minor is supposed to have no capacity to protect his or her own interests. Law therefore, requires that some adult person must safeguard the minor’s person or property and do everything on his or her behalf because such a minor is legally incompetent. A person who is authorised under the law to protect the person or property of a minor, is called a guardian. Under Muslim law guardians are required for the purpose of marriage, for the protecting the minor’s person and for protecting the minor’s property.
Guardianship of a minor person means an overall supervision of the minor’s personality. It means care and welfare of the child including the liability to maintain it. It is more than simply custody of the child upon a certain age. Under Muslim law, is called HIZANAT. They are sometime taken to mean the same thing .But under Muslim law, these two aspects of the guardianship are different and are governed by the different laws. The guardianship of a child means overall supervision of the child during its minority. Father or his executer or in his absence, the paternal grandfather, being the natural guardian, are in charge of the minor’s person. On the other hand ‘custody of the child’ simply means a physical possession (custody) of the child upon a certain age. Although mother is not the natural guardian of the child under Muslim law, but she has a right to the custody of the child, till the child attains a specific age. But the father or the paternal grandfather has a control over the minor during the whole period of the minority. Tahir Mohmood states that:
“Guardianship of a person in relation to a child belongs primarily to its father, the mother’s being only a pre-emptive right to keep the father away for a legally prescribed period only from a particular aspect of the guardianship of person, namely, the custody and physical upbringing of the child’’.
It may be said therefore, that mother has a right to the custody of her child for some time, because except her, no one can handle and nurse a child during its infancy. But her custody of the child is subject to the supervision of the father who, as a legal guardian, is under an obligation to provide means for the upbringing of child.
In this paper we will understand the different possibilities and move of our legal system for every circumstances arising regarding guardianship under Muslim law.
Types of Guardianship
Muslim law recognise following kind of guardianship:
- Natural or legal guardian.
- Testamentary guardian.
- Guardian appointed by courts or statutory guardian, and
- De-facto guardian
Natural or legal guardian: 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 father’s right to act as guardian of a minor is an independent right, and is given to him under the substantive law of Islam. Natural guardian is also called dejure or legal guardian. As stated above, only father is the legal guardian of his child. But in the absence of father, the father’s executor may also act as a legal guardian. Executor is a person who is appointed by the father or grandfather to act as a guardian of his minor child on his behalf. In the absence of the father or his executor, paternal grandfather or paternal grandfather’s executor acts as a legal guardian. Thus, the nature guardian of a minor, in order of priority, are as under:
- Executor of father
- Paternal grandfather
- Executor of Paternal grandfather
Under Muslim law in the absence of any of the above mentioned persons, nobody else is recognized as the natural guardian of a minor.
Shia Law: In the absence of father only paternal grandfather may act as a legal guardian .In the presence of paternal grandfather, the father’s executor has no right to act as legal guardian of a child.
Testamentary Guardians: Testamentary guardian is a person who is appointed as guardian of a minor under a will. Only father or, in his absence, paternal grandfather has right to appoint a testamentary guardian. No special formality is required for the appointment of a testamentary guardian, but, as obvious, such a person should be competent to act as a guardian. A non-Muslim and a female may also be appointed as a testamentary guardian.
Shia Law: A non- Muslim cannot be appointed as testamentary guardian.
Guardians appointed by Court: In the absence of a natural and testamentary guardian, the court is empowered to appoint a guardian for the purpose of the minor’s person or property or for both. The appointment of guardian by court is governed by the Guardianship and Wards Act, 1890 which is applicable to all the Indians irrespective of their religion. Such guardians are also called Statutory Guardian. It may be noted that no provision has been made under this act for the guardianship for the marriage. The result is that except the guardian for marriage, the guardian for a Muslim minor’s person or property may be appointed by the court of law. In case of conflict between Muslim personal law & Guardianship & wards act, provisions of acts prevail over the provisions of Muslim personal laws.
The courts are empowered to appoint the guardians for a minor upon an application. Such application may made by any of the following persons:
- any person desirous of being or claiming to be the guardian of the minor, or
- any relative or friend of the minor, or
- The collector of the district in which the minor generally resides
If the court is satisfied that it is for welfare of the minor that an order should be made, then it may make an order –
- Appointing a guardian of minor’s person, or both ,or
- Declaring a person to be such a guardian.
Sec. 17 (2) of the act says about the various grounds for deciding the guardianship like: sex, age of the minor, capacity of the proposed guardian etc.
In Smt. Farzanabai v. Ayub Dadamiya, the Bombay high court observed that under Guardians and Wards act, the personal law of the parties is a factor which is to be kept in mind by the court subject to the interest of the minor.
De-facto guardians: A de-facto guardian is a person who is neither a legal guardian nor a testamentary guardian or statutory guardian, but has himself assumed the custody and care of a child. According to Tyabji a de-facto guardian means an unauthorised person who, as a matter of fact, has custody of the person of a minor or his property.De facto guardian is a person having no authority for the guardianship but under the circumstances has taken the responsibility to act as the guardian of a minor.