1
LAW OF GUARDIANSHIP The source of law of guardianship and custody are certain verses in the Quran and a few Ahadis. The Qurun, 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. Guardian includes any person having legal custody or control over child. Under Muslim Law, the notion of guardianship is subsisting from the beginning. Its source is found in some verses of the Quran and Ahadis though a little is found about guardianship of a person. For example, according to Rudd-ul-Mukhtar, the right of guardianship of the minor‟s property belongs to the father and in his absence to his executor, but if an executor has not been appointed, then to the grand-father. After the death of grandfather, the right goes to grandfather‟s executor, and if the executor has not been appointed by him then to the Kazi who may himself act as such, or may appoint someone to act on his behalf. Definition of Guardian :- A guardian is a person who acts on behalf of a minor. Such action of a guardian is known as guardianship. The term „Guardianship‟ (Wilayat) connotes the guardianship of a minor. Statutory Definition :- A person who has the legal responsibility for providing the care and management of a person who is incapable, either due to age (very young or even very old or to some other physical, mental or emotional impairment, of administering his or her own affairs. In the case of a minor child, the guardian is charged with the legal responsibility for the care and management of the child and of the minor child‟s estate. The term „guardian‟ has been defined under many Acts and there is almost similarity in the meaning given under these Acts. Under section 2 of the Children (Pledging of Labour) Act, 1933 „guardian‟ includes any person having legal custody of or control over a child. According to section 2(k) of the Children Act, 1960, „Guardian‟ in the opinion of the competent authority having cognizance of any proceeding in the relation to a child, has, for the time being, the actual charge, or control over, that child, According to the section 4(2) of the Guardian and Wards Act, 1890, „Guardian‟ means a person having the care of the person of a minor or of his property, or of both his person and property. Under section 4(b) of the Hindu Minority and Guardianship Act, 1956, „Guardian‟ means a person having the care of the person of a minor or his property or of both his person and property. Who is a minor? A minor is one who has not attained the age of majority. Puberty and majority are, in the Muslim Law, one and the same. Puberty is presumed to have been attained on the completion of the fifteenth years. But now the Muslims are governed by the Indian Majority Act, 1875, except in matters relating to marriage, divorce and dower. The existing position regarding the age of majority in such cases is given as below: Fifteen years is the age of majority for the purposes of marriage, dower and divorce. At or above this age, he or she is free to do anything in the sphere of marriage dower and divorce.
2
According to Section 2 of the Child Marriage Restraint Act, 1929 (as amended in 1978), the minimum age for Marriage is 21 years for males and 18 years for females. Fighteen years is the age of majority in general. As regards other matters of guardianship of person and property, a Muslim will be governed by the Majority Act which prescribes 18 years as the age of majority. Thus, in cases of wills, waqfs, etc., minority will terminate on the completion of 18 years. Twenty-one years is the age of majority if the minor is under the Court of Wards, or a guardian of him has been appointed by the Court. Under Muslim Law, any person who has attained puberty is entitled to act in all matters affecting his or her status or his or her property. But that law has been materially altered by the Indian Majority Act, and the only matters in which a Muslim is now entitled to act on attaining the age of fifteen years, are—(l) marriage, (2) dower, and (3) divorce. In all other matters, his minority continues until the completion of eighteen years. Until then the Court has power to appoint a guardian of his person or of property or both under the Guardians and Wards Act in which case the age of minority is prolonged until the minor has completed the age of twenty-one years. Appointment of Guardian.—When the Court is satisfied that it is for the‟elfare of a minor that an order should be made for appointing a guardian of his person or property or both as declaring a person to be such guardian, the Court may make an order accordingly. Section 15(1) of the Guardians and Wards Act, 1890 permits for the appointment of joint guardian where the Court has appointed joint guardian and any one of them has died, the survivor continues to act as guardian. Section 19 of the Act says that in case the superintendence of the property of a minor has been assumed by a Court of wards under any local law in force: (1) The Court shall not be able to appoint a guardian of property under the Guardians and Wards Act. (ii) in case the Court has been empowered to appoint a guardian of person for the minor, the same cannot be done by a Court under the Guardians and Wards Act. State Governments are also empowered to appoint Court of Wards. The main aim of these courts is to constitute ward courts for the purpose of regulating, constitution, working and powers of Court of Wards. Sections 6, 19 and 21 of the Guardian and Wards Act provides that in the following matters, the courts should not interfere with the question of guardianship of a minor: Where a guardian of the minor‟s person, property or both has been lawfully appointed under a will in accordance with the law to which the minor is subject . Section 41 of the above Act says that a guardian appointed by the Court or a testamentary hail cease to be guardian on the happening of any one o the following incidents: (i) in the case of the death, removal or discharge of the guardian; (ii) on attaining majority by the minor;
