Guardianship under Muslim law

Guardianship under Muslim law

INTRODUCTION

Marriage dissolution leaves many problems to be resolved. These relate to parties to the marriage, their property and most importantly their children. Most deficient we are in the provisions relating to the solution of the aftermath of divorce problems, particularly of children.

Since the dawn of humanity, the protection of rights and interest of minor has been the concern of civilized system of law. The need for such provision emanates from the immaturity of the minor by the reason of his age and his preowned incapacity to take adequate care for himself. Usually, the parents do take care but the necessity for the society safeguarding the child’s interests through the machinery of law arises where the parents are divorced or separated.

With the first signs of matrimonial discord, the question of guardianship and custody raises its head and inevitably leads to bitter quarrels even long after the marriage is ended. Both the father and mother feel natural affection for the child and want its custody. In such a situation some difficulty arises regarding the children’s guardianship and custody, – who is to take charge of them, the father or mother?

A minor is supposed to have no capacity to protect his or her own interest. 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 authorized under the law to protect the person or property of a minor is called a guardian. Under Muslim law, the guardian is required for the purpose of marriage, for protecting the minor’s persona and protecting the property.

The source of the law of guardianship and custody are certain verses in the Quran and a few Ahadis. The Quaran, the Ahadis and other authorities on Muslim law emphatically speak of the guardianship of the property of the minor, the guardianship of the person is a mere inference. Guardian includes any person having legal custody or control over the child.

Under Muslim Law, the notion of guardianship is subsisting from the beginning. Its source is found in some verses of the Quaran and Ahadis though a little is found about guardianship of a person. For example, according to Rudd-ul-Mukhtar, the right of guardianship of the minor’s property belongs to the father and in his absence to his executor, but if an executor has not been appointed, then to the grand-father. After the death of grandfather, the right goes to grandfather’s executor, and if the executor has not been appointed by him then to the Kazi who may himself act as such, or may appoint someone to act on his behalf.

The term ‘guardianship’ (Wilayat) connotes the guardianship of a minor. The Quran is the basis of the law relating to guardianship. Muslim Law makes a distinction between guardian of the person, guardian of the property and guardian for the purposes of marriage (Wilayat-ulnikah) in case of minors.

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 side “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 belong primarily to its father, the mother’s being only a pre-emptive right to keep the father away for a legally prescribed perios only from a particular aspect of the guardianship of person, namely, the custody and physical upbringing of the child”[1]

DEFINITION OF GUARDIAN

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 of his property, or of both his person and his property. So, there is no doubt that individual who has by law the right and duty of disposing of a boy or a girl in marriage may be said to have, for that Limited purpose, the car of his or her person. But there is no mention of disposal in marriage in any part of the act, and nothing to indicate that it was intended to interfere with the rules of Muslim law with assigns that function. Under the name of Jabr, it relates to who are not necessarily those entitled to the general care and custody(hizanant) of the ward’s person (Wilson). The Quaran is the basis of the Sunni and Shia schools.

STATUTORY DEFINITION

A person who has the legal responsibility for providing the care and management of a person who is incapable, either due to age (very young or even very old or to some other physical, mental or emotional impairment, of administering his or her own affairs. In the case of a minor child, the guardian is charged with the legal responsibility for the care and management of the child and of the minor child’s estate.

The term ‘guardian’ has been defined under many Acts and there is almost similarity in the meaning given under these Acts. Under section 2 of the Children (Pledging of Labour) Act, 1933 ‘guardian’ includes any person having legal custody of or control over a child. According to section 2(k) of the Children Act, 1960, ‘Guardian’ in the opinion of the competent authority having cognizance of any proceeding in the relation to a child, has, for the time being, the actual charge, or control over, that child,

 According to the section 4(2) of the Guardian and Wards Act, 1890, ‘Guardian’ means a person having the care of the person of a minor or of his property, or of both his person and property. Under section 4(b) of the Hindu Minority and Guardianship Act, 1956, “Guardian” means a person having the care of the person of a minor or his property or of both his person and property.

