GUARDIANSHIP UNDER MUSLIM LAW

APPOINTMENT OF GUARDIAN
A Muslim, other than father, can become a guardian of a minor even without the
previous orders of the court. There is nothing to prevent him from applying in
the court under “The Guardianship and Wards Act’ for declaration as guardian
under this Act. The fact is that any relative and friend of minor can apply on the
form prescribed under section 10 of the Act to a Court.
The orders for the appointment of guardian should however not be made by the
court without giving proper notice of application to all such persons interested in
the minor.

The term Guardian is defined in The Guardians and Wards Act as” a person having
the care of a person of a minor or of his property, or of both his person and
property”. The Quran is the basis of the law relating to guardianship and ,
therefore , there is very little room for the difference between sunni and shia
schools of Muslim law.
 MINOR?
The term guardianship (Wilayat) connotes the guardianship of a minor. A minor
is one who has not attained the age of majority. Puberty and majority are in
Muslim Law one and the same thing. Puberty is presumed to have been
attained on the completion of the 15th years. But now the Muslims are
governed by the Muslim Majority Act , except in matters relating to marriage,
divorce and dower. 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 (1) Marriage.
(2) dower
(3) Divorce.
In all the other matters his minority continues until the completion of 18 years.
Until then the Court has the power to appoint the guardian of his person or
property or both under the Guardian and Wards Act, where the age of majority
is considered as 21 years.
Broadly speaking Guardian can be divided into following categories-
(1) Natural Guardian
(2) Testamentary Guardian
(3) Guardian Appointed by Court

(4) Natural Guardian- Muslim law givers have not used the term of natural
guardian in Muslim Law but all schools of Sunnis and Shia school recognize the
father of a minor as legal guardian. In other words, it is recognition of natural
guardianship. However , mother is not recognized as natural guardian even after
the death of the father of a minor. A mother or any other female member is not
entitled to the custody of a minor, as was decided in the case of Imambandi v
Mutsadi, that father is the sole and supreme guardian of his minor children.

According to Sunni School , a Muslim father is the only guardian of the minor
children and after the death, it is passed on to his legal executors. According to
Shia School, the guardianship of a minor passes on to the grandfather after the
death of father. It appears that Shias do not recognize the natural guardianship of
any body , even of the brother except the father and grandfather. So far as the
position of Muslim women about guardianship is concerned , she can have the
custody of minor only for certain period.
 (2) Testamentary Guardianship- It is a rule in Sunnis that a father of minor can
make a testamentary appointment of a guardian and in his absence his executor or
the grandfather ca do so. In Shias , a father can make appointments of a testamentary
guardian only when grandfather is absent. No other person has any power of making
an appointment of a testamentary guardian of her illegitimate children. Mother can ,
however appoint a testamentary guardian in the following two cases:
(a) When child’s father has appointed her , as executor by his will.
(b) When she wishes to appoint an executor in respect of her own property, which
will devolve after her death on her children.

A testamentary guardian may be appointed orally or in writing . Muslim Law does

not prescribes any specific formalities for the same. It is necessary that the
testamentary guardianship must be accepted
(3) Guardian Appointed by Court- Under the Guardian and Wards Act, 1890, a
District judge may appoint a guardian of a minor child’s person and property-
whenever it is considered necessary by him for the welfare of the minor. While
making such appointment, the District Judge will take into consideration the age,
sex, wishes of the child as well as the wishes of the parents and personal law of
minor. Prior to the enforcement of this Act a kazi was entrusted with the power
to appoint a guardian.
Section 362,the legal guardian of the property of a minor has no power to sell
the immovable property of the minor except in the following cases.
(1) Where he can obtain double its value
(2) Where the minor has no other property and the sale is necessary for his
maintenance.
(3) Where there are debts of the deceased, and no other means of paying them.
(4) Where there are legacies to be paid and there are no means to pay them.
(5) Where the expenses exceeds the income of property.
(6) Where the property is falling into decay

In the case of Venkama Naidu v. S.V Chisty- , the Madras High Court had
held that after the father’s death, the mother, as the guardian of the minor ,
has no power to execute the sale deed. Therefore the sale deed executed by
the mother was held to be void and inoperative under the Mohammedan
law.
 Muslim Law makes a distinction between guardian of the person, guardian of
the property and guardian for purpose of marriage in the case of minors.

Mohammedan law recognizes 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) de facto guardianship
( c) certified guardianship

(i) Guardianship in marriage (Jabar)- It is one of the essential of valid

marriage that the parties are competent to enter into marriage contact, i.e.,
among other things they must have attained the age of puberty. However,
the general rule admit one exception i.e, where the marriage is contracted
on behalf of the minor by the guardian . This exception is the most
distinguishing features of Islamic jurisprudence because it empowers a
father to impose status of marriage on his minor children. This power of
imposition is called as Jabar.
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 fathers side, in order of
inheritance .
(4) Mother
(5) Maternal relations within prohibited degree.
(6) The Qazi or the Court
Shia Law recognizes only the father and failing him the father’s father how
highsoever as guardian in the marriage of a minor.