3
(iii) in the case of guardianship of person, a guardian shall cease to have any power: (i) on the marriage of the minor, if female to a person not unfit to be guardian of her person; (ii) on attaining majority by the minor; (iii) in the case of guardianship of person, a guardianship shall cease to have any powers— (a) on the marriage of the minor, if female to a person not unfit to be guardian of her person; (b) revival of guardianship right of the person in whose disability another person acted as the guardian; (iv) in the case of a guardianship of property a guardian shall not be entitled to act as guardian on the assumption of the superintendence of the minor‟s property by a Court of wards. CLASSIFICATION OF GUARDIAN :- Muslim law recognises following kinds of guardians: I. Natural guardian II. Testamentary guardian III. Guardian appointed by court 1V. De facto guardian. I. Natural guardian :- In all schools of both the Sunnis and the Shias, the father is recognized as guardian which term in the context is equivalent to natural guardian and the mother in all schools of Muslim law is not recognized as a guardian, natural or otherwise, even after the death of the father. The father‟s right of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The father has the right to control the education and religion of minor children, and their upbringing and their movement. So long as the father is alive, he is the sole and supreme guardian of his minor children. The father‟s right of guardianship extends only over his minor legitimate children. He is not entitled to guardianship or to custody of his minor illegitimate children. In Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody. Among the Sunnis, the father is the only natural guardian of the minor children. After the death of the father, the guardianship passes on to the executor. Among the Shias, after the father, the guardianship belongs to the grand-father, even if the father has appointed an executor, the executor of the father becomes the guardian only in the absence of the grandfather. No other person can be natural guardian, not even the brother. In the absence of the grand-father, the guardianship belongs to the grand-father‟s executor, if any.‟ Natural guardians are legal guardian or de jure guardian. Under Muslim law, father is the natural guardian, of the minor or lunatic and its property, though the expression „natural guardian‟ has never been used by the jurists and law givers, mother is not recognized as a guardian not even after the death of the father. Natural guardian is a person who has a legal right to control and supervise the activities of a child. Father is recognized as the natural guardian of his child under all the schools of Muslim law. The father‟s right of guardianship exists even when the minor is in the custody of
4
its mother or any other person.‟ He is the sole and supreme guardian of his minor children until his death. In a significant ruling, the Delhi High Court has said that the maternal grandmother is not the natural guardian of a child under Mohammedan law as long as his or her father is alive. „May be that under the Mohammedan law the maternal grandmother be entitled to the custody of the minor up to a certain age but even according to Mohammedan Law, she is not the natural guardian in the presence of the father,‟ a division Bench comprising Justice Devinder Gupta and Justice Mukul Mud gal has ruled. Dismissing an appeal by mother-in-law of Suhaib Ilyasi, producer of popular television crime serial „India‟s Most Wanted‟, for the court‟s intervention in a single judge bench order restraining her from taking custody of his three-year-old daughter Aailya, the court said “the father alone is the natural guardian” of the child. The court said “under the Guardian and Wards Act, the word guardian is used in a wide sense. It does not necessarily mean a guardian duly appointed or declared by the court.” Ilyasi‟s mother-in-law Rukma Singh, who lives with her daughter in Canada, had challenged the single judge bench order restraining her from taking forcible custody of Aailya. The main contention of Rukma Singh, a Hindu, was that she was entitled to custody of the daughter of Ilyasi, who is a Muslim, as under Mohammedan law maternal grandmother has such a right. Ilyasi challenged her writ on the ground that he and his wife Anju had a registered marriage in 1993 in a London Court and therefore provisions of Mohammedan Law would not be entirely applicable in this case. The Bench, however, said the question whether personal law on the minor would or would not be applicable or as to who was entitled to have her care and custody “up to a particular age” would have to be gone into and decided upon in appropriate proceedings in a competent court of law. The court further said that it was not dealing with the complicated questions like welfare of the minor or whether the petitioner, who did not have physical control of the child when the suit was filed, was entitled to an interim injunction. Under the Sunni law, after the death of the father his executor becomes the guardian. But under the Shia law, after the death of the father the grand-father becomes the natural guardian even though an executor has been appointed by the father. The father‟s executor becomes the guardian only in the absence of the grandfather. Once a grand-father becomes the guardian, he may appoint his executor who will be the guardian in his absence. Thus, the natural guardian of a minor, in order of priority, are as under: (a) Father (b) Executor of father (c) Paternal Grand-father (d) Executor of paternal grand-father. Under Muslim law, in the absence of any of the above mentioned persons, no body else is recognised as the natural or legal guardian of a minor.‟ Shia Law: According to Shia law, after the death of the father, the paternal grandfather becomes the natural guardian.
