fat

pes

Chapter 23
GUARDIANSHIP AND CUSTODY
UNDER MUSLIM LAW

a r e certair

of law of
guardianship
custody
and

the ahadis
and other yerses nha
Koran
The
and
source

a few ahadis. The

Koran,

speak of the
g u a r d i a n s h i p of the

mere inference.
nhoris
WPerty
orities ny
Muslim law
the
emphatically

guardianship
a
of the person u n d
as
er:
1s
d discu
minor, of custody
guardianship
the law of
(a) Guardianship,
w1
(b) Custody, and
she
De facto guardian. aft
(c) I
GUARDIANSHIP

the
the
Classification o f Guardianship
fall under the following threo gua

In Muslim law, guardians orles the

(i) Natural guardians, we

guardians, and
i ) Testamentary
the court.
(ii) Guardians appointed by val
G u a r d i a n s . - I n all schools
of both the
Natural
which
Sunnis
term in the conte
and the Shia
Sha

the father is recognized as guardian

to natural guardian and the mother in all schools of Muslim
text is equvalen pro
the
law is nast
recognized as a guardian, natural or otherwise, even after the death anc
exists even when the: of the
father The father's right of guardianship mother, or a
otherfemale, is entitled to the custody of the minor. The father ba
e rgmt
tocontrol the education and religion of minor children, and their
and their movement. So long as the father is alive, he is the sola e bringng nec
Supreme
guardian of his minor children.| gua
the
The father's right of guardianship extends only over his minor ecitina
children. He is not entitled to guardianship or to the custody of his mine
illegitimate children. ap
In Muslim law, the mother is not a natural guardian even of her minr Wr
illegitimate children, but she is entitled to their custody" gu
a tee
Among the Sunnis, the father is the only natural guardian of the mine par
children. After the death of the father, the guardianship passes on to t wh-
executor. Among the Shias, after the father, the guardianship belongs tote SOu
grandfather, even if the father has appointed an executor, the executorotte pos
1. Imambandi v. Mutsaddi, (1918) 45 Cal 887.
2. Gohar Begum v. Suggi, (1960) 1 SCR 597. Mu
wa
( 308)
 .

GUARDIANSHIP AND GUSTODY

the
f a t h e r b e c o m e

guardian only in the absence

an be natural guardiar 309
person cAn

e ian, not of the

Tandtather, th
guardianship belongs to thethe brother. grandfather.
tary
even
In the No
absence other
guardian-Among thegrandfather's executor, if
Testamenta

of the
o f makin
Ower
ather and his stamentary
or, the appointment of
Sunnis, the father any
ouardian. Among grandfather has guardian. In the has full
entaryardian
mentary guardian is valid
andfather, too, has the
the
valid onl Shias,
only if the the
the
power of absence of
father's appointing a

has any such

e rperson
power of grandfather appointmentof
power. appointing testamentarynot alive. The
is a

es the Among
both the Shias
Shias and the guardian. No
On
the
Bppontinga stamentary guardian of Sunnis, the
her children. mother has
which .
the appoint
er can a
first, when she hastestamentary It is
only in
no
power of
two cases in
norc h i
been guardian of her
of the ather,
child's fath she can appointed
an
a
appoint executor bygeneral executrix property of her
will
shecanappoint
xecutor in respect
t an executor
of her own her will; and by the
after
her
on her
deat.

