TOPIC – GUARDIANSHIP

UNDER MUSKIM LAW

JAMIA MILIA ISLAMIA

THIS PROJECT IS SUBMITED TO

DR.KAHKASJAN Y DANIYAL (FAMILY LAW) BY
MANIK KAPOOR (4TH SEMESTER / BA-LLB (H))

EXAM ROLL NO; 16BLW0008

REHULLAR
INDEX

INTRODUCTION
SOURCES
TYPES
CASES
DETAILED INFORMATION
CONCLUSION
ACKNOWLEDGEMENT
I would like to express my special thanks of
gratitude to my teacher DR. KAHKASHAN Y
DANIYAL as well as our principal who gave me
the golden opportunity to do this wonderful
project on the topic diffrence between
GUARDINSHIP with judicial prospectus which
also helped me in doing a lot of Research and i
came to know about so many new things I am
really thankful to them.

Secondly i would also like to thank my parents

and friends who helped me a lot in finalizing
this project within the limited time frame.

MANIK KAPOOR
References :-

1 Asaf A. A. Fyzee , “ Outlines of Muhammadan Law “, 4th ed. , pp. 197-198

2 Mulla , “Principles of Mahomedan Law” , ed. 2014 , pp. 433-434

3 Mulla , “Principles of Mahomedan Law” , ed. 2014 , p. 437

4 Faiz Badruddil Tyabaji , “ Muslim Law”, 4th ed. P. 217

5 Mulla , “Principles of Mahomedan Law” , ed. 2014 , pp. 438-439

Copyright © 2016 Published by kaav publications. All rights rese

Mulla , “Principles of Mahomedan Law” , ed. 2014 , p. 440

6
7 Faiz Badruddil Tyabaji , “ Muslim Law”, 4th ed. Pp.224-225

8 Asaf A. A. Fyzee , “ Outlines of Muhammadan Law “, 4th ed. , p. 201

9 AIR 1975 All. 67

10 AIR 1979 Delhi 67 , at P. 74

11 AIR 1979 Bombay 156, at P. 163

12 AIR 1984 A.P. 1

13 AIR 1984 A.P. 1 , at pp. 3-5

14 AIR 1986 M.P. 221

15 AIR 1996 Bombay 134 , at 138

16 AIR 1999 Bombay 25

17 AIR 2015 Kerala 21

Introduction
A minor is supposed to have no capacity to protect his or her own
interests. Law therefore, requires that some adult person must safeguard
the minor’s person or property and do everything on his or her behalf
because such a minor is legally incompetent. A person who is authorised
under the law to protect the person or property of a minor, is called a
guardian. Under Muslim law guardians are required for the purpose of
marriage, for the protecting the minor’s person and for protecting the
minor’s property.

Guardianship of a minor person means an overall supervision of the

minor’s personality. It means care and welfare of the child including the
liability to maintain it. It is more than simply custody of the child upon a
certain age. Under Muslim law, is called HIZANAT. They are sometime
taken to mean the same thing .But under Muslim law, these two aspects
of the guardianship are different and are governed by the different laws.
The guardianship of a child means overall supervision of the child during
its minority. Father or his executer or in his absence, the paternal
grandfather, being the natural guardian, are in charge of the minor’s
person. On the other hand ‘custody of the child’ simply means a physical
possession (custody) of the child upon a certain age. Although mother is
not the natural guardian of the child under Muslim law, but she has a
right to the custody of the child, till the child attains a specific age.[1]But
the father or the paternal grandfather has a control over the minor
during the whole period of the minority. Tahir Mohmood states that:
“Guardianship of a person in relation to a child belongs primarily to its
father, the mother’s being only a pre-emptive right to keep the father
away for a legally prescribed period only from a particular aspect of the
guardianship of person, namely, the custody and physical upbringing of
the child’’. [2]

It may be said therefore, that mother has a right to the custody of her
child for some time, because except her, no one can handle and nurse a
child during its infancy. But her custody of the child is subject to the
supervision of the father who, as a legal guardian, is under an obligation
to provide means for the upbringing of child .
In this paper we will understand the different possibilities and move of our legal
system for every circumstances arising regarding guardianship under Muslim law.

