Natural Guardian under Muslim Law

A guardian is a person who is primarily responsible for a child`s health, needs, education and other basic needs. Usually, a father is a natural guardian and in his absence or upon death, the mother becomes the guardian of the child. No person other than the mother and father may be the natural guardian of the child. Guardianship is established when a person other than the father and mother of the child has custody of the child. A guardian has control over the child and has the right to make all decisions relating to the child. The guardian is legally responsible for the child. Under Sunni law, the father is the natural guardian and after his death, guardianship passes to the executor of the father`s will. In Shia law, the father is also the natural guardian, but after the death of the father, the grandfather becomes the guardian (if he is still alive), even if the father has already appointed the executor, it does not matter. i) Mother – In the Hanafite school, the rupture or guardianship of the minor`s body for the custody of the mother is until the minor man is 7 years old and, in the case of a woman, until she reaches puberty. But in the case of the Shia school, the mother retains guardianship of the son until he reaches the age of 2, and of the daughter until she is 7 years old. A testamentary tutor is a tutor appointed by the natural guardian by will.

Under Article 9(1), a father has the power to appoint a guardian for his or her children or legitimate property, or both, but Article 9(2) provides that if the mother is alive after the death of the father, she is the guardian of the children and the will drawn up by the father remains invalid and is revived only at that time: if the mother dies without appointing a guardian in his will. 3. Guardianship of the minor`s property – If a minor owns movable or immovable property under Muslim law, the guardian must take care of the minor`s property. The guardianship of the minor`s property is also known as Wilayat-e-mal. Although the mother is not the child`s natural guardian under Muslim law, she has the right to custody of the child when the child reaches a certain age. But the father of the paternal grandfather includes control over the minor throughout the interval of the minority. The court may appoint a guardian for a child under the Guardians and Wards Act 1890, which is called a « certified guardian ». The powers of the certified guardian are also defined by law. The act gives powers to the district courts. A district court may appoint any person as guardian of a child if it deems it necessary for the child`s well-being.

The law stipulates that when appointing a child`s guardian, the court must take into account the sex, age, wishes of the parents and the personal rights of the child. The law considers that the well-being of the child is of paramount importance and that any court decision should be in the best interests of the child. High courts have the inherent power to appoint a guardian for a child, an undivided interest in a co-park or its separate property, but this authority is rarely used by the High Court. A de facto guardian is a person who is neither a legal guardian nor a testamentary guardian, but who has himself or herself considered the custody and protection of a child. According to Tyabji, « A de facto guardian means an unauthorized person who actually has custody of the person or property of a minor. A common-law guardian could be a person who has no authority over guardianship, but who has assumed responsibility, in the circumstances, to act as guardian of a minor. The de facto guardian is responsible for the welfare of minors and their property, but there are no rights against the minor and his or her property.7 The sale of a minor`s immovable property without the authority of the court by a de facto guardian is absolutely void. There are certain restrictions imposed on the court-appointed guardian to deal with the property of minors – the powers available to de facto guardians are the acts that must be performed in respect of minors under three categories – acts of guardianship, acts arising from the absence of minors and acts that are purely beneficial to the minor. Case Reference – Once guardianship is granted to someone, it cannot simply be removed. It may be refused or abandoned only with the authorization of the court.

Yes, a guardian can be dismissed by the court. A guardian, de jure or de facto, is dismissed by the court if this is necessary in the interest of the minor. The following reasons are given why the court may recall the guardian, which are as follows: According to Shia law, a non-Muslim cannot be elected as a testamentary guardian. The court has the power to appoint a guardian for a child in the event of the default of a natural and testamentary guardian. The Guardians and Wards Act 1890 applies to the appointment of the guardian of a child belonging to a community. The District Court is empowered by law to appoint a guardian after taking into account the welfare of the child. The High Court also has the inherent power to appoint a guardian to a minor, which it exercises sparingly. In general, guardianship in Muslim law is also called « hizanate ». It simply means supervising or caring for the child as a whole of his or her minority.

Usually, a father or executor or the child`s grandfather is the natural guardian of a child. Custody is different from guardianship. It is simply physical possession (custody) of a minor until a certain age. A testamentary guardian may be a guardian who is appointed guardian of a minor under a will. Only the father or, in his absence, the paternal grandfather has the right to appoint a testamentary guardian. A non-Muslim and a woman may also be appointed testamentary guardians. The guardianship law among Muslims comes from certain verses of the Qur`an and some hadis. Under Muslim law, there are only three types of guardians: under Muslim law, if the father of the child is not there and there are no legal documents, the absence of a will, then the court has the power to appoint the legal guardian of the minor child. When guardians are appointed in this way, they are also called « legal guardians » because they are appointed under the Guardianship and Wards Act 1890. The concept of guardianship under Muslim law has a great essence because it is people`s personal law and over time it has been systematized by the legislator.

So, the above are different types of guardianship under Muslim law. Guardianship has its place because guardians improve the child`s lifestyle, as they are harbingers of social change and the budding citizens of tomorrow. Therefore, it is important to take care of them and take good care of them and also provide them with the right amenities for their entire development. A child is the future of the country and therefore it is very important that the child is in a good environment where he is properly treated and cared for. A minor child is unable to take care of himself or to make decisions. It is necessary to have a person who takes care of the child, supports him, loves him and meets all the basic requirements. Therefore, the guardian of a child should be such a person who takes care of the child appropriately. The main consideration in the appointment of guardians should be that there should be the well-being of the child. The court should appoint a guardian who takes into account various aspects. If the minor is old enough to form an intelligent preference, the court may take this into account. [1] The court must consider the age, sex and religion of the minor, the character and limitation of the proposed guardian, the wishes of a deceased parent, and any current or previous relationship of the proposed guardian with the minor or his or her property. (iii) De facto guardian – A de facto guardian is a person who is neither a legal guardian nor a court-appointed guardian, but who has intentionally held himself responsible for the body and property of the minor […].