1. INTRODUCTION:

“Guardian” includes any person having legal custody or control over a child. Under Mohammedan Law, the notion of guardianship is subsisting from the beginning. Its source is found in some verses of the Holy Quran and Ahadis. An elaborate description of guardianship of property is found in the Holy Quran and the Ahadis, though a little is found about guardianship of a person.

So, the law of guardianship in detail including its concept, qualifications and subject-matter is discussed as under.

1.  DEFINITION

The term “guardian” is defined in Guardian and Wards Act as, “a person having the care of a person of a minor or of his property or of both of his person or his property.

WHO IS A MINOR

A minor is a person who has not attained:-

(I)       The age of puberty (Balugh):-

ln the matters of marriage, divorce and adoption. The age of 21 years where:-

(a)      The court appoints or declares a guardian of his person or property or of both.

(b)      His property has been or shall be assumed by any court of wards before he has attained the age of 18 years.

(II)      The age of 18 years in all other matters.

Explanation

A minor is one who is not a major. Puberty and majority are in the Islamic Law one and the same. Among the Sunnis and Shias puberty is presumed to be have been attained on the completion of the 15 years. 15 years is the age of majority for the-purposes of marriage, dower and divorce. After this age he or she is free to do anything in the sphere of marriage dower or divorce. 18 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, waqf. minority will terminate on the completion of 18 years.

Twenty-one years is the age of majority, if the minor is under the courts of ward or a guardian of him has been appointed by the court. In Islamic personal Law, the term majority is applied to the period of life whether of males or females which precedes the attainment of puberty and persons who have not attained puberty are called minors.

The law presumes an infant, the one who cannot exercise his discretion and is not capable of reasoning. The age of reason for either sex is seven years. The age of dullness for a boy is fixed, at 12 years, and that of a girl is fixed at the age of 9 years.

Two periods of majority

The Islamic Law recognizes two distinct periods of majority - 

(1)      The age of puberty (sin-e-bulugh)

(2)      The age of discretion.

1. MEANING OF GUARDIANSHIP

The term guardianship indicates the guardianship of a minor, in other words any person having legal custody or control over a child.        

1. CAPACITY OF GUARDIAN:

A guardian should be a person who is not minor and not of unsound mind. The guardian must profess Islam. According to Fatwa-i-Alamgiri the appointment of non-Muslim as guardian is valid though it may be set aside by the Kazi. But if disability ceases to exist before the removal by the Kazi, then such guardian cannot be removed.

According to the “Fatwai-i-Alamgiri” the appointment of a minor or insane person as guardian is void and any act done by them before or after his removal will be void and non- effective.

1. KINDS OF GUARDIAN:

Guardians are classified as follows:-

(1)      Guardian    of person

(2)      Guardian    for marriage

(3)      Guardian    of the property

1.      Guardian of person (Hizanat or Custody):

Subject to the provisions of the Guardian and Wards Act, 1890, the following persons are entitled to the custody of the person of a minor or lunatic.

Under the Hanafi Law: in the case of a son below 7 years of age and of daughter below puberty (whether married or unmarried),

(a)      To the following  female relations in order:

(1)      Mother       

(2)      Mother’s mother, how high so ever

(3)      Father’s mother, how high so ever

(4)      Full sister.  

(5)      Uterine sister       

(6)      Consanguine sister       

(7)      Full sister’s daughter    

(8)      Uterine sister’s daughter        

(9)      Consanguine sister’s daughter

(10)    Maternal aunts in the same     order as sister      

(I1)     Mother’s father, and      

(12)    Paternal aunts in the same order as sister

(13)    Paternal aunts of mother and  father in the same order, and in the absence of them

(b) To the following paternal relations in order:

(1) Father

                    (2)      Nearest paternal grandfather-

                    (3)      Consanguine brother

                    (4)      Consanguine brother’s son

                    (5)      Full paternal uncle

                    (6)      Consanguine brother’s son

                    (7)      Consanguine paternal uncle

                    (8)      Full paternal uncle’s son

(9)      Consanguine paternal uncle’s son, and in the absence of them.

 

          (c)      To the following relations in order:

                    (1)      Uterine brother

                    (2)      Uterine brother’s son

                    (3)      Father’s uterine brother

                    (4)      Maternal uncle; and

                    (5)      Mother’s uterine brother”

Provided that a male relation is within the prohibited degrees of girl.

(d)      In the case of a son above 7 years of age and of an unmarried daughter above puberty to the same paternal-relations*

          (e)      In the case of illegitimate children

          (I)       Up to the age of 7 years to the mother

(II)      Above the age of 7 years to their parents or any other person according to the will of the minor.