Types of Guardianship
1. Natural or legal guardian.
2. Testamentary guardian.
3. Guardian appointed by courts or statutory
guardian, and
4. De-facto guardian

Natural or legal guardian: Natural guardian is a

person who has a legal right to control and supervise the activities of a
child. Father is recognized as the natural guardian of his child under all
the Schools of Muslim law. The father’s right to act as guardian of a
minor is an independent right, and is given to him under the substantive
law of Islam. Natural guardian is also called dejure or legal guardian. As
stated above, only father is the legal guardian of his child. But in the
absence of father, the father’s executor may also act as a legal guardian.
Executor is a person who is appointed by the father or grandfather to act
as a guardian of his minor child on his behalf. In the absence of the
father or his executor, paternal grandfather or paternal grandfather’s
executor acts as a legal guardian. Thus, the nature guardian of a minor,
in order of priority, are as under:

1. Father
2. Executor of father
3. Paternal grandfather
4. Executor of Paternal grandfather

Under Muslim law in the absence of any of the above mentioned persons,
nobody else is recognized as the natural guardian of a minor.[3]

Shia Law: In the absence of father only paternal grandfather may act as
a legal guardian .In the presence of paternal grandfather, the father’s
executor has no right to act as legal guardian of a child.

Testamentary Guardians: Testamentary

guardian is a person who is appointed as guardian of a minor under a
will. Only father or, in his absence, paternal grandfather has right to
appoint a testamentary guardian. No special formality is required for the
appointment of a testamentary guardian, but, as obvious, such a person
should be competent to act as a guardian. A non-Muslim and a female
may also be appointed as a testamentary guardian.

Shia Law: A non- Muslim cannot be appointed as testamentary

guardian.

Guardians appointed by Court: In the

absence of a natural and testamentary guardian, the court is empowered
to appoint a guardian for the purpose of the minor’s person or property
or for both. The appointment of guardian by court is governed by the
Guardianship and Wards Act, 1890 which is applicable to all the Indians
irrespective of their religion. Such guardians are also called Statutory
Guardian. It may be noted that no provision has been made under this
act for the guardianship for the marriage. The result is that except the
guardian for marriage, the guardian for a Muslim minor’s person or
property may be appointed by the court of law. In case of conflict
between Muslim personal law & Guardianship & wards act, provisions of
acts prevail over the provisions of Muslim personal laws.
The courts are empowered to appoint the guardians for a minor upon an
application. Such application may made by any of the following persons:

1. any person desirous of being or claiming

to be the guardian of t
2. any relative or friend of the minor, or
3. The collector of the district in which the minor
generally resides

If the court is satisfied that it is for welfare of the minor that an order
should be made, then it may make an order –

1. Appointing a guardian of minor’s

person, or both ,or
2. Declaring a person to be such a
guardian1.
Sec. 17 (2) of the act says about the various grounds for deciding the
guardianship like: sex, age of the minor, capacity of the proposed
guardian etc.

In Smt. Farzanabai v. Ayub Dadamiya[5], the Bombay high court

observed that under Guardians and Wards act, the personal law of the
parties is a factor which is to be kept in mind by the court subject to the
interest of the minor.

De-facto guardians: A de-facto guardian is a person who

is neither a legal guardian nor a testamentary guardian or statutory
guardian, but has himself assumed the custody and care of a child.
According to Tyabji a de-facto guardian means an unauthorised person

1 Sec. 7 & 8 of the guardians and wards act,1890

who, as a matter of fact, has custody of the person of a minor or his
property.[6] De facto guardian is a person having no authority for the
guardianship but under the circumstances has taken the responsibility to
act as the guardian of a minor.