DEFINITION OF GUARDIANSHIP UNDER MUSLIM LAW

Under Muslim law, it is called HIZANAT. Guardian means legal authority and corresponding duty of a person to care for another person (a child, a disabled, an aged old, etc) relating to his body or property. A person under the protection of another is commonly known as ward.

WHO IS A MINOR?

A minor is one who has not attained the age of majority and who doesn’t have legally right over anything and consider as incapable of making legal decision and who will be under custody of someone known as parents or guardian.

Even the Muslim are governed by the India Majority Act, 1875, except in matter relating to marriage, divorce and dower. According to Section 2 of the Child Marriage Restrain Act, 1929 (as amended in 1978), the minimum age for marriage is 21 years for male and 18 years for female.

Fifteen years is the age of majority in general. As regards other matter of guardianship of person and property, Muslim will be governed by the majority act which of guardianship of person and property, Muslim will be governed by the majority act which prescribe 18 years as the age of majority. Thus, in the case of wills, waqfs, etc., the majority will terminate on the completion of 18 years.

Under Muslim law, any person who has attained puberty is entitled to act in all matter affecting his or her status or his or her property. But that long has been materially altered by the Indian Majority Act, the only matter is which a Muslim is not entitle to act on attaining the age of 15 years, are:

1. Marriage
2. Dower
3. Divorce

In all other matters, his minority continuous until the completion of 18 years. Until then the court has power to appoint a Guardian of his person or property or both under Guardians and wards act in which case the age of minority is prolonged until the minor has completed the age of 21 years.  

It differs from the Indian Majority Act after the completion of the eighteenth year of the child then he/she becomes an adult. And once in the instance where the marriage has been conducted by arrangement between the parents of the major boy and girl and has been misrepresented or concealed in any way then the status of the marriage shall be invalid.

This has been similarly held in the case of Sayid Mohaddin v. Katijabai.[2] On the other hand, the marriage of a minor child shall be permitted by the parent or the guardian. This power is given to the parents or the guardian because it is expected of them to act in the interest of the child. There obviously exists a trust relationship between the minor child and the parent. But the relationship between the guardian and the child is fiduciary in nature. This is to ensure that the minor child is not acting unfavourably to their own interest.

READ What are the Sources of law?

Therefore, assuming that the minor child is incapable to maintain himself there is need for resorting to the appointment of a guardian who shall be an adult and shall be capable to make decisions on behalf and in the interest of the minor child be it a girl or a boy.

APPOINTMENT OF GUARDIAN: Guardianship under Muslim law

When the court will be satisfied that it is for the welfare of a minor that an order will be made for appointing a guardian of his or her person or property or both as declaring a person to be guardian, thus the Court take an order accordingly.

Section 15(1) of the Guardians and Wards Act, 1890 permits for the appointment of a joint guardian where the court has appointed a joint guardian and any one of them has died, the survivor continues to act as guardian.

Section 19 of the Act says that in case the superintendence of the property of a minor has been assumed by a court of wards under any local law in force: (i)The court shall not be able to appoint a guardian of property under the Guardian and Wards Act. (ii)in case the court has been empowered to appoint a guardian of the person for the minor, the same cannot be done by a court under the Guardians and Wards Act. State Governments are also empowered to appoint a court of wards. The main aim of these courts is to constitute ward courts for the purpose of regulating, constitution, working, and powers of courts of wards.

Sections 6, 19 and 21 of the Guardian and Wards Act provides that in the following matters, the courts should not interfere with the question of guardianship of a minor: Where a guardian of the minor’s person, property or both has been lawfully appointed under a will in accordance with the law to which the minor is subject. If a guardian is not performing his duty properly, the court may remove him.

Section 20 of the Guardian and Wards Act 1890 imposes a duty on the guardian to deal with the ward’s property carefully and honestly. Section 21 of the above act provides that minor not competent to act as guardian of another minor, will not act as the guardian.