(II) Guardianship of the person of the minor for Custody (Hizanat)- The
guardianship of minors person for custody (hizanant) has to be studied
with reference to the age of the minor and his relationship with the
guardian.
Mother is entitled in Hanafi law to the custody of her male child until he has
completed the age of seven years and of female child until she has attained
puberty.
In Shia Law to the custody of her male child till the age of 2 years and to the
custody of her female child till the age of 7 years. It has been held in the case of
Hashamat Ali v Suraya Begum, that the right continue though she is divorced
by the father of child unless she marries a second Husband in which case
custody belongs to the father.

It was held in the case of Gayasuddin v Llah Tala Wagf, that the mother is de
facto guardian. She cannot execute a waqf on behalf of the minor. Such
execution is void as de facto guardian has no right to alienate minors property,
unless appointed as guardian by court.

Female relations in default of Mother- under Sunni Law failing the mother
custody of the boy under the age of 7 years and girl who has not attained
puberty goes to
(a) Mothers Mother, how high so ever
(b) Fathers 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 Aunt
(j) Paternal Aunt.

In the case of Rahima Khatoon v Saburjanessa, AIR 1996 Gau 33, The
court held that the mother loses the guardianship of the minor daughter in
case she remarries with another person not related to the child within
prohibited degree of relationship. In the present case the court granted
the certificate of guardianship to the paternal grandmother with regard to
the minors persons and property.
Other Male Relations- In the default of the mother and other female
relations the right of custody(hizanat) in Hanafi Law, belongs to the
following persons in order of enumeration:
1. Father
2. Nearest paternal grandfather
3. Full brother
4. Consanguine brother
5. Full brothers son
6. Consanguine brother s son
7. Full brother of the father
8 Consanguine brother of the father
9 Son of father’s full brother
10 Son of father’s consanguine brother.

In Poolakkal Ajisakutty v. Parat Abdul Samad- , the mother of the child

committed suicide and the child was with the maternal grandmother who was
diabetic patient and dependent on her other daughter. Father later remarried and got
children. The Court held that conduct of remarriage by the father of the child itself
is not a ground to reject the prayer for custody. Welfare of the child is of paramount
consideration . By giving due respect to the sentiments expressed by the
grandmother, the court was of the view , it is for the welfare of the child that the
child be with the father.

Termination of Hizanant – The disqualification which terminates the right of

guardianship may be divided into five heads-

(a) General Disqualification- A Minor is incompetent to act as a guardian of any

minor other than his own wife or child. If either parent is non-Muslim, the other
will get the custody of child .
(b) Disqualifications affecting females- The mother or any other female
entitled to the custody of the child loses that right in the following cases-
(1) If she is immoral ,i.e
(a) has committed adultery
(b) has become a prostitute
(c ) committed some critical offence by gross and open immorality
(d) is a professional singer or mourner
(2) If she marries a persons not related to the child within the prohibited degree
e.g. a stranger. But the right revives on the dissolution of the marriage by
death or divorce.
(3) If she goes and resides at such a distance from the father’s place of residence
during the subsistence of the marriage that he cannot frequently visits her
and the child.
(4) If she neglects and incapable of taking proper care of child
(C) Disqualifications affecting males- It is a general principle of Mohammedan
Law that no male is entitled to the custody of female minor who is not releated to
him within the prohibited degree. But it should be noted that it is the rule of
Sunni Law and it hardly effects the Shia Law, which does not recognize any
guardian as of right , except the parents and grandparents

(D) General disqualifications of Guardians- The following are the grounds

where a Court will interfere with the father’s guardianship of the children:
1. If he is unfit in character and conduct
2. If he is unfit as regard s external circumstances
3. If he waives his right
4. If he enters into an agreement to the contrary
5. If he is out of the jurisdiction of the Court.
(E) Disqualification effecting the Husband- Under the Muslim law Husband is
not entitled to the custody of minor wife in preference to her mother unless
she attains puberty or to such age as would permit the consummation of
marriage.
(III) Guardianship of Minors Property- If a minor owes a movable and
immovable property , a guardian is necessary to manage it. Muslim law prescribes
certain persons in an order of preference who can ne guardian of a minors
property. The guardianship of the property of the minor under Muslim law may be
classified as follows:
a) Legal (de-jure) or natural guardian
b) Guardian appointed by the Court or certified guardian
c) De facto Guardian.

(1) Legal Guardian- The person entitled in the order mentioned below to the
guardian of the property of a minor are (i) the father, (ii) the executor
appointed by the fathers will, (iii) the fathers father and (iv) the executor
appointed by the will of the father’s father.
It was held in the case of Syed Shah Gulam v Syed Shah Ahmad- , the
mother ,brother, uncle are not entitled as of right to be the legal guardian of
the property of the minor. Except father and fathers father ,no other person ,
not even the mother is legally authorized to appoint by will any person as
executor or executrix.
Gulam Husain v. Abdul Rashid- The Supreme Court of India has held that a
mother of the minor cannot be appointed as his guardian to accept gift on his
behalf during the lifetime of minors father. Thus in the following cases the legal
guardian is authorized to deal with the property;
1. When there are debts of the deceased , and no other means of paying them
2. When the minor has no other means of livelihood and the sale is absolutely
for his maintenance.
3. When double the price of the property ca be obtained by him
4. When the expenses exceed the income of property.
5. When the property is following into decay
6. When the property has been usurped and the guardian has the reason to fear.

