Minority and Guardianship under Muslim Law
Religion has a huge role to play in the lives of its followers. India, being a secular state, the legal system of the country has allowed practice and application of personal laws in certain religious matters of citizens. Although, these personal laws are not out of the ambit of the courts of laws or legislations of the country and may be amended according to the dynamic needs of the society.
Islam is a popularly practiced religion in India. The Muslim population in India is governed by the Muslim Personal Law (Shariat) Application Act, 1937. “Shariat” in simple words is the collection of all provisions in the Holy Quran along with the teachings and practices of Prophet Mohammad.
MINORITY UNDER MUSLIM LAW
Under Muslim law, puberty and majority are used interchangeably. According to Islamic law, minority ceases when the boy or the girl attains puberty that is also called ‘bulugh’ in Urdu. And the child can decide to marry and there can be no intervention for the same. In the Hanafi and Shia Muslims, it is assumed that the child attains majority at the age of fifteen.
In India, Muslims are now governed by the Indian Majority Act, 1875, except in the matters of marriage, divorce and Mehr(dower). Under the Act, every minor of whose person or property a guardian has been
Who is a Minor ?
Law prescribes certain age-limit before which a person is said to be a minor and after which is called a major. Under Muslim Law, the age of majority is prescribed by two ways–
1. The Classical Muslim Law:
A minor is one who has not attained the age of puberty. Puberty and majority are same and one presumed to have been attained on the completion of the fifteenth years but only in matters relating to marriage, divorce and
2. Statutory Law:
(a) A person becomes major on attending the age of eighteen year under the Indian Majority Act, 1875 in respect of all matters except marriage, dower and divorce.
(b) Where a Muslim body or property is within the supervision of the court of wards, the minority of that child goes up to 21 years. (The Guardians and Wards Act, 1890)
(c) Where a Muslim wants to file a suit in court of law in matters of marriage, divorce and dower, the age of majority is eighteen years (not fifteen years) before the age of eighteen years he cannot file a suit without the next friend. A minor is supposed to have no capacity to protect his or her own interests. Law therefore, requires some adult person to protect minor and to do everything on his (her) behalf. A person who is authorised by law to protect the minor’s body or property is called a guardian.
GUARDIANSHIP UNDER MUSLIM LAW
The source of law of guardianship and custody are certain verses in the Koran and a few ahadis. The Quran, the alladis and other authorities on Muslim law emphatically speak of the guardianship of the property of the minor; the guardianship of the person is a mere inference.
The term ‘Guardian’ as defined by The Guardians and Wards Act 1890 is a person having the care of the person of a minor or of his properties or of both his person and his property, and no doubt any person having right and duty of disposing of a male or a female in marriage may be said to have, for that limited purpose, the case of his or her person. The term guardianship (wilayat) connotes the guardianship of a minor.
KINDS OF GUARDIANSHIP UNDER MUSLIM LAW
Muslim law recognises four kinds of guardianships :
- Guardianship in marriage (Jabr)
- Guardianship of the person of a minor for custody and education (hizanat)
- Guardianship of the property of a minor (Wilayat-e-mal)
- Testamentary guardian
(I.) Guardianship in marriage (Jabr)
A Muslim child of either sex who has not attained the age of puberty is incompetent to contract a marriage. A marriage contracted by a minor is a nullity. But a minor (ie., any one who has not attained the age of puberty) can be validly contracted in marriage by his or her guardian. The order of guardianship for the purpose of marriage is as follows:
(1) Father; (ii) paternal grandfather, how highsoever; (iii) brother and other paternal relatives, in the same order as for inheritance; (iv) mother; (v) other maternal relations with the prohibited degrees; and failing all these, (iv) the Government.
Shia law: The only guardians recognised by the Shia law are the father and the paternal grandfather, how high-so-ever marriage brought about by a person other than the father or a grandfather is wholly ineffective, unless it is ratified by the minor on attaining majority. Effect of apostasy on the right of guardianship
According to the strict Muhammadan law, an apostate (ie., a person who has renounced the Muslim religion) has no right to contract This infant daughter, who is a Muslim, into marriage with another. But this rule of Muhammadan law has been abrogated by the Freedom of Religion Act, 1950, according to which no law or usage can inflict on any person who renounces his religion any forfeiture of rights or property. The power to contract a minor in marriage is a “right” within the meaning of the Act, and it is not forfeited by conversion from Islam. (Gul Muhammad v. Mussammat Wazir)
(II) Guardianship of the person of a minor (hizanat)
(1) Mother and her relations
The guardianship of the person, or the right to the custody of a male child, until he completes the age of seven years and of a female child until she attains her puberty, belongs in the first place to the mother. The mother’s right to custody continues even after she is divorced. (Enamul Haque v. Bibi Taimunnisa ).
