RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

PATIALA

FAMILY LAW PROJECT

TOPIC: - CONCEPT OF GUARDIANSHIP UNDER MUSLIM

LAW

Submitted by: Submitted to: -

Anuj Sharma Ms. Ananya Sharma

Roll no: - 19123 Assistant Professor of Law

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 AKNOWLEDGEMENT

This project would not have been possible without the help and guidelines of
some respected persons, who deserve my greatest gratitude. The completion
of this assignment gave me immense self-satisfaction as well as confidence to
further endeavor in research work. I would like to show my sincere gratitude
to Ms. Ananya Sharma, Assistant Professor of Law at Rajiv Gandhi National
University of Law, Punjab for giving me thorough advices and suggestions in
making the concerned assignment throughout numerous consultations. Many
people, especially my classmates, have made valuable comments and
suggestions regarding this project which helped me to improve my project. I
would also like to extend my deepest gratitude to all those who have directly
and indirectly guided me in making this project.

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 CERTIFICATE

This is to certify that the project titled: “CONCEPT OF GUARDIANSHIP

UNDER MUSLIM LAW” is a bonafide work done by ANUJ SHARMA of
Rajiv Gandhi national university of law, Patiala under the supervision of Ms.
Ananya Sharma, Assistant Professor of Law. The concerned project has been
found worthy of acceptance as the final project and is found suitable for
presentation.

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CONTENT

AKNOWLEDGEMENT

CERTIFICATE

1. Introduction of Concept of Guardianship……………………………...5

2. Classification of Guardians…………………………………………….6

2.1 Natural Guardian…………………………………………………...6

2.2 Testamentary Guardian…………………………………………….6

2.3 Guardian appointed by the Court…………………………………..8

3. Power of Natural and Testamentary Guardian………………………...9
3.1 Power of alienation………………………………………………...9
3.2 Power to grant lease………………………………………………10

3.3 Power to carry on business……………………………………….10

3.4 Power to incur debt and enter into contracts……………………...10
3.5 Power to make partition…………………………………………..10
4. Concept of Hizanat (Custody)………………………………………..11
5. De Facto Guardian and its power…………………………………….14
6. Conclusion and Critical Appraisal……………………………………15

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 Chapter 1

Introduction to the Concept of Guardianship

Muslim law of Guardianship has one remarkable feature that there are detailed rules for
the guardianship of minor property but there are very few rules regarding Guardianship of
minor’s property. The reason behind this is that the Muslim law-givers thinks that
Guardianship of minor’s person is more in nature of custody then Guardianship that is why
Muslim law provides detailed rules regarding the custody of minor’s person. Thus, a clear
distinction is created between custody and Guardianship.1 It is unfortunate that in the early
days of rule of British, the textbook authors and Judges failed to established the distinction
between Guardianship and Custody.

The Sources of Law of Guardianship and custody are certain verses written Koran and
some ahadis. The Koran, ahadis and other authorities on Muslim law lays more emphasis
on Guardianship of minor, property not on the Guardianship of minor’s person. According
to Radd-ul-Muhtar, while determining the right of Guardianship of minor’s person, the
preference is to be given to Father and in his absence to his executor.2 If the father did not
appoint any executor, the grandfather is in absence of executor acts as Guardian. After the
death of grandfather then his executor acts as Guardian of minor. If the grandfather dies
without appointing executor, then the Kazi became Guardian who may himself acts as
guardian or may appoint someone to acts as Guardian in his place.3

The Fatwai Alamgiri states that “the executor of a father is in the place of the father so
also, the executor of the grandfather is in the place of the grandfather, and the executor of
grandfather’s executor is in the place of the grandfather’s executor and the executor of
judge is in the place of judge, when his appointment is in general”.4

1
Paras Diwan, Muslim Law in Modern India, Allahabad Law Agency, 2021 edition
2
Parental control, Guardianship and Custody of Minor Children, Chapter IV, Guardianship of Minors Act,
1971
3
Radd-ul-Muhtar V, 524
4
Imambandi v. Mutsadi (1918) 25 Cal 887

