18 years of age as per Indian Majority Act.
- A person under the age of 21 who has a guardian appointed by the Court.
In India, broadly speaking, a minor is an individual who has not attained the
age of eighteen years. Under Muslim law, minors between the ages of 15 and 18
are free to deal with any guardian in marriage, dowry and separation. For
example, a 16-year-old Muslim spouse can sue for separation without the
mediation of a guardian.
All applications for the appointment of a guardian of an individual or the
property of a minor should be made in accordance with the provisions of the
Guardians and Wards Act 1890. If essential, the court will reliably make the
application with the help of the minor's government.
When making such a request, the court will be guided by: 
- What is reliable under the law to which the minor is subject, for government
assistance to the minor.
- The age, sex, and religion of the minor, the character and boundaries of the
proposed guardian, and the wishes of the deceased parent; and
- The slope is smaller if the preference structure is old enough.
Even though the mother has custody of the child at a tender age, it does not
mean that the father has no rights. The nature and extent of the mother's right
to custody was considerable advice of the Privy Council in Imambandi V. Mutsaddi
and it was held that it is quite clear that under Muslim law a mother has full
right only to the custody of the person of her minor child. up to a certain age
according to the gender of the child. But she's not a natural below deck
guardian. The father is the sole natural guardian of the child.
In case the father and mother live together, their child must stay with them and
the husband cannot take the child with him and the husband cannot take the child
with him; nor can the mother in any case remove it without the consent of the
father while she is fit to have custody of the child. When a cub is in the care
of one of its humans, the other must not be prevented from seeing and visiting
it. The foolish management of the father continues even though the child is in
the care of female relatives because the father has to support his child.
In the case of a mother or sitter, association with an individual who is not
within limited degrees identified with the child is a bar to guardianship; so,
in addition, corruption, infidelity or indifference in dealing with the child.
"An individual is not fit to be trusted who persistently lets the young starve."
The old specialist would obviously not like it if a mother from a sophisticated
society went out for an extension (or welfare) at the beginning of the day, ate
with an entourage and returned home late at night after dancing at the club.
A mother does not lose custody of her young children simply because she is not,
at the moment, the husband of her previous husband; but where she marries
another husband, especially where he is usually a fit and legitimate individual
to be appointed guardian of the individuals of her children; and, surprisingly,
the court cousin can please the court.
In the case of Zynabi Bi V. Mohammad Ghouse
There were four children from the marriage, three daughters and one son, the
youngest child. They were seven, five, three daughters and one year and ten
months. After some time, Ghouse married a second wife, but the marriage was
dissolved by Khula. All the children lived with their mother, but one day the
husband came and forcibly took away two children, a girl aged five and a boy
aged one year and ten months.
There, Zynab then preferred a petition under the
Guardianship and Guardianship Act for the custody of her two children. It was
held that she was entitled to her children and the fact that she remained
separated from her husband was not a disqualification.
In the event that the mother is unable to entrust custody of the minor, they
have the right to custody of the minor:
- Mother's mother, how high
- Father's mother, how high; and
- Full sister and other female relations including aunts.
A relative of a minor who marries a foreign spouse does not suffer absolute
disqualification, she loses the right of priority and if she is not a suitable
person, she is not available to entrust the minor.
Care of a minor entrusted to the father's home as a priority:
- Closest and other paternal guardian
- Full brother
- Consanguineous brother and other paternal relatives,
The guardianship of a minor belongs to the nearest male relatives on the
father's side in the same order as inheritance.
If the father does not take custody of the child, a relative from the father's
side takes custody of the child, as stated above. The general principle is that
no male is entitled to the guardianship of a minor unless he is related to her
within the prohibited degree of consanguinity.
In The Case Of An Illegitimate Child
A bastard does not legally belong to either of his parents, and is the very
sense of the word filius nullius; but to secure her proper nourishment and
support she should be left under her mother's care until she is seven years of
age. After this age, he can choose for himself which parents he will live with,
or he can live completely separate from them.
In the case of Gohar Begum v. Suggi alias Nazma Begum
; Gohar Begam was a
singing lady in the possession of one Trivedi, a Hindu. It was the unwed Muslim
mother of the characteristic girl Anjum whom Trivedi recognized as his little
girl. Anjum was sent with a companion to say that she had an extraordinary
friendship with the child and that she had sufficient intentions to care for
The Supreme Court ruled:
- The mother of an illegitimate child is entitled to its custody under
- The refusal to return the child to his mother was unlawful imprisonment
within the meaning of Section 491 of the Criminal Code.
- The paternity debate was irreverent with the ultimate goal of the
- Before filing for guardianship, the court will consider the juvenile's
- The manner in which an individual is treated under the Guardians and
Wards Act has no legitimacy to deny him treatment under Section 491 of the
It is enshrined in England that by passing a writ of habeas corpus, the court
has the power for the sake of the child to direct its custody so that it is
fixed with someone specific.
The Supreme Court will interfere with the discretionary powers of the High Court
if prudence has not been judicially resolved. According to Muslim law, a
legitimate guardian of a minor's estate can sell the immovable property when the
immovable property of the minor is sold, when the business is essential to his
support and when the minor has no property.
A minor is not equipped to enter into a contract, and if an individual
intentionally colludes with a minor, it is nevertheless reasonable for the
individual to intentionally collude, however it is reasonable to expect that his
expectation is more likely to acquire an undue advantage. She cannot
subsequently show the pair clean hands that appreciate the demands of the
individual seeking her beauty.
However, even with the case of Imambandi v. Mutsaddi
, it is known from most
outside legitimate circles, even among Muslims, that the mother of a Muslim
minor has absolutely no standing to sell his property on any terms. The
presumption of legitimate information, even if it goes so far as to block the
individual in arguing to forget the law as a pardon that exempts him from the
outcome of his demonstrations, does not lead the court to decide what is not
That against all expectations, for all reasons and under all conditions, every
individual is not precluded from arguing the negligence of the law with regard
to the inadequacy of a Muslim mother to sell the property of her minor children
to establish her good name. fides and persuading the court to hold that the
equity required it to be repaid to the extent that the cash profited from the
gathering, thus voiding the sale.
In accordance with the above measures according to Muslims, we can say that the
part of minors under guardianship is very essential.
Written By: Arpana Gautam
- LL.B. Degree (Three Year Law Course of Mumbai University)