The sources of law of guardianship and custody are certain verses in the Quran and a few Ahadis. The Quran, the Ahadis, and other authorities on Muslim Law emphatically speak of the guardianship of the property of the minor, the guardianship of the person is a mere inference. under Muslim law as a 1. Guardian ship, 2. custody, and 3. De facto guardianship

Who is minor

It is defined as a minor means who has not completed the age of 18 years. A minor is assumed to have no capacity to protect his or her own interests. Law thus, 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 underneath the law to guard the person or property of a minor is called a guardian. Under Muslim law, guardians are needed for the aim of a wedding, for protecting the minor’s person and according to Section 3 of the Indian Majority Act, 1875, someone domiciled in the Republic of India who is below the age of eighteen years, is a minor.

A minor is one who has not attained the age of majority. Puberty and majority are presumed to have been attained on the completion of the 15 But now the Muslims in India are governed by the Indian Majority Act 1875. Except in the matters of marriage, divorce, and Mehr.

 The term ‘Guardianship’ (wilayat) indicates the guardianship of a minor. A minor is one who has not accomplished the majority age.  Majority and puberty are in the Muslim law indeed the very same. Puberty is attained at the age of fifteen years. In any case, presently the Muslims are controlled by the Indian Majority Act, 1875, apart from issues related to marriage, dower, and divorce for protecting the minor’s property.

Guardians and wards Act 1890

 Sec.4 (2) defines “a person having the care of the person of a minor, or his property or of both his person and his property.”

 Sec. 4 (3) defines Wards means “a minor for whose person or property or both there is a guardian. 

What is Guardianship?

A guardian means a person who has completed the age of 18 and is taking proper care of a minor and his property as well as his own. Under Muslim law, it is called HIZANAT. They are sometimes taken to mean the same thing. But underneath Muslim law, these two aspects of guardianship are different and are governed by different laws.

The guardianship of a child means the overall oversight of the kid throughout its minority. Father or his executor or in his absence, the paternal grandfather, being the natural guardian, is in charge of the minor’s person. On the opposite hand, ‘custody of the child’ simply means a physical possession (custody) of the child at a certain age.

Although the mother is not the natural guardian of the child under Muslim law, she has a right to custody of the child, until the child attains a specific age. But the father or the paternal grandfather encompasses control over the minor throughout the complete interval of the minority.

Muslim law recognizes three kinds of guardianship, namely

1. Guardianship of the person

 2. Guardianship of the property

 3. Guardianship of marriage

Guardianship of person

Legal Guardian (Wilayat – e – mal)

1. Legal Guardian (Dejure)

 2. Guardian appointed by the court. (Certified)

 3. De-facto guardian

4.. Guardianship of marriage (Jabar)

A Muslim law, guardians fall under the following three categories, they are :

1. Natural or Legal Guardian

 A natural guardian is one that encompasses a right to regulate and supervise the activities of a minor. Father is recognized as the natural guardian of his kid underneath all the schools of Muslim law. The father’s right to act as guardian of a minor is an independent right and is given to him underneath the substantive law of Islam. As long as the father is alive he is the sole and supreme guardian of his children. In Muslim law, the mother is not a natural guardian even of her minor illegitimate children but she is entitled to their custody.

A natural guardian is additionally known as a legal guardian. But within the absence of the father, the father’s executor might also act as a legal guardian. The executor could be one who is appointed by the father or grandfather to act as the guardian of his minor kid on his behalf.

Among the Sunnis, the father is the natural guardian of the minor children. after the death of the father, the guardianship passes to the executor. Shia, after the death of the father, the guardianship belongs to the grandfather, even if the father has appointed an executor, the executor of the father becomes the guardian only in the absence of the grandfather.

2. Testamentary Guardians

 A testamentary guardian may be one that is appointed as guardian of a minor beneath a will. Only the father or, in his absence, paternal grandfather has the right to appoint a testamentary guardian. Among Shias, the father’s appointment of a testamentary guardian is valid only if the grandfather is not alive.

 Among both Shias and Sunnis the mothers have no power of appointing testamentary guardians for their children. It is only in two cases :

1. The mother can appoint the testamentary guardian and that is When she has been appointed as the general executrix by the will of the children’s father.
2. She can appoint an executor in respect of her own property which will devolve after the death of her children.

 Practically, no distinction exists between the powers of a natural and testamentary guardian. It seems that the Muslim law-givers first lay down the power of an executor or testamentary guardian and then state that the natural guardian has the same powers. The Muslim law-givers also approach the subject from the point of view of the needs of the minor. After classifying the acts, they state which acts can be performed by whom.