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 Chapter 2

Classification of Guardian

In Muslim Law, Guardianship can be classified in three categories: -

(i) Natural Guardian
(ii) Testamentary Guardian
(iii) Guardian appointed by the court

2.1 Natural Guardian: - the Muslim law-makers and jurist did not specifically talk about
natural guardian but in both Sunni and Shia schools, the father is recognized as guardian
which can be infer as natural guardian and mother in all schools of Muslim law is neither
natural guardian nor otherwise act as guardian even after the death of father. The father
right of Guardianship is always guaranteed even if the custody of child is vested in mother
or any other female. The father rights to control the education and religion of his minor
child is also unrestricted and guaranteed. Father is sole and supreme guardian of minor till
he is alive.5

The father has right of guardianship over only his legitimate children and he is neither
vested with the right of guardianship or custody of his illegitimate child even after the
death of mother unless the court appoint him to be the guardian. Mother is not entitled to
be guardian of illegitimate child but she may be granted custody.6

In the Sunnis, the father is the only natural guardian of minor children. After the death of
father, the guardianship transferred to his executor but in Shias, after the death of father,
the guardianship was then vested to grandfather, even if the father has appointed executor
and if the grandfather is absent then only the executor becomes guardian.7

In the Shias, the father is considered as natural guardian and, in his absence, grandfather
acts as natural guardian and in absence of grandfather, the executor of grandfather is
vested with Guardianship.

2.2 Testamentary Guardian: - In Sunnis, the father is vested with full authority of
making a testamentary appointment of guardian and in absence of the father and his
executor, the grandfather is vested with power to appoint testamentary guardian. In Shias,

5
Fathima Bi v. Sadhakauntalla, 1977 Mad 251; Gurbux v. Rafia, 1970 HP 66
6
Abdul Aziz v, Nanhe, 29 All 332
7
Imambandi v. Mustadi, (1918) 45 Cal 887

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the father can only appoint testamentary guardian when grandfather is not present. The
grandfather also has right to appoint testamentary Guardian. No other person is vested with
the right to appoint testamentary guardian.8

In both Shias and Sunni, the mother is not vested with the power of appointing
testamentary guardian. Mother can appoint testamentary guardian in two conditions, first
when she was appointed a general executrix by the will of father and secondly, she can
appoint executor in respect of her own property which would later devolve upon her
children.

In Muslim Law, a non-Muslim can not be appointed as a testamentary guardian and

appointment of such non-Muslim is null and void. A non-Muslim can be appointed as
testamentary guardian of property of minor but not of body. The Durr-ul-Muhtar states if a
non-Muslim is appointed as a testamentary guardian, then he should be replaced by Kazi
and the act done by guardian before removal were deemed to be valid.9

Fatwa-e-Alamgiri10 also states that if a minor or insane person was appointed as a guardian
then the act done by such person before or after removal were void and ineffective.11
Muslim Jurist of all schools agree that the person of bad and immoral character cannot be
appointed as a guardian but the act done by such person is before removal are valid.
Acceptance of testamentary guardianship can be implied or express but once it was
accepted, guardianship cannot be renounced unless permitted by court.12

Muslim law does not specifically provide for formalities of appointment of testamentary
guardian and appointment can be done in writing or orally. In every case the intension
must be clear and unequivocal. The testator must have capacity to make will which means
testator must be of majority and of sound mind at the time of execution.13

Muslim law givers designated executor of testamentary guardian by different name

indicating his power and position. Generally, he is called wasi or guardian, amin which
means trustee and Kaim-mukam meaning representative of the testator. Under Muslim law

8
Paras Diwan, Muslim Law in Modern India, Allahabad Law Agency, 2021 edition
9
The Fatwai Alamgiri, VI, 214
10
The Fatwai Alamgiri, VI, 214
11
Ibid and Radd-ul-Muhtar, 689
12
The Fatwai Alamgiri, IV, 212; Radd-ul-Mahtur V 689
13
The Fatwai Alamgiri, VI, 218, 19

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it is duty of executor to administer estate and asset of executor and to carry out the wishes
of executor and most importantly acts as a guardian of minor.14

2.3 Guardian appointed by the Court: -

In the absence of Natural and testamentary guardian, the Kazi was vested with the power
or authority to appoint guardian of a Minor Muslim. In India, Kazi was not authorized to
appoint guardian of minor and it was governed by the Guardian and Wards Act, 1890. This
act is applied to appoint guardian of minor irrespective of the religion of minor. This is the
inherent power of all High Courts to appoint guardian of minor but it was sparingly used
by courts.