(2) Guardian Appointed by Court - In absence of legal guardians, the duty of

appointing a guardian for the protection and preservation of the minor’s
property fall in the court. While appointing a guardian the Court takes into
consideration the welfare of the minor and as such may appoint mother
instead of paternal uncle as the guardian of the property of minor. The Court
also takes into consideration the will of the father.
Without the previous permission of the Court the guardian of the property
appointed by court cannot-
A. Charge the immovable property of the minor
B. Mortgage
C. Transfer by sale
D. Transfer by gift
E. Exchange and
F. Lease any part of immovable property for a term exceeding 5 years or for any
term extending more than one year beyond the date when the ward will cease
to be minor.
Thus he can lease the immovable property even without the permission of the
court-
(i) For a term not exceeding 5 years, or
(ii) For a term not extending more than one year beyond the date on which the
minor will cease to be a minor , whichever is shorter.
3- De Facto Guardian- A person , who is neither a legal guardian nor a guardian
appointed by court but has placed voluntarily himself incharge of the person and
property of the minor , is known as de facto guardian. A de facto guardian is mere
a custodian of the minors person or property but has no right over either. He has
only responsibilities towards the minors persons or property both but no right in
respect thereof. Usually de facto guardians are relatives of the minor but without
right to be guardian under Islamic law unless appointed by will or by the court.

Legal guardians and guardian appointed by the court are de jure guardian. The
mother, brother ,uncle and all reactions other than the father and father’s father are
de facto guardians unless they are appointed executors by the will of the father or
father’s father or appointed guardians by the court.

According to Section 27 of Guardians and Wards Act, 1890- The position of de

facto guardian is quite different from that of the legal guardian and guardian
appointed by the court. He has no power or authority to alienate the minor’s
property . An alienation of minors immovable property without the authority of the
Court by a de-facto guardian is absolutely void.
a) He cannot refer any dispute regarding the immovable property of the minor to
any arbitration
b) He cannot give consent on behalf of the minor so as to validate a bequest to
his co-heirs.
c) He cannot enter into a contract of partnership or to allow the continuance of
the partnership business dissolved by the death of the minors father
d) He cannot bind the minor by executing a bond in lieu of his fathers debts.
e) He cannot make agreement on minors behalf for even purchase of immovable
property.
Alienation not only voidable but void- A sale by a de facto guardian of the
minors immovable property without courts permission is void and not merely
voidable . The question of ratification by the minor on attaining the majority
does not arise as the alienation is void in its inception.

In the case of Mohammed Amin v. Vakil Ahmad- , the Supreme Court has held
that a de facto guardian has no authority to enter into family settlement in
respect of a minors benefit , even though the settlement might be for his
benefit.
 REMOVAL OF GUARDIAN
A guardian whether de jure or de facto is removable by the court if it is necessary in
the interest of the minor. The Court may on the application of any person
interested , or on its own motion, remove a guardian appointed or declared by the
court or a guardian appointed by will or other instrument for any of the following
causes:
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 of his ward
5. Continuous disregard of any provision of the Guardianship and Wards Act, or
of any order of the Court.
6. Conviction of an offence implying , in the opinion of the Court , a defect of
character , which unfits him to be the guardian of his ward.
7. Having an interest adverse to the faithful performance of his duties
8. Ceasing to reside within the local limits of the jurisdiction of the court.
 Cessation of the Authority of Guardianship- The power of a “guardian of the
person” ceases
1. By his death, removal or discharge;
2. By the Court of Wards Assuming superintendence of the person of the wards.
3. By the ward ceasing to be a minor
4. In the case of a female ward, by her marriage to husband who is not unfit to
be guardian of her person.
5. In the case of a ward, whose father was unfit to be a guardian of the person
of the ward, by the father ceasing to be so
The power of the “Guardian of Property” cease
6. By the death, removal or discharge
7. By the Court of Wards assuming superintendence of the property of the
wards.
8. By the ward ceasing to be minor.
Comparison of Sunni and Shia Laws relating to Guardianship
1 Besides the father and true 1. The only guardians for marriage
grandfather there are several are the father and true grand
relations who are guardians for father
marriage. 2. Such marriage was wholly
2 Marriage by guardian other than ineffective till it was expressly
father and grandfather may be ratified.
repudiated after attaining majority. 3. Mother is guardian of the person
3 Mother is guardian of the person of of the son up to the age of 2 and
her son up to the age of 7 and of of her daughter up to the age of
her daughter up to puberty. 7 years.