5
II. Testamentary Guardian or Wali :- A testamentary guardian is also called wali or amin or karim-mukam. Testamentary guardian is a person who is appointed as guardian of a minor under a Will. Among the Sunnis, the father has full power of making a testamentary appointment of guardian. In the absence of the father and his executor, the grand-father has the power of appointing a testamentary guardian. Among the Shias, the father‟s appointment of testamentary guardian is valid only if the grand-father is not alive. The grandfather, too, has the power of appointing a testamentary guardian. No other person has any such power. Under both the laws, a mother has no power of appointing a testamentary guardian for her minor children except in two cases: (a) When the father of the minor appoints her by his Will, an executor, then she has power to appoint a testamentary guardian; (b) In the case of her own property while Will devolve on her children after her death, she can appoint a testamentary guardian. The mother can be appointed a testamentary guardian or executrix by the father, or by the grand-father, whenever he can exercise this power. Among the Sunnis, the appointment of a non-Muslim mother as testamentary guardian is valid, but among the Shias such an appointment is not valid, as they hold the view that a non-Muslim cannot be a guardian of the person as well as property of a minor. It seems that the appointment of non-Muslim fellowsubject (Zimmi) is valid, though it may be set aside by the Kazi. It appears that when two persons are appointed as guardians, and one of them is disqualified, the other can act as guardian. A profligate, i.e., a person who bears in public walk of life a notoriously bad, character, cannot be appointed as guardian: Acceptance of the appointment of testamentary guardianship is necessary, though acceptance may be express or implied. But once the guardianship is accepted, it cannot be renounced save with the permission of the court. A testamentary deposition made by a testator may be invalid, but appointment of the executor may be general or particular. The testator must have the capacity to make the Will at the time when it was executed. This means, that the testator should be major and of sound-mind, i.e., at the time of execution of the Will, he should be in full possession of his senses. The executor of the testamentary guardian is designated variously by Muslim lawgivers, indicating his position and powers. He is commonly called wali or guardian. He is also called amin, i.e., a trustee. He is also termed as kaim-mukam, i.e., personal representative of the testator. Formalities for appointing testamentary guardian: Muslim law does not lay down any specific formalities for the appointment of testamentary guardians. Appointment may be made in writing or orally. In every case the intention to appoint a testamentary guardian must be clear and
6
unequivocal. For the validity of appointment of a testamentary guardian, the following formalities are to be observed: (i)
Intention of the testator to appoint a testamentary guardian must be clearly worded and unequivocal.
(ii)
An oral or a written appointment of a testamentary guardian may be made.
(iii)
Acceptance of the testamentary guardian after his appointment is necessary. Such acceptance may be express or implied.
IV. Defacto Guardian :- A de facto guardian is a person who takes continuous interest in the welfare of the minor‟s person or in the management and administration of his property without any authority of law. Family jurisprudence has all along recognized the principle that if liability is incurred by one on behalf of another in a case where it is justified, then the person, on whose behalf the liability is incurred or, at least, his property, is liable, notwithstanding the fact that no authorization was made for incurring the liability. The term ‘defacto guardian‟ as such is not mentioned in any of the texts, but his existence has never been denied in Family law. Family law tried to find a solution out of two difficult situations — one, when a child has no legal guardian, there would be no one who would handle and manage his estate in law and thus without a guardian the child would not receive any income for his property and secondly, a person having no title could not be permitted to intermeddle with the child‟s estate so as to cause loss to him. The family law found a solution to this problem by according legal status to de facto guardians. When a person voluntarily takes the charge of the estate of a minor, his act confers on him the status of a defacto guardian. In other words, a defacto guardian is a person who is neither a legal guardian nor a testamentary or statutory guardian, but has himself assumed the custody and care of a child. In a nutshell, he is a self— appointed guardian. The only condition for being a defacto guardian is that his act or course of conduct in respect of a minor‟s property must be continuous. Kinds of guardianship.—Muslim Law makes a distinction between guardian of the person, guardian of the property and guardian for purposes of marriage (Wilayat-uI-nikah) in the case of minors. Mohammedan Law recognises three kinds of guardianship They are as follows (i) Guardianship in marriage (jabar) — (ii) Guardianship of person of the minor for custody (Hizanat). (iii) Guardianship of property which has been sub-divided into: (a) Dejure guardianship. (b) defacto guardianship. (c) certified guardianship.
7
(i)
Guardianship in marriage (jabar).—As stated in the Chapter of Marriage, it is one of the essentials of a valid marriage that the parties are competent to enter into marriage contract, i.e., among other things they must have attained the age of puberty. However, this general rule admits one exception i.e., where the marriage is contracted on behalf of the minors by the guardian. This exception is the most distinguishing feature of Islamic jurisprudence because it empowers a father to impose status of marriage on his minor children. This power of imposition is called (jabar), the abstract right of guardianship (wilayat), and the guardian so empowered is known as Wali. Thus, under the Muslim Law of all schools, the father has the power to give his children of both sexes in marriage without their consent, until they reach the age of puberty—known as bulugh. It is to be noted, however that in respect of marriage guardianship no one can be appointed guardian by the Court. It is the substantive law itself that declared who, for the purpose of marriage, possesses the patria potestas; the Court cannot appoint Wali for marriage although, in some cases, the Quazi or Court itself can act at as a marriage guardian.