Guardian and Wards Act of 1890 vested power of appointing or declaring any person as
guardian in the District court. The district court may appoint or declare any person as
guardian of both minors’ property and person for the sole purpose of welfare of minor
taking consideration various factors such as age, wishes of the child as well as wishes of
parents and rules of personal laws of minor.

In Rahima v Saburjaness15, The Gauhati High Court held that when the mother had
remarried after the death of husband, she can not be appointed as Guardian of her minor
daughter. Court states that paternal grandmother is more preferrable and was appointed as
Guardian.

The mother can not be appointed as Guardian if she again marries after the death of her
husband. Mother or any female guardian are prohibited from guardianship of he marries to
a person not related to child within the prohibited degrees. A mother is not prevented from
taking custody of her minor child on the basis of the fact that she is no longer wife of her
husband but if she remarries again then the father is entitled with the custody of minor
child. In absence of mother, the custody is given to mother’ mother’s highsoever, father’s
mother how highsoever and full sister and tother female relation including aunt in the same
order.

14
Yadav, Priyanshu. “Concept of Guardianship under Muslim Personal Law.” Concept of Guardianship
under Muslim Personal Law, Legal Service India- E Journal, www.legalserviceindia.com/legal/article-7215-
concept-of-guardianship-under-muslim-personal-law.html. Accessed 15 Apr. 2022.
15
Rahima v Saburjaness, AIR 1996 Gau 33.

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 Chapter 3

Power of Natural and Testamentary Guardian

In Muslim law, there is no distinction between the powers of Natural and Testamentary
Guardians over minor’s property. Muslim law givers also classified act that should be done
for minor or on his behalf and these acts are: -
1. Acts such as contracting of marriage and buying and selling of goods are done by only
natural guardian.
2. Acts such as buying or selling for the purpose of satisfying the needs of minor such as
food, clothing or shelter etc are done by the maintainer of the minor.
3. Acts done for the benefit and betterment of minor are done by mooltakit such as brother,
uncle or by minor himself.16

3.1 Power of Alienation: - The Muslim law givers when talking about alienation mostly
talk about sale of minor property and they have also draw distinction between Guardian’s
power over movable and immovable property of minor. The Guardian is only allowed to
sale minor’s immovable property in some exceptional cases. According to Durr-ul-
Muhtar17, the sale of immovable property is invalid as there are less chance of being lost
and the sale of movable property are justified not only for the necessity of minor but also
for the conversation. When the guardian invests the sale of proceeds in profitable
undertaking, then the sale is justified. Guardian is also allowed to bear risk while dealing
with minor’s movable property. The sale of property which involve fraud or inadequate
consideration is voidable at the option of minor.18

Guardian’s power of alienation of immovable property are very limited and are subject to
some restrictions. Durr-ul-Muhtar19 states that the guardian or executor can only sale
immovable property when there are chances of its being lost or by selling it, the minor
received double of its value or necessary for the maintenance of minor or for payment of
debts of minor or for the payment of legacies. The father due to being the legal guardian of
minor has same power as executor.

The sale of minor’s immovable property is justified in following cases-

1. When the guardian fetches the double value of property
16
The Hedaya, IV, 124
17
The Durr-ul-Muhtar, 839
18
Paras Diwan, Muslim Law in Modern India, Allahabad Law Agency, 2021 edition
19
The Darr-ul-Muhtar, 839

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2. When the sale is for the benefit of minor
3. Payment of legacies or general provision of will that can only be carried out by selling
of property.
4. Payment of debts or when there is imminent danger of being lost or destroyed
5. When the property is in possession of usurper or necessary for maintenance of minor.20

Improper alienation made by guardian is not void but voidable at the instance of minor.
When the guardian is allowed to sale minor’s property, it is necessary that sale must be of
adequate consideration.21