Guardianship of person
In Indian law three periods of guardianship of minors have to be considered. A minor is (i) a
person under 15 in Mulsim law, (ii) a person under 18 under the Indian Majority Act, and

121
(iii) a person under 21 who has a guardian appointed by the court or who is under the
superintendence of the court of wards.

In India broadly speaking, a minor is a person who has not completed the age of eighteen
years. In Muslim law minors between the ages of 15 and 18 can act independently of any
guardian in marriage, dower and divorce. For instance, a Muslim wife of 16 may sue for
divorce without the intervention of a guardian. All applications for the appointment of a
guardian of person or property of a minor must be made under, the provisions of the
Guardians and Wards Act 1890. The court will, if necessary, make the order consistently
with the welfare of the minor. In making such order the court shall be guided by:

(a) What, consistently with the law to which the minor is subject, is for the welfare of the
minor;

(b) Age, sex and religion of the minor, the character and capacity of the proposed
guardian, and the wishes of a deceased parent; and
(c) Preference of the minor if sufficiently old to form a preference. 1

Mother’s right to custody (hizanat):

The mother is entitled to the custody(hizanat) of her male child until he has
completed the age of seven years and of her female child until she has attained
puberty . The right continues though she is divorced by the father of the child unless
she marries a second husband in which case the custody belongs to the father .2
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. After the child has attained the abovementioned age, the custody belongs to the
father. If the mother dies before the child has attained that age, the father is entitled to
the custody. On the death of both the parents, the custody belongs to the father’s
father . Under Shafei Law the mother is entitled to the custody of her daughter even
after she has attained puberty and until she is married. 3

Absence or disqualification of mother:

 In the absence or on the disqualification, of the mother , the custody of the child
belongs to the following persons in the following order of priority : (1) mother’s
mother, (2) father’s mother (3) mother’s grandmother howsoever high; (4) father’s
grandmother howsoever high; (5) full sister, (6) uterine sister; (7) daughter of ful

sister , howsoever low; (8) daughter of uterine sister, however low; (9) full maternal aunt,
howsoever high; (10) uterine maternal aunt, howsoever high; (11) full paternal aunt,
howsoever high. 4
Disqualification of Females for
custody :
The females are disqualified for custody of a child, in the following
circumstances :

(i)If she marries a person not related to the child within the prohibited
degrees, e.g., a stranger, but the right revives on the dissolution of marriage
by death or divorce; or,

(ii) if she goes and resides, during the subsistence of the marriage , at a
distance from the father’s place of residence; or ,

(iii) if she is leading an immoral life , or

(iv) if she neglects to take proper care of the child . 5

Right of male relatives for custody :

In default of the mother and the female relations, the custody belongs to the
following persons in the order given as under :-

(i) The father; (ii)Nearest paternal grandfather; (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; 6

Tyabaji has clarified that no male is entitled to the custody of a female

minor, unless he is related to her by consanguinity within the prohibited
degrees. When a female has attained puberty and there is no male entitled
to her custody , the court may appoint any female as her guardian . 7
Mulla has stated that the mother of a girl who is married , but has not
attained puberty , is entitled to the custody of the girls as against the
husband of the girl. The father is entitled to the custody of a boy over
seven years of age and of an unmarried girl who has attained puberty.
Failing the father, the custody belongs to the paternal relations as stated
above . If there be none of these, it is for the court to appoint a guardian
of the person of the

minor.

Illegitimate child.
Macnaghten says; a bastard belongs legally speaking to neither of its
parents, and it is in every sense of the word filius nullius; but for the
purpose of securing its due nourishment and support , it should, until it
has attained the age of seven years, be left in charge of the mother, After
that age it may make its own election with which of the parent it will
reside, or it may live apart from them altogether. 8

Relevant case law :-

In Smt. Ainunnisa V. Mukhtar Ahmad 9, M. P. Mehrotra J. pointed out
that where a minor aged 10-11 years is in the custody of his mother and
he has intelligently exercised his preference to continue to stay with her,
his custody cannot be disturbed and given to his father though he is the
 legal guardian of the minor under the personal law (viz.., Mohammadan
Law) A mere claim to legal guardianship in such a situation will not stand
on a higher footing than the claim of the real mother to continue to have
the custody of the minor who has remained in her custody or in the
custody of her mother since the birth of the child.

