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GUARDIANSHIP UNDER MUSLIM LAW

INTRODUCTION

A minor does not have any capacity to protect his/ her interests and therefore law needs some adult person who can protect their rights including property. Since a minor is considered legally incompetent so an adult is needed who can do everything on the behalf of the minor and here comes the concept of “guardian”, so guardian is a person who is recognised by law and is appointed to protect their rights.

Under the laws of Muslim, a guardian is needed for the[1]

  1. Purpose of marriage
  2. Protecting the minor
  3. Protection of Property of the minor

The overall supervision of the personality of the minor comes under the umbrella of guardianship. It includes protecting the rights of minors, taking care of all their needs and work in the welfare of the minor. The guardian then has the responsibility to maintain all these things for the welfare of the minor. The guardianship is not just the custody of a child till the time it becomes major but it is far more than that. Under the law of Muslims, the practice of guardianship is known as ‘HIZANAT’[2]. Both these concepts of custody and guardianship are different under Muslim law and different laws are used to govern these are two. A father or his lessee or if both are absent then paternal grandfather are the natural guardian of the minor and are responsible to the minor.

Custody[3] simply means the physical possession till a certain age. Under Muslim law, the mother of the child is not the natural guardian but can have custody at the same time whereas a father had the control over minor through the whole period of minority.

GUARDIANSHIP AND THE APPOINTMENT

The concept of guardian is defined under the Guardian and Wards act of 1890 and is a person who has the authority to take care of a minor or his property, or both things. The term that is used to refer to guardianship is ‘wilayat‘. Till the time a person is minor or has not attained majority, a court has the right to appoint a guardian for that person. Usually, the age of attaining majority is considered to be 18 but under the Guardians and Wards Act, the age of attaining majority or the age of minority is extended until the person has completed 21 years.

DIFFERENT KINDS OF GUARDIANSHIP

Under Muslim law, there is a distinction between the Guardianship of a different kind like that of person, property or in case of minor the purpose of marriages (wilayat-ul-nikah)[4].

Under the Mohammedan law, there are 3 kinds of guardianship and they are-

  1. Guardianship in cases of marriage (jabr) – One of the essential elements is that both the parties should be competent of entering into the contract of marriage and have reached the age of puberty.
  2. For custody of minor (hizanat) – A mother, female that is in default relation with mother or any other male relations.
  3. Guardianship related to property- No matter whether the property owned is movable or immovable, a guardian is needed to manage all those things and this guardian can be a natural, appointed by the court or de-facto guardian.

COMPARISON BETWEEN SUNNI AND SHIA

Under Sunni law, it considers other relations other than father and grandfather as the guardian in case of marriage whereas in Shia law the only guardians for marriage are the father and the real grandfather.

In the case of Sunni law, marriage by guardians other than the father and true grandfather can be declared as not accepted after attaining a majority but in the case of Shia law, such kinds of marriage by guardians other than father and grandfather are invalid[5].

In the case of Sunni law a mother can be considered as the guardian for their children but in the case of a boy the age limit is 7 years of age and in the case of a girl it is till the point they attains puberty but if we see the laws in this respect that are prevailing under Shia law then in case of boy it is till the time of 2 years of age and in case of girls the age that is decided is 7 years of age.

CONCLUSION

The conclusion that can be drawn after all these discussions is that the law of guardianship under Muslim law is a bit different as compared to other laws. The age of majority is the same as the age of attaining puberty in the case of guardianship. Guardianship due to its varied forms is classified under 3 categories and they are for marriage, person or even property. Although the concept of Guardianship is explained and governed under the Guardians and ward Act, 1890 then also the concept of marriage remained untouched. Father is considered the natural guardian of a child. But in the cases of custody of a minor or a lunatic or till a certain age, the mother is given the priority in the case of having the authority. And in the cases where father and mother both are not present, then in such cases, the power to elect a guardian rests with the court[6].

In cases of guardianship related to the property of the minor then it might belong to the natural guardian or testamentary guardian and in case these two are absent then the guardians who are appointed by the court have all the rights. The full powers are vested only with the natural guardians but the ones appointed by the court have limited powers in terms of immovable property like selling, incurring debt or carrying out any kind of business. Section 27- 37 of the Guardians and Wards Act, 1890 contains the rights of the guardians that are appointed by the court.

Author(s) Name: Vaishnavi Singh (Bennett University, Greater Noida)

References:

[1] Mahdi Zahraa, Normi A. Malek,’ The concept of Custody under Islamic law’ (1998) 13 ALQ 155< www.jstor.org/stable/3381578 > Accessed 24 Aug. 2021

[2] S.N. Ebrahimi,’ Child Custody “(Hizanat)” under Iranian law: An analytical Discussion’ (2005) 39 FLQ 459 < www.jstor.org/stable/25740500 >. Accessed 24 Aug. 2021.

[3] Mudasra Sabreen,’ Custody in Islamic law’ (2017) 56 IS 223 < www.jstor.org/stable/26617653 >. Accessed 24 Aug. 2021.

[4] Ahmed Fekry Ibrahim,’ The Best Interest of the Child in Pre-modern Islamic Juristic Discourse and Practice’ (2015) 63 AJCL 859 < www.jstor.org/stable/26425443 >. Accessed 24 Aug. 2021.

[5] Asha Bajpai,’ Custody and Guardianship of Children in India’ (2005) 39 FLQ 441 < www.jstor.org/stable/43950487 >Accessed 24 Aug. 2021.

[6] Arun Kumar,’ Guardianship and custody Of the person of a minor child- conflicting claims’ (1975) 17 JILI 299 < www.jstor.org/stable/25740499 >. Accessed 24 Aug. 2021.

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