Persons entitled. —The following is the list of persons who can act as guardians in the marriage of a minor, in the order of enumeration. 1. The father. 2. The father‟s father, how high so ever. 3. Full brother and other male relations on the father‟s side, in order of inheritance given under residuaries. 4. Mother. 5. Maternal relations within prohibited degrees. 6. The Qazi or the Court. Shia Law recognises only the father and failing him the father‟s father how highsoever as guardian in the marriage of a minor. Marriage performed by remoter guardian is void.—The rule of Muslim Law is that when a remote guardian allowed a boy or a girl to marry, when the nearer one is present. the validity of the marriage is dependent upon the latter‟s ratification and consent. This rule contemplates a case where the boy or girl is given in marriage by a person who in order of priority comes immediately after the proper guardian at that time. In fact the consent of the nearer guardian may have the effect of transferring the authority to the remoter guardian and exactly the same happens when the nearer guardian resides at a distance and no communication is possible with him. This rule cannot apply to a case where as between the nearer guardian and the one who actually disposes of the minor in marriage, there are other relations who have preferential rights of guardianship. Such a marriage by a remoter guardian when the nearer guardian is present and has given his consent is not only irregular but void. The legal consequences would be that it may be terminated by a single declaration on either side, consummation of marriage does not stand in the way of terminating it when the marriage is invalid.
8
Under the Muslim Law where a minor is contracted in marriage by any guardian other than the father or father‟s father, the minor has the option to repudiate the marriage on attaining puberty. It is not clear where a minor is given in marriage by a guardian other than the father or grandfather, he may be able to exercise his right of repudiation of marriage on the completion of 15 years or on the completion of eighteen years. Under the Muslim Law, where the marriage is contracted for the minor by the father or father‟s father, the minor has no option on attaining puberty, unless the contract is to the manifest disadvantage of the minor or has been fraudulently or negligently entered into. Under the Dissolution of Muslim Marriage Act, 1939 the right of repudiation of Muslim female has been modified. Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 says that a woman married under Muslim Law will be entitled to obtain a decree for the dissolution of her marriage if she proves (i) that she having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, and (ii) that the marriage has not been consummated. The Guardian and Wards Act, 1890 is silent regarding the appointment of guardian in marriage. Under this Act the courts are having jurisdiction only in the matter or guardianship of person and guardianship of property. Similarly, a person appointed or declared by the Court can act as marriage guardian. Power of a guardian for Marriage (i) Power to contract marriage of a minor or lunatic: A guardian for marriage may give minor or a lunatic in marriage and such marriage is valid, though it may be repudiate by the minor by way of option of repudiation of option of puberty. A minor‟s or a lunatic‟s marriage without the consent of a guardian is not valid.‟ (ii) Power to contract of dower: A guardian may contract for dower in the marriage of a minor or lunatic. A father or a grandfather may contract an inadequate dower which is binding on the parties to a marriage, but such inadequate contract made by any other guardian is not valid. (iii) Power of contracting conditions: A guardian may at the time of marriage, enter into certain matrimonial conditions. But such condition should be lawful and reasonable. For example, an authority to pronounce Talaq given to the wife in a marriage contracted by the guardian of a minor is binding. (iv) Power to pronounce Talaq: Under the Shia law, the guardian of a lunatic who has attained puberty and who is of unsound mind may pronounce a Talaq, if it is necessary in the interest of the lunatic.4 But the guardian of a minor is incompetent to pronounce a Talaq for a minor wife under all the laws. (v) Power to relinquish Dower: Under the Shia law, the father or grand-father is entitled to make relinquishment is not fraudulent. The wife‟s guardian may relinquish ½ of the dower to which
9
she would be entitled in the event of Talaq before consummation. The husband‟s guardian has no legal power to give up his word‟s right to half the dower in the event of Talaq before consummation. But either of these guardians cannot discharge the entire dower.
Testamentary guardians for marriage.—Under Muslim Law, testamentary guardians for marriage are not recognised. A father has no power to appoint any person as guardian for marriage by his will. Effect of apostacy on guardianship for marriage.—The Question whether a convert from Muslim to another faith is capable of contracting a valid marriage of a Muslim minor as the guardian of the minor is still an open issue. Under pure Muslim Law, a person loses his right to guardianship in marriage as soon as he gets converted to another faith. However, the Caste Disabilities Removal Act of 1850 provides that a person does not lose his right of property if he is converted to another faith. Hon‟ble Chief Court of Punjab Gui Mohammad v. Mst Wazir in a case where the father had converted from Mohammadanism to Christianity but he was only parent alive of a boy of eight years and a girl of four years and the grandmother of children was contesting for guardianship of the two minors and their property. However, none of these cases is a direct authority on the above subject, i.e., guardianship in marriage. Hizanat (Custody) :- All Muslim authorities recognize the mother‟s right of hizanat. According to the Rudd-uL-Muhtar, „The right of the mother to the custody of her child is re-established whether she be a Mosalmart, or a kitabia or a majoosia, even though she be separated from her husband. But it does, not belong to one who Is an apostate. “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. The term hizanat is applied to the woman to whom belongs the right of rearing up a child. Of all the persons, the first and foremost right to have the custody of children belongs to the mother, and she cannot be deprived of her right so long as she is not found guilty of misconduct.‟ Mother has the right of custody and care of children during the period laid down in Muslim Law, so long as she is not disqualified from retaining them. The mother‟s right of hizariat is recognised in the sense that it can be enforced against the father or any other person, but it is a right to which obligations, are attached. The mother‟s right of hizanat is solely recognized in the interest of children, and, in no sense, it is an absolute right; she cannot exercise it the way she likes to exercise it. Mother‟s right of hizanat is, in fact, a right of rearing up of children. If she is not found suitable to bring up the child, or her custody is not conducive to the physical, moral and intellectual welfare of the 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 at
