Guardians

[Dazzling Eyes]

GUARDIANSHIP

1. Introduction
Guardianship (Wilaya) may be of the person, property and marriage. The right of guardianship of the minor belongs to the father and in his absence to his nominate. Where no one has been nominated, then belongs to the grandfather. If he dies the right of guardianship vests in the court. All applications for the appointment of a guardian of the person or of the property or of both, of a minor must be made under the provisions of the Guardian and Wards Act, VIII of 1890.
2. Guardian
Guardian means a person having the care of the person of a minor or of his property or of his person and property.
3. Ward
Every minor who has guardian, no matter what type of guardian he has, i.e. the one appointed by the court under guardians and wards Act or one who is self appointed ‘de facto” guardian. A minor is a person under 15 in Islamic Law. The minors between 15 and 18 can act independently of any guardian in marriage according to Islamic Law.
4. Persons Who Can Apply for Appointment of Guardian
Following persons can apply for the appointment of the guardian of a minor.
i Person who wishes to be appointed or a person claiming to be the guardian of the minor.
ii Any relative or friend of the minor.
iii The collector of the district or other local area within which the minor ordinarily resides or which he has property.
iv The collector having authority with respect to the class to which the minor belongs.
5. Contents of the Application
i Name, age, address, sex, religion of the minor.
ii Property of the minor.
iii Name and address of person having custody of the minor.
iv Whether a guardian person or property.
v Name of the relatives of the minor.
vi Qualification of proposed guardian.
vii Whether an application has been at any time made to any other court with respect to the guardianship.
viii The cause which have led to the making of the application.
ix Any other necessary particulars.
6. Kinds of Guardian
i. Guardian of person.
ii. Guardian of property.
iii. Guardian for the marriage.
7. Who can be Guardian of a person
• Under Hanafi Law
In the case of a son below seven years of age and of a daughter below the age of puberty following are entitled for the custody:
i. Mother
ii. Mother’s mother how high-so-ever
iii. Father’s mother how high-so-ever
iv. Full sister
v. Uterine mother
vi. Consanguine sister
vii. Full sisters daughter
viii. Uterine sister daughters
ix. Mother father
x. Maternal aunts
xi. Paternal aunts
xii. Paternal aunts of mother and father
In the absence of them following female paternal relations shall have entitlement:
i. Father
ii. Paternal grand father
iii. Full brother
iv. Consanguine brother
v. Full brother son
vi. Consanguine brother’s son
vii. Full paternal uncle
viii. Consanguine paternal uncle
ix. Full paternal uncle’s son
x. Consanguine paternal’s son
• Under Shi’ite Law
The custody of son below two years of age or of a daughter below seven years of age to the mother and after the mother the custody of the minor belongs top the father and of being not qualified then to the grand father how high-so-ever. The custody of son above two years of age and a daughter above 7 years of age belong to the father and in his absence to the true grand father how high-so-ever.
8. Mother as Guardian
The custody of an infant child belongs to the mother; this right is known as Hidana (loosely spelt in India, Hizanat).
• In Hanafi law, the mother is entitled to the custody of her male child till the age of 7 years and of her child till puberty.
• In Ithna Ashari law, to the custody of her male child till the age of 2 years and of her female child till the age of 7 years.
• The mother is, of all persons, the best entitled to the custody of her infant child during marriage and after separation from her husband, unless she becomes an apostate, or wicked, or unworthy to be trusted.
• Although the mother has the custody of a child of tender years, this does not imply that the father has no rights whatever. The nature and extent of the mother’s right of custody was considered by the Privy Council in Imambandi v. Mutasaddi, and it was said:
“ She is not natural guardian; the father alone, or, if he be dead, his executor (under Sunni Law) is the legal guardian.”
• Thus where the father and mother are living together, their child must stay with them and the husband can not take the child away with him. Where the child is in the custody of one of its parents, the other is not to be prevented from seeing and visiting it. The father’s supervision over the child continues in spite of the child being under the care of female relations, for it is the father who has to maintain the child.
9. Disqualification of Mother or female guardian
• As regards the mother or a female guardian, marriage to a person not related to the child within the prohibited degree is a bar to guardianship; so also, immorality or adultery, or neglect to take proper care of the child.
• A mother does not lose the guardianship of her infant children merely because she is not longer the wife of her former husband; but where she marries a second husband, the custody of such children normally belongs to her former husband, especially where he is otherwise a fit and proper person to be appointed a guardian of the person of his children.
• Zynab Bibi v. Muhammad Ghouse, AIR, 1952, Mad. 284
It was held that she was entitled to the custody of her children and the fact that she stayed separately from her husband was not a disqualification.
10. In the absence of Mother
• Failing to mother and female relations, the following male relations are entitled to the custody of a Muslim child in order of priority:
i. The father
ii. Nearest paternal grandfather
iii. Consanguine brother and other paternal relations
• The custody goes to the nearest male paternal relation, reckoning proximity in the same order as for inheritance.
According to D.F. Mulla and Willson:
“If the child is a female the guardianship goes to the nearest male paternal relative within the prohibited degrees.”
• The father and, failing the father, the paternal relatives mentioned above are entitled to the custody of boys over seven and unmarried girls above age of puberty.
• The husband of a wife who has not attained puberty is not entitled to the custody of his wife in preference to the wife’s mother.
11. Sex
The general principal is that no male is entitled to the custody of a female minor unless he is related to her by consanguinity within the prohibited degrees; in addition, profligacy is a disqualification.
12. Illegitimate Child
Gohar Begum v. Suggi alias Nazma Begam 1960, ISCR (India), page 597
It was held by the Supreme Court of India that the mother of an illegitimate daughter is in Muhammadan law entitled to its custody; that the refusal to restore the child to its mother was illegal detention within the meaning of Section 491, Criminal Procedure Code.
13. Guardianship of Property
• Legal Guardians
In Sunnite law, the father is the guardian of the minor’s property; failing him, in order of priority, the following are entitled:
i. The father’s executor
ii. The father’s father
iii. The paternal grandfather’s executor
These are the legal guardian of the property of the minor. It must be emphasized that the substantive law of Islam does not recognized any other relatives, such as the mother, the uncle or brother, as legal guardians, but may be appointed by the court. (Imamband v. Mutsaddi, 1918)
• Guardian appointed by the Court
Failing above, the court is entitled to appoint a guardian; and in the exercise of its judgment it may appoint the mother or some other person as guardian, for a woman is under no disqualification to be so appointed.
• De facto Guardian
o A person, not being a legal guardian or clothed with the authority of a guardian by the court, may place himself in the position of a guardian by intermeddling with the property of the minor. Such a person is called a de facto guardian, as distinguished from the de jure guardians.
o De facto guardians are merely custodians of the person or the property of the minor, and have no rights but only obligations. Niether the mother, not the brother, nor the uncle can without the authority of the court deal with the property of a minor.
A. Immovable Property
• It was held by the Privy Council that the mother had not power to alienate the property, for she was not the legal guardian.
• According to Syed Ameer Ali:
“ Under the Muhammadan law, a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently called a ‘de facto guardian’, has no power to convery to another any right or interest in immovable property which the transferee can enforce against the infant.”
• Purchase of immovable property
A Full Bench of the Hyderabad High Court has considered the question:
“Whether a minor who has agreed to purchase property through his guardian can bring a suit for specific performance of the contract?”
‘NO’, but if the guardian is a ‘de jure guardian’ and competent to bind the minor by his contract, and the contract is for the benefit of the minor, then ‘yes’.
B. Movable Property
• A legal guardian of the property of a minor has the power to sell or charge the movable property of the minor for the minor’s necessities, such as food, clothing and nursing.
• A de factor guardian has similar rights as a legal guardian has but a guardian appointed by the court has larger powers. He has, however, to deal with the property to of the minor as carefully as would a man of ordinary prudence if it were his own.