her can be
children. property which willsecondly,
devolve
The mother
appointed a testamentary
ndfather, whenever he can guardian or executrix
ather, or by the grandfa
#he appointment
he
the Sunnis, of a exercise this power. by
quardian is valid, but among non-Muslim
the shias, such an mother as testamentary Among
hold the that a
non-Muslim appointment
hap01ntment is mentary
is not
property of mino
cannot be valid, as
well of ms
as
the a a
guardian of the person as
that the
appointment of a non-Muslim
alid, though it may be set aside by the
immi
a zimm can be
kazi.fellow-subject
According to the Malikis(zimmi)is
Shafii law, valhdly appointed
a
and the
ofthe minor, bu
but not of the testamentary
person of the minor. The guardian of the
hias, property

me view. that
It appears tha when two Shias also take
alent the
of them is persons are
disqualifie the other can act appointed as guardians,
S not as a
the ofligate, i.e., a person who bears in guardian.
character, cannot be public walk of
appointed as a guardian. life
any
a
notoriously
right 0Pntance of the
Accep
appointment
testamentary
necessary, though acceptance may be express
of
guardianship
nging ardianship is accepted, it cannot
or
implied. But once
is
reme be renounced, save with the the
the court.
permission of
mate Muslim law does not
lay down any specific
ninor anwnintment of
testamentary guardians. Appointment formalities for the
Titing or orally. In every case, the intention to may be made in
ninor mardian must be clear and unequivocal. A appoint a testamentary
atestator may be invalid, but appointment oftestamentary
the executor
deposition made by
ninor particular. The testator must have the capacity to make may be general or
when it was executed. This means that the will at the time
the the testator should be a
the sOund mind, i.e., at the time of
execution of the will, he shouldmajor and of
f the possession of his senses. be in full
The executor of the testamentary
USim lawgivers, guardian is designated variously by
indicating his
guardian. He is also calledposition
l or and powers. He is commonly called,
amin, i.e., a trustee. He is also termed as
Syed Shah v.
Syed Shah, AIR 1971 SC 2184.
 FAMILYLAw
310
testator.
of the
representative
i.e., personal the fai
failure of the
l-mukam,
natural
Court.-On

the
by entrusted
Guardian
power of appointment
appointed

testamentary
guardians,
of guardian
the kazi
of a Muslim minor. Now the
pplies
was
with the
g u a r d i a n s and
matt is
1890. This Act apr
and Wards Act, to the
Guardians
KOverned by the belonging to
any community
gh
of all minors of guardians, tho
appointment of guardians of appointment
Courts also hav inherent powers
power is exercised very sparingly. the power of appoint:.
Wards Act, 1890,
and or
Under the Guardians is conferred
on the District Co
declaring any person as guardian as an of a
guardian
or declare
any person minor
District Court may ppoint necessa
ssary for
considers it
whenever it
s person as well as property wishes
Cniid into consideration
the age, sex, of
Welfare of the minor, taking the parents and the personal law of the rm
child as well as the wishes of mino
Testamentary
Guardians
Powers of the Natural and of natural
exists between the powers
Practically, no distinction the Muslim law-givers first lav down
seems that
testamentary guardian. It and then state that
the power of an executor or
testamentary guardian the
The Muslim law-givers also appro.l
natural guardian has the same powers.
needs of the minor. After classif
the from the point of view of the
subject sifying
state which acts be performed by whom.
can
the acts, they
These acts may be divided under
the following three heads
or advantageous
to the minor;
(i) Acts which are beneficial
(ii) Acts which are absolutely injurious to the minor; and
two.
(ii) Acts which are mid-way between the first
As to the acts falling under the first category, any person, whethera
can perform those acts. Under this
guardian or not, in whose care the child is,
and alms. If the minor is of the
category fall such acts, as acceptance of gifts
can perform them.
age of discretion, he himself
The facts which are absolutely injurious to the minor, such as
to do them
emancipating a slave, or divorcing a wife, no person is empowered
on behalf of the minor. As to the acts under the third category, such as sale or
hiring of property for profit, they can be done only by the fáther, grandfather
or the executor.
The guardian's power of alienation may be discussed under the following
heads
Power of Alienation
The jurists mostly talk of sale of minor's property. They make distinction
between movable and immovable property. The power of the guardian over
property is wider than his powers over immovable property. The guardian is
allowed to dispose of the minor's immovable property only in exceptiona
cases. It appears to be clear for
that sale of movable property is justifiea
the necessity of the
minor, but on the basis of the
conservation. Wheneot
guardian can sell movable property for an adequate consideration and inve
the sale proceeds in a more profitable undertak ed
the sale will be ustifiea
The guardian is also olved
allowed to take all reasonable risks which ar
 GUARDIANSHIP AND CUSTODY
311
the world of business in
the hanaling of movable
vable property can be avoided property. The sale of
round of fraud resuling inpy tne minor ofattaining majority only on
on