Section 24, 25 and 26 of the Guardian and Wards Act provides for the custody of the child by one appointed under the Act as guardian of the person. This is a duty to look to the minor support, health and education, and such other matters as the law to which the ward is subject required.

 Section 27 of the above deal with the duties and the limitations on the power of guardians. The statutory Guardian of the property is required to deal with the minor’s property as a man of ordinary prudence would deal with his own property. This is the duty of the guardian to obtain prior approval of the court for disposing of minor’s property.

1. Section 41 of the above Act says that a guardian appointed by the court or a testamentary guardian shall cease to be a guardian on the happening of any one of the following incidents:  in the case of the death, removal or discharge of the guardian;
2. on attaining majority by the minor;
3. in the case of guardianship of the person, Guardian shall cease to have any power:

(i) on the marriage of the minor, if female to a person not unfit to be Guardian of her person;

(ii) on attaining majority by the minor;

 (iii) in the case of guardianship of the person, guardianship shall cease to have any powers-

 (a) on the marriage of the minor, if female to a person not unfit to be the guardian of her person

(b) The revival of guardianship right of the person in whose disability another person acted as the guardian;

1. in case of a guardianship of property a guardian shall not be entitled to act as guardian on the assumption of the superintendence of the minor’s property by a court of wards.

In appointing or declaring the guardian of a minor the court shall take into consideration the Welfare of the child. In considering what will be for the Welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and the capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed Guardian with the minor or his property. If the minor is old enough to form an intelligent preference, the court may consider that preference.[3]

KINDS OF GUARDIANSHIP/ GUARDIANSHIP UNDER MUSLIM LAW

Muslim Law makes a Distinction between Guardian of the person, guardian of the property and guardian for purposes of marriage (wilayat-ul-nikah) in the case of minors.

Mohammedan Law recognizes three kinds of guardianship. Guardianship under Muslim Law recognizes the following kind of guardianship:

• Guardianship in marriage (jabr)
• Guardianship of the person of the minor for custody (Hizanat).
• Guardianship of property which has been subdivided into:

 (1) De jure guardianship/ Legal / Natural Guradian

 (2) De facto guardianship

 (3) Certified guardianship/ Guardian appointed by the Court

• GUARDIANSHIP IN MARRIAGE (JABR)

It is one of the essentials of a valid marriage that the parties are competent to enter into marriage which means they must have attained the age of puberty.  However, this general rule admit one exception that is., where the marriage is contracted on behalf of the minors by the guardian. This exception is the most distinguishing feature of Islamic jurisprudence because it empowers a father to impose the status of marriage on his minor children.

 This power of imposition is called (jabar), the abstract right of guardianship (wilayat), and the Guardians so empowered is known as Wali. Thus, under the Muslim law of all schools, the father has the power to give his children of both sexes in marriage without their consent, until they reach the age of puberty – known as bulugh.

Under the Muslim law the father has the power to give his children of both sexes in marriage without their consent to enter into marriage but it is before the Shariri stage. It is to be noted, however, that in respect of marriage guardianship no one can be appointed Guardian by the court. It is the substantive law itself that declared who, for the purpose of marriage, possesses the patria potestas; the court cannot appoint wali for marriage although, in some cases, the Quazi or Court itself can act as a marriage guardian.

• PERSON ENTITLED:

The following is the list of the persons who can act as Guardians in the marriage of a minor, in the order of enumeration.

1. The father.
2. The father’s father, how high soever.
3. Full brother and other male relations on the father’s side, in order of inheritance given under residuary.
4. Mother.
5. Maternal relations within Prohibited degree
6. The Qazi or the court.

Shia Law recognizes only the father and failing him the father’s father how high so ever as guardian in the marriage of a minor.

• TESTAMENTARY GUARDIAN FOR MARRIAGE

Under Muslim law testamentary guardian for marriage are not recognised. A father has no power to appoint any person as guardian for marriage by his will.

