Professional Documents
Culture Documents
Assignment ON Family Law: Jamia Millia Islamia University
Assignment ON Family Law: Jamia Millia Islamia University
2018
ASSIGNMENT
ON
FAMILY LAW
PROJECT-PROFILE
“GUARDIANSHIP”
ACKNOWLEDGEMENT
First and foremost, I would like to thank our subject teacher Dr. Kahkashan Y. Danyal, for
the valuable guidance and advice. He inspired us greatly to work on this interesting assignment.
His willingness to motivate us contributed tremendously to our assignment. I also would like to
thank him for showing us some sample assignments on how to go about the research assignment.
It gave me an opportunity to analyze and learn about the operation of various Articles of
Constitution of India relating to the topic. Besides, I would like to thank the Faculty staff for
providing us with a good environment and facilities for completing this assignment. In addition, I
would also like to thank my seniors who provided me with the valuable information acting as a
source of guidance in making the assignment. Finally, an honorable mention goes to my family
and friends for their understandings and supports in completing this assignment. Without the
help of the particulars mentioned above, making of this assignment would not have been
possible.
THANK YOU!
SYNOPSIS
❖INTRODUCTION
❖DEFINITION OF GUARDIANSHIP.
❖MEANING OF GUARDIANSHIP.
❖APPOINTMENT OF GUARDIANSHIP.
❖KINDS OF GUARDIANSHIP.
• GUARDIANSHIP IN MARRIAGE (JABR.)
• GUARDIANSHIP OF PROPERTY.
❖REMOVAL OF GUARDIAN.
❖CESSATION OF THE AUTHORITY OF
GUARDIAN.
❖SUNNI AND SHIA LAW: COMPARISON
❖BIBLIOGRAPHY
INTRODUCTION
A minor is supposed to have no capacity to protect his or her own interests. Law therefore,
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
under the law to protect the person or property of a minor, is called a guardian. Under Muslim
law guardians are required for the purpose of marriage, for the protecting the minor’s person and
for protecting the minor’s property.
“Guardianship of a person in relation to a child belongs primarily to its father, the mother’s
being only a pre-emptive right to keep the father away for a legally prescribed period only
from a particular aspect of the guardianship of person, namely, the custody and physical
upbringing of the child’’.2
1
Gohar begum v. Suggi, AIR (1960) SC 63
2
Dr.R.K.Sinha,muslim law, VIth edition,page 122
In this project we will understand the different possibilities and move of our legal system for
every circumstances arising regarding guardianship under Muslim law.
DEFINITION OF GUARDIAN
The term ‘guardian’ is defined in the Guardians and wards act as “ a person having the care
of a person of a minor or of his property, or of both his person and his property”, and, no
doubt, the individual who has by law the right and duty of disposing of a boy or a girl in
marriage may be said to have, for that Limited purpose, the care of his or her person. But there
is no mention of disposal in marriage in any part of the act, and nothing to indicate that it was
intended to interfere with the rules of Muslim law with assigns that function. Under the name of
jabr, it relates to relatives who are not necessarily those entitled to the general care and custody
(hizanat) of the ward’s person (wilson). The Quran is the basis of the law relating to
guardianship and, therefore, there is very little room for differences between Sunni and Shia
schools.
Meaning of guardianship
Who is a minor? A minor is one who has not attained the age of majority. puberty and
majority are, in the Muslim law, one and the same. Puberty is presumed to have been attending
on the completion of the fifteenth years. But now the Muslims are governed by the Indian
Majority Act, 1875, except in matters relating to marriage, divorce, and dower. The existing
position regarding the age of majority in such cases Is given as below:
Fifteen years is the age of maturity for the purpose of marriage, dower, and divorce. At or above
this age, he or she is free to do anything in the sphere of marriage dower and divorce.
According to section 2 of the Child Marriage Restraint Act, 1929 (as amended in 1978), the
minimum age for marriage is 21 years for male and 18 years for females.
Fifteen years is the age of majority in general. As regards other other matters of guardianship of
person and property, Muslim will be governed by the majority act which prescribes 18 years as
the age of majority. Thus, in cases of wills, waqfs, etc., the minority will terminate on the
completion of 18 years.
Twenty-one years in the age of majority if the minor is under the court of wards, aura Guardian
of him has been appointed by the court.
Under Muslim law, any person who has attained puberty is entitled to act in all matters affecting
his or her status or his or her property. But that long has been materially altered by the Indian
Majority Act, and the only matters in which a Muslim is not entitled to act on attaining the age
of 15 years, are
Appointment of Guardian
When the court is satisfied that it is for the Welfare of a 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 take an order accordingly.
Section 15(1) of the Guardians and Wards Act, 1890 permits for the appointment of a joint
guardian where the court has appointed a 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 a 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 of property under the Guardian and Wards
Act.
(ii)in case the court has been empowered to appoint a guardian of the person for the minor, the
same cannot be done by a court under the Guardians and Wards Act.
State Governments are also empowered to appoint a court of wards. The main aim of these
courts is to constitute ward courts for the purpose of regulating, constitution, working, and
powers of courts of wards.
Sections 6, 19 and 21 of the Guardian and Wards Act provides that in the following matters,
the courts should not interfere with the question of guardianship of a minor:
Where a guardian of the minor’s person, property or both has been lawfully appointed under a
will in accordance with the law to which the minor is subject.
If a guardian is not performing his duty properly, the court may remove him. Section 20 of the
Guardian and Wards Act 1890 imposes a duty on the guardian to deal with the ward's property
Section 24, 25 and 26 of the Guardian and Wards Act provides for the custody of the
child by one appointed under the Act as guardian of the person. This is a duty to look to
the minor support, health and education, and such other matters as the law to which the
ward is subject required. Section 27 of the above deal with the duties and the limitations
on the power of guardians. The statutory Guardian of the property is required to deal with
the minor's property as a man of ordinary prudence would deal with his own property.