adequacy of consideration 15 such asinadequacy

to cause consideration, or when
inor. though there is no
serious
indication of fraud. Inloss detriment toor
D
an efion is voidable at the instance of the such
minor. On the other case, the
a
naction is entered into bona fide with due hand, if the
rdian
guard
is not
responsible for any
care and
diligence, the then
affecting the interest of the minor. unforeseeable consequences
adversely
The powers of alienation of immovable
The consensus of the authorities is that property limited.
are
the sale of a minor's
nroperty by his legal guardian is valid in the immovable
(i) when the guardian can fetch the following
cases
double of its value;
(ii) when the sale is to the manifest
ii) when there are some
advantage of the minor;
general
payment of legacies, which cannotprovisions
in the will, such
as
be carried into
the sale of the property; effect, without
(iv) when there are debts of the
testator, and they cannot be
save by the sale of
property; liquidated,
(v) where the income of the
property is less than the cost of its
(vi) when it is in imminent
danger
of upkeep;
etc., being lost or destroyed by decay,
(vii) where the property is in the hands of an
has usurper
reasonable belief that there is no chance and the guardian
of
recovery; and
(vii) when the minor has no other
necessary for his maintenance. property
and the sale is
absolutely
Numbers (i) and (iv) above do not
grandfather apply in the case of father and
An improper alienation made
by a legal guardian is not void, but
roidable, and the minor on attaining only
The basis of the guardian's
majority can avoid it.
power of alienation under Muslim law
need or necessity of the minor. is the
Where the guardian is permitted to sell minor's property, it is
that the sale must be for necessary
adequate consideration, i.e., for consideration
usually current in transactions of similar kind,
aside. otherwise, the sale may be set
Power to grant lease.-It
not in favour of
appears that the Muslim authorities were
conferring any power on the guardian of
minor's properties. Ameer Ali takes leasing out the
view that the executor may
the minor's
property, if there be need to do so, and if it is give on lease
minor. He has also the advantageous to the
power to pledge the goods and other movable
of the minor
if it is necessary for the property
the
maintenance of the minor." The position
O father also appears to be the same. It appears that the
gve leases of
the minor's properties guardian cannot
extending beyond the of theperiod
.The Fatwai Alamgiri,
VI, 222; the Dur-ul-Muhtar, 846.
anab v. Samsunissa, (1967) 2 MLJ 195; Eishu v. Ranglal, AIR 1973 Cal 64.
3.
Ameer Ali, I, 686.
 312 FAMILY LAW