10
an early age of the child. In this regard Muslim law makes a distinction between the son and the daughter. The son.—According to the Fatwa Alamgirt, the mother is entitled to the custody of a boy until he is independent of her care, that is, until he is seven years old. The Shias hold the view that the mother is entitled to the custody of her son until he is weaned. (This is considered to be the completion of two years), and that during this peiod the mother cannot be deprived of the custody of her son under any circumstances whatever, except with her owr consent.4 On the completion of the age of two by the son, the mother‟s right of custody terminates. The Daughter.—Among the Hanalls, the mother is entitled to the custody of daughters till they attain the age of puberty. Among the Malikis, the Shafis and the Hanbalis, the mother‟s right of custody over her daughters continues till they are married. On the other hand, under the Ithana Ashari law, the mother is entitled to the custody of her daughters till they attain the age of seven. 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 specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Since the right of hizanat of the mother is a right of rearing up of children given to her in the interest of children, she cannot surrender her right to any person, including her husband, the father of the child. For instance, if she obtains khula from her husband on the stipulation that she would surrender her right of hizarzat to the father of the child, the khula will be valid and the stipulation will be void. Further, the mother cannot be deprived of her right of hizanat on the ground of her property; 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 Hanafis, the following females are, after the mother, entitled to hizanat of the minor children of the age up to which the mother is entitled to it (the list is as given by Mulla): (a) Mother‟s mother, how high so ever,‟ (b) Father‟s mother, how high so ever, (c) Full sister, (d) Uterine sister, (e) Consanguine sister, (f) Full sister‟s daughter, (g) Uterine sister‟s daughter, (h) Consanguine sister‟s daughter. (I) Maternal aunts, In like order as sisters, and (j) Paternal aunts, in like order as sisters. Under the Shia school, after the mother the hizanat belongs to the father. In the absence of both the parents, or on their being disqualified, the grandfather is entitled to the
11
custody. Authorities are not clear as to who Is entitled to the custody after the grandfather.‟ Some Shia authorities have laid down certain rules of preference on the basis of which the text book writers have compiled a list of persons who are entitled to the custody of minor children, in the absence of the grandfather. Father‟s right of hizanat,—AL1 the schools of Muslim law recognize the right of the father to the custody of his minor children in the following two cases : (i) on the completion of the age by the child up to which mother or other females are entitled to its custody, and (ii) In the absence of the mother or other females who have the right to hi.zartat of minor children. The father cannot be deprived of the right of hizanat of his male child of seven years if he is not found to be unfit. The father‟s right of hizanat continues till the child attains puberty. It appears that among the Shaffis and the Hanbalis, the father is entitled to the custody of his female children till they are married. Whether or not the father can deprive the mother, or any other female entitled to the custody of a child by appointing a guardian by his Will, Is not free from doubt. Other male relations entitled to hizanat.—In the absence of the father in both the aforesaid cases, the following persons are, according to the HanafIs, entitled to the custody of children: (i) nearest paternal grandfather, (ii) full brother, (Iii) consanguine brother, (iv) full brother‟s son, (v) consanguine brother‟s father, (vi) full brother of the father, (vii) consanguine brother of the father, (viii) father‟s 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, to the grandfather. As to who is entitled to hizanat after the grandfather, the Shia authorities are not clear. In no case a person not related to the child within the prohibited degrees is entitled to the custody. Among the Malikis, the persons entitled to the custody after the father are, the father‟s executor, the father‟s son, the father‟s nephew, the father‟s uncle, and the father‟s cousin. When Right of Hizanat may be lost by a Hazian :- According to the Rudd-ul-Muhtar hazina (female entitled to custody) should be free, adult, trustworthy and capable of bringing up the child, and not married to a stranger. It seems that all the schools of Muslim law agree that a hizanat should be: (i) of sound mind, (ii) of good moral character, (iii) living at such a place where there is no risk, morally or physically, to the child, and
12
(iv) of such an age which would qua1ir her to bestow on the child the care it may need—this will not apply to mother. All the schools of Muslim law also agree that a hazina will forfeit her right of hizanat In any of the following cases: (a) by her apostasy, (b) by her marriage to a person not related to the child within the degrees of prohibited relationship,. (c) by her misconduct, such as negligence or cruelty towards the child, and (d) by her going away and residing, during the subsistence of marriage, at a distant place from father‟s place of residence. (i)
Insanity and minority.—Insanity is a disqualification, and no person of unsound mind Is entitled to the custody of a child. Minority is also a disqualification; but a minor mother is entitled to the custody of her children.