 These acts may be divided into the following three points:

 a. Acts that are beneficial or advantageous to the minor

 b. Acts which are absolutely injurious to the minor

 c. Acts which are mid-way between the two.

 As to the activities falling under the first category any person whether a guardian or not, in whose care the child is, can perform those acts. Under this category fall such acts, as acceptance of gifts and alms. If the minor is of the age discretion he himself can perform them.

The facts which are absolutely injurious to the minor, such as emancipating a slave, or divorcing a wife, no person is empowered to do on behalf of the minor. As to the acts under the third category, such as the sale or hire of the property for profit, they can be done only by the father, grandfather, or the executor.

POWERS OF GUARDIAN UNDER NATURAL AND TESTAMENTARY: –

Whatever powers are having the testamentary guardians and then state that the natural guardians have the same powers.

1. Power of alienation

The guardian is allowed to dispose of the minors immovable properly only in exceptional cases.  It is clear that the sale of movable property is justified one for the necessity of the minor but on the basis of the conservation. In Meethiyan v. Md. Kunj AIR 1996 SC1003 – the father as a natural Guardian has the right to sell property minor but the sale by a mother who is not a legal Guardian nor testamentary Guardian, sale void.

2. Power to grant lease:

Ameer Ali takes view that the executor may give on lease the minors’ s property if there need to do so, and if it is advantageous to the minor, may be pledgee the goods and movable property of the minor if it is necessary for the maintenance of the minor. In case of need, a Guardian also has the power to pledge the goods or movable property but not for long period. In Zeebuniss v. Danaghar (1936)49 Mad 942, the court said that a guardian of the minor has the power to lease out the minor’s property if
it is for the benefit of a minor, but he cannot give leases of the minor’s property extending beyond the period of minority of the child.

3. Power to carry on business: Guardian must carry out business like an ordinarily prudent man and has the power to enter into partnerships on behalf of minors. The Fatawai Alamgiri empowers an executor to invest a minor’s property in partnership and he may enter into partnership with others. In Jaffer v. Standard Bank Ltd. 1929 PC 130, the Privy Council held that though the guardian had the power to enter into partnership on behalf of the minor, the minor’s liability was only to the extent to which he had shared in the partnership, in no case minor is personally liable.

4. Power to incur debts and enter into contracts:

The Guardian of a minor has the power to incur debts on behalf of the minor if there is an urgent need for it. In case of any necessity of minor and debt contracted without any necessity is not binding on the minor.

5. Power to make partition

The guardian power of partitions qualified one.  In case a guardian is appointed by the court with the general power to deal will all matters of the minor then the guardian has the power to effect a partition, if all are minors, the partition is invalid but if some of them are minor and some are adults, then if the adults are present, the executor can separate their share from the share of the minors and hand it over to them and retain the share of the minors with himself. But in no case the guardian should separate the shares of each minor as it is unlawful, the whole partition will result in invalidity.

6. Any other powers as per requirement :

The Bombay and Allahabad High Courts hold the opinion 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 i.e. legal guardian has the power to acknowledge debts on behalf of the minor.

Rights and Duties of guardian:

• Duty to support:
• Duty to file suits
• Duty to arrange the marriage of the ward
• Duty of the father to take charge
• Duty of the guardian not to use the ward’s property
• Duty to take proper care
• Duty to maintain proper accounts
• Duty to seek an opinion from the court.

3. Guardians appointed by the Court

 In case of the absence of a natural and legal document guardian, the court is authorized to appoint a guardian for the aim of the minor’s person or property or for both. The appointment of a guardian by the court is ruled by the Guardianship and Wards Act, 1890 which is applicable to all Indians irrespective of their religion.

 According to this act, the power of appointing or declaring any person as guardian is conferred on the district court. The district court may appoint any person as the guardian of the minor as well as his property whenever it considers it necessary for the welfare of the minor, taking into consideration the age, sex, wishes of the child as well the wishes of the parents. Such guardians are also called Statutory Guardian.

4. De-facto Guardians(Fazioli)

 A de-facto guardian is a person who is neither a legal guardian nor a testamentary guardian or statutory guardian but has himself assumed the custody and care of a child.

 According to Tyabji an l and de-facto guardian means an unauthorized person who, as a matter of fact, has custody of the person of a minor or his property.

 A de facto guardian could be a person having no authority for the guardianship however underneath the circumstances has taken the responsibility to act as the guardian of a minor. In Md. Amin v. Vakil Ahmad (1920) 47 Cal 713, the brother of the minor had entered into a family arrangement on behalf of a minor. It was held that the minor is not bound by such partition.

Powers of the De-facto guardian

 De-facto guardian has no power to transfer any right or interest in minors’ immovable property.  If the de-facto guardian had violated this rule the transaction will be traded as void ab-intio.  Power to alienate the property for satisfying the debts or legacies of the deceased.