3.2 Power to grant lease: - the Muslim law givers and jurist were not in favour of
granting power to grant lease of minor’s property to the guardian. Some scholars take the
view that executor may gave the lease of minor’s property, if it is needed for the advantage
and betterment of minor. Guardian also has power to pledge the good and the other
movable property of the minor if it is necessary for maintenance of minor.22

3.3 Power to carry on Business: - the Hedaya states that Guardian is vested with the
power to carry on trade and profession on behalf of minor but like a prudence of ordinary
person and just like he carries on his own business. The Fatwai Alamgiri also allows
guardian to enter into partnership and he may also invest minor property in partnership.23

3.4 Power to incur debts and enter into contracts: - it is established that the guardian is
also vested with power to incur debts on the behalf of minor if the urgency required it. A
debt incurred by guardian without the urgent need is not binding on minor. Guardian has
also power to execute promissory note for the debts incurred for the need of minor.24

3.5 Power to make Partition: - Fatwai Alamgiri did not allow wasi or executor to make
partition and if he do so then the partition is invalid and unlawful. But it also stats that if
the heirs consist of both minor and adult then the executor can separate the share of minors
and adult and gave adult their share and retain the share of minor. In all other instances, the
executor or wasi is not vested with the power to partition property among minor.25 When
the guardian is appointed by court with general powers to handle the business or matters of
minor then the guardian has power to do partition.
20
The Fatwai Alamgiri, VI, 222-24; Kaiser Parvez v. Abdul Majid, 1982 All 9.
21
Janab v. Samsunissa, (1967) 2 MLJ 195
22
Ameer Ali, Muhammadan Law, I, 686
23
Ibid
24
Rayesthna v. Mehbood Sahib, 1940 Mad 106
25
The Fatwai Alamgiri, VI, 221

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Certified Guardian Powers: - the power of certified guardian is regulated by Guardian
and Wards Act of 1890. Section 27 of the act specifically talk about the powers and
obligation of guardian. the power of certified guardian is limited by the rule that the
guardian should deal with minor’s property in such a manner as a man of ordinary
prudence deals with his own property. Section 29 lays down the limitation of Guardian
power in respect of alienation. Section 33 allows court to define, restrict or extend the
powers of Guardian as the circumstances required.

Chapter 4

Concept of Hizanat (Custody)

All Muslim authorities agrees on the mother’s right to have custody or Hizanat. The
Fatwai Alamgiri states that, “the mother is of all persons the best entitled to the custody of
her infant children during connubial relationship as well as after its dissolution”26. The
term “Hizanat” means the right of women of rearing a child.

Mother has the first and foremost right over child’s custody and no one can deprive mother
from her right to custody unless she is found guilty of misconduct.27 The mother’s right of
custody is not an absolute right and she cannot exercise this right as she likes and the
recognition of mother right is for the benefit of child. Mother right of custody is the right
of rearing of child and she can be deprived of her right if it was found out that her custody
is not beneficial or conducive to the mental, physical and moral welfare of child.

There is specified age limit prescribed for son and daughter and after that age mother right
of custody dissolve.

The Son: - the Fatwai Alamgiri states that mother is entitled to the custody of a boy until
he is independent of her care which means until he attains the age of 7 years.28 Hanafis has
an established rule that the mother right of Hizanat ended when the boy became 7 years
old. The Shias hold different view and according to them the mother is entitled to the
custody of son until he is weaned or completed the age of 2 years and during this period no
one can deprived mother of her right unless she consented to it and the father is entitled to

26
The Fatwai Alamgiri, I, 728
27
Md. Shafi v. Shamim, 1979 Bom 16; Abdulo v. Akhtari Begum, 1988 Cri 279
28
Ibid

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custody of child after the custody of mother terminates.29 Father has visitation right during
the tenure of mother custody.30

The Daughter: - According to Hanafis, mother is entitled to custody of daughter until she
attains the age of puberty.31 Malikis, Shafis and Hanbalis hold that mother is entitled to the
custody of daughter till she got married.32 Shia held that mother right of custody of
daughter terminated when she attains the age of seven years. All schools of Muslim law
states that mother has preference over the custody of married daughter below the age of
puberty over the husband of daughter. Since the right of Hizanat is the right to rear child,
so the mother can not surrender her right of Hizanat to any person.

