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Guardianship Under Muslim Law

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.
[1]
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: [2]
  • 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? [3]

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 education".

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: [4]
  1. A natural or legal guardian
  2. Testamentary guardian
  3. Guardian appointed by courts or statutory guardian
  4. 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 Islam.

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:
  • Dad
  • 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 representative.

Testamentary Guardians

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 [5]

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 guardians.

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:
  • Mortgage;
  • 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.

De-Facto Guardians

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? [6]

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 guardian:
  • Abuse of trust
  • They do not fulfill their obligations
  • Inability
  • 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: [7]
  • 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.

Another relationship:
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:
  • Dad
  • 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

Macnaughten says: [8]
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 Anjum.

The Supreme Court ruled:
  • The mother of an illegitimate child is entitled to its custody under Muslim law
  • 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 request
  • Before filing for guardianship, the court will consider the juvenile's government assistance
  • 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 Penal Code.

Conclusion
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 reality.

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.

End-Notes:
  1. https://legalserviceindia.com/legal/article-7215-concept-of-guardianship-under-muslim-personal-law.html
  2. https://www.toppr.com/guides/legal-aptitude/family-law-I/guardianship-under-muslim-law
  3. Byjus.com
  4. https://legalserviceindia.com/legal/article-7215-concept-of-guardianship-under-muslim-personal-law.html
  5. https://www.legalserviceindia.com/legal/article-8416-guardianship-under-muslim-law.html
  6. https://www.toppr.com/guides/legal-aptitude/family-law-I/guardianship-under-muslim-
  7. https://www.toppr.com/guides/legal-aptitude/family-law-I/guardianship-under-muslim-
  8. Indiankanoon.org
Written By: Arpana Gautam - LL.B. Degree (Three Year Law Course of Mumbai University)

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