minority of the child

Power to carry on business. -It seems the guardian has
cary on trade or business on behalf of the minor just like a person of pow t
prudence can do so in respect of his own business, provided the busi
trade is not of speculative or hazardous nature. The guardian had t s
ordinary
to enter into partnership on behalf ot the minor, but the minor's 1lio a
onlyto the extent to which he had share in partnership; in no case thtyi
was personally liable. Where the capital of the minor, and that of o minor
happens to be invested in the same business, then the guardian shoul
separate aorounts.
rdian,
Power to incur debts and enter into contracts.-Guardia.
minor has the power to incur debts on behalf of the minor if there is an of a
need for it. A debt contracted without any necessity is not binding "Sent
minor. It appears that the guardian has also the power to the
promissory note on behalf of the minor in those cases where the inetea
debt is justified. ing of
There has been conflict of judicial opinion as to whether the guar:
a minor (both under Muslinm law as well as Hindu law) can ente of
contract on behalf of the minor, and whether such a contractdin,
isis Sno
the Privya
speciically
enforceable against the minor. In Mir Savarjan v. Fakhruddin, th
Council held that it was not within the power of the guardian to
minor's estate by contract for the purchase of movable property.bind the
In
Kakulam v. Kurra Subba Rao,' the Privy Council said that a contract on
into by guardian and which is for the benefit of the minor, is enfre
speciñcally against the minor. It can also be enforced by the minor. Thie
was followed by a Full Bench of the Hyderabad High Court in Amir Ahm
Mir Nizam Ali."
med v.
Power to make partitionThe guardian's power of partition
qualifed one. In no case should the guardian separate the shares ofead
minor; if he does so, it is unlawful and entire partition is invalid. If all the
heirs are minors, the executor may allot the shares to the legatees, and retain
the rest in his hand. In case a guardian is appointed by the court with genera
powers to deal with all matters of the minor, then the guardian has powert
effect a partition.
Other powers of the guardian.-The Bombay and the Allahabad
High Courts hold the view that the guardian has the power to assert a right
of pre-emption on behalf of the minor, or to refuse or accept an offer of a share
in pursuance of such right, and the minor will be bound by such act, if done
in good faith.
The de jure guardian has power to acknowledge debts on behalf of the
minor
1. Zeeburisse v. Danaghar, ILR (1936) 49 Mad 942.
2. Saffar v. Standard, AIR 1928 PC 130.
3. Kashunpalli v. Ayina Kashim, AIR 1935 Mad 1041; Abdul v. Md. Ibadul, AIR 1907
Oudh 50.
4. AIR. 1912 39 IA 1.
5. AIR 1943 PC
95.
6. AIR 1925
Hyd 120 (FB).
ILR (1901) 29 All 129
aradur v.
Durga, ILR 3 Bom 437: Umrao v. Dalip,
 GUARDIANSHIP AND CUSTODY
Certificated Guardian's (Euardian 313
Powers appointed by the court
ouarding the certificated
aw in India is guardian's power over the minor's
ta Section 27 of uniform, and regulated by the property,
generalGuardians and Wards Act,
the
189
Act lays down the
guardian. The
the ian should dealgenerality of the powers
with minor's power is limited by and obligations of
the rule that the
ary prudence deals with property in the same manner
his own property. Within as a man of
ject to specific limitations
lim
hority to do all tthings
laid down in
the Act, the
this limitation,
and
he minor's property.
necessary for the guardian has
realization, protection and benefit the
ction 29 lays down
dian's powers of alienation of the limitation in
respect of
e or transfer by sale, property; the guardian has no
cha art of the property gift, mortgage, exchange or power to
anym more than for a
term otherwise, or to lease
beyond theexceeding
one five
exteminor, without theyear date on whichyears or for a term
t o be
prior permission of the court. the minor will cease
mission for alienat ation only if it arrives The court will
at the accord
p e r m i