The mother is entitled to the custody of her female child until she has attained puberty, Failing her, it goes to the following female relatives in the following order: Mother’s mother, how highsoever; father’s mother, how highsoever; full sister; uterine sister; consanguine sister; full sister’s daughter; uterine sister’s daughter; consanguine sister’s daughter.
Custody of illegitimate children
The mother is entitled to the custody of an illegitimate child. In default of the mother, the right to custody devolves upon her relations.
Shia law. Under the Shia law, the mother is entitled to the custody of a male child until he attains the age of two years, and of a female child until she attains the age of seven years. Female’s right to custody when forfeited
The right of a female to custody of minors is forfeited if –
(i) she is guilty of misconduct, e.g., immorality or cruelty; or
(ii) she marries a person not related to the child within the prohibited degrees; or
(iii) she neglects to take proper care of the child.
Effect of Muslim woman’s apostasy
According to strict Muhammadan law, a woman relinquishing Islam had to be kept in prison until she returned to Islam; hence, apostasy was a ground of disqualification for guardianship. But, the Freedom of Religion Act, 1850, enacts that no law or usage can inflict on any person who renounces his religion any forfeiture of rights or property, Guardianship is a right, and apostasy is thus no longer a ground for disqualification.
(2) Father and his relations
In default of the above-mentioned female relations, the right to custory devolves upon :(i) the father, (ii) father’s father, (iii) full brother, (iv) consanguine brother, (v) full brother’s son (vi) consanguine brother’s son. (vii) full brother of the father, (viii) consanguine brother of the father, (ix) son of father’s full brother, (x) son of father’s consanguine brother. The father is entitled to the custody of his (a) son over seven years of age, and (b) an unmarried girl who has attained puberty.
The husband is entitled to the custody of the wife who had attained puberty. If she has not attained puberty, her mother is entitled to her custody.
(III.) Guardianship of minor’s property
The guardians of the property of a minor under Muslim law may be classified into (1) Legal guardians; (2) Certified guardians, that is, guardians appointed by the Court; and (3) De facto guardians.
(1) Legal guardian
The legal guardians of the property of a Muslim minor are – (1) the father, (2) the executor (wasi) appointed by the father. (3) the father’s father, and (4) the executor appointed by the father’s father. If there is no legal guardian, the Court may appoint any other person as a guardian of the property of a minor.
Alienation by Legal guardian
- A legal guardian may alienate the movable property of the minor only in case of urgent necessity.
- He may alienate the minor’s immovable property:
- (i) where double its value is obtained: or
- (ii) where the minor has no other property, and its sale is absolutely necessary for his maintenance; or
- (ii) where the debts of the deceased owner cannot otherwise be liquidated; or
- (iv) where there are legacies to be paid, and there are no other means of paying them; or
- (v) where the produce of the property is not sufficient to defray the expenses of keeping it; or
- (vi) where the property is in danger of being destroyed; or
- (vii) where the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution.
(2) Guardian appointed by the court (Certified Guardian)
The Court may appoint a guardian of the person or property of a Muslim minor, if it is for the minor’s welfare that such a guardian should be appointed.
Points for Court’s consideration- In making such an appointment, the Court will be guided by what appears, in the circumstances, to be best for the welfare of the minor. For this purpose, the Court would have regard to the age, sex and religion of the minor, character and capacity of the proposed guardian, 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. If the minor is old enough to form an intelligent preference, the Court may consider that preference.
His power-. A guardian appointed by the Court may alienate the movable or immovable property of his ward. However, immovable property can be alienated only in the case of necessity, and the guardian must also obtain the previous permission of the Court. Without such permission, he cannot either mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the property.
But he can lease any part of such property, without the Court’s permission:
- for a term not exceeding five years, or
- (ii) for more than one year beyond the date on which the minor will cease to be a minor, whichever is shorter.
