INTRODUCTION

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 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, it 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.1

GUARDAINSHIIP UNDER MUSLIM LAW

1
https://www.legalbites.in/law-notes-muslim-law-minor-and-guardianship-under-muslim-law/
Definition –

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 Labor) Act, 1933 “Guardian” includes any person having legal
custody of or control over a 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.

Meaning –

The term ‘Guardianship or Wilayat’ connotes the guardianship of a minor. A

minor is one who has not attained the age of majority. A guardian is a person who
acts on behalf of a minor.  He is either chosen or appointed to make legal decisions
for another person who is unable to make those decisions on their own. Such an
action of a guardian is known as guardianship.

Under Muslim law, the age of majority is regulated by two system:

 The Classical Muslim Law:

Under classic Muslim law, a person is said to be minor if he or she has not attained
the age of puberty. The age of puberty is 15 years. But, as already discussed,
fifteen years is the age of majority only for marriage, dower and divorce. Thus, for
purpose of marriage, dower and divorce, a Muslim who has not attained the age of
puberty is minor.
  Statutory law:

Statutory rules which regulates the age of majority of the Muslim, are given below:
For purpose other than marriage, dower and divorce, the age of majority is
governed by the Indian Majority Act, 1875. Under this Act, the age of majority is
eighteen years. A Muslim who has not attained the age of eighteen years, is a
minor in respect of all the matters including the guardianship of person and
property except marriage, dower and divorce.

Where a Muslim is within the supervision of a guardian appointed by the court of

law, or is a Muslim whose property has been under the supervision of the Court of
Wards, the age of majority for such Muslims is Twenty-one years. Therefore,
except in matter of marriage, dower and divorce, a Muslim who is in the
supervision of a guardian appointed by the court or is under protection of Court of
Law, remains a minor so long as he or she not attained the age of twenty-one
years.2

Therefore, guardianship is a legal right due to which a person’s authority over

another person is enforced without the latter’s consent.

2
https://www.legalbites.in/law-notes-muslim-law-minor-under-muslim-law/
 KINDS OF GUARDIANSHIP
Muslim law makes a distinction between guardian of the person, guardian of the
property and the guardian for the purposes of marriage (Wilayat-ul-nikah) in case
of the minors.

Mohammedan Law recognizes three kinds of guardianship. They are as follows:

 Guardianship in Marriage (jabr)

 Guardianship of person of the minor for custody (Hizanat)
 Guardianship of property which has been sub-divided into:
(a) Dejure Guardianship
(b) De facto Guardianship
(c) Certified Guardianship
1. Guardianship in Marriage (jabr) - Marriage of a boy or girl under the age
of puberty, is not valid unless it is contracted by a marriage-guardian. A
‘marriage-guardian’ is a person who, under Muslim law, is authorized to
contract the marriage for a minor. This authority is termed as Guardianship
for Marriage (wilayat-e-nikah). Guardianship for marriage is different type
of guardianship and must be distinguished from the guardianship of the
person or property. The court cannot appoint a ‘Wali’ although in some
cases ‘Qazi’ himself could act as marriage guardian.

Who are Marriage Guardians?

The following persons in order of priority, are entitled to act as guardian for
the marriage of a minor:

 Father
 Paternal grandfather, how high so ever
  Brother or other male member of the father’s family, one after the other
in the line of agnatic heir
 Mother
 Maternal relations within prohibited degrees.
 The Qazi or the court

Persons falling in the first two categories have the right to contract an irrevocable
marriage. The others have the right to contract the minor in marriage provisionally,
i.e. subject to the option of repudiation.

According to Shia laws, the only Guardian for marriage are (i) & (ii).

