Guardianship under Muslim law

 Guardian

Whenever it is necessary that a guardian may take charge of the child. The term 'guardian' is defined in the 'Guardians and Wards Act, 1890' as "a person having the care of the person of a minor, or his property, or of both his person and his property" [Sec. 4(2)]. According to Section 4(3) of the same Act, 'ward' means a minor for whose person or property or both, there is a guardian. These definitions have nothing to do with the personal law of Mohammedans. However, it is too well settled that the provisions of the Guardians and Wards Act apply equally to Hindus and Mohammedan. In fact the term 'guardian' used in this Act would mean against all whether testamentary, certified, natural or defacto and is not confined to statutory guardian alone. Where provisions of Islamic law are in conflict with the Guardians and Wards Act, 1890, the provisions of later would prevail.

The term 'guardianship' connotes the guardianship of a minor.

 

Kinds of Guardianship

 

Guardianship (Wilaya) may be (i) of the person, (ii) of property, and (iii) in marriage.

Q. 9 (a). Who are entitled to the custody of a minor child under the Sunni and Shia Law? When does the right to custody terminate?

 

Custody (Hizanat)

Ans.

Guardianship of the Person of a Minor (hizanat)

The right of guardianship of a minor is termed as hizanat or hidanat. In Arabic it means custody for bringing up of the child.

Regarding the nature and extent of the right to custody of a minor child it was observed by the Privy Council in Imambandi v. Mutsaddi, [(1918) 45 I.A. 73] It is perfectly clear that under the Muslim Law the mother is entitled only to the custody of the person of her minor child upto a certain age according to the sex of the child. But she is not the natural guardian. The father alone, or if he is dead his executor (under the Sunni Law) is the legal guardian.

 Mother.-The mother is entitled (1) in Sunni Law to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she attains puberty; and

 

(2) in Shia Law she is entitled to the custody of her male child till the age of 2 years and to the custody of a female child till the age of 7 years. The right of the mother to the custody of the child continues though she is divorced by the father of the child unless she marries a second husband in which case the custody belongs to the father.

 

Female relations in default of mother.-Under the Sunni Law in the absence of the mother, the custody of a boy under the age of 7 years and of a girl who has not attained puberty goes to the following female relations of the child in the order given as under:

 

1. Mother's mother, how high so ever,

2. Father's mother, how high so ever,

3. Full sister,

4. Uterine sister,

5. Consanguine sister,

6. Full sister's daughter,

7. Uterine sister's daughter,

8. Consanguine sister's daughter,

9. Maternal aunt,

10. Paternal aunt..

 

Termination of the right of custody of the female relations. The right of custody of the mother and other female relations is terminated in the following cases

 

(a) if she leads an immoral life,

(b) if she neglects to take proper care of the child,

(c) if she marries a person not related to the child within prohibited degrees [Rahima Khatun v. Saburunnessa, AIR 1996 Gauhati 33],

 

(d) if she goes and resides at a distance from the father's place.

 Male relations. In the absence of the mother and other female relations, under the Sunni Law, the right of custody belongs to the following male relations in the order as given below:

(1) Father,

(2) Nearest paternal grandfather,

(3) Full brother,

(4) Consanguine brother,

(5) Full brother's son,

(6) Consanguine brother's son,

(7) Full brother of the father,

(8) Consanguine brother of the father,

(9) Son of father's full brother,

(10) Son of father's consanguine brother.

 

Provided that no male is entitled to the custody of an unmarried girl unless he stands within the prohibited degrees of relationship to her. If there be none of the above guardian, it is for the Court to appoint a guardian of the person of a minor.

 

Shia Law-Under Shia Law, in default of the mother, the father and in default of the father, the father's father is entitled to the custody of a minor. It is doubtful who would be entitled to the custody in default of the father's father.

 

Illegitimate child.-The custody of an illegitimate child goes to the mother and her relations.

 

Guardians and Wards Act.-In proceedings under Section 25 of the Guardians and Wards Act, 1890 it is not the guardianship of the minor which is of importance but the welfare of the minor which has to be taken into consideration while deciding about the custody of the minor. [Smt. Amirunnissa v. Mukhtar Ahmad, AIR 1975 All. 67].

 

In re Sayyad Sabdarali Sayyed Nyajali, [AIR 2008 NOC 253 (Bom.)] the Bombay High Court was of the view that in the context of question pertaining to minor's custody the tenets of personal law and the provisions of the special enactment need to be considered together. The personal law of the parties cannot be altogether ignored. On a true construction of Section 17 and Section 25 of the Guardians and Wards Act, 1890 there cannot be any doubt that while appointing or declaring a guardian of a minor the relevant factors such as age, sex, religion, character and capacity of the proposed guardian as well as welfare of the minor are the significant factors.

In this case as the minor son was above 7 years of age and the father was taking care of his education, custody of minor was handed over to the father.