(ii)
Apostasy.—A non-Muslim mother Is entitled to the custody of her minor children, and she cannot be deprived of this right on the ground that she belongs to another faith, provided she was a non-Muslim at the time of her marriage. A Muslim mother, who converts to another „ religion, forfeits her right of hizanat. No other female who is a non-Muslim is entitled to the custody of a child. It means that a hazina who ceases to be a Muslim forfeits her right of hizanat. The Shia law is very categorical, and lays down that a person who has ceased to be a Muslim is not entitled to the custody of a child. It is submitted that apostasy is no longer a bar to the right of hizanat after the coming into force of the Caste Disabilities Removal Act, 1850. The Act provides that no law or usage shall inflict on any person who renounces his religion any „forfeiture of right of property‟.
(iii)
Subsequent marriage of hazlna.—The Muslim law-givers of all schools have laid down that a hazina, who marries a person who is not related to the child within the degrees of the prohibited relationship, forfeits her right of hizanat. The underlying notion of this rule is that in. the home of her new husband (if a stranger) she will not be able to look after the child with the same love and affection. Thus, according to the Rudd-ul-Muhtar, „The right of hizanat Is lost by the mother [or any other femalej marrying a ghair-mehram (Le., a person not related to the child within the prohibited relationship) of the minor, for a stranger will not be agreeable to her bringing up the child with affection and care”. A corollary to this rule Is that if the ha.zina marries mehrarn, i.e:, a relation within the prohibited degrees, the right of hizanat Is not lost. But the mehram must be by consanguinity. Thus, the mother will not forfeit her right of hizanat if she marries child‟s paternal uncle, who Is mehram by consanguinity. The judicial opinion on this point is conificting, though the predominant view is that the disqualification is not absolute. In Irfan Ahmed Shaikh v. Mumtaz,’ it was held remarriage of mother to a stranger (ghair mehram) per se does not bar her from the
13
custody of the minor. The treatment meted out by step-father is material. In the absence of any ill-treatment of the child. and in view of the child‟s desire to stay with mother, custody was given to the mother.. It seems that the present law may be stated thus (a) A muslim female who marries a inehram does not lose her right of hizo.nat.’ (b) If a Muslim female has married a ghoir-mehram, then she may lose her preferential right of custody, if a person preferentially entitled to It is suitable In all respects. But if the person preferentially entitled Is not suitable, then the mother will continue to be entitled to the custody of the child, the disqualification being not absolute. (c) A mother or a female who has married a ghair-mehram may also be appointed as a guardian of the minor child by the court, if otherwise found suitable. (d) In all cases, the question Is to be considered mainly from the point of view of the welfare of the child. (iv)
Misconduct of the hazlna.—The Muslim law-givers have laid down that a hazirta who Is unworthy of credit is not entitled to hizanat of the child. The term “unworthy of credit” is applied to a woman who habitually leaves her home, neglects the children, or allows them to starve. It Is further laid down by the Muslim authorities that an adulterous woman is also not entitled to the custody of the child. The Rudd-ulMuhtar lay down the general rule thus: hazina is not disentitled to custody in every case of misconduct, but only In the case of misconduct of such a nature which causes detriment to the child or is likely to cause injury to the child. Thus, a woman who remains outside the home for a considerable time, either on account of work or otherwise and she leaves the child in the home uncared for, is a woman of unworthy credit. But, If, before going out, she makes adequate arrangements for the case of the child, she cannot be deprived of the custody. Similarly, a woman, particularly the mother, though leading an immoral life, may continue to leave the custody of the child, so long as no evil effect may be apprehended on the child, and so long, as her nurturing is necessary for the child. The cardinal principle of hizanat in Muslim law, as in most of the modern systems of law, is the welfare of the child. This is the reason why Muslim law always preferred mother to father in the case of children of tender years. Thus, if the hazina treats the child with cruelty or neglects it, she forfeits her right of hizanat. However, her right of htzarzat cannot be lost on account of her poverty or want of funds to maintain the child. If the hazina has no funds to maintain the child, then it is the duty of the father to provide her with a house and with funds, together with such attendants within his means, which are necessary for the maintenance of the child. Poverty of the mother is no ground for depriving her from custody.‟ In case the child has property, then, the hazirta may provide habitation and maintenance out of that property. In case the child has no property, then the father, or
14
any other person, who has the obligation to maintain the child, must pay for the habitation and maintenance of the child. What is remarkable about the Muslim law of hizartat is that every other consideration is subordinated to the welfare of the child. A woman who is unworthy of credit may still retain the custody of child, if the welfare of the child so requires. This means that every misconduct which otherwise disentitled a hazirta from the custody of the child is tested on the touchstone to welfare of the child. Thus, no misconduct Is absolute, and what amounts to misconduct will vary from case to case. (v)
Removal of the child by the hazina.—The Muslim authorities lay down that the home where the husband and wife live together Is the place where the child should be brought up. Muslim law lays down that neither the father nor the mother has the right to remove the child from the matrimonial home. If either of them wants to do so, then the permission of the other Is necessary. Thus, a hazina is liable to forfeiture of her right of hizanat If she removes the child, without the prior permission of the father of the child to such a distance from the matrimonial home so as to prevent the father from exercising the necessary control and supervision over the child. In the following two cases she may remove the child from the matrimonial home : (i) when the change of residence has been made with a view to benefitting the child, or, on account of unavoidable circumstances. Thus, exigencies of her employment may compel a hazina to change her place of residence; (ii) when the mother of the child separates from the father of the child, then, she is entitled to return to her native place wherever it might be. It is submitted that this rule relates to a period when the means of communication and transport were primitive, but now a days the rule has no validity. If the mother has to live away at a distant place for a justifiable reason, she should not be deprived of her right of custody.