• Termination of Guardianship
No person is entitled to the custody of a child after it has attained puberty. A guardian appointed by the court may for sufficient reason be removed or he may resign.
14. Guardianship in Marriage

15. Who can be guardian of property:
i. Natural or legal guardian can be appointed guardian of property.
ii. Testamentary guardian.
iii. Court can appoint any person guardian of property in case of absence of natural and testamentary guardian.
iv. A person can voluntarily take the charge of the property. He is in other words self appointed guardian.
16. Power of Court to Make Order as to Guardianship:
When the court is satisfied that it is for the welfare of a minor that an order should be made:
i. Appointing a guardian of his person or property or both or
ii. Declaring a person to be such guardian, the court may make order accordingly.
17. Removal of Guardian:
Guardian can be removed on the following grounds:
i. For abuse of his trust.
ii. Failure to perform his duties.
iii. Incapacity to perform the duties.
iv. For ill treatment or neglect to take proper care of his ward.
v. Conviction of an offence implying in the opinion of the court defect of character which renders unfit him to be the guardian of his ward.
vi. Interest adverse to the faithful performance of the court.
vii. Ceasing to reside within local limits of the jurisdiction of the court.
viii. Insolvency in case of guardian for property of ward.
ix. Ceasing by reason of guardian being liable to cease under personal law of the minor.
18. Modes of Removal
a By the application.
b By the court by its own motion.
19. Conclusion:

[rufy09]

in 2006 they have asked distinguish between right of guardianship and the right of custody. can the two rights simultaneously exist in two different persons??

kindly share your opinion. and it wil be kind if u mention the difference..