He further pointed out that if a minor’s mother remarries the real father
can file an application under section 25 of Guardians and Wards Act and
claim custody on the ground of the remarriage. He is not required to wait
till the minor attains the age of 7 years. In Smt. Akhtar Begum V.
Jamshed Munir 10 , the petitioner (mother) moved a petition firstly under
Section 25 of the Guardians and wards Act for custody of her minor
daughter and then filed an application under Section 12 of the Act for
temporary custody by invoking personal law of the parties. The petitioner
and the respondent (her husband) were Sunni Muslims governed by the
Hanafi Law of Sunni Muslims. Application under Section 12 was
dismissed by the trial court which was more influenced by the general
principles of law of guardianship and lost sight of the personal law of the
parties.

Tulpule J., in Mohammad Shafi V. Shamin Banoo 11, held that even
during the marriage the custody of the minor children in case of a boy until he
attains the age of 7 years, and in the case of a female until she attains puberty is
with the wife. The right of the father to the custody of the child is deferred, and the
primary right is in the mother and in the absence of the mother in other female
heirs. As long as the right to custody is with the mother, the mother is deemed to
be also having the custody and care of the minor. If that is

so, it is obvious that the mother during the period laid down by the Mahomedan
law has both the custody and the care of the minor as long as she is not
disqualified from retaining the custody of the minor.
The Division Bench of A.P. High Court, in S. Rehan Fatima V. Syed Badinudin
Pariviz, 12 ,speaking through Sardar Ali Khan J. , clarified that merely because , the
petitioner, mother, has an alternative remedy for custody of minor under Guardians
and Wards Act. , her petition for habeas corpus under Art. 226 cannot be dismissed
on such technical ground in the interest of justice and in view of the welfare of the
minor. The facts of the case shows that the father and mother of the child aged
about 3 ½ years. belonged to the hanafi sect of Muslims. Their marriage was
solemnized and dissolved according to the principles of Muslim Law applicable to
their sect. The petitioner mother of the child, filed a writ petition for his custody.
On interviewing the child by the court, the behavior of the child has given an
impression that his mental and physical health was likely to be impaired if he was
deprived of the love and affection of his mother . The father had stated that he was
already receiving several proposals for remarriage . The mother however stated
that she had no intention what so ever of getting married a second time and that she
intends to devote her whole life for the upbringing of her son, No neglect or
indifference towards the child on the part of the mother at any stage has been
alleged by the father. It was held that the mother was entitled to the custody of the
minor in view of the principles of Muslim Law notwithstanding the fact that she
has been divorced by her husband and she would be given relief in petition for
habeas corpus notwithstanding existence of alternative remedy under Guardianship
and Wards Act. 13 In Mumtaz Begum V. Mubarak Hussain 14, a Division Bench of
M.P. High Court held that the mother of the child shall not suffer disqualification to
have custody of the child for the mere fact that she is not residing with her
husband, the child’s father. If there exits circumstances to show that it was difficult
for her to reside with her husband or that she had not forsaken voluntarily her
husband’s company. She should not be penalized. That apart, importance must be
attached to the main rider namely, she resides ‘’ at a distance from the father’s;
place of residence’’. Indeed the court must read the underlying meaning of the
rider. Even if the mother must have custody of the child of the tender age, till he
attains the age of 7 years, the father must not be denied access to the child. When
personal laws are, divinely sanctioned, a presumption will naturally arise that such
laws have a humanistic content because when great seers, saints and prophets
found any faith, they act as benefactors of the mankind as a whole. If Man is God’s
child and if
child is the father of the Man, no personal law claiming divine sanction can afford
to deny paramount consideration to the welfare of the child. Moreover, this view is
also supported by principles of the Declaration of the Rights of The child , 1959
adopted by the United Nations General Assembly. Again in Abdulsattar Husen V.
Shahina Abdulsattar 15 , the age of minor son was 5 years , the father has admitted
that he married a second wife , he has a touring job, leaving his only son from his
first wife to the care of his second wife , in preference to the natural mother of the
child , would not be in the best interest of the child . The child certainly needs the
love and affection of his natural mother, who is anxious to bestow it upon her child
. Looking to the welfare of the child , custody was given to the mother and father
was allowed the visiting rights .

