Appointment of Guardian under Islamic Law
A guardian may also be appointed under the Guardians and Wards Act, 1890. The application for appointment as Guradian under Islamic Law may be made not only by a person desirous of being, or claming to be the guardian of the minor, but also by any relative or friend of the minor, and in some cases by the Collector of the district. Application should be made in the form prescribed by section 10 of the Act, and no order should be made unless notice of the application is given to person interested in the minor.
Even though the court under the Act is empowered to appoint a guardian, the application of Muslim law of guardianship has been by and large preserved in the Act.
Section 17 of the Guardians and Wards Act, 1890 provides that in appointing or declaring the guardian of a minor, the court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. And for the purposes of the welfare of the minor the court shall consider:
- the age, sex and religion of the minor
- the character and capacity of the proposed guardian, and his nearest of kin to the minor
- the wishes, if any of a deceased parent
- any existing or previous relations of the proposed guardian with minor or his property; and
- preference of the minor, if he is old enough to form an intelligent preference.
CLASSIFICATION OF GUARDIANS
In Muslim law of guardianship.There are three categories of guardians:
Muslim law, no matter whether you are Shia or Sunni, does not recognise the mother as being the guardian of the child under any circumstances. Even when the child is in the custody of the mother or other female relatives. In fact, the mother is not even considered to be the guardian even after the father passes away. It is the father who is considered to be the guardian. In such circumstances, he is the ‘natural guardian’ of the child
Among the Sunnis, the father has the full power of making a testamentary appointment of guardian. In the absence of a father and his executor, the grandfather has the power of appointing a testamentary guardian. Among the shias, the father”s appointment of testamentary guardian is valid only, if the grandfather is not alive. The grandfather, too, has the power of appointing a testamentary guardian. No other person has any power of making an appointment of a testamentary guardian.
Among both Shias and the Sunnis, the mother has no power of appointing testamentary guardian of her children. The mother can be appointed a testamentary guardian or executor by the father, or by the grandfather whenever he can exercise this power.
A non-Muslim alienee cannot be appointed as a testamentary guardian. If such an appointment is made it is null and void.
Muslim law does not lay down any specific formalities for the appointment of testamentary guardians.
Guardian appointed by the court
On the failure of the natural guardian and testamentary guardians, the kazi was entrusted with the power of appointment of guardian of a Muslim minor. The Muslim law of appointment of guardians by the kazi stands abrogated. The matter is governed by the Guardians and Wards Act, 1890. The High Courts also have inherent powers of appointment of guardians, though the power is exercised very sparingly.
Under the Guardians and Wards Act, the power of appointing or declaring any person as guardian is conferred on the District Court. The District Court may appoint or declare any person as guardian of a minor child’s person as well as property whenever it considers it necessary for the welfare of the minor.
De Facto Guardians
A de facto guardian’s powers are severely limited. When a person having no right to do so assumes the charge of another’s estate and carries on the administration and management of the estate, this continuous course of conduct results in conferrring on him the status of de facto manager. In respect of a minor’s estate, such a person is known as de facto guardian. He cannot alienate or transfer any property of the minor whatsoever nor can he borrow or enter any contracts on behalf of the minor.
It has been held that a partition of properties effected by the de facto guardian is void, and not binding on the minor, even if the arrangement is for the benefit of the minor, and has been followed for a long time, since the partition amounts to alienation of property. The period of limitation to set aside a transfer by the de facto guardian is twelve years.
When it comes to the question of guardianship, Muslims are governed by two major sources. They are:
- The Guardian and Wards Act of 1890;
- Islamic Customary Law.
The Guardian and Wards Act of 1890 is a comprehensive law which governs the major part of the practices and procedures which to guardianship in India. It applies to people of all communities, Muslims, Christians and Hindus, as well as those who do not belong to any of these three religions.
Among Shias, a testamentary guardian, i.e., a guardian appointed by a will, is not a legitimate guardian if the child’s grandfather is still living. Therefore, a father will be able to challenge the claim successfully.
Moreover, a profligate or a person of known bad character cannot be appointed as the guardian of the child. This is applicable both for Shias and for Sunnis.
However, in case of Sunnis, a testamentary guardian can be appointed even where the grandfather of the boy is living and in the absence of the father and his executor, even the grandfather can nominate a testamentary guardian.
There exists no difference between testamentary guardians and natural guardians. There are broadly three kinds of acts which both kinds of guardians can perform with regard to minors. These acts are as follows:
- Acts which are beneficial to the minor;
- Acts which are absolutely injurious to the minor;
- Acts which combine both beneficial and injurious aspects.
Both kinds of guardians are allowed to perform acts which are beneficial to the minor while no guardian is allowed to perform acts which are injurious to the minor’s interests. However, acts which fall in the third category can only be performed by the father or the grandfather or the executor of the minor. Testamentary guardians do not have this power.
A guardian of a minor is recognized not only in respect of his person but also in respect of his property also.
Islamic Guardianship of Person of a Minor
Guardianship of the person of the minor belongs to:
i. the mother, and in the absence or disqualification of the mother,
ii. other female relations; and in their absence,
iii. male relations.
Mother as a guardian of person of a minor: Mother is entitled to the custody (Hizana) of : a) a male child till 7 years, b) a female child till puberty, (Hanafi law).
This right of a mother to have the custody of the child continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.
It is very clear that under the Mahomedan Law the mother is entitled only to the custody of the person of her minor child upto a certain age according to the sex of the child. But she is not the natural guardian. The father alone, or, if he be dead, his executor is the legal guardian. Therefore, father is the primary and natural guardian and the legal guardian of his minor children and t he father”s supervision over the child continues in spite of the child being under the care and custody of the mother or other female relations, because the burden of providing maintenance to the child rests exclusively on the father.
In the absence or disqualification of the mother, the custody of
a) A male child till 7 years,
b) A female child till puberty, belongs to following persons in the order of priority:
i) Mothers’ mother, ii) Father’s mother, iii) Full sister, iv) Uterine sister, v) Full sister’s daughter, vi) Uterine sister’s daughter, vii) Full maternal aunt, viii) Uterine maternal aunt, ix) Full paternal aunt, x) Uterine paternal aunt.