jenation is for necessity or for the evident finding that the

proposed
d Drovisionmmovable
nation of the imr
property by the guardianadvantage of the minor. Any
is voidable at in
perso affected thereby.
the instance of contravention
the minor or
of the
any other
Caction 33 of the Act empowers the
he guardian from time court to
to time. The define, restrict or extend the
ers of the
powof defining or fixing the limits court also has the
guardian's power at the general
power
his appointment.
of the
Tn respect time of
of other
matters, the
rality of the provision of Section 27guardian's powers are
of the
Guardians andgoverned by the
Wards Act.
II
Of all the persons, the first and CUSTODY
foremost
belongs and she cannot right
Aildren to the to have the
ad 25 she is not found guilty of mother, be custody of
deprived
misconduct. Mother has the of her right so
eare of children during the period laid down in Muslim right of custody
is not disqualified. This is called
the father or any other
right of hizanat and can belaw, so long as she
enforced against
reognized in the interest ofperson.
The mother's
right of hizanat is
children, and in no sense, it is an solely
she cannot exercise it the way she absolute right;
likes to exercise it. If
Suitable to bring up the child, or her she is not found
moral and intellectual welfare of the custody not conducive to the physical,
is
child, she can be deprived of it.
Since Muslim law considers the
right of hizanat as no more than the
right of rearing of the children, it terminates
this regard Muslim law at an early of the child. In
makes a distinction between age the son and the
daughter.
The
son.-Among the Hanafis, it is an established rule that the
nother's right of hizanat over her son terminates on the latter's
the age of
seven years. completing
ihe Shias hold the view that the mother is entitled to the custody of her
. Section 31.
 314 FAMILY LAw

tWo
the age Or years, and
has completed
until he is weaned, i.e.. cannot be deprived of the custody of that
during this period, the mother her o
i t h her OWn consent.
under any Circumstances whatever, except the m o t h e r ' s right of t
80n
h
of right
completion of of two by the
the age
son,
custody
terminates. hizanat over .
to the Malikis, the mother's right of her son
According The rule among the
of puberty.
continues till the child attains the age
and the Hanabalis is the same as among
the Hanafis. But these school hafis
of seven years, the child is o l
view that on completion of the age
the in every case, the father is entitla
choice of living with either parent. But t itled
the custody of his son when it attains puberty.
The daughter-Among the Hanafis, the mother is entitled t.
the Malibi he
of her daughters till the age of puberty. Among
custody and
Shafiis the Hanabalis, the mother's right of custody over her da he
other hand, under the Ithanoer
continues till they are married. On the
law, the mother is entitled to the custody of her daughters till thev attoar
ain the
In all the schools of Muslim law, the mother has the right to
age of seven.
custody of her married daughter below the age of puberty in preference to th
tot
husband.
The mother has the right of custody of her children up to the
ages
specified in each school, irrespective of the fact whether the child is legititimate
or illegitimate.
Mother cannot surrender her right to any person, including her
husband, the father of the child. Further, the mother cannot be deprived n
her right of hizanat on the ground it is for the father of the child to provide
her with sufficient funds for the maintenance of the child.
Other females who are entitled to hizanat-Among the Hanafs
the following females are, after the mother, entitled to hizanat of the minor
children up to the age to which the mother is entitled to it:
(a) Mother's mother, how high soever;
(b) Father's mother, how high soever;
(c) Full sister;
d) Uterine sister;
(e) Consanguine sister;
( Full sister's daughter;
(g Uterine sister's daughter;
(h) Consanguine sister's daughter;
i) Maternal aunts, in like order as sisters; and
) Paternal aunts, in like order as sisters.
Tayabji and Ameer Ali give different lists.
The rule is that among the
females, the nearer excludes the remoter
Under the Shia school, after the
father. In the absence of both mother, the hizanat belongs the
the parents, or on their
being disqualn
grandfather is
entitled to the entitled to the custody. Authorities are not clear as to
wa
custody after the grandfather.
Among the Malikis, the following females are entitled to the cus f
 GUARDIANSHIP AND CUSTODY
315

ho absence of the mother (a) the

maternal grand-aunt, (d)
rreat grandmother, (C) the maternal aunt andgrandmother, (b) the
minor in
the
sister, (e) the uterine sister, () the consanguine sister, and (g) the paternal
fiull.

eright of hizanat.-All
the schools of Muslim law
a u n t .