A guardian appointed by the Court may refer to arbitration, without the permission of the Court, disputes as to the distribution of immovable properties belonging to the estate of minor’s father, but it is an irregularity if the guardian makes a reference without the opinion, advice or direction of the Court: Sald-un-nissa v. Ruqaiya Bibi
(3) De facto guardian
A person is said to be a de facto guardian when he is neither (a) short de jure guardian, ie, guardian, under the personal law of the minor, facto nor (b) a guardian appointed by the Court, and yet he voluntarily places himself in charge of the minor’s person and property. Thus, under Muhammadan law, all relations except the father and the paternal grandfather, and any stranger can be de facto guardian, unless they are appointed
- executors, by the will of the father or paternal grand-father, or
- guardians, by the Court.
His powers. A de facto guardian may alienate the movable property of the minor in case of necessity, but he cannot alienate his immovable property. An alienation of a minor’s immovable property, without the authority of the Court, by a de facto guardian, is absolutely void. It cannot, therefore, be passed against him for a refund of the consideration.
Muhammed Ejaz v. Mahammad Iftikar. – A Muslim executes a mortgage of his immovable property. He then dies leaving a will, by which he bequeaths the property to his three sons, one of whom is a minor, in equal shares, and subject to equal obligations in respect of his debts. After his death, there are disputes between the major sons and the mortgagee; and the same are referred to arbitration. The arbitrator makes his award allowing the mortgagee’s claim in full. After the publication of the award, one of the major sons is appointed guardian of the minor son under the Guardians and Wards Act. The minor son thereafter files a suit against the mortgagee and his two brothers to set aside the award. In these circumstances, the Court would hold that the minor son is entitled to succeed in setting aside the award. The two brothers are the minor’s de facto guardians. Such guardians have no power to refer disputes regarding the minors to arbitration and the minor’s property is not bound by an award on such reference.
Khorasany v. Acha  -M, a Muslim, was a member of a partnership firm which carried on the business of a rice mill. M died, leaving a widow and a minor son. The widow entered into an agreement with the surviving partners of the firm on behalf of her minor son, whereby she agrees to retain the share of M in the partnership business and to continue the said business. A question arose whether the agreement was valid. It was held by the Court that the widow, being a de facto guardian, could not enter into such an agreement which was void.
Maimunisa Bibi v. Abdul Jabbar  The mother, as de facto guardian, has no power to alienate a minor’s immovable property, but a joint sale, together with major executants, is good in law to the extent of the latte’rs shares.
A guardian appointed under a will is called a testamentary guardian. According to the Muhammadan law, 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. Even the mother has no power to appoint by will a guardian of the property of her minor children.
The executor, appointed by the will of the father or father’s father becomes the legal guardian of the property of the minor. A Muslim father (or paternal grandfather) can appoint one person as the executor of his will and a totally different person as the guardian of the property of the minor.
A minor has no capacity to protect his person, property or interests. Therefore, there are provisions in law so as to requirement of an adult to safeguard the minor’s rights as he/she is legally incompetent to do so. A person who is authorised under law to protect the person or property of a minor is called a guardian.
Under muslim law, guardians are required for the reasons of marriage and protecting a minor’s person and property. Guardianship includes an overall supervision of the minor’s personality and actions. It exists for the welfare of a child along with bearing the liability of the minor.
In India, the Guardians and Wards Act is the legislation governing the subject of guardianship. However the diverse personal laws existing in the country cannot be overlooked and the customs they are based on ought to be taken into consideration. The Bombay Highcourt in the case of Smt. Farzanabai v. Ayub Dadamiya  clearly held that whenever a matter of guardianship is heard, the personal laws and beliefs of the parties must be considered.
- Gul Muhammad v. Mussammat Wazir, (1901) 36 P. R. 191
- Enamul Haque v. Bibi Taimunnisa (1967) A.P. 344
- Sald-un-nissa v. Ruqaiya Bibi, (1931) ILR 53 All. 458.
- Muhammed Ejaz v. Mahammad Iftikar, (1932) 59 1.A. 92
- Khorasany v. Acha, (1928) ILR 6 Rang. 198.
- Maimunisa Bibi v. Abdul Jabbar, (1966) A.M. 468
- Farzanabai v. Ayub Dadamiya
Author: Kailashika Verma,
B.A. LL.B. II year, Rani Durgavati Vishwavidyalaya, Jabalpur