GUARDIANSHIP OF THE PROPERTY :- A guardian of the property must act as a fiduciary of the disabled person. A fiduciary is someone who can be trusted to act in the best interest of the disabled person. This means that a guardian must act honestly and faithfully to preserve the minor‟s property and to use the assets for the benefit and welfare of the minor. A guardian of the property must act for the person‟s best interest. Under Muslim personal law, the following persons, in the order of preferences, are recognized as the legal guardians of a minor‟s property: (a) Father (b) Executor appointed by father under a Will (c) Paternal grand-father
15
(d) Executor appointed by paternal grand-father under a Will. The guardianship of a minor‟s property belongs primarily to the father who is a natural guardian. After his death it belongs to the executor appointed by the father under a Will. Such an executor, under the authority of the father‟s Will, acts as a legal guardian of the minor‟s property. Where there is no Will appointing any person as an executor (or where the executor also dies) then, after the father‟s death, the paternal grandfather is entitled to the guardianship of the minor‟s property as a legal guardian. After the death of the paternal grandfather, his executor if any acts as guardian of the minor‟s property. In the absence of father or his executor, paternal grand father or his executor, guardian for the property of a minor is appointed by the court under the Guardians and Wards Act, 1890. So only the father and paternal grand-father are entitled to act as legal guardian of minor‟s property. No other relation such as mother, brother or uncle of the minor‟s is given this status. However, if the court appoints any other person such as mother, uncle, etc., and then these people are entitled to act as legal guardian of minor‟s property. The mother or other near relations of the minor has no right of their own to act as guardians of the minor‟s property. In Mahboob Saheb v. Syad Ismail,AIR 1995 SC 1205 the Supreme Court has held that, although mother is in the nearest relationship of her child, she is not regarded as guardian of her minor child‟s property. Therefore, she has no right to transfer the interest of her minor children‟s property. Power of Natural or legal Guardian and Testamentary Guardians A guardian must use the same degree of skill and care that a reasonable person would use in handling her own property. Under Muslim law, the powers of a natural or legal guardian and a testamentary guardian are the same because the executor (testamentary guardian) of the father (natural guardian) represents the father. The power of these guardians are as follows: 1. Power of Alienation of Immovable Property: A guardian is allowed to alienate minor‟s movable property, but can dispose of immovable property only under certain circumstances. Here, alienation includes selling and mortgaging. The alienation of a minor‟s immovable property by the natural or legal and testamentary guardian is valid to a limited extent. According to the Durr-ulMukhtar,’ it is lawful for the executor to sell immovable property if there is an imminent danger of its being lost, or to sell it, if it can get double of its value, or for the maintenance of minors, or for the discharge of debts of the testator, or for the payment of legacies which cannot be paid otherwise, or where the income of the property does not exceed the cost of its upkeep, or when it is in the hands of a powerful misappropriator or usurper. So, an immovable property of a minor may be disposed only under following circumstances: (i) Where by sale, the guardian can get double the value of the property, (ii) When the disposal is for the manifest advantage of the minor or lunatic, (iii) When debts due from the testator have to be paid, (iv) When there is no means for the legacies to be paid,
16
(v) When there is no other property for the maintenance of the minor or lunatic, (vi) When the expenses of the property are more than its income, (vii) When the property is in danger of being lost or destroyed, and (viii) When the property is in the hands of a usurper and the guardian has reasonable belief that there is no chance of its recovery. It is evident from the preceding lines that the guardian‟s power of disposing of the minor‟s property by sale is very limited. The minor‟s property can be sold only in exceptional circumstances when it is either absolutely necessary or is manifestly advantageous. Where a minor has several properties, there must be reasonable justification for selling a particular property. The only consideration in a sale should be the benefit of the minor. Mortgage: The legal guardian‟s right to mortgage the minor‟s properties is the same as that for a sale. A guardian is not authorized to mortgage his ward‟s properties except in the interest of the minor or in the interest of the property itself. Lease: The guardian‟s power to grant lease of the minor‟s property is also subject to condition that it must be for the advantage of the minor or is otherwise urgently required. The legal guardian is, therefore, authorized to lease out the property only if it is for the benefit of the ward. 2. Power to incur debt: A guardian can incur debts on behalf of the minor if there is some necessity and not otherwise.‟ The guardian has the power to execute promissory note on behalf of the minor when incurring of debt is justified. 3. Power to enter into contract: The guardian has the power to enter into contract on behalf of the minor, if the contract is for minor‟s benefit and the minor is entitled to bring a suit for specific performance of contract also. 4. Power to carry on Business: According to the Hedaya, the guardian has power to carry on business or trade on behalf of the minor just like a person of ordinary prudence can do so in respect of his own business, provided the business or trade is not of speculative or hazardous nature. The guardian can also invest minor‟s property in partnership and may enter into partnership with others. 5. Power to surrender a right of pre-emption: 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 it is done in good faith. 6. Power to make partition: The guardian has power to make partition of the share of minor only if there are shares of minors and adults. But if all the share holders are minors then the guardian has no power of making partition and if makes, such partition is unlawful and invalid.
