Family Law - I

Guardianship under Muslim Law

Guardianship of a minor person means the overall supervision of the minor’s temperament. It means that the care and welfare of the kid together with the liability to take care of it. It is more than mere custody of the kid upon a particular age. Let us learn more about Guardianship under Muslim Law.

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Guardianship under Muslim Law

Who is a Minor?

According to Section three 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 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 for protecting the minor’s property.

Guardianship under Muslim Law

What is Guardianship?

Under Muslim law, it is called HIZANAT. They are sometimes taken to mean the same thing. But underneath Muslim law, these two aspects of the guardianship are different and are governed by the different laws.

The guardianship of a child means that 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 upon a certain age.

Although the mother is not the natural guardian of the child under Muslim law, she has a right to the 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 the following kind of guardianship:

  1. A natural or legal guardian
  2. Testamentary guardian
  3. Guardian appointed by courts or statutory guardian
  4. De-facto guardian

Natural or Legal Guardian

Natural guardian is a 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.

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.

Thus, the natural guardian of a minor in order of priority are as follows:

  1. Father
  2. Executor of father
  3. Paternal grandfather
  4. The executor of Paternal grandfather

Under Muslim law within the absence of any of the above-mentioned persons, no one else is recognized as the natural guardian of a minor.

Shia Law

Within the absence of father only paternal grandfather could act as a legal guardian. In the presence of paternal grandfather, the father’s executor has no right to act as legal guardian of a child.

Testamentary Guardians

A testamentary guardian may be a one that is appointed as guardian of a minor beneath a will. Only father or, in his absence, paternal grandfather has the right to appoint a testamentary guardian.
A non-Muslim and a feminine might also be appointed as a testamentary guardian.

Shia Law

A non- Muslim cannot be chosen as a testamentary guardian.

Guardians appointed by 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 the Indians irrespective of their religion. Such guardians are also called Statutory Guardian.

De-facto Guardians

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 a de-facto guardian means that 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.

Questions on Guardianship under Muslim Law

Ques. Under Sunni law Failing the mother, the custody of a boy under the age of seven years belongs to:

  1. Father
  2. Paternal uncle
  3. Brother’s wife
  4. None of these

Ans: The correct answer is ‘d’

Ques. Under Shia law Failing the mother, the custody of a boy under the age of seven years belongs to:

  1. Father
  2. Paternal uncle
  3. Brother’s wife
  4. None of these

Ans:  The correct answer is ‘a’

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