In the case of males the right to custody is lost in the following cases

 

i) In case the minor is an unmarried girl and the guardian is not related to her by a prohibited degree;

 

ii) Though husband is natural guardian of wife, but if the wife is minor and of such an age with whom consummation may not be permitted.

 

iii) Apostasy would be a disqualification of a guardian under pure Islamic law, but it is controversial whether it is a disqualification of a guardian in India.

Cessation of Authority of Guardian of the Person (Termination of Guardianship)

 

No person is entitled to keep the custody of a male child after the has attained majority (age of 18), and no person is entitled to keep the custody of a female virgin after she has attained age of puberty (age of 15 years) and age of discretion.

 

The powers of a guardian of the person cease -

 

i) by his death, removal or discharge

 

ii) by the court of wards assuming superintendence of the person of the ward.

 

iii) by the ward ceasing to be a minor

 

 

iv) In the case of a female ward, by her marriage to a husband who is not unfit to be guardian of her person, or, if the guardium was appointed or declared by the court by her marriage to a husband who is not in the opinion of the court so unfit; or

v) In the case of a ward whose father was unfit to be guardian of the person of the ward, by the father ceasing to be so, ot, if the father was deemed by the court to be so unfit, by his ceasing to be in opinion of the court.

Custody of illegitimate children

 

The mother and her relations are exclusively entitled to the custody of the illegitimate children. If a child be a foundling one, its custody belongs to the person who found it, or to the state.

 

Custody of minor wife

 

Under the Muslim law the husband is not entitled to the custody of a wife who has not attained puberty. The mother or in her absence the mother's mother is entitled to preference over him, until she has attained the age of puberty. The husband is entitled to the custody of his wife who has attained puberty.

 

 Q. 9 (b). Who are guardians for the property of a minor Explain their powers.

Ans. Guardians for the property of a minor.-For the protection of the property of the minor, the Muslim Law recognizes the following kinds of guardians :

 1. Legal (de jure or natural) guardian.

2. Guardians appointed by the Court (or certified guardians).

3. De facto guardians.

1. Legal guardians.-The following persons are entitled in the following order to be guardians of the property of a minor :

1. the father;

 

2. the executor appointed by the father's Will;

3. the father's father;

4. the executor appointed by the Will of the father's father.

 

Thus, mother, brother, uncle, etc. cannot become legal guardians of the property of the minor. Of course, the father or father's father may appoint any of them (mother, brother, uncle, etc., or any other person as his executor or executrix) and the latter shall hold as much power as the father or father's father holds.

Except father and father's father, no other person, not even the mother, is legally authorized to appoint by will any person an executor or executrix.

A mother is not the legal guardian of the property of her minor children [Gurubax Singh v. Begum Rafiya, AIR 1979 MP 88] and cannot bind the children by any act in relation of property. Neither mother nor any other relation of the minor (except father or father's father) is entitled to act as a legal guardian of minor's property, unless such a person is appointed as a testamentary guardian under a will executed by father or father's father. The mother if she has not been appointed as guardian under the father's will has no right to sell the interest of her minor children in an immovable property and such a transaction is not merely viodable but void ab initio. [Fatima Bivi v. Sadaqatullah, (1918) 45 IA 73].

 

2. Guardians appointed by the Court.-In default of the legal guardians the duty of appointing a guardian for the protection and preservation of the minor's property falls on the Judge as representing the State.

While appointing a guardian, the Court takes into consideration the welfare of the minor and as such, may appoint 69

 

he mother instead of paternal uncle, as the guardian of the Droperty of the minor. The Court also takes into consideration the Will of the father. If the mother is appointed guardian, the fact he she is pardanashin lady will not be considered as an objection to appoint. The appointment of guardians by Court is governed by the Guardians and Wards Act, 1890 which applies to all the Indians regardless of their religion.

 

3. De facto guardians.-A person who is neither a legal guardian, nor a guardian appointed by the Court but has voluntarily placed himself in charge of the person and property of the minor, is called a de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor but has no right over either.

The mother, brother, uncle and all relations other than the father's father are de facto guardians unless they are appointed executors by the Will of the father, father's father or are appointed guardians by the Court.

 

Powers of Legal Guardians

 

1. Powers regarding immovable property.-Legal guardians cannot alienate by sale or mortgage the immovable property of the minor except when alienation (a) is absolutely necessary, or (b) is for the minor's clear benefit. Thus, in the following cases which come under category (a) or (b) above, the legal guardian is authorized to deal with the minor's property:

 

1. When there is no other means of paying the debt or legacies of the deceased from whom the minor has inherited the property.