In Irfan Ahmed sheikh V. Mrs. Mumtaz 16 , it was stated that Muslim Law does not
lay down that in any circumstance and at any cost the mother would be disqualified
for the custody of child , the moment she gets remarried . The underlying principle
of Muslim law like any never be expected that any personal law would be so harsh
to ignore the welfare of the minor child . In this case the mother has remarried a
stranger and the child being of discretion age is vehemently refusing to go with the
father … the underlying principles of Muslim Law on this aspects are also the
welfare of the child . There is no dogmatic insistence that the child must remain
with the father even against the wishes of the child the moment the mother gets
remarried to a stranger . That is to happens in normal condition . The Muslim Law
also provided for exceptional circumstances . In P. Ayishakkutty V. Abdul
Samad( A.I.R. 2005 Ker 68 ) the mother of the child has committed suicide , later
on the father remarried and got children from that marriage. The father prayed for
the custody of the child . Looking to the welfare of the child the father was given
the custody of the child . It means only due to the remarriage the father can not be
denied the custody of the child .

Recently in Bushara V. Shibinu 17 , a Division Bench of Kerala High Court

observed, ‘’ The welfare of the child demands that he should get not only the love
and affection of the mother but also that he should have the opportunity to meet
and interact with his father during limited periods of holidays so that he also enjoys
the care and love of the father. Otherwise, the growth of the child, might not get a
well balanced and harmonious exposure to the love and care of both his father and
mother . Merely because the personal law gives custody of the minor son until he
completes the age of 7 years in favour of the mother, does not lead to a situation of
complete obliteration of the necessity of the child to get interaction

of exposure with his father and it cannot be interpreted that the provision of the
Mohammedan Law should be hyper technically interpreted and enforced leading to
a situation whereby it is in derogation and flagrant violation of the aspect , which
demands that the paramount consideration should be the welfare of the minor child
. Thus , the court granted limited visitation rights to father and consequential
interim custody of minor boy during onam , X’ mas and summer vacation .

nt schedule item No. 4 in favour of the 8th defendant. Under

thesecircumstances, if the 3rd defendant who is their mother kept
possession of the properties on their behalf, the first defendant cannot take
umbrage under the Muslim personal law to forge a ban on his estranged
wife keeping possession of the properties. As a matter of law, the appellant
is not justified in contending that the mother of the Ist plaintiff was not her
natural guardian during the life time of her father.
Conclusion :-

The above discussion of the personal law and the various judgments show that ,
first , that the mother is entitled to the custody of her male child until he completes
the age of 7 years and incase of a female child until she attains the age of puberty .
Second, the mother is entitled only to the custody of her minor child but she is not
the natural guardian of the child . The father alone is the natural guardian of the
child . If the father is dead , then under the Sunni Law his executor will be the
legal guardian . Third, even if the custody of the child remains with the mother ,
the father is entitled to the supervisory rights over the child

. Fourth , if the minor ‘s mother remarries , the real father can make an application
under the Guardians and Wards Act on the ground of her remarriage . Fifth , the
principles of Muslim Law relating to Hizanat of the child can not be read in
isolation and divorced from the provisions of the Guardians and Wards Act, which
vests in the court a discretion to direct return to the custody of a guardian a wards ,
who is removed from his custody in appropriate cases where the court thinks the
such a direction is necessary for the well being of the ward and that where the case
of personal law indicates one course of action and considerations of the welfare of
the minor indicates another , the latter must prevail over the former. The paramount
consideration is the welfare of the minor child while deciding custody or
guardianship.