.L ofthe recognized
the father to the custody ot his minor children in the following two
right of

(1) on the completion of

the the age by the child up to which
Cases :females mother or
are entitled to its custody, and (i) in the
absence of the mother
o t h e

o t h e r
r

fomales who have the right to hizanat of minor children. The father
be deprived of the right
of hizanat of his male child of seven if
Cannot ot years
to be unfit.
1S
not found
Thefather's right of hizanat continues till the child attains puberty. It
that among the Shafiis and the Hanabalis, the father is entitled to
of his female children till they are married. The courts have taken
appears

custody
he
that ther
the father has no power to deprive the mother or any other
the view
female relation fron zanat of the child up to the age to which she is
entitled
custody. In our submission, the father, undoubtedly, has the power of
he

ting a guardian and entrusting him

testamen1
the custody of
appon
but the ven.
mother or other females will be
entitled to the custody
hishildren up to the specified ages. The testamentary guardian will be
of tnto
entitled to the custody of the minor children only in those cases
where the
entitled to it.
father is
Other male relations entitled to hizanat-In the absence of the
inboth the aforesaid cases, the following persons are, according to the
Hanafis entitled to the custody of children
) nearest paternal grandfather;
Gi) full brother;
i) consanguine brother;
Giv) full brother's son;
(v) consanguine brother's father:
(vi) full brother of the father;
(vi) consanguine brother of the father;
(vii) father's full brother's son; and
ix) father's consanguine brother's son.
Among the above, the rule is that the nearest excludes the remoter.
Among the Shias, hizanat belongs, in the absence of the
father,thetoShia
randfather. As to who is entitled to hizanat after the grandfather, the
authorities are not clear.

When Right of Hizanat may be Lost by a Hazina

It seems that all the schools of Muslim law
be :6) of sound mind, (i) of
agree that a hazina should
good moral character, (ii) living at such a place
where there is no risk, morally or
physically, to the child, and (iv) of such an
age which would qualify her to bestow on the child the care it
wil may need-this
S not apply to mother.
All the schools of Muslim law also agree the hazina will forfeit her right
othizanat in any of the following cases
 y her apata
a
Prehihtet reletiouship liy fiwii i.
as iHpivii
misdit s h
hyher

and resilin.
fung the a u i j a f e n e
ARd reaidennn
place f
awAY

h her gung hather

tstane hom the
at a lnsanit is liaiali,

Insanit And minarit Murily ahill

disquahratu, buut a minot the

mather ustuly
is entitled tu the atuly uf i ner
.
inttent to
mnd
of u n a n d entitlel tu tie uiatuly ut
is
Mslm other l
ApostasN af thin i t
n
t g
amot b teprivel Mualin at the t
and h e nn
children,
tath, pmided
he Was religiIff"
belongs to anothrr wnvertato nnather
Muslm mther nha i a On Muslin,
in entid
marragr other a l e who
. wn he
Auzaat Nu c l e g o r i c a l , anl lays
rght of
a child The Shta law
n vOry

not entiled to the custuly at a

custodyof Alunlm, ia
to the riglit of /i
a
v a s e d to b
w ho has O lnger a bar ahey
Renoval Act, IHG
person IN
apostasN
submitted that Dinalbilitien
It is
f o r e of the Ca»te

the comng
nto
hazina. The Munlim law givees
marriage of wlio is
d4l
Subsequent a pernon
that a hazna
who nmarrion
lated
relatiumahip, lorfoita hew
schoolshave laud downdegrees the prohibited ght
within the of
rule in that in the home oti
to the child notion thia of
The underlyng to look atter thee ehild
of huzanat she will not lhe able the
stranger), s o e controveray
husband if a this there in
attection. On
love and
same
stated thus
law may be don not loe her
The present
fenmale who
n naehram, marrios rght
rd,

a A Muslim
hizanat. miehram, then nhe may lo
Ifa Muslim
female has married a ghair prolerentinlly rntutled
(b) custody, it perHON
her preferential right of the person preferentall
it is suitable,
all
in respects, But I entitled
to the mother will continue to be
not suitable, then
entitled is
being not abiolute
child, the disqualification
to the custody of the
married a glhair-mehram, mav al