 2. When the minor has no other means of livelihood and the sale is absolutely necessary for his maintenance.

3. Where double the price of the property can be obtained by him.

4. When 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 in no chance of fair restitution.

 

The legal guardian has no power to carry on business of his ward Specially if the business is one which may involve his minor's estate in speculation or loss. From the fact that the minor member was held entitled to the benefits of the business, the business cannot be held to have been carried on his behalf in the sense of holding him liable for the business.

1

 

The guardian cannot lease any part of the property of the minor, unless it is for the advantage of the minor, or is otherwise urgently required. Such lease by the guardian should not extend beyond the minority of the ward.

 

A legal guardian is empowered to enter into contracts on behalf of the minor, provided such contracts are for the benefit of the minor. If a contract made by the guardian on behalf of his ward beneficial to the ward it is enforceable against him [Sri Kakulam v Kurra Subba Rao, (1948) PC 95].

 

2. Powers regarding movable properties.-A legal guardian of the property of a minor has power to sell or pledge the goods and chattels of the minor for the minor's imperative necessities as, food, clothing and nursing, etc. Muslim Law does not impose upon minon any obligation to pay interest on sums advanced to them. Such a guardian is bound to deal with the property as carefully as the man of ordinary prudence would have dealt with it, if it were his own property.

 

Powers of a guardian appointed by Court

 

1. Regarding immovable property.-A guardian of the property appointed by the Court cannot without the permission of the Court,

 

(i) charge the property of the minor;

 

(ii) mortgage it;

 

(iii) transfer it by sale;

 

(iv) transfer it by gift;

 

(v) transfer it by exchange;

 

(vi) lease any part of the property for a term exceeding 5 years or for any term extending more than one year beyond the date when the ward will cease to be minor.

 

Thus, he can lease the property even without the permission of the Court

 

(i) for a term not exceeding 5 years, or

 

(ii) for a term not extending more than one year beyond the date on which the minor will cease to be minor, which ever is shorter.

 

In case the guardian acts in contravention of the above provisions, the alienation will be voidable at the instance of the minor or any other person affected thereby. The Court can grant permission in above cases only in the case of necessity or for the benefit of the ward. (Guardian and Wards Act, 18 ^ 33 , Sections 29, 30,

 

2. Regarding movable property.-"Such a guardian is bound to deal with the property as carefully as a man of ordinary prudence would deal with it as if it were his own." (Section 27, Guardians and Wards Act, 1890).

 

3. Subsequent ratification binds minors.-A, a guardian appointed by the Court, executed a pronote on his own behalf and also on behalf of the minor M, though it was not executed under necessity or for his benefit. After attaining the age of twenty-one years, M executed mortgage-deed along with A, and out of the consideration for the mortgage, left certain sum for the payment towards the pronote. Would the minor be liable? Yes, the minor is able even though A did not execute it under necessity or for his benefit. The reason behind this is that the subsequent ratification of the minor by setting apart a sum for the pronote after the age of 21 years binds the minor.

 

Power of de facto guardian

 

No power of alienation.-The position of a de facto guardian is quite different from that of the legal guardians and guardians appointed by the Court. He has no power or authority to alienate the minor's property.

 

In Imambandi v. Mutsaddi, [(1918) 45 IA 73] it was held that a de facto guardian has no power to convey to another any right or interest in the immovable property which the transferee can enforce against the minor.

 

The mother is not the legal guardian of the property of her minor children. She is simply a de facto guardian, and therefore has no power to sell, mortgage, or otherwise deal with their immovable property. [Imambandi v. Mutsaddi (supra)].

Removal of Guardian

 

The court may, on the application of any person interested, or on its own motion, remove a guardian appointed or declared by the courts, or a guardian appointed by will or other instrument, for any of the following causes as listed by Sir Roland Knyvet Wilson (in his 'Anglo-Mohammedan Law, Digest).

 

1. For abuse of his trust

2. For continued failure to perform the duties of his trust.

3. For incapacity to perform the duties of trust

4. For ill treatment, or neglect to take proper care of his ward.

5. For continuous disregard of any provision of Guardians and Wards Act, or of any order of the Court.

6. For conviction of an offence implying, in the opinion of the Court, a defect of character, which unfits him to be the guardian of his Ward.

7. For having an interest adverse to the faithful performance of his duties.

8. For ceasing to reside within the local limits of the jurisdiction of the court.

9. In the case of a guardian of the property for bankruptcy of insolvency.

 

10. By reason of guardianship of the guardian ceasing or being liable to cease, under the law to which the minor is subject :

 

Provided that a guardian appointed by will or other instrument, whether has been declared under this Act or not, shall not be removed

 

a) For the cause mentioned in clause (7) unless the adverse interest accured after death of the person who appointed him, or it is shown that person made and maintained the appointment in ignorance of the existence of the adverse interest; or

 

b) For the cause mention in clause (8) unless such guardian has taken up such a residence as, in the opinion of the court, renders it impracticable for him to discharge the functions of guardian.