• MARRIAGE PERFORMED BY REMOTER GUARDIAN IS VOID

The rule of Muslim law is that when a remote guardian allowed a boy or a girl to marry when the nearer one is present, the validity of the marriage is dependent upon the latter’s ratification and consent.[4] This rule contemplates a case where the boy or girl is given in marriage by a person who in order of priority comes immediately after the proper guardian at that time.

In fact, the consent of the nearer guardian may have the effect of transferring the authority to the remoter guardian and exactly the same happens when the nearer guardian resides at a distance and no communication is possible with him. This rule cannot apply to a case where as between the nearer guardian and the one who actually disposes of the minor in marriage, there are other relations who have preferential rights of guardianship.[5]

Such a marriage by a remoter guardian when the nearer Guardian is present and has given his consent is not only irregular but also void. The legal consequences would be that it may be terminated by a single declaration on either side, consummation of marriage does not stand in the way of terminating it when the marriage is invalid.

Under the Muslim Law, where the marriage is contracted for the minor by the father or father’s father, the minor has no option on attaining puberty, unless the contract is to the manifest disadvantage of the minor or has been fraudulently or negligently entered into.

Under the Dissolution of Muslim Marriage Act, 1939 the right of repudiation of Muslim female has been modified. Section 2(vii) of The Dissolution of Muslim Marriage Act, 1939 says that a woman married under Muslim law will be entitled to obtain a decree for the dissolution of her marriage if she proves (i) that she having been given in marriage by her father or other Guardian before she attained the age of 15years, repudiated the marriage before attaining the age of 18 years, and (ii) that the marriage has not been consummated.

 The Guardian and Wards Act, 1890 issilent regarding the appointment of Guardian in marriage. Under this act, the court is having jurisdiction only in the matter of guardianship of person and guardianship of property. Similarly, a person appointed or declared by the court can act as marriage guardian.

• EFFECT OF APOSTASY ON GUARDIANSHIP OF MARRIAGE:

The question whether a convert From Muslim to another faith is capable of contracting a valid marriage of a Muslim minor as the guardian of the minor is still an open issue. Under pure Muslim law, a person loses his right to guardianship in marriage as soon as he gets converted to another faith. However, the Caste Disability Removal Act of 1850 provides that a person does not lose his right to property if he is converted to another faith.

On the strength of this Act, the Honourable High Court of Calcutta in Muchoo v. Arzoon,[6] held that the duties of the director attached to the office under Mohammedan law and affecting the interest of other Mohammedans Can be validly performed by an unbeliever of Islam and a convert Muslim father was allowed the custody of his Muslim minor children and to direct their education.

Honourable Chief Court of Punjab relied on Muchoo’s case in Gul Mohammad v. Mst Wazir,[7] in a case where the father had converted from Mohammedanism to Christianity but he was the only parent alive of a boy of 8 years and a girl of 4 years and the grandmother of children was contesting for guardianship of the 2 minors and their property. However, none of these cases is a direct authority on the above subject, i.e., guardianship in marriage.

There is one single authority, viz., Mahni Bibi case,[8] decided by Calcutta High Court. In this case, it was held that under the Muslim system, an apostate cannot be a guardian for marriage, so the marriage of a minor girl contracted by her mother against the consent of her father, who was converted to another faith was held valid.

• GUARDIANSHIP OF THE PERSON OF THE MINOR FOR CUSTODY (HIZANAT).

The guardianship of minor’s person for custody (hizanat) has to be studied with reference to the age of the minor and his relationship to the guardian.

• MOTHER

The mother is entitled-

(1) in Hanafi law to the custody (hizanat) of her male child until he has completed the age of 7 years and of her female child until she has attained puberty, and

 (2) In Shia law to the custody of her male child till the age of 2 years and to the custody of her female child Until the age of 7 years. The right 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.[9]

A mother is the de facto guardian. She cannot execute a waqf on behalf of the minor. Such execution is void as de facto guardian had no right to alienate minor’s property unless appointed as guardian by Court.[10]

• FEMALE RELATION IN DEFAULT OF MOTHER

Under Hanafi Law, failing 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 relatives in the order given below:

1. Mother’s mother, how high soever.
2. Father’s mother, how high soever.
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 (Father’s sister) in like order as sisters; and
10. Paternal aunt, also in like order as sisters.