Under the Shia Law, the custody of the son below two years of age   and of a daughter below 7 years of age, belong to the mother and after the mother the custody of a minor or lunatic belongs to the father and in being disqualified, to the grandfathers how high so ever. The custody of a son above two years of age and a daughter above 7 years of age belong to the father and in his absence to the grandfather how high so ever.

 

2.  GUARDIANS FOR MARRIAGE:

(i)      Paternal relations:       

According to a sunnat of the Holy Prophet (peace be upon him), first preference of guardianship in marriage is given to the residuary. The residuary mean a nearest guardian in the list of inheritance available so far as the matter of guardianship marriage is concerned.

The mere absence of a nearest guardian is not enough but such persons should not be easily approachable, or in other words he should not be easily contracted either due to his distant living  place or unknown whereabouts because, in the absence of the nearest guardian, the next in the paternal line of residuary can give the minor in marriage.

 

 

(ii)     Maternal Relations:

A marriage may be contracted by a mother if there is no father. But there is a conflict of opinions about the maternal relations to be entitled to be a guardian but the correct view seems to be in favour of such relations for their entitlement.

 (iii)   Guardians of equal degree:

In a case, where two or more persons have the same degree relations, e.g. two brothers, then a contract of marriage may be made by either of them even if it is not permitted by or is cancelled by the other.

 (iv)   Court:

If the paternal and the maternal relations are absent, then the Court has the power to appoint a guardian who is entitled to give a minor or a lunatic in marriage with the permission of the Court only. But guardianship for marriage is governed by Mohammedan Law. The Guardians and Wards, Act, 1890, does not effect the rules of marriage.

1. Power of the guardian for marriage:

The powers of a guardian for marriage are as follows:

1. Power to contract marriage of a minor or lunatic:

A guardian for marriage mentioned above may give minor or a lunatic in marriage and such marriage is valid, though it may be repudiated by the minor by way of option of repudiation option of puberty. A minor’s or a lunatic’s marriage without the consent of a guardian is not valid, A minor cannot itself contract a marriage, nor can appoint an agent for marriage.

1. Power of contracting conditions:

A guardian may at the time of marriage, enter into certain matrimonial conditions. But such conditions should be lawful and reasonable. For example', an authority to pronounce Talak given to the wife in a marriage contracted by the guardian of a minor is binding.

1. Power to contract Khula:

The father of a minor or lunatic wife can enter into Khula on her behalf, but a Khula cannot be entered into' on behalf of a minor husband. The Khula would be valid only if it is ratified by her.

 

 

1. Power to pronounce Talak:

Under the Shia Law, the guardian of a lunatic who has attained puberty and who is of unsound mind may pronounce a Talak, if it is necessary in the interest of the lunatic. But the guardian of a minor is incompetent to pronounce a Talak for a minor wife under all the laws.

1. Power to relinquish dower Under the Shia

Law, the father or grandfather, is entitled to make relinquishment. The wife’s guardian may relinquish Vi of the dower to which she would be entitled       in the event of Talak before consummation. The husband’s guardian has no legal power to give up his ward’s right to half the dower in the      event of Talak before consummation. But either of these guardians cannot discharge the entire dower.

1. Effects of Guardianship marriage

A marriage of a minor or lunatic contracted by a guardian may be repudiated by the concerned party either by way of option of repudiation or option of puberty.

3.      GUARDIANS OF THE PROPERTY:

Guardian for the property of minor or lunatic may are of the following kinds:

1. Natural or legal guardians
2. Testamentary guardians
3. Guardian appointed by Court
4.  De facto guardians

(a)      Natural or legal guardians:

(i)       A father is the natural or legal guardian of his minor or lunatic legitimate children and so its property also.

(ii)      In the absence of the father, his executor takes his place, according to the Sunni Law.

(iii)     Under the Shia Law, grandfather is the natural or legal guardian in the absence of the father even though the father has appointed an executor. In the absence of the grandfather, his executor becomes the guardian. The father’s executor becomes the guardian only in the absence of grandfather.

 

(b)                Testamentary guardians:

(i)       Under the Sunni Law, a father is entitled to appoint a testamentary guardian. In the absence of the father and his executor, the grandfather may appoint testamentary guardian,

(ii)      Under the Shia Law, the father’s appointment of a testamentary guardian is valid only in the absence of the grandfather who may also appoint a testamentary guardian.

(iii)     Under both the Sunni and the Shia Laws, a mother has power of appointing a testamentary guardian for the property of Iter minor, or lunatic child except;

a.       When she has been appointed as an executrix by the testamentary power of the legitimate minors or lunatics or grandfather then she can appoint a testamentary executor;

b.       In respect of her own property which will devolve after her death on the children whether legitimate or illegitimate.