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Types of guardianship in Mohammedan Muslim law of Minor child or its conclusion

This article written by Shivani Sharma, Law Student at Asian Law College Noida

type of guardianship

First of all we are discussing on Minor child as what is the provision for Minor child in Muslim Law and what is the procedure of its guardianship, Conclusion on types of guardian in Mohammedan Law.

Who is a Minor?

According to Section 3 of the Indian Majority Act, 1875, someone domiciled in the Republic of India who is below the age of eighteen years, shall be minor.

A minor is assumed to have no capacity to protect his or her own interests. Law thus, 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 had authorized underneath the law to guard the person or property of a minor is called a guardian. Under Muslim law, guardians are needed for the aim of a wedding, for protecting the minor’s person and for protecting the minor’s property.

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.

Types of Guardian

Guardianship under Muslim Law recognizes the following kind of guardianship:

⇛1. -A natural or legal guardian

⇛2. -Testamentary guardian

⇛3. -Guardian appointed by courts or statutory guardian

⇛4. -De-facto guardian

⇛1. -A natural or legal guardian:

Guardian means a natural guardian which is father and in his absence mother of a minor (who has not completed 18 years).

For all purposes the benefits of a minor is seen by his natural guardian.

Where both father and mother are not alive then application is moved before court under the guardians and wards act, 1890 for appointment of guardian of a minor. The legal guardian looks after the benefits of a minor till he attains majority, which in this case is 21 years.

The stepfather is not treated as natural guardian of a minor. He can be appointed as legal guardian but by the permission of the court.

Court will appoint the legal guardian of minor.

⇛2. -Testamentary guardian:

Lexically, testamentary would mean ‘by the will’. Hence, a testamentary guardian is a person who shall be appointed as the guardian of the minor child. The father of the minor child carries out this appointment. And under a circumstance where the father is not alive then the paternal grandfather shall have the authority to decide the guardian.

This mode of appointment is an alternate mode of appointment of a testamentary guardian. According to usual practice, the testamentary guardian is appointed by way of will, which encloses who shall be the guardian to the minor child in case the natural guardian i.e. the father is not alive. A testamentary guardian can also be a non-Muslim person or a female. However, specifically under Shia Law, a female can never be a testamentary guardian.

⇛3. -Guardian appointed by courts or statutory guardian:

The courts are empowered to appoint guardians under the Guardians and Wards Act, 1890. The High Courts also have inherent jurisdiction to appoint guardians but this power is exercised sparingly. The Hindu Minority and Guardianship Act are supplementary to and not in derogation to Guardians and Wards Act. Under the Guardians and Wards Act, 1890, the jurisdiction is conferred on the District Court: The District Court may appoint or declare any person as the guardian whenever it considers it necessary in the welfare of the child. In appointing, a" guardian, the court takes into consideration various factors, including the age, sex, wishes of the parents and the personal law of the child. The welfare of the children is of paramount consideration.

The District Court has the power to appoint or declare a guardian in respect of the person as well as separate property of the minor. The chartered High Courts have inherent jurisdiction to appoint guardians of the- person as well as the property of minor children. This power extends to the undivided interest of a coparcener.

The guardian appointed by the court is known as certificated guardian. Powers of Certificated guardians. Powers of certificated guardians are controlled by the Guardians and Wards Act, 1890. There are a very few acts which he can perform without the prior permission of the court. In the ultimate analysis his powers are co-extensive with the powers of the sovereign and he may do all those things (though with the permission of the court), which the sovereign has power to do. A certificated guardian from the date of his appointment is under the supervision, guidance and control of the court.

⇛4. -De-facto guardian:

A de facto guardian is a person who takes continuous interest in the welfare of the minor's person or in the management and administration of his property without any authority of law. Hindu jurisprudence has all along recognized the principle that if liability is incurred by one on behalf of another in a case where it is justified, then the person, on whose behalf the liability is incurred or, at least, his property, is liable, notwithstanding the fact that no authorization was made for incurring the liability.

The term 'de facto guardian' as such is not mentioned in any of the texts, but his existence has never been denied in Hindu law.

In Sriramulu, Kanta. Said that Hindu law tried to find a solution out of two difficult situations: one, when a Hindu child has no legal guardian, there would be no one who would handle and manage his estate in law and thus without a guardian the child would not receive any income for his property and secondly, a person having no title could not be permitted to intermeddle with the child's estate so as to cause loss to him. The Hindu law found a solution to this problem by according legal status to de facto guardians.

A mere intermeddler is not a de facto guardian. An isolated or fugitive act of a person in regard to child's property does not make him a de facto guardian. To make a person a de facto guardian some continuous course of conduct is necessary on his part. In other words, a de facto guardian is a person who is not a legal guardian, who has no authority in law to act as such but nonetheless he himself has assumed, the management of the property of the child as though he were a guardian. De facto guardianship is a concept where past acts result in present status. The term literally means 'from that which has been done.

The de facto guardian was recognized in Hindu law as early as 1856. The Privy Council in Hanuman Pd. said that 'under Hindu law, the right of a bona fide incumbrancer, who has taken a de facto guardian a charge of land, created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not affected by the want of union of the de facto with the de jure title.

The Court shall have the power to remove the guardian under certain circumstances.

Which are below mentioned:

⇛1-If the husband has abused the trust of the woman.

⇛2-He has not performed any duties as the husband.

⇛3-The husband does not have any capacity to perform the duties.

⇛4-That the husband has not treated the woman well.

⇛5-That there is no regard to the orders of the court by the husband and he is also not 6-regarding the provisions of the Guardianship Act.

⇛7-When the husband has been found guilty for moral turpitude.

⇛8-Have different interests as a guardian.

⇛9-That the wife ceases to be a minor.

Conclusion of guardianship under Muslim Law:

Guardianship under Muslim Law is an essential part of personal laws of people and with the passage of time; it has been codified by way of legislations. The Guardians and Wards Act is the legislation passed by the Parliament, which deals with the laws and process related to guardianship in India.

However, it cannot be ignored that personal laws are based on customs and need to be taken into consideration. Considering this, the Bombay High Court in Smt. Farzanabai v. Ayub Dadamiya clearly held that personal law and beliefs of the parties need to be kept in mind by the adjudicating bodies whenever they hear any matter of guardianship.

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