However, this right of the mother or any of these female relations is lost in the following cases:

• if she leads an Immortal life, or
• if she neglects to take proper care of the child; or
•  if she marries a person not related to the child within prohibited degrees;
•  if, during the subsistence of the marriage, she goes and resides at a distance from the father’s place.

In Rahima Khatoon v. Saburjanessa,[11] the court held that the mother loses the guardianship of the minor daughter in case she remarries with another person not related to the child within prohibited degrees of relationship. In the present case, the court granted the certificate of guardianship to the parental grandmother with regard to the minor’s persons and property.

• OTHER MALE RELATIONS

In default of the mother and other female relations the right of custody (hizanat) in Hanafi Law, belongs to the following persons in order of enumeration:

• Father.
• Nearest paternal grandfather
• Full brother.
•  Full brother’s son.
•  Consanguine brother.
• Consanguine brother’s son.
• Full brother of the father.
•  Consanguine brother of the father.
•  Son of father’s full brother.
•  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 were none of the above guardian, it is for the court to appoint a Guardian of the person of a minor. In Shia Law, failing the mother, the father, and failing the father, the father’s father is entitled to the custody of a minor’s person. It is doubtful who would be the guardian failing the father’s father.

• FATHER

Father is entitled in Hanafi Law to the custody of a boy over 7 years of age and of an unmarried girl who has attained puberty (in Shia Law to the custody of a male child over 2 years and an unmarried girl of 7 years or more).

In Farzanabi v. S.K. Ayub Dadamiya,[12] the Bombay High Court held that there is no doubt that under Muslim law the father is entitled to the custody of a son over 7 years of age. The court observed that as far as possible the ordinary rule of Muslim law should be adhered to. The children were above 7 years of age.

 The court also found that the welfare of the minors did not lie in favour of residing with your mother. The children also expressed the desire to live with their mother. But the court observed that they were not of an age when they could make an intelligent preference. The court therefore awarded the custody of the child to the father.

The husband is not entitled to the custody of his minor wife unless she attains puberty or such an age as would permit the consummation of marriage. The mother is entitled to the custody of the minor married girl as against her husband.

If none to the above-noted maternal and paternal relation is to be found, it is for the court to appoint The Guardian of the person of the minor.

• ILLEGITIMATE CHILD

A bastard belongs legally speaking to neither of its parents and it is in every 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 7 years and be left in charge of the mother. After that it may make his or her own choice to parents with whom he or she want to stay or it may live apart from them altogether.

In the case of Gohar Begum V Suggi Begum[13]where Gohar Begum was a singing woman in the keeping of one Trivedi, a Hindu. She was the unmarried Muslim mother of a natural daughter, Anjum, acknowledged by Trivedi as his daughter. Anjum was sent to stay with a friend of her mother Nazma Begum who later refused to part with her claiming that she had great affection for the child and had sufficient means to look after Anjum. It was held by the Supreme Court that the mother of an illegitimate daughter is in Mohammedan law entitled to its custody; and the refusal to restore the child to its mother was illegal detention. Thus, by the order of Supreme Court, Anjum was handed over to her mother.

• RIGHTS OF HIZANAT

All the schools of Muslim law recognize father’s right of hizanat under two conditions that are:

• On the completion of the age by the child up to which mother or other females are entitled to custody.
  • In the absence of mother or other females who have the right to hizanat of minor children.
  • Father undoubtedly has the power of appointing a testamentary guardian and entrusting him with the custody of his children.