Other females who are entitled to Hizanat: - In Hanafis the following females are
entitled to have custody or Hizanat after mother fails: -

1. Mother’s mother how highsoever

2. Father’s mother how highsoever
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 aunts
10. Paternal aunts

In Shia schools, in the absence of mother, the father is entitled to the custody of child.
After father, the grandfather is entitled to have custody of child. After the grandfather, it is
not clear who is entitled to right of custody. Some hold that grandmother is entitled to the
custody of child, after her the custody belongs to ascendant then to collateral within
prohibited degrees.33

Father’s right of Hizanat: - Muslim law recognized father right of Hizanat in following
circumstances: 1) after the completion of Hizanat of mother or other females entitled to

29
Sharaya-us-Islam
30
Bushara v. Shibinu, AIR 2015 Ker 21
31
Ibid.
32
The Radd-ul-Muhtar, II, 1054
33
Ameer Ali, Mohammedan Law II, 255

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Hizanat 2) in the absence of mother and other female relatives entitled to custody of child,
the father has right of custody of child unless he unfits or disqualified for it. The right of
Hizanat of father continues till the child attains the age of majority.34 It is doubtful that
whether father can deprive mother or other female relatives from Hizanat by appointing
guardian through will but the court held that father has no right to deprive mother or other
female relatives from the right of Hizanat.35 Father has right to appoint testamentary
guardian but the right of Hizanat belongs to mother and other female relatives. The
testamentary guardian is also entitled to Hizanat when father is qualified for custody.

Other male relation entitled to Hizanat: - in the absence of father following male
relatives are entitled to Hizanat: 1. Nearest paternal grandfather, 2. Full brother, 3.
Consanguine brother, 4. Full brother’s son, 5. Consanguine brother’s father, 6. Full brother
of the father, 7. Consanguine brother of the father, 8. Father’s brother son and father’s
consanguine brother’s son.36

In all Muslim law schools, the Hazina should be 1. Of unsound mind, 2. Of good moral
character, 3. Living at such places where there is no morally or physical risk to child, 4. Of
such an age to fulfill and ensure that child is being taken care.

Hazina will forfeit her right of custody in following cases: -

1. By her apostasy
2. Be marrying the person who is not in relation to the child within the prohibited
relationship
3. By her misconduct or cruelty towards child
4. By living distant from the place of residence of father
5. Insanity and minority of Hazina
6. Subsequent marriage by Hazina

Chapter 5

De-Facto Guardian and its power

Both Hindu law and Muslim law recognized the concept of de-facto guardian but the
powers given to de-facto guardian in Hindu laws are wider than they are in Muslim

34
Baillie, Digest of Mohammedan Law, I, 676
35
Bahadur Ali v. Bibi, (1910) PR 154
36
Mulla, Mohammedan Law, 17th edition, 336

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 law. De-facto guardian is a person who no right to take charge of minor estate but
administer and managed the estate of minor. Different system of law has different
opinion regarding power and status of de facto guardian but they do agree that it
imposes certain liabilities and obligation.37 De-facto guardian is more like self-
appointed guardian. a person does not become de-facto guardian by seldom declaring
guardian or spending some time with minor but a person assumes the status of de-facto
guardian over the period of time by his continuous course of conduct in respect of
minor’s property. According to Tyabji, a de-facto guardian is an unauthorized person
who is in fact have custody and guardianship of minor.38

Power of the De-facto Guardian: - Muslim law states that there are three types of
acts that are performed by any person in respect of minor: 1) acts concerning
guardianship, 2) acts necessary for the want of minor, 3) acts which are advantageous
for minor. The first two act was performed by taker up but he is not de-jure guardian.
he is de-facto guardian. In Matadeen v. Md Ali39, it was held by Privy Council that, “it
is difficult to see how the situation of an unauthorized guardian is bettered by
describing him as de-facto guardian. he may, by his de facto guardianship assume
important responsibilities in relation to minor’s property, but he cannot thereby clothe
himself with legal powers to sell it.” Imambandi v. Mustasaddi40 is considered to be
one of leading case regarding de-facto guardianship and it was held that de facto
guardian is not vested with power of alienation of minor’s property. De facto guardian
is vested with the power to sell or pledge minor’s property but in circumstances
ofurgent need for food, shelter, clothing or medical care of minor. Minor is not bind by
the alienation made by de-facto guardian and can challenged it. De-facto guardian can
also incur debts if required to meet urgent need of minor. Partition of property by de-
facto guardian is also void.

