Guardianship under Muslim Law
Guardianship under Muslim Law
Meaning of Guardianship:
Guardianship under Muslim law refers to the legal responsibility and authority to take care of a minor’s person and property until they attain majority or become capable of managing their affairs. The guardian acts on behalf of the minor to protect their interests.
Types of Guardianship under Muslim Law:
Natural Guardianship (Wilayah-e-Tabi'iyyah):
Guardianship by virtue of blood relationship, usually vested in certain family members by Islamic law.
Legal Guardianship (Wilayah-e-Shar’iyyah):
Guardianship recognized or appointed by law or by a court.
Natural Guardians under Muslim Law:
Father: The natural guardian of the child, including the power to manage both person and property.
Paternal Grandfather: In the absence or death of the father, the paternal grandfather is the guardian.
Mother: Generally considered guardian of the person of the child (especially minors), but not of property.
Maternal Grandfather: Sometimes recognized for guardianship of the person, but generally not property.
Other relatives: In the absence of the above, other male relatives may act as guardians.
Guardian of Person vs. Guardian of Property:
Guardian of Person: Has custody and care of the minor, responsible for their upbringing, education, health, and welfare.
Guardian of Property: Has control over the minor’s estate and assets; authorized to manage or invest them for the minor’s benefit.
Rights and Duties of Guardians:
Provide care, education, and protection.
Manage the minor’s property responsibly.
Cannot misuse or deplete the minor’s property.
Required to act in the best interests of the minor.
Termination of Guardianship:
When the minor attains majority (usually 18 years).
Upon the appointment of a legal guardian by the court.
When the guardian is found unfit or negligent.
Legal Provisions and Recognition:
Muslim personal law governs guardianship matters among Muslims.
The Guardians and Wards Act, 1890 is generally not applicable to Muslims except where it relates to courts exercising jurisdiction.
Courts can appoint guardians if natural guardians are unfit or absent.
Case Laws on Guardianship under Muslim Law:
Mohd. Ahmad Khan v. Shah Bano Begum (AIR 1985 SC 945):
Although primarily about maintenance, the case reiterates the father's paramount right as natural guardian.
Kehar Singh & Ors. v. Union of India (AIR 1983 SC 787):
The Supreme Court held that natural guardianship under Muslim law vests primarily with the father.
Rafat Hassan v. A.R. Abbas (AIR 1989 All 273):
The court emphasized the responsibility of the natural guardian to take care of the minor’s property and interests.
Shah Bano Begum v. Mohammed Ahmed Khan (AIR 1985 SC 945):
This landmark judgment also touches upon the duties and rights of natural guardians, especially fathers.
Summary Table:
| Aspect | Description |
|---|---|
| Natural Guardian | Father > Paternal Grandfather > Mother > Maternal Grandfather |
| Guardian of Person | Custody, care, education, and welfare of the minor. |
| Guardian of Property | Management and protection of minor’s assets. |
| Legal Guardian | Appointed by courts if natural guardians are unfit. |
| Duties | Protect interests, provide maintenance, manage property. |
Conclusion:
Under Muslim law, guardianship is primarily vested in the father as the natural guardian, with the paternal grandfather and mother playing secondary roles. The guardian’s responsibility is to care for the minor’s person and property responsibly. Courts can intervene when natural guardians fail in their duties.
Guardianship is a crucial institution ensuring protection and welfare of minors in Muslim personal law, balancing familial rights with the child’s best interests.
RELATED Blog
0 comments