5. Guardianship in marriage (Jabar)
Marriage is often contracted on behalf of the minors by the guardian. the father can impose the status of marriage on his minor children. This power of imposition is named ‘Jabar’, the abstract right of guardianship (wilayat), and therefore the guardian so empowered is understood as ‘Wali’.

Guardianship of the property

If a minor owns the movable or immovable property, a guardian is required to manage the property of the minor. The Muslim prescribed certain person in an order of preference who can be the guardian of a minor’s property as per Muslim law as follows:

Legal Guardian
The person who is entitled in the order mentioned below to be the guardian of the property belongs to the minor are:

1. The father
2. Father’s executer
3. Paternal grandfather
4. Paternal grandfather’s executor.

It may be said that the substantive law of Muslim does not recognize any other relative such as mother, uncle and brother as the legal guardian of the child. Only the father or father’s father may appoint them or any other person for the purpose of taking care of the minor’s property.

Except for the father and father’s father, no other person is entitled even not a mother is legally entitled to appoint by will, any person as the executor of the minor’s property.

2. CUSTODY

Under Muslim Law custody can be called Hizanat, the mother has the right of custody and care of children during the period laid down in Muslim Law. The mother’s right is slowly recognized in the interest of children. under Muslim Law considers the right of Hizanat as no more than the right of rearing of the children, it terminates at an early age of the child, a distinction between son and daughter. Under Muslim, Law guardians are entitled to the physical (tahwil) and upbringing (parvarish) of the minor.

According to Radd-ulMuhatar, “the right of a mother to the custody of her child is re-established whether she be a Mosalman or a Kitabia or a majoosia, even though she be separated from her husband. But she should not be an apostate”. Since Muslim law considers the right of Hizanat as no more than the right of rearing of the children, it terminates at an early age of the child. In this regard, Muslim law makes a distinction between the son and the daughter.

To Son:

Hanafi, Shafi’s and Hanabalis School mother right of hizanat is 7 years, Maliki’s school son continues till the child attains the age of puberty. after the completion of this age /attains puberty father is entitled to the custody of his son.

Shia’s mother is entitled to the custody of her son until he is weaned.(completed the age of 2 years, then the father is entitled to custody of his son.

2. Daughter:

Hanafi School mother custody of her daughter till the age of puberty. Maliki’s, Shafi’s, and Hanbali school the mother’s right of custody over her daughters continues till they are married.

In Shia’s particularly Ithana Ashari School mother has the right to custody of her Daughter till they attain the age of seven years.

in all the schools of Muslim Law, the mother has the right to the custody of her married daughter below the age of puberty in preference to the husband. The mother has the right of custody of her children up to the ages are specified in each school, irrespective of illegitimate/legitimate.

Applicability of Muslim personal law (Shariat) to custody matters

 The Guardians and Wards Act, 1890, is the enactment that regulates and governs the law relating to the appointment and declaration of guardians; duties, rights, and liabilities of guardians, and all laws relating to the Guardian and Ward.

  As per Section 4 of the Guardians and Wards Act, 1890 a minor is a person who, under the provisions of the Indian Majority Act is deemed not to have attained the age of majority.

  As it is well known that the age of majority for a person in India has been defined under Section 3 of the Indian Majority Act, 1875 stipulates “that every person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before”. Thus on the face of it an inference is drawn that all persons are considered minors if he or she has not attained the age of 18 years.

 The question that emerges is whether the Muslim personal law (Shariat) would also be applicable to a proceeding under the Guardianship Act.

 As stated earlier Section 6 gives scope for the application of the personal law to which the minor is subjected to. Further Section 17 of the G&W Act also stipulates that a guardian has to be appointed in consonance with the personal law by which the parties are governed. He said the legal proposition was amply dealt with by the Hon’ble High Court of Delhi in Akhtar Begum vs Jamshed Munir, which held that “the personal law of the parties has to be kept in view in deciding an application for custody by virtue of the mandate of Section 6 of the Act. If a Court does not keep that in view it would be acting illegally and with material irregularity”.

 The Hon’ble Court further reiterated that in consonance with section 2 of the Majority act which states that its provisions do not impact on matters of marriage, dower, divorce, and adoption, the Indian Majority act cannot be looked into while ascertaining the age of a minor and the personal law of the parties would be the driving factor.

CONCLUSION

Guardianship under Muslim Law is an essential part of the personal laws of people and with the passage of time, it has been codified by way of legislation. The Guardians and Wards Act is the legislation passed by the Parliament that deals with the laws and processes related to guardianship in India.