Chapter 6

Conclusion and Critical Appraisal

Muslim law-givers thinks that Guardianship of minor’s person is more in nature of custody
then Guardianship that is why Muslim law provides detailed rules regarding the custody of

37
Paras Diwan, The law of Parental Control, Guardian and Custody of Minor Children, 517.
38
Faiz Badruddin Tyabji, Muslim law : the personal law of Muslims in India and Pakistan, 4th edition
39
Matadeen v. Md. Ali, (1918) 45 Cal 878
40
Imambandi v. Mustasaddi, 1952 SC 358

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minor’s person. Thus, a clear distinction is created between custody and Guardianship. In
Muslim Law, Guardianship can be classified in three categories: - (i) Natural Guardian (ii)
Testamentary Guardian and (iii) Guardian appointed by the court. In Muslim law, there is
no distinction between the powers of Natural and Testamentary Guardians over minor’s
property. Muslim law givers also classified act that should be done for minor or on his
behalf and these acts are: - 1. Acts such as contracting of marriage and buying and selling
of goods are done by only natural guardian, 2. Acts such as buying or selling for the
purpose of satisfying the needs of minor such as food, clothing or shelter etc are done by
the maintainer of the minor and 3. Acts done for the benefit and betterment of minor are
done by mooltakit such as brother, uncle or by minor himself. Muslim law discusses power
of natural and testamentary guardian in respect of right of alienation, power to incur debts
and make contracts, power to carry on business and power to grant lease. Muslim law
established distinction between guardianship and custody. Mother has the first and
foremost right over child’s custody and no one can deprive mother from her right to
custody unless she is found guilty of misconduct. Hanafi states that mother has right to
custody of a son till he attains the age of 7 and in case of Shia till he attains the age of 2
years. In case of daughter, Hanafi states that mother has right of custody of daughter till
she attains the age of puberty and in case of Shia, till she attains the age of 7 years. In
absence of mother and female relatives, the father is entitled with the right of custody and
in his absence, grandfather is entitled with the custody. Muslim law also talk about the de-
facto guardian. De-facto guardian is the person who is not entitled to assume guardianship
but in fact manage and administer the property of minor. De-facto guardian is more like
self-appointed guardian. a person does not become de-facto guardian by seldom declaring
guardian or spending some time with minor but a person assumes the status of de-facto
guardian over the period of time by his continuous course of conduct in respect of minor’s
property.

Bibliography

1. The Fatwai Alamgiri

2. The Radd-ul-Muhtar
3. Yadav, Priyanshu. “Concept of Guardianship under Muslim Personal Law.”
Concept of Guardianship under Muslim Personal Law, Legal Service India- E
Journal, www.legalserviceindia.com/legal/article-7215-concept-of-
guardianship-under-muslim-personal-law.html. Accessed 15 Apr. 2022.

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4. Pandey, Shreya. “Guardianship of a Child under Different Personal Laws.”

Ipleaders Blog, Ipleaders.com, 9 Mar. 2021, blog.ipleaders.in/guardianship-

child-different-personal-laws.

5. The Hedaya, IV, 124

6. Paras Diwan, Muslim Law in Modern India, Allahabad Law Agency, 2021
edition
7. Ameer Ali, Mohammedan Law II, 255
8. Baillie, Digest of Mohammedan Law, I, 676
9. Mulla, Mohammedan Law, 17th edition, 336
10. Paras Diwan, The law of Parental Control, Guardian and Custody of Minor
Children, 517.
11. Faiz Badruddin Tyabji, Muslim law: the personal law of Muslims in India and
Pakistan, 4th edition

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