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Since the law of guardianship is mainly based on the Koran, there is little room for differences between the Shia and Sunni Schools in this branch of Muslim jurisprudence.
Appointment of guardian
Upper Muslim Law, no formal appointment by any authority is necessary for a competent person to act as guardian. The only consideration is, whether he is competent and entitled to be a guardian.
A person who has attained the age of 18 years, and who is sane, can act as guardian.
A guardian may also be appointed under the Guardians and Wards Act, 1890. The application for the appointment may be made not only by a person desirous of being, or claiming to be the guardian of the minor but also by any relative or friend of the minor. Even though the Court is empowered to appoint a guardian, the application of Muslim Law of Guardianship has been by and large preserved in the Act.
The individual who has by law the right and duty of giving a boy or girl in marriage may also be said to have the care of the person for that limited purpose; he is called wali- a species of wilaya. Thus guardianship (wailaya) may be of the person, of property and in marriage.
AGE OF MAJORITY
Muslim Law: 15 years - marriage, dower and divorce,
18 years - guardianship and all other matters.
Indian Law: 18 years - Indian Majority Act, 1875,
21 years - Guardians and Wards Act, 1890.
That is, any Muslim of 18 years of a age (or above) can act as a guardian of a minor Muslim; but if formal appointment by the court under the law (Guardians and Wards Act, 1890) is sought, then he must be of 21 years at least, for a minor cannot act as a guardian of a minor (S. 21).
Kinds of guardians
Guardians may be classified into three categories- natural, testamentary and court-appointed. Father is the natural guardian of the legitimate children, though the term natural guardian is not used in Muslim Law. He has no right of guardianship over the illegitimate children, not even after the death of the mother, unless the court appoints him. The mother is not a natural guardian of her children, legitimate or illegitimate neither during the lifetime of the husband nor after his death. Thus father is the sole guardian. He controls the education, upbringing and religious inculcation of the child as a supremo. After his death, guardianship passes on to his executor under Sunni Law and to the grandfather according to the Shia Law.
A testamentary guardian is a person appointed as guardian by the natural guardian by testament or will. The father, his executor and then the grandfather, in that order have the power to appoint a testamentary guardian under the Sunni system. The Shai father cannot appoint a testamentary guardian if the grandfather is alive; the latter acquires the power only on the father's death, and the executor is out of picture. The mother is totally deprived by both schools, but she can become a testamentary guardian by appointment. For this, she must necessarily be a Muslim under the Shia Law, not so for the Sunnis However, no non-Muslim alien person can be appointed a guardian by a testament under any system. A Muslim may appoint a testamentary guardian orally or in writing, no specific formality being required. But the testator must be a major and of sound mind at the time of making the will. Once the obligation of testamentary guardianship is accepted, expressly or impliedly, it cannot be renounced without the permission of the court.
The court-appointed guardian takes place when no natural guardian is available and testamentary guardian has also not been designed. Previously the Kazi was authorised by the traditional law to appoint a guardian. But now under the Guardians and Wards Act, 1890, that power is abrogated; for all guardians for minors, irrespective of any religion, can be appointed only under this law. Section 17 requires the court to make the appointment consistently with the law to which the minor is subject, i.e., the minor's personal law.
Kinds of guardianship
Muslim Law recognises three kinds of guardianship, namely: (a) Guardianship of person; (b) Guardianship of property; and (c) Guardianship in marriage.
Guardianship of person
Under the Muslim Law a minor is a person under 15 years, while under the Indian Majority Act he is one under 18 years; and if he is under the supervision of the Court of Wards, his minority terminates at 21. Under the Muslim Law 'minors' between the ages of 15 and 18 can act independently of any guardian in marriage, dower and divorce. A Muslim wife of 16 may sue for divorce without the intervention of a guardian.
(1) Mother is entitled to the custody (Hizana) of-
(a) A male child till 7 years,
(b) A female child till puberty, Hanafi Law
which is either 15 or 18 years
There is a vast difference between mother's right of custody (Hizanat) and father's right to be the legal guardian of his minor children.
Where the husband and wife are living together, the child must stay with them, and the husband cannot take the child away with him; nor can the mother, even during the period that she is entitled to the custody of the child, take it away without the permission of the father.
The father's supervision over the child continues in spite of the child being under the care of female relations, because, the burden of providing maintenance to the child rests exclusively on the father. The mother's right of custody is not lost merely by her being divorced. But where she marries a second husband, the custody of children normally belongs to her former husband. The fact that wife stayed separately from her husband, because of some dispute, does not destroy her entitlement to the custody of her children.
