Powers of Natural and Testamentary Guardian

Under Mohammedan Law, the powers of natural legal guardian and a testamentary' guardian are the same because the executor (testamentary guardian) of the father (natural guardian) represents the father. The powers 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,

A minor represented by a legal guardian alone is competent to make lawful conveyance transferring right, title or interest in immovable property of the minor. So it can be said that the guardian can sell the minor’s property:

a.       in cases of urgent necessity, or for the benefit of the minor, or 

b.       for the maintenance of the minor, or

c.       for the conservation of the property.

(2)     Power to alienate moveable property:

The property sold otherwise than in the above mentioned circumstances is voidable by the minor on attaining the age majority. The limitation period is three years according to Article 60 of the Limitation Act.

The guardian has power to alienate the goods and. other movable property of the minor for the maintenance of the minor, alienation includes selling and pledging.

1. Power to incur debts:

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.

1. 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 like1 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

(5)     Power to enter into contract:

The guardian has the power to enter into contract on  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.

                   (6)     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.

(7)    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 he makes, such partition, ft is unlawful and invalid.

 

(c)      Guardian appointed by Court:

After the coming into force of the Guardians and Wards Act, 1890, the guardianship of person and property of the minor is governed by it. The Court has power to appoint a guardian for a minor under the Guardians and Wards Act, 1890, only in the absence of the natural and testamentary guardians

According to Section 17 of this Act:

Matters to be considered by the court in appointing guardian

(i)       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.

(ii)      In considering what will be for the welfare of the minor, the Court shall have regard to the sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any of a deceased parent and any existing or previous relations of the proposed guardian with the minor or his property.

(iii)     If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(iv)     The Court shall not appoint or declare any person to be a guardian against his will.”

Powers of guardian appointed by Court:

The powers of guardian appointed by Court are governed by the Guardians and Wards Act, I890 Sections 27 to 37 of the Guardians and Wards Act, 1890 deal with guardian of property.

 

(d)      De facto Guardian

When a person voluntarily takes the charge of the "estate of a minor, his such act*confers on him the status of a de facto guardian, in other words he is a self- appointed guardian. The only condition for being a de facto guardian is that his act or course of conduct in respect of a minor’s property must be continuous.

 

                                       Powers of de facto guardian:

The powers of a de facto guardian are:

(i)       Limited in case of immovable property, and In case of movable property his position is the same as that of a natural or legal and testamentary guardian.

(a)      Power regarding immovable property: A de facto, guardian who may be a relative or a stranger, has no power to deal with the minor’s property. A de facto guardian has the power to sell or pledge immovable properties of the minor for the minor’s imperative needs, such as food, shelter, clothing or medical care.

(b)      Power regarding movable property: A de facto 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 goods and chattels, not only but also to guardians appointed by the Court and de facto guardians.

(ii)      Other powers:

A de facto guardian can borrow money for the minor's imperative needs and not otherwise. If a de facto guardian, transfers a decree for specific performance of a contract of sale of immovable property in favour of a minor, does not create any interest in the property.

 

1. MATTERS TO BE CONSIDERED BY COURT IN APPOINTMENT OF GUARDIAN OF A MINOR.

 

1. Appointment of Guardian

Primarily the Guardianship Courts are to keep the welfare of minor in mind and to act with the object of promoting their interest. However the Court may in suitable circumstances, at any time change or modify their orders for purposes of better supervision of ward with which Section 17 of the Guardians and Wards Act deals.

 

 

1. Matters According to Section 17(2):

In considering what will be for the welfare of the minor, the court shall have regard to the age, sex, and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any of a deceased parent and any existing or the previous relation of the proposed guardian with the minor or his property.-

1. Welfare of the minor:

It is of the utmost importance that    the     court which acts in the parental jurisdiction should devote its attention to ascertain as to where well-being of the minor can be best secured,

(i)       Meaning of Welfare:

The welfare does not connote merely money but his material, intellectual, moral and spiritual well-being

(ii)      Preference of the element of welfare:

All other circumstances including the relationship of the parties with minor and the faith and the religion of the minor are subordinate to this consideration.

No one can claim the guardianship of a minor to satisfy.

or even (o satisfy his love, he can be appointed as such when it is for the welfare of the minor.

(iii)     PersonaI Law and the welfare of the minor:

Where there'is a positive prohibition that a particular person should not be appointed guardian according to the personal law of the minor such appointment should not be made even when it appears to be for the benefit of minor.

1. Age of minor:

Factor of age is also to be considered seriously by the court. Under Section 3 of the Majority Act, where a minor is to attain shortly majority the Court cannot prolong his minority by appointing a guardian. Section 25 of the Guardians and Wards Act contemplates that, usually young children are given in the custody of mother in preference of father. But Muslim Personal Laws are somewhat diverse on the point of Hizanat which is as follows..

