Guardianship under Muslim law

• Guardianship of person- leads with custody as well as

property of minor.
• Guardian- deal with property of minor- prudent &
reasonable manner.
• In Muslim law- Guardianship of person: can be
divided into three categories:
1. Guardianship of person (Walayat-e-Nafs)
2. Guardianship during marriage (Walayat-e-nikah)
3. Guardianship of property of person (walayat-e-Mal)
 Guardianship of Person
(Walayat-e-Nafs)

• Custody of minor- on basis of age of person.

• Sunni Law- male child below-7 yrs & female child- till attains puberty-
given to mother as no other person can better look after the child- but not
an absolute rule.
• Shia Law- male child below-2 yrs & female child- 7 yrs- given to mother.
• In absence of mother- father & in his absence it is father’s father’s - takes
control of child.
• Child- in custody of mother but general supervision- father.
• Mother’s right to custody of child up to prescribed age- not her absolute
right.
• Sunni law- father claim custody- boy- above 7 yrs & of unmarried
daughter- attained puberty.
• Shia law- boy- above 2 yrs & of unmarried daughter- 7 yrs or more.
Case law-
 Zynab Bi v. Mohd. Ghouse.
 Guardianship of Person
(Walayat-e-Nafs) Continues…

Illegitimate child
Rule of filius nullis applies- custody given to mother of child up to age of 7 yrs &
after that discretion of child applies.
Disqualification
 Females
Mother loses right- if fails to take proper care of child/ an immoral woman/
marries a person not related to child within prohibited degree/ resides at
place which is distant from father’s place of residence.
 Males
Sunni law- female minor child- not related to male within prohibited degrees.
Shia law- father is guardian and after him father’s father or paternal grandfather
 Husband- custody- given to mother till time she attains puberty or when she
is capable of consummating marriage after that custody is to be taken by
husband.
 Guardianship in Marriage
(Walayat-e-nikah)
• Marriage important. Essentials of marriage- competent to enter
into marriage contract.
• Sunnis- list of guardians- got right to give child in marriage:-
• The father/ the paternal grand father,how highsoever/ full brother
& other male relations which are on father’s side, In order of
inheritance which is given under residuaries / mother of child/
maternal relations which are in prohibited degrees/ the Qazi or the
Court.
• Shia- only father & in his absence paternal grandfather- right to give
minor in marriage.
These persons- validly contract marriage of minor. Minor – got right
either to ratify/repudiate marriage on attaining age of puberty i.e.
15 yrs.
• Right given to person even though guardian had not acted
negligently.
 Cessation of Guardian of person
S. 41(1) of guardian & Wards Act, 1830- cessation of authority of guardianship
of person.
The powers of a guardian of the person cease in following cases:
1. On his death, removal or discharge;
2. Court of Wards assuming superintendence & control of the person of the
ward
3. child ceasing to be a minor
4. In the case of a female ward, by her marriage to a husband who is not unfit
to be guardian of her person or, if the guardian was appointed or declared
by the Court, on her marriage to a person which in the opinion of the Court
is fit to be her guardian.
5. in case of a child whose father was unfit to be guardian of the person of the
ward by the father ceasing to be so or, if the father was deemed by the
Court to be so unfit, by his ceasing to be so in the opinion of the Court.
 Guardianship of property of person
(walayat-e-Mal)

Different categories of guardians :-

1. Natural or legal guardian- called as dejure guardian.
a) Father
b) Executor appointed by will of father
c) Father of father
d) Executor appointed by will of father of the father
Barring these persons, no other person is considered to be
guardian of minor’s property.
Note:- Mother, brother, uncle- not considered to be legal or natural
guardian.
Case Law
 Meethiyan v. Md. Kunju
 Powers of Legal Guardians with Respect to
Properties of Minor
Property can be divided into two categories- movable/ immovable
• Movable- Legal Guardians for purpose- food/ clothing/ nursing- got power to sell,
pledge & chattels of minor for minor’s basic needs.
• Immovable- guardian has no power to alienate minor’s property. There are
exceptions to it & executor can sell immovable property of minor:
a) Maintenance of minor, when there are no other means
b) When property is in a decaying condition.
c) When expenditure crossing income of property
d) When debts taken by deceased & there are no other means to pay them.
e) Where property encroached & wrongfully seized & guardian strongly believes
there are no chances of recovery.
f) Where sale of property would bring double its value.
g) Where no other means of paying debts of deceased.
• Guardian under Muslim Law- deal with minor’s property- as a prudent
person/ordinary person.
• An improper alienation- by guardian-voidable & minor can ratify on attaining
majority.
 Testamentary Guardians
• Appointed by will.
• Sunni Law- father- power to appoint Testamentary Guardians. If father
absent-power given to executor appointed by father. If both absent- power
to appoint Testamentary Guardians- on grandfather.
• Shia Law- if grandfather not alive- father has power to appoint
Testamentary Guardians.
• In Muslims- mother- no power until she appointed as executrix by father
of child or in cases where property devolve on her children after she has
died.
• Testamentary Guardians- can be appointed orally(written not mandatory).
• Once appointed & accepted Guardianship- cannot renounce it except
permission of court.
• Testamentary Guardians- governed by Guardian & Wards Act,1890.
• They have same powers as that of natural or legal guardians until & unless
they are restricted by will of the testator.
 Certified Guardians
• Guardians appointed by Court.
• When legal guardian- not there- court competent to appoint a
guardian foe minor to protect his property.
• Court- consideration- welfare of minor/personal law of
minor/wishes of parents/sex of minor/ character of person
appointed as Guardian.
• No compulsion on court- only consideration is welfare of child.
• Guardians- without prior permission of court cannot
mortgage/sell/gift/exchange property.
• They cannot lease any part of property for a term exceeding 5
yrs or for any term extending more than 1 yr beyond the date
on which ward will cease to be a minor.
 Defacto Guardians
• Not natural/ testamentary/legal Guardians.
• Muslim law- not recognize.
• Guardians- who place themselves in position of guardian by interfering with affairs of
minor.
• Close relative of minor.
• Assumes Guardianship of child on his own without any auth. from law & hence transfer
off any immovable property without auth. from court is void.
• Question of ratification- not arise later on.
Case Law
 Mir Sarwarjan v. Fakhruddin
Cessation of Guardian of Property- Guardian & Wards Act, 1830, S.41(2)
• on his death, removal or discharge;
• Court of Wards assuming superintendence of the proper­ty of the ward; or
• on ward ceasing to be a minor.
41(3) if guardianship of person ceased, court may direct him or his representative in
case that person has died to hand over any property of minor which was in his hand or
for that matter any accounts or any control of past or present property of the minor.
 Removal of Guardian
• S.39 The Guardians and Wards Act, 1890- Removal of Guardian. Guardian can be
removed in interest of minor. The Court on its own motion or on basis of
application of any person interested remove a guardian on the following basis:
• When there is abuse of his trust
• continuous failure to perform the duties of the trust
• incapacity to perform the duties of the trust
• Negligence to take proper care of child
• Persistent disregard of provisions of The Guardians and Wards Act, 1890- or any
order passed by Court;
• conviction of an offence implying, in the opinion of the Court, a defect of character
which unfits him to be the guardian of his ward;
• having an interest adverse to the faithful performance of his duties
• ceasing to reside within the local limits of the juris­diction of the Court
• for bankruptcy or insolvency in case of guardianship of property.
• by reason of the guardianship of the guardian ceasing, or being liable to cease,
under the law to which the minor is subject.