Other male relations entitled to hizanat are:

1. nearest paternal grandfather
2. foil brother
3. consanguine brother
4. foil brother’s son
5. consanguine brother’s father
6. foil brother of the father
7. consanguine brother of the father
8. father’s foil brother’s son
9. father’s consanguine brother’s son Among the Shias hizanat belongs to the grandfather in the absence of the father

It was held in Smt. Aninunnisa v. Mukhtar Ahmad and Others,[14]  that where a minor aged 10- 11 years is in the custody of his mother and has intelligently exercised his preference to continue to stay with her, his custody cannot be disturbed and given to his father, though he is the legal guardian of the Minor under the personal law. A mere claim to legal guardianship in such a situation will not stand on a higher footing than the claim of the real mother to continue to have the custody of the minor who has remained in her custody or in the custody of the mother since the birth of the child.

It was further observed by the court that it is true that the father is a natural guardian of his minor son under Muslim law. But still, as it is too well established to be disputed, in proceedings under Section 25 of The Guardians and Wards Act 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.

• GUARDIANSHIP OF MINOR’S PROPERTY

If a minor owns movable or immovable property, a guardian is necessary to manage it. Muslim law prescribes certain person in an order of preference who can be Guardian of a minor’s property. The guardianship of the property of the minor under Muslim law may be classified as follows:

1. Legal (de jure) or natural guardian.
2. Guardian appointed by the court (or certified guardian)
3. De facto guardian

1. LEGAL GUARDIAN

The person entitled in the order mentioned below to be guardian of the property of a minor are:

• The father,
• The executor appointed by the father’s will,
• The father’s father and
• The executor appointed by the will of the father’s father.

Thus, mother, brother, uncles etc. are not entitled as of right to be the 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 as executor or executrix.

In Amar Ahmad Khan v. Shamim Ahmad Khan,[15] the Jharkhand High Court has held that on the death of a Mohammedan his property immediately devolves on his heirs separately to the extent of share they are entitled under personal law. Thus, immediately on death, each of his heir becomes absolute owner of property proportionate to his share. Therefore, under Islamic law, there is no concept of jointness of ownership of properties of a deceased Muslim.

 Muslim heirs are independent owners of their specific shares and their liability is also proportionate to the extent of their share in the estate. Under said circumstances, one share holder has no right, title and interest to alienate property of another share-holder.

The court further held that a mother is not a de jure guardian of her minor children under Muslim law and therefore has no right to sell interest of her minor children in immovable property and such transaction is not merely voidable but void.

• Power of legal Guardians regarding immovable property

Under Muslim law, a legal guardian of the property of a minor can sell the immovable property of the minor, when the sale is necessary for the maintenance and when the minor has no other property. The word “maintenance” does not exclude other necessary expenses for mental and physical wellbeing of a minor, acceding to the status in society of the family.[16] Thus, the expenses of ordinary and reasonable education of a child form part of his maintenance.

 In the present state of the society, which is rapidly advancing in all direction education up to higher secondary stage cannot be said to be extravagant. So as to be excluded from maintenance. Thus, in the following cases the legal guardian is authorized to deal with the minor’s property:

• When there are debts of the deceased, and no other means of paying them;
  • When the minor has no other means of livelihood and the sale is absolutely necessary for his maintenance;
  • When double the price of the property can be obtained by him;
  • Where the expenses exceed the income of the property;
  • When the property is falling into decay;
  • When the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution;
  • Where there are legacies to be paid, and no other means of paying them.

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

In India, the Guardians and Wards Act, 1890 imposes on every guardian of property the duty to deal with the minor’s property as carefully as a man of ordinary prudence would deal With it if it were his own and entitles every such guardian to do all acts which are reasonable and proper for the realisation, protection or benefit of the property.

• Relative rights of the heirs of a deceased person in the property inherited by them

In the case P. Narsimbhai v. Bai Bhabu,[17] a widow was in possession of her two minor children’s property. She was required to pay certain loans of her deceased husband. She, therefore, disposed of some of the property which also included the share of the minors. This transaction was challenged. She contested that since the sale was affected for the purpose of paying off the dues under a decree obtained against all the heirs, it should be binding on the two children also.

Thus, it was held by the Gujarat High Court that one of the Muslim co-heir’s property cannot be lawfully alienated his latter’s share for any purpose whatsoever.