female who has

(c) A mother or a
m n o r child by the court,f
as guardan of the
a
be appointed
otherwise found suitable.
considered mainly from
the point
the question is to be
(d) In all cases,
of the child.
of v i e w of the welfare
in most of the
of hizanat in Muslim law, as
The cardinal principle reason why
is the welfare of
the child. This is the
modern systems of law, case of children
of

preferred mother to father in the

Muslim law always i,
with cruelty or neglects
tender Thus, if the hazina treats the child
years. be
of hizanat cannot lost
she forfeits her right of hizanat. However, her right child. l
or want of funds to
maintain the
no her
of poverty
on account
hazina has house where she can live with the child, then it is the auuy

the father to provide her with a house and with funds, together wIU

1. Amar llahi v. Rashida, PLD (19565) Lah 501.

 GUARDIANSHIP AND CUSTODY
tendants, within his 317
hild. In case the child mean8, Whieh necessary
property, are
child. has for the
maintenance out of that. then, the hazina may maintenance of the
father, or any other person,property.
the In case the
who has the child hasprovide habitation
mus pay for the
habitation and obligation to
no
property, then
What is remarkable about maintenance of the child.'maintain the child,
sideration is subordinated to0thetheMuslim law of hizanat is that
consi
wOrthy of credit, may still retain welfare of the child. A every other
aochild so requires. This means the custody of the child, ifwoman
th
the
who is
ed a hazina from the
disentitled that every misconduct which welfare of
rolfare of the child. Thus, no
of
custody of the child, is otherwise
tested on the touchstone
misconduct will vary from
misconduct
case to case.
is
absolute, and what amounts to
Removal of the child
by the
down that the home where the hazina.The Muslim authorities
here the child should be broughthusband and wife live together is the
lay
ther nor the mother has the right to Muslim law lays down that neitherplace
up.
the
me If either of them wants to do remove the child from the matrimonial
ho
so, then the
necessary. Thu
hus, a hazina is liable to permission of the other is
forfeiture
moves the child without the
prior
of her
right of hizanat if she
e1ch a permission
distance from the matrimonial home of the father of the child to
overcising the
necessary control and
so as to
prevent the father from
fallowing two cases, she may remove thesupervision
child from the
over the
child. In the
when the change or residence
has been made matrimonial home
child, or on account of with
view to benefitting the
a

employment miy unavOidable circumstances. Thus, exigencies of her

the mother of thecompel
a hzina
to change her
child place of
separates from the father of theresidence; (Gii) when
entitled to return to her native place wherever it might be. child, then she is
to live away at a distant If the
place for a justifiable mother has
of her right of custody. reason, she cannot be
deprived
When Right to Hizanat may be
A male entitled to the
Lost by Hazin
Muslim law-givers have not custody of the child is known as hazin. The
dealt with
the
detail but it seems to be clear
that, just
disqualifications
as in certain
of a hazin in
any
deprived of the custody of the child, cases, a hazina may be
of it. Thus, a hazin who is a similarly, a hazin may also be deprived
minor, or of unsound
mind, has no right to the
custody of the child. A hazin who is
profligate, has no
leading
right to the custody of the
an immoral
life, or who is a
child.
Welfare of the Child is Paramount
Just as under the Consideration
Muslim law, in
personal law of any other
community, so also under
determining all questions
relating to minor children,
custody, the welfare of the child is the paramount including
Ali v. Majijo consideration. In Salamat
Begum,? the Allahabad High Court observed that under the
personal law, if mother is entitled to the
custody of a minor child, she should
normally get it, but the court should also consider whether in
Would be for the welfare of the minor. If evidence shows that shesowoulddoing, it
De a fit person to have the custody or that it would not be in the welfarenot of
.Siddiqunnissa v. Miamuddin, ILR (1931) 54 All 9.
2. AIR
1985 All 29.
 FAMILY LAW
318
should
not et to the
give eftect
court of t h e e s
the child to give her ustody. The paramount consideration
the Pakkruddin A:
e
law, but should be guided by been reiterated
n