In Abdul Ahmad v. Shah Begum,3(1997) a person contracted the marriage of a

minor girl by declaring himself as her guardian. He was not a ‘marriage-guardian’.
It could also not be established that he had ever been given the authority by a
competent guardian. The Jammu & Kashmir high court held that this marriage
was void ab initio.4

Whether a remoter relation may act as a guardian –

Where the marriage of a minor is contracted by a person who is not her guardian,
the position of that person is just like the imposter. The Muslim law recognizes that
a remoter relation may act as a guardian for purposes of a minor’s marriage under
certain circumstances, but those circumstances are such as make the remoter
relation a de facto guardian of a minor, e.g., when the guardian is not available
being away at a distant place, or his non-availability on account of some other
cause. The remoter relation may also act with the consent of the guardian, or there
may be a case of ratification of the marriage by the guardian which also amounts to
giving of consent to the marriage with retrospective effect.
3
AIR (1997) J & K 22
4
https://www.legalbites.in/law-notes-muslim-law-guardianship-for-marriage/
However, where the guardian is not only available for giving the minor in
marriage, but even present, no question of a remoter relation acting as a de facto
guardian may possibly arise. Therefore, where a remoter relation gives a minor in
marriage without the consent of the nearer relation who is recognized under the
law as a guardian, or where the marriage is not subsequently ratified by him and
circumstances indicate that guardian was available for purpose of minor’s
marriage, the contract of marriage, entered into by remoter relation, is void and of
no effect.

Where marriage is contracted by such a relation, even consummation of marriage

would have no effect. An irregular marriage has no legal effect before
consummation and even after consummation, it does not bind th

e parties, though certain consequences follow from it. The children of such a
marriage would be legitimate. The wife may even be entitled to her dower. The
marriage, will not, however, create mutual rights of inheritance between husband
and wife.5

Repudiation of marriage on attaining puberty-

While a guardian had got the power of contracting a minor into marriage, Muslim
law gave powers to the minor to avoid the marriage on attainting puberty. Both
male and female minors could thus avoid marriages brought about by their
guardians. However, such repudiation must be confirmed by the court.

Before the Dissolution of Muslim Marriages Act, 1939, was enacted, the option of
repudiating a marriage on attaining puberty was available to a girl only when the
marriage had been contracted for her during her minority by any guardian other
than the father or the grandfather. However, now the position is different.

5
Manzar Saeed, Commentary on Muslim law in India, Orient Publishing Co., First edition, 2008 (Page no. 518)
According to the Section 2(7) of the Dissolution of Muslim Marriage Act, 1939,
the woman married under Muslim law will be entitled to repudiate the marriage if
she proves that she was given by her father or other guardian before she attained
the age of 15 years, provided that such repudiation can be made before attaining
the age of 18 years and the marriage has not been consummated. The Act also
permits the repudiation of marriages contracted up to the age of 15. Consummation
of marriage with a girl who is below 15 years of age would not destroy her option
to repudiate the marriage after she attains the age of 15. The assent should come
after puberty and not before. The assent can be given by words, or by cohabiting
with the husband or by asking for her dower or maintenance.

As far as the rights of the male minor are concerned, his right to repudiate the
marriage continues till he ratifies it and is not lost by mere delay. Such ratification
may be made either expressly or impliedly. However, he only enjoys this right
when the marriage is contracted by any guardian other than the father or father’s
father.

But a marriage even by these relations was not so wholly binding as not to be open
to repudiation in any circumstances. Thus, where the marriage was to the manifest
disadvantage of the minor.

In Shafi Ullah v. Emperor,6(1934) held that the fact of second marriage was itself
an evidence of repudiation of the first marriage by the girl on attaining puberty.

Testamentary Guardians for marriage-

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

6
AIR (1934) ALL 589
Effect of Apostacy on guardianship for marriage-

It is not clear whether a Muslim father may lawfully act as a marriage- guardian
after renouncing Islam. Under Muslim law, if the marriage-guardian renounces
Islam, he has no right to contract the marriage of the minor. But the Caste
Disability Removal Act, 1850 repeals all legal provisions imposing loss of rights of
the apostates or the converts. In all old case, in the matter of Mahni Bibi,7(1874)
the Bombay High court has held that a non-Muslim father has no right to act as a
marriage-guardian and the marriage of a minor girl contracted by her mother
against the consent of her father was therefore held valid. Marriage-guardianship
comes to an end as soon as the child whether male or female, attains the age of
puberty.

7
(1874) 13 BLR 160