2. GUARDIAN APPOINTED BY THE COURT (OR CERTIFIED GUARDIAN)

In absence of legal guardian, the duty of appointing a guardian for the protection and preservation of the minor’s property fall in the court.

While appointing a guardian the court takes into consideration the welfare of the minor and, as such, may appoint mother instead of paternal uncle, as the guardian of the property of the minor. The court also takes into consideration the will of the father. If the mother is appointed the guardian, the fact that she is a pardanashin lady will not be considered as an objection to the appointment.

The court must pay due regard to the wishes of the minor’s father and the interest and the welfare of the minor, whatever that may be in a particular case and a guardian must be appointed with due regard to these two considerations by the court. Without the previous permission and sanction of the court a guardian of the property appointed by the court cannot-

• charged immovable property of the minor;
• (ii) mortgage;
• (iii) transfer by sale;
•  (iv) transfer by gift;
•  (v) exchange; and
• (vi) lease any part of the immovable property for a term exceeding 5 years or for any term extending more than 1 years beyond the date with the ward will cease to be a minor

Thus, he can lease the immovable property even without the permission of the court-

• 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 a minor, whichever is shorter.

If search guardian alienates the minor’s property in contravention of the provision, given above, such alienation will be voidable at the instance of the minor or any other person affected thereby.

Permission for such alienation as given above must not be granted by the court except in the case of necessity or for an evident advantage to the ward.

• Powers of legal guardian regarding movable property

Legal guardian the property of a minor has power to sell or pledge the goods and chattels of the mind for the minor’s imperative necessities, such as, food, clothing and nursing and de facto guardian has similar rights. But guardian appointed by the court has larger power. Such a guardian is bound to deal with the property as carefully as the man of ordinary prudence would deal with it as if it were his own.

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 known as de facto guardian.

A de facto guardian is a mere custodian of the minor’s person and property but has no right over either. He has only responsibilities towards the minor’s person or property or both but no rights in respect thereof. Usually de facto guardians are relatives of the minor but without right to be the guardian under Islamic law unless appointed by will or by the court. He is thus an officious intermeddle (fazooli) with the minor’s property and has no status or position to alienate it without court’s permission.

Legal guardians and guardians appointed by the court are de jure guardian. The mother, brother, uncle and all relations other than the father and father’s father are de facto guardians unless they are appointed executors by the will of the father or father’s father or appointed guardians by the court.

• No power to alienate immovable property

The position of de facto guardian is quite different from that of the legal guardian and guardian appointed by the court. He has no power authority to alienate the minor’s property. “An alienation of minor’s immovable property without the authority of the court by a de facto guardian is absolutely void”.[18]

1. He cannot refer any dispute regarding the immovable property of the minor to any arbitration;
   1. He cannot give consent on behalf of the minor so as to validate a bequest to his co-heirs;
   1. He cannot enter into a contract of partnership or to allow the continuance of the partnership business dissolved by the death of the minor’s father;
   1. He cannot bind the minor by executing a bond in lieu of his father’s debts;
   1. He cannot make agreements on minor’s behalf for even purchase of immovable property.

In the case of Immambandi v. Mutasaddi, [19] where one Zohra, a widow of one Ismail Ali Khan, conveyed the shares of herself and her minor children, for Rs. 10,000 and the sale was opposed in a suit by the two other widows and children, 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 Infant; nor can such transferee, if let into possession of the property under such unauthorized transfer, resist an action in ejectment as trespasser, on behalf of the Infant.

• Alienation, not only voidable but void

A sale by a de facto guardian of the minor’s immovable property without courts permission is void and not merely voidable. The question of ratification by the minor or attaining majority does not arise as the alienation is void in its Inception.

 If a minor seeks to assail the legality and the binding nature of the alienation made by de facto guardian, it is always open to him to avoid the contract as being void. But when it is not challenged, it is not open to the third parties to impugn the alienation.

