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Law of Guardianship Muslim Law

Law of Guardianship Muslim Law

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Published by Arun Shokeen

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Published by: Arun Shokeen on Feb 22, 2013
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The source of law of guardianship and custody are certain verses in the
and a few
and other authorities on Muslim law emphatically speak of theguardianship 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 child. Under Muslim Law, thenotion of guardianship is subsisting from the beginning. Its source is found in some verses of the
though a little is found about guardianship of a person. For example,according to
the right of guardianship of the min
or‟s property belongs to the
father and in his absence to his executor, but if an executor has not been appointed, then to thegrand-
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
who may himself act as such, or mayappoint someone to act on his behalf.
Definition of Guardian :- A
guardian is a person who acts on behalf of a minor. Such action of 
a guardian is known as guardianship. The term „Guardianship‟
connotes theguardianship of a minor.
Statutory Definition
:- A person who has the legal responsibility for providing the care andmanagement of a person who is incapable, either due to age (very young or even very old or tosome other physical, mental or emotional impairment, of administering his or her own affairs. Inthe 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 definedunder 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
 person havinglegal 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
a minor or 
 property or of both his person and property.
Who is a minor?
A minor is one who has not attained the age of majority. Puberty and majorityare, in the Muslim Law, one and the same. Puberty is presumed to have been attained on thecompletion of the fifteenth years. But now the Muslims are governed by the Indian Majority Act,1875, except in matters relating to marriage, divorce and dower. The existing position regardingthe age of majority in such cases is given as below: Fifteen years is the age of majority for the purposes of marriage,
and divorce. At or above this age, he or she is free to do anything inthe sphere of marriage dower and divorce.
According to Section 2 of the Child Marriage Restraint Act, 1929 (asamended in 1978), the minimum age for Marriage is 21 years for males and 18 years for females.Fighteen years is the age of majority in general. As regards other matters of guardianship of  person and property, a Muslim will be governed by the Majority Act which prescribes 18 yearsas the age of majority. Thus, in cases of wills,
etc., minority will terminate on thecompletion of 18 years. Twenty-one years is the age of majority if the minor is under the Courtof Wards, or a guardian of him has been appointed by the Court.Under Muslim Law, any person who has attained puberty is entitled to act in all matters affecting his or her status or his or her property. But thatlaw has been materially altered by the Indian Majority Act, and the only matters in which aMuslim is now entitled to act on attaining the age of fifteen years, are
(l) marriage, (2) dower,and (3) divorce. In all other matters, his minority continues until the completion of eighteenyears. Until then the Court has power to appoint a guardian of his person or of property or bothunder the Guardians and Wards Act in which case the age of minority is prolonged until theminor has completed the age of twenty-one years.
When the Court is satisfied that it is for the‟elfare of a minor that
an order should be made for appointing a guardian of his person or property or both as declaringa person to be such guardian, the Court may make an order accordingly.Section 15(1) of the Guardians and Wards Act, 1890 permits for the appointment of joint guardian where the Court has appointed joint guardian and any one of them has died, the survivor continues to act as guardian. Section 19 of the Act says that in casethe superintendence of the property of a minor has been assumed by a Court of wards under anylocal law in force:(1) The Court shall not be able to appoint a guardian of property under the Guardians and WardsAct.
in case the Court has been empowered to appoint a guardian of person for the minor, thesame cannot be done by a Court under the Guardians and Wards Act.State Governments are also empowered toappoint Court of Wards. The main aim of these courts is to constitute ward courts for the purposeof regulating, constitution, working and powers of Court of Wards.Sections 6, 19 and 21 of the Guardian and Wards Act provides that inthe following matters, the courts should not interfere with the question of guardianship of a
minor: Where a guardian of the minor‟s person, pro
 perty or both has been lawfully appointedunder a will in accordance with the law to which the minor is subject .Section 41 of the aboveAct says that a guardian appointed by the Court or a testamentary hail cease to be guardian onthe happening of any one o the following incidents:
in the case of the death, removal or discharge of the guardian;
on attaining majority by the minor;
in the case of guardianship of person, a guardian shall cease to have any power:
on the marriage of the minor, if female to a person not unfit to be guardian of her person;
on attaining majority by the minor;
in the case of guardianship of person, a guardianship shall cease to have any powers
 (a) on the marriage of the minor, if female to a person not unfit to be guardian of her person;
revival of guardianship right of the person in whose disability another person acted as theguardian;
in the 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.
Muslim law recognises following kinds of guardians:I. Natural guardianII. Testamentary guardianIII. Guardian appointed by court1V.
 De facto
I. Natural guardian :-
In all schools of both the
and the
the father is recognized asguardian which term in the context is equivalent to natural guardian and the mother in all schoolsof Muslim law is not recognized as a guardian, natural or otherwise, even after the death of the
father. The father‟s right of guardianship exists even wh
en the mother, or any other female, isentitled to the custody of the minor. The father has the right to control the education and religionof minor children, and their upbringing and their movement. So long as the father is alive, he isthe sole and supreme guardian of his minor children.
The father‟s right of guardianship extends
only over his minor legitimate children. He is not entitled to guardianship or to custody of hisminor illegitimate children. In Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody.Among the
the father is the only natural guardianof the minor children. After the death of the father, the guardianship passes on to the executor.Among the
after the father, the guardianship belongs to the grand-father, even if the father has appointed an executor, the executor of the father becomes the guardian only in the absence of the grandfather. No other person can be natural guardian, not even the brother. In the absence of the grand-father, the guardianship belongs to the grand-
father‟s executor, if any.‟
 Natural guardians arelegal guardian or 
de jure
guardian. Under Muslim law, father is the natural guardian, of theminor or lunatic and its p
roperty, though the expression „natural guardian‟ has never been used
 by the jurists and law givers, mother is not recognized as a guardian not even after the death of the father. Natural guardian is a person who has a legal right to control and supervise theactivities of a child. Father is recognized as the natural guardian of his child under all the schools
of Muslim law. The father‟s right of guardianship exists even when the minor is in the custody of 

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