The mother is entitled to custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by father of the child, unless she marries a second husband, in which case the custody belongs to the father the lower court.
As regards the mother or a female guardian, marriage to a person not related to the child within the prohibited degrees is a bar to guardianship (hizanat). The paternal uncle is a mahram by consanguinity, so a marriage with him would not attract the disqualification. However, the interests of the child are of the paramount consideration.
(2) Other female relations. - In the absence or disqualification of mother, the custody of the male child, until he attains the age of 17 years, and of a female child, until she attains puberty, belongs to the following persons in the order of priority in which they are mentioned:
(i) mother's mother,
(ii) father's mother,
(iii) mother's grandmother, h.h.s.
(iv) father's grandmother, h.h.s.
(v) full sister,
(vi) uterine sister,
(vii) daughter of full sister, h.l.s.
(viii) daughter of uterine sister, h.l.s.
(ix) full maternal aunt, h.h.s.
(x) uterine maternal aunt, h.h.s., and
(xi) full paternal aunt, h.h.s.
(3) Male relations.- Failing mother and female relations, the following male relations may act as guardian in the order they are mentioned below:
(ii) Nearest paternal grandfather;
(iii) Full brother;
(iv) Consanguine brother; and other paternal relations within the prohibited degrees, reckoning proximity in the same order as for inheritance.
The custody of a boy over seven years of age, and of an unmarried girl who has attained puberty (only when she is related within prohibited degrees) belongs to:
(i) The father;
(ii) The "executor" appointed by the father's will;
(iii) The father's father, h.h.s.
(iv) The male paternal relations in the same order as for inheritance; and
(v) Failing all the above, it is for the Court to appoint a guardian of such minors.
Custody of minor wife and illegitimate child.- The mother is entitled to the custody of her married minor daughter as against the minor daughter's husband.
The custody of an illegitimate child belongs to mother and her relations and to no one else.
Disqualifications of guardianship of persons.- (a) In the case of mother and other female relations:
(i) If she married a person who is not related to the child within the prohibited degrees by consanguinity;
(the right of guardianship revives on the dissolution of such a marriage);
(ii) if she leads an immoral life; or
(iii) if she resides, during the subsistence of marriage at a distance from the father's place of residence.
Hazina is not disentitled to custody in every case of misconduct, but only such conduct as is detrimental or injurious to the child. Thus, if she treats the child with cruelty or neglects it grossly, she would lose her hizanat. Poverty, as such would also not disqualify her, for the main responsibility of maintenance of the child is that of the father. the true test is the welfare of the child, other considerations are subordinate; the criterion of her conduct is relative to the interest of the child and would vary from case to case.
(iv) If she converts to another religion.- If a Muslim mother converts to another religion, she is deprived of her right to hizanat, for a non-Muslim female cannot keep in her custody a Muslim child.
(b) In the case of a male.- If the minor is an unmarried girl and is not related to him within the prohibited degrees, he is disqualified. If a non-agnate within the prohibited degrees, such as a maternal uncle is available, he should be preferred over an agnate not within prohibited degrees. The object of this Islamic rule is to avoid the custody of a male hazin who may marry the girl. However this rule is not recognised by the Shias. A hazin who is minor, or of unsound mind or a profligate, i.e. one leading an immoral life would also be debarred from hizanat.
(c) In the case of a husband. - If the minor wife has not attained the age of puberty, or is not of such an age as to allow consummation of marriage.
Termination of guardianship of person.- In the following instances the guardian's right of hizanat comes to an end:
i. Death of the guardian.
ii. His removal (or her removal).
iii. Court of Wards taking over the superintendence of the minor's person.
iv. The minor attaining majority.
v. The minor girl marrying a person capable to be her hazin.
vi. The father of the male minor again qualifying to be his guardian.
Guardianship of property
Three types of guardians are recognised for the purposes of guardianship of property, namely:
i. Legal guardians;
ii. Guardians appointed by court; and
iii. De facto guardians.
Legal guardians. - Under Hanafi Law, the following are the guardians of minor's property, in order of priority:
b) Executor appointed by father's will;
c) Father's father;
d) Executor appointed by paternal grandfather; and
e) Executor of the last named executor.
Thus, the only persons who are entitled to appoint a guardian of the property of a minor by will are his father and father's father. The mother has no power to appoint by will a guardian of the property of her minor child. It must be remembered that mother, brother, uncle, etc., are not legal guardians. However, there is nothing to prevent the father or father's father from appointing the mother, brother or uncle, etc. as executrix or executor, and on such appointment she or he will be as much competent as any other person to manage the property.
The executor of the father's will,
according to Hanafi Law, has preference over the grandfather