• Mother, brother and uncle, etc., as de facto Guardians  

Under the Mohammedan law, mother is entitled to the custody of her minor children up to a certain age according to the sex of child. But she is no natural guardians of their property. The father alone or if he is dead, his executor is the legal guardian. The mother has no longer power to deal with her child’s property then any outsider or non-relative. When the mother is the father’s executrix or is a certified guardian, she has all powers of a de jure guardian; otherwise any deed made by her on the minor’s behalf will be void ab initio.

Thus, a deed of partition to which a Mohammedan minor is a party represented by his mother as de facto guardian is void and not binding on the minor irrespective of the consideration that it benefits him or the arrangement was followed for a long period. The same remark applies to brother, uncle and relation of the minor.

In Mohammed Amin v. Vakil Ahmad,[20] the Supreme Court has held at a de facto guardian has no authority to enter into a family settlement in respect of a minor’s benefit, even though the settlement might be for his benefit.

• Testamentary guardianship in property

Quran specifically provides for the appointment of a testamentary guardian. Father and the father’s father are competent persons to be appointed by will a guardian of the property of their minor sons and grandsons respectively. Under Shia law, the testamentary guardian or executor must be major, sane, professor of Islam and of good character.

It is, however, not clear whether in the presence of grandfather, the father possesses the capacity to appoint a testamentary guardian. In Mst. Atkia Begum v. Mohammad Ibrahim[21]it was held that in the presence of grandfather, the father has no right to appoint a guardian.

• Alienation of movable property

A de facto guardian has the same power to sell and pledge goods and chattels of the minor in his charge for the minor’s imperative necessities, such as food, clothing, or nursing as a legal guardian of his property.

SUGGESTION AND CONCLUSION

A 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 authorized 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 protecting the minor’s person and for protecting the minor’s property. Guardianship of a minor person means overall supervision of the minor’s personality. It means to 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.

Guardianship under Muslim Law is an essential part of personal laws of people and with the passage of time, it has been codified by way of legislations. The Guardians and Wards Act is the legislation passed by the Parliament which deals with the laws and process related to guardianship in India.

However, it cannot be ignored that personal laws are based on customs and need to be taken into consideration. Considering this, the Bombay High Court in Smt. Farzanabai v. Ayub Dadamiya[22] clearly held that personal law and beliefs of the parties need to be kept in mind by the adjudicating bodies whenever they hear any matter of guardianship.

Every individual need someone to handle and make sure that everything that needs are been satisfied and whereas for minor it is essential to have guardian to take care of them until they come to knowledge about their

BIBLIOGRAPHY

https://shodhganga.inflibnet.ac.in/bitstream/10603/132616/12/12_chapter%206.pdf

https://www.studocu.com/pt/document/savitribai-phule-pune-university/ba-llb/apontamentos/guardianship-under-muslim-la/4008307/view

https://indiankanoon.org/

[1] Dr.R.K Sinha, muslim law, Vlth edition, page 122

[2] AIR 1939 Bom 489

[3] S.17, Guardians and Wards Act, 1890

[4] Ayub hasan v. Mst. Akhtari, AIR 1963 ALL. 525

[5] Abdul Kasim v. Smt. Jamila Khatun Bibi, AIR 1941 Cal 251.

[6] (1866) 5 W.R. 235

[7] (1910) 3 Punj. Rec 191.

[8] 13 Beng. L.R. 160

[9]  Hashmat Ali v. Suraya Begum, AIR 1961 ALL. 260.

[10]  Gayasuddin v. Ilah Tala Wagf of Masuma, AIR 1986 ALL 39.

[11] AIR 1996 Gau 33

[12] AIR 1989 Bom 357.

[13] AIR 1960 SC 93.

[14] AIR 1975 ALL 67.

[15] AIR 2012 Jhar 39

[16] Ahmadullah v. Mafiruddin Ahmad, AIR 1973 Gauhai 56

[17] AIR 1973 Guj. 38.

[18] Section 27, Guardians and Wards Act, 1890.

[19] AIR (1918) 45 L.A. 73.

[20] 1952 AIR 358, 1952 SCR 1133.

[21] AIR 1916 PC 250

[22] AIR 1989 Bom 357.

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