The general control of a minor’s temperament is referred to as guardianship. It refers to the child’s care and well-being and the responsibility to care for them. In this article, we will be discussing what guardianship is under Muslim law, and what it means, its powers and its responsibilities.
There is a different guardianship law in Muslim law called Hizanat, and the age of the minority is also different from other laws. According to Muslim law, a minor is 17 years old for boys and till puberty for girls.
The general control of a minor’s temperament is referred to as guardianship. It refers to the child’s care and well-being and the responsibility to care for it. It’s more than just having custody of the child when they reach a certain age.
Guardianship is the legal right to regulate the movements and acts of a person who is unable to care for himself and manage his affairs due to mental flaws, such as an infant, an imbecile, or a lunatic. It includes the ward’s custody as well as the authority to deal with the ward’s possessions.
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What is guardianship under Muslim Law?
The Muslim rule of guardianship is based on a few verses in the Quran and a few Hadis, the sources of Muslim Law. There are three different types of guardians in Muslim law:
1. Natural Guardian-
The father is considered the sole natural guardian of a child in Muslim law, and the mother is not considered a natural or guardian even after the father’s death. Therefore, even if the child’s custody is not with him, the father is regarded as the child’s only natural guardian and has authority over all decisions concerning the child.
However, only the father’s legitimate children are under his jurisdiction. He is not entitled to guardianship of the illegitimate children. For example, a Muslim mother may have custody of her children, but she is not permitted to be their guardian.
In the absence of the father or his executor, the minor’s natural guardian, the paternal grandpa, is in control of the minor’s person. On the other hand, “custody of the child” merely refers to the child’s actual possession (custody) at a given age.
Though, under Shia Law, only the paternal grandfather could act as a legal guardian in the father’s absence. Therefore, the father’s executor has no power to act as legal guardian of a kid in the presence of the paternal grandfather.
2. Testamentary guardian
The term “Wali”, ‘Amin’, or ‘Kaim-Mukam’ refers to a testamentary guardian. In both Shia and Sunni traditions, the father can designate a testamentary guardian. In Sunnis, the grandpa has the authority to designate a testamentary guardian in the absence of the father and his appointed executor. In Shias, the father’s guardian is only legitimate if the grandfather is deceased; otherwise, the grandfather has the authority to designate the testamentary guardian.
A non-Muslim mother can be designated as a testamentary guardian in Sunnis, but not in the case of Shias. A squanderer cannot be appointed as a guardian since it would be detrimental to the child’s welfare. A testamentary guardian must directly or implicitly accept guardianship. If the guardianship is approved, it can only be revoked or relinquished with the court’s approval.
Except in two instances, the mother has no power to appoint a guardian for her children in both Shias and Sunnis:
- By her father’s will, she has been named executrix.
- She owns a property that will be passed on to her children.
3. Guardian Appointed by Court
The court is empowered to appoint a child’s guardian upon the failure of natural and testamentary guardians. The Guardians and Wards Act, 1890 is applicable for appointing a child’s guardian belonging to any community. The district court is empowered under the Act to appoint a guardian after considering the child’s welfare. The High Court also has the inherent power to appoint a guardian for a minor, which the court sparingly exercises.
According to Muslim Personal law board, a boy or a girl’s minority ends when they reach puberty, also known as ‘Bulugh’ in Urdu. And the child is free to marry whomever he or she wants, with no intervention. It is thought that a child reaches majority at the age of fifteen in Hanafi and Shia Muslims. The guardian’s connection with the child is fiduciary. This is to ensure that the minor child does not act in their own best interests.
Assuming that the minor kid is unable to care for himself, a guardian must be appointed, who must be an adult and capable of making decisions on behalf and in the best interests of the minor child.
Guardianship under Muslim Personal Law is an essential element of people’s laws, and it has been codified via legislation over time. The Guardians and Wards Act is a piece of legislation passed by Parliament that deals with guardianship rules and procedures in Indian Muslim personal law.
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