the child. his view has further mnor is the o n l e

held that weltare ot ofCites
1stody.eriat
the issue
Tabassum.Fatma,' where it was
which
would decide
and not the rights of parties is a
teacher,
in their wela
tare,
live with mother who to B measure custod
be
children wish to weltare is not only
her. Further,
Moral and ethical welta
at the
would be
retained with
of money and physical
comforts. elfare is
also
yardstick
important.
IlI
DE FACTO GUARDIAN

right to do so
assumes the charge of
no
.
person having
no
When a
administration and
management of the eoter
estate and carries on the
hi the status this
on
state.
c o u r s e of
conduct results in conterring of de
continuous
Whether this status gives nim some powers, or
facto guardian. all agree that it imposes on him Sts
different systems of law differ, yet
de facto guardianship is a concens
which past
liabilities results inThus,
obligations.
andact present status. A de facto guardia ndera
An
A fugitive or an isolated act
of a person in
self-appointed guardian. reg to
nor dos5d
not make him a de facto guardian, does
minor's property does
some time confers
on him such status. It is only
staying
with the minor for
course of conduct
in respect of a minor's property that mae
continuous
facto
detines a de guardian as an (unauthoris
a de facto guardian. Tayabji has custody and care of the Der
of person
who as a matter of fact (de facto)
person
and/or of his property."
Facto Guardian
Powers of the De
recalled that the Muslim
authorities classify the acts whieh
It may be
minor under three categories, viz. acts
to be done in respect of a
are required the minor, and acts which ars
of guardianship, acts arising out of the wants of
last two acts may be performed by a
to the minor. The
purely advantageous minor. The "maintainer' or the "taker-up"' mar
maintainer' or taker-up' of the He is nothing but
but he is not a de jure guardian.
be relative or a stranger, a dampner on de facto
But the Privy Council put
a de facto guardian.
Matadeen v. Md. Ali,' the Privy Council
guardian's at an early date. In
power
said: "It is difficult to see how the situation of an unauthorised guardian
de
is

him as a de facto guardian. He may, by

his facto
bettered by describing minor's the
responsibilities in relation to
guardianship, assume important to sell
clothe himself with the legal powers
property, but he cannot thereby
which is considered to be the leading
it." Then came Imambandi v. Mutsaddi," guardian has no
laid down that under Muslim
de law, a facto
case, and which
alienation of a minor's property, and that
such an alienation, 1s VOTd
of
power the Supreme Coure
InMd. Amin v. Vakil Ahmed," reiterating this position,

1. AIR 2018 Pat 84.

2. Sharif Khan v. Muniya Khan, AIR 2013 MP 143.
3. Tayabji (4th ed) 213.
4. ILR 34 All 213.
5. ILR (1918) 45 Cal 878.
6. AIR 1952 SC 358.
 GUARDIANSHIP AND CUSTODY
319
observed: A de facto guardian has no power to convey any right of interest in
observeu
movableAe
property which the transfer can enforce
come to be the established position. It seems
against the minor. This
that such an alienation is
void.

In Md. Amin v. Vakil Ahmed,' the Supreme Court has ruled that a de
facto guardian has no power to enter into a family arrangement on behalf of
the minor. Similarly, the de faucto guardian has no power to sign an agreement
on behalf of the minor for the continuance of business in which minor's
deceased father was a partner° A de fücto guardian can also not validate a
hequest to an heir by consenting on behalf of the minor who is a co-heir
It seems that the de facto guardian can borrow money tor the minor's
imperative needs. A partition of properties effected by the de facto guardian
is void, and not binding on the minor.
The period of limitation to set aside a transfer by the de facto guardian
is twelve years.

1979 Pat 59.

358
v. Nariam, AIR 1933 Oudh 97.