For Boys For Girls Shia Law:   7 years        2 Years

Sunni Law: 7 Years        Puberty

Therefore the age of minor is a very serious matter to be considered by the court.

1. Sex of minor:

This is a rule of the law of Guardians and Wards Act that a virgin should not be given in the custody of a male, if there is no prohibition to the marriage.

1. Religion of the minor:

A child must be presumed to have father’s religion and therefore, the court while appointing a guardian shall have a due regard to the religious training of that child.

Illustrative case:

Where a Christian woman had embraced Islam and had married a Muslim. On the death of her husband, she went  back to her parents and began to go to church. She applied for the custody of her child, but it was held that the father of the minor has undoubtedly liked him to be brought up by the paternal grandparents in accordance with Muslim fractions.

1. Character and capacity of proposed guardian:

For the purpose of management of property and person of minor, the character, fitness and capacity of individual, to be appointed, has to be taken into consideration.

For instance:

Where the mother is leading immoral life. She should not be appointed as the guardian.

1. Nearness of kins:

It does not follow that the nearest relative is the best guardian but if it is in minor’s welfare, such person may be considered as such.

 

 

1. Wishes of the deceased parents:

The wishes of the parents should not be disregarded and a considerable weight must be attached to the preference indicated by them. 

In this connection parent if made a will regarding guardian, the Court must appoint that indicated person.

1. Wishes of the minor:

When the minor is old enough to make an intelligent preference,  wishes should be considered by the Court but it so when he is intelligent.

1. DISQUALIFICATIONS FOR GUARDIANSHIP OF PERSON OF A MINOR OR LUNATIC

The right of Hizanat or custody may be lost in the case of female as well as the male. If certain disqualifications exist, then a female or male becomes disentitled to the custody of a minor or lunatic.

(1)     Disqualification for a female or Hizana:

According to the Rudd-ul-Mukhtar:

"Hizana (female entitled to custody) should be free, adult, trustworthy and capable of bringing up the child, and not married to a stranger.”  So under the following circumstances, the Hizana –right is lost:

1. Minority and insanity:

All the Schools agree that Hizana should be major and of sound mind, no person of minority and of unsound mind, is entitled to the custody ofa child.

1. Apostasy:

A Mohammedan mother who converts to another religion is not entitled to the custody of her child.

1. Immorality:

An immoral or adulterous woman is not entitled to the custody of the child. A woman who is unworthy of credit is not entitled to hizanat of the child. A mother, though leading an immoral life, may continue to have the custody of the child, as long as no evil effect may apprehended on the child and so long as her nurturing is essential for the child.

(d)      Marriage of Hizana:

A female is disentitled to the right of Hizanat if she marries a stranger who is not related to the minor or lunatic within the prohibited degrees by consanguinity. But the right may revive on the dissolution of her marriage.

According to the Rudd-ul-Mukhtar.

“The right of Hizanat is lost by the mother (or any other female) marrying a ghair-mehram (i.e, a person not related to the child within the prohibited relationship) to the minor for a stranger will not be'agreeable to her bringingp the child with affection and care.” But if she marrie's a mehram i.e. a relation within the prohibited degrees, then the right of Hizanat is not lost, provided the mehram must be by consanguinity. It is open to Court to appoint the mother as guardian even if she has married a stranger, if in the opinion of the Court, it is in the interest of the minor.

(e )    Removal of the child by the Hizana:

The hizana is disentitled to the right of hizanat .if she removes the child without the father’s permission, to such a distant place from the matrimonial home so as to prevent the father from having control over the child. Permission of the other party is required for removing the child away from the matrimonial home.

1.           Disqualifications for male or Hazina:

A Hazina right of hizanat’ or custody is lost under the same circumstances as those of a hazina. He should be a major and of sound mind.-A profligate or an immoral Hazina is not entitled to the custody of a child. A hazina marrying a ghair- mehram is also not entitled to the hizanat of the child. A male who is not within the prohibited degrees of a female child is disentitled to her custody.

 

1.      Disqualifications for a husband:

A husband is hot entitled to the custody of a minor wife who has not attained puberty. The mother is preferred in such a case.

 

1. Conclusion

To sum it can be concluded that the Guardian is a person who has the charge of minor. Guardian may be appointed for the person, marriage and property of the minor. Court has to consider certain qualifications for the appointment of guardian of a ward. Guardian also has some powers regarding person, marriage and property of minor but the basic object is the welfare of minor. There are also some limitations imposed on guardian violation of which causes disqualification of the