17
Power of Guardian appointed by Court :- The power and duties of a guardian appointed by court is governed by the provisions of the Guardians and Wards Act, 1890. These are the following: Transfer of Immovable Property: Under section 33 of this Act, the court has authority to define, restrict or extend the powers of a guardian from time to time. We have already discussed the power of natural or testamentary guardian regarding to transfer of minor‟s immovable property. But a guardian appointed by the court has no authority to deal with minor‟s property without prior sanction of the court. Such a guardian cannot sell, exchange, mortgage, or otherwise transfer the immovable property of the minor without a previous permission of the court. The court gives the permission for transfer of property only in cases of absolute necessity or where it is manifestly advantageous to the minor. Lease: A guardian appointed by court is empowered to lease out the minor‟s property for a period of five years, or for any term not extending more than one year beyond the date on which the minor attains majority. For a lease extending the above mentioned period, the guardians must take the previous permission of the court. However, transfer of an immovable property by a guardian appointed by court against any of the above rules, is not void, it is merely voidable at the option of the minor upon his attaining majority. Such transfer is voidable also at the option of any other person affected thereby.‟ Movable Property: A guardian appointed by court is empowered to deal with the movable properties of the minor without any previous permission of the court. But the guardian must deal with minor‟s movables as carefully as a man of ordinary prudence would deal with his own property. Moreover, he may do all acts which are reasonable and proper of the realisation, protection or benefit of the property. Power of De facto Guardian: A defacto guardian is a mere custodian of the minor‟s person and property but has no right over either. He has only responsibilities towards the minor‟s person or property or both but no rights in respect thereof. They are usually the relatives of the minor but without rights to be the guardian under the Islamic law. He is an officious intermeddler (Fazooli) with the minor‟s property and has no status or position to alienate it without Court‟s permission. He has no power or authority to alienate the minor‟s property. A sale by a de facto guardian of the minor‟s immovable property without Court‟s permission is void and not merely voidable. A de facto guardian is a person who is neither a guardian under Muslim personal law nor a guardian under the Guardians and Wards Act, 1890, but has assumed the powers and functions of a guardian. A de facto guardian, who may be a relative or a stranger, has no power to deal with the minor‟s property because a de facto guardian is no guardian in the eyes of law and is simply an unauthorized person who deals with the minor‟s properties.
18
Powers regarding Immovable Property :- A defacto guardian has no authority to deal with the immovable property of a minor. Mohammad Amin v. Vakil Ahmed AIR 1952 SC 358 when the Supreme Court observed that a de facto guardian has no power to convey any right or interest in immovable property which the transferee can enforce against the minor. The court further held that a defacto guardian has no power to enter into a family arrangement on behalf of the minor. Similarly, he has no power to refer a dispute relating to the minor‟s property to arbitration. A de facto guardian cannot make partition of minor‟s property even if it is for the benefit of the minor. A defacto guardian cannot make contracts relating to or affecting minor‟s immovable property, such contracts if entered into will be void and unenforceable. Powers regarding Movable Property :- A defacto guardian has power to alienate the movable property of the minor for its maintenance. He can either sell or pledge the goods for the benefit of the minor. A de facto guardian can dispose of movable property, such as good and chattels, not only but also to guardians appointed by the court and de facto guardians. It is therefore, evident that a de facto guardian‟s power to alienate minor‟s moveable is subject to basic requirements of the minor which may be urgently needed for the minor‟s subsistence. Removal of Guardian :A guardian whether de jure or de facto is removable by the court if necessary in the interest of the minor. A guardian appointed by the will can be removed on the following grounds— (1) Abuse of his trust. (2) Continued failure to perform the duties of his trust. (3) Incapacity to perform the duties of trust. (4) Ill-treatment or neglect to take proper care. (5) Continuous disregard of provisions of Guardians and Wards Act. (6) Having an adverse interest to the faithful performance of his duties. (7) Conviction for an offence. (8) Ceasing to reside within the local limits. (9) Insolvency or bankruptcy.
Sunni 1. Besides the father and true . grandfather there are several relations who are guardians for marriage.
Shia The only guardians for marriage are the father and true grandfather.
19
2. Marriage by guardians other than father and grandfather may be repudiated after attaining majority.
Such marriage was wholly ineffective till it was expressly ratified.
3. Mother is guardian of the person of her son up to the age of 7 and of her daughter up to puberty
Mother is guardian of the person of the son up to the age of 2 and of her daughter up to the age of 7 years.
