GUARDIANSHIP UNDER MUSLIM LAW

MEANING – A person having the care of the person of a minor of his property, or of both his person and his property.

 Appointment of guardian – when the court is satisfied that it is for the welfare of minor that an order should be made for appointing a guardian of his person or property or both as declaring a person to be such guardian, the court may make an order accordingly. Section 15[1] of the guardian and wards act, 1890, permits for the appointment of joint guardian where the court has appointed joint guardian and any one of them has died, the
survivor continues to act as guardian. Section 19 of the act says that in case the superintendence of the property of minor has been assumed by a court of wards under any local law in force:
I. The court shall not be able to appoint a guardian under the guardian and wards act.
II. In case the court has been empowered to appoint a guardian of person for the minor, the same cannot be done by a court under the guardian and wards act.

Kinds of guardianship – Following kinds of guardians under muslim law

I. Guardianship in marriage[jabr] – Where the marriage contracted on behalf of minor by the guardians. It empowers father to impose status of marriage on his minor children. The power of imposition is called jabr and guardian, so empowered is known as wali.

II. Guardian of the person of minor for custody [hizanat] –
i. In hanafi law, for male child until he has completed the age of 7 years and for female child till she has attained puberty, the mother is entitled for their custody.
ii. In shia law, the mother is entitled for the custody of male child, till age of 2 years and cutody of female child till the age of 7.
iii. The right of mother or any other female relations last, if –
A. She leads of immoral life.
B. If she neglects to take proper care of the child.
C. If the marries a person not related to child within prohibited degrees.
D. If during subsistence of marriage she goes and resides at a distance from father’s place.

III. Guardianship by will – a guardianship set up through a drafted will by the parents for their minor child, such guardianship is known as guardianship by will.

IV. Guardianship for property

i. De jure – It means legal or natural, the person in the order mention below, is entitled as de jure guardian of the property of a minor
A. Father
B. Executor appointed by the father’s will
C. Father’s father
D. Executor appointed by the will of the father’s father.

ii. De facto guardian – a person who is neither 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.

iii. Certified guardian – Under this heading if the legal guardian is absent, then the duty of appointing a guardian for the protection and preservation of the minor’s property fall in court.

iv. Dissolution of marriage – Generally, the separation of relation of husband-wife is called dissolution of marriage. ‘talaq’ is a method of dissolution of marriage.

TRAPTI PAREEK

@LEXCLIQ

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