Introduction

• Guardianship is the lawful entitlement to supervise the movements and acts of a person who is unable to care for himself and handle his own 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.

Meaning of Guardianship

The term ‘Guardianship’ (Wilayat) connotes the guardianship of 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, is a 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 is 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.

Guardianship under Muslim Law

• Guardianship under Muslim law is known as ‘Hizanat’. Guardianship and Hizanat are often misinterpreted to mean the same thing. However, under Islamic law, these two components of guardianship are distinct and are governed by separate laws.
• A child’s guardianship entails overall responsibility for the child throughout his or her childhood. In the unavailability 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.
• Despite the fact that the mother is not the child’s natural guardian (under Muslim Law) she has a claim to custody of the child until the child reaches a certain age. It is often referred as Hizanat which connotes the right of a mother over her children. The father or paternal grandpa, on the other hand, has entire power over the minor for the duration of the minority.

Kinds of Guardian

• A natural or legal guardian
• Testamentary guardian
• Guardian appointed by courts or statutory guardian
• De-facto guardian (fizuli) is out of vague in modern Muslim law.

Legal or Natural Guardianship

• A natural guardian has the authority to control and monitor the work of a minor. Under all schools of ‘Muslim law’, the father is acknowledged as the natural guardian of his child.
• A legal guardian is also known as a natural guardian. However, in the absence of the father, the executor of the father’s will may act as a legal guardian. The executor could be a person named by the father or grandpa to function as the guardian for his minor child.

Therefore, the natural guardian of a minor in order of priority are as follows:

• Father
• Executor of father
• Paternal grandfather
• The executor of Paternal grandfather

Under ‘Muslim law’ within the absence of any of the above-mentioned persons, no one else can be recognized as the natural guardian of a minor.

Shia Law

• Within the absence of father only paternal grandfather could 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.

Can the Mother Act as a Guardian or be Appointed as Guardian of the Minor?

• Mother can neither act as a guardian nor be appointed as a guardian under ‘Muslim law’.
• In the case of Ghulam Husani Kuttubudin Manner v. Abdul Rashid Abdul Razzak Manner (2000), the Supreme Court held that a mother of a minor cannot be appointed as his guardian to accept the gift on his behalf during the lifetime of the minor's father.

Testamentary Guardians

• A testamentary guardian may be a one that is appointed as guardian of a minor beneath a will. Only a father or, in his absence, paternal grandfather has the right to appoint a testamentary guardian.
• A ‘non-Muslim’ and a feminine might also be appointed as a testamentary guardian.
• In the case of Atika Begum v. Mohammad Ibrahim (1912), the Allahabad High Court held that in the presence of a father, the grandfather has no right to appoint a guardian for a minor.

Shia Law

• A ‘non- Muslim' cannot be chosen as a testamentary guardian.

Guardians Appointed by Court

• In the absence of a natural or legal document guardian, the court has the power to appoint a guardian for the minor’s person, property, or both.
  • The Guardianship and Wards Act, 1890, governs the court’s appointment of a guardian, and it applies to all Indians, regardless of religion.
• The district court is given the authority to appoint or declare anyone as a guardian under this statute. The district court may designate any individual as the guardian of the minor and his property whenever it deems it necessary for the minor’s welfare, taking into account the child’s age, sex, and wishes.

De-facto Guardian

• A person who is neither a legal guardian nor a guardian appointed by the court but has voluntarily placed himself in charge of the person and property of the minor, is known as de facto guardian.
• A de facto guardian is a mere custodian of the minor’s person and property but has no right over either.

Disqualifications of Guardianship of Person

• In case of mother and other female relation:
  • If she married a person who is not related to the child within the prohibited degrees by consanguinity.
  • If she leads an immoral life
  • If she resides during the subsistence of marriage at a distance from the father’s place of residence.
  • If she converts to another religion.
• In case of a male: If the minor is an unmarried girl and is not related to him within the prohibited degrees. If a non-agnate within the prohibited degrees, such as a maternal uncle is available, he should be preferred over an agnate (person who is descended from the same male relation) not within prohibited degrees.
  • The object of this ‘Islamic’ rule is to avoid the custody of a male hazin who may marry the girl. However, this rule is not recognized by the ‘Shias’.
• In case of a husband: if the minor wife hasn’t attained the age of puberty or is not of such an age as to allow consummation of marriage.

Cessation of the Authority of Guardian

• By death, removal or discharge;
• By the court of wards assuming superintendence of the person of the ward;
• By the ward ceasing to be minor;
• In the case of a female ward, by her marriage to husband who is not unfit to be guardian of her person;
• In the case of a ward, whose father was unfit to be the guardian of the person of the ward by the father ceasing to be so.

The powers of the ‘guardian of property’ cease:

• By his death, removal or discharge;
• By the courts of wards assuming superintendence of the property of the wards.
• By the ward ceasing to be minor.