This is the duty of the guardian to obtain prior approval of the court for disposing of
minor’s property.[See Section 30 of the Act]. Section 31 lays down the procedure for
obtaining the sanction of the court for a transfer by the guardian. A Guardian can also
seek the advice or opinion of the court with regard to the management of the ward’s
property. {S.33}
Section 41 of the above Act says that a guardian appointed by the court or a testamentary
guardian shall cease to be a guardian on the happening of any one of the following incidents:
(a) on the marriage of the minor, if female to a person not unfit to be the guardian of
her person
(b) The revival of guardianship right of the person in whose disability another person
acted as the guardian;
In appointing or declaring the guardian of a minor the court shall take into consideration the
Welfare of the child. In considering what will be for the Welfare of the minor, the court shall
have regard to the age, sex and religion of the minor, the character and the capacity of the
proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent,
and any existing or previous relations of the proposed Guardian with the minor or his property .
If the minor is old enough to form an intelligent preference, the court may consider that
preference.3
3
S.17, Guardians and Wards Act, 1890
Kinds of guardianship
Muslim Law makes a Distinction between Guardian of the person, guardian of the property and
guardian for purposes of marriage (wilayat-ul-nikah) in the case of minors.
As is stated in the chapter of marriage, it is one of the essentials of a valid marriage with the
parties are competent to enter into a marriage contract, i.e., among other things, they must have
attained the age of puberty. However, this general rule admit one exception that is., where the
marriage is contracted on behalf of the minors by the guardian. This exception is the most
distinguishing feature of Islamic jurisprudence because it empowers a father to impose the status
of marriage on his minor children. This power of imposition is called (jabar), the abstract right
of guardianship (wilayat), and the Guardians so empowered is known as Wali. Thus, under the
Muslim law of all schools, the father has the power to give his children of both sexes in marriage
without their consent, until they reach the age of puberty - known as bulugh.
Person entitled-
The following is the list of the persons who can act as Guardians in the marriage of a minor, in
the order of enumeration.
1. The father.
2. The father's father, how highsoever.
3. Full brother and other male relations on the father's side, in order of inheritance given
under residuary.
4. Mother.
5. Maternal relations within Prohibited degree
6. The Qazi or the court.
Shia Law recognizes only the father and failing him the father's father how high so ever as
guardian in the marriage of a minor.
4
Ayub hasan v. Mst. Akhtari, AIR 1963 ALL. 525
5
Abdul Kasim v. Smt. Jamila Khatun Bibi, AIR 1941 Cal 251.
Under the Muslim Law, where the marriage is contracted for the minor by the father or father's
father, the minor has no option on attaining puberty, unless the contract is to the manifest
disadvantage of the minor or has been fraudulently or negligently entered into. Under the
Dissolution of Muslim Marriage Act, 1939 the right of repudiation of Muslim female has been
modified. Section 2(vii) of The Dissolution of Muslim Marriage Act, 1939 says that a woman
married under Muslim law will be entitled to obtain a decree for The dissolution of her marriage
if she proves (i) that she having been given in marriage by her father or other Guardian before
she attained the age of 15yrs, repudiated the marriage before attaining the age of 18 years, and
(ii) that the marriage has not been consummated . The Guardian and Wards Act, 1890 is silent
6
See Mulka jahan v. Mohammad, (1873), 26 W.R.26; Badal v. Queen Empress, (1892) 19 Cal 79.
7
See Section 24 of the Guardian and Wards Act, 1890.
8
See In re Isso. AIR 1942 Sindh 113
9
(1866) 5 W.R. 235
10
(1910) 3 Punj. Rec 191.
11
13 Beng. L.R. 160
Mother-
The mother is entitled-
(1) in Hanafi law To the custody (hizanat) of her male child until he has completed The age of 7
years and of her female child until she has attained puberty, and
(2) In Shia law to the custody of her male child till the age of 2 years and to the custody of her
female child Until the age of 7 years. The right continues though she is divorced by the father of
the child unless she marries a second husband in which case the custody belongs to the father.12
A mother is the de facto guardian. She cannot execute a waqf on behalf of the minor. Such
execution is void as de facto guardian had no right to alienate minor ’s property unless appointed
as guardian by Court.13
12
See Hashmat Ali v. Suraya Begum, AIR 1961 ALL. 260.
13
Gayasuddin v. Ilah Tala Wagf of Masuma, AIR 1986 ALL 39.
However, this right of the mother or any of these female relation is lost in the following cases.-
(i) if she leads an Immortal life, or
(ii) if she neglects to take proper care of the child; or
(iii) if she marries a person not related to the child within prohibited degrees;
(iv) if, during the subsistence of the marriage, she goes and resides at a distance from the
father's place.
In Rahima Khatoon v. Saburjanessa AIR 1996 Gau 33, the court held that The mother loses
the guardianship of the minor daughter in case she remarries with another person not related to
the child within prohibited degrees of relationship. In the present case, the court granted the
certificate of guardianship to the parental grandmother with regard to the minor’s persons and
property.
1. Father.
2. Nearest paternal grandfather.
Provided that no male is entitled to the custody of an unmarried girl, unless he stands within the
prohibited degrees of relationship to her. If there were none of the above guardian, it is for the
court to appoint a Guardian of the person of a minor. In Shia Law, failing the mother, the father,
and failing the father, the father's father is entitled to the custody of a minor’s person. It is
doubtful who would be the guardian failing the father's father.
Father-
Father is entitled in Hanafi Law to the custody of a boy over 7 years of age and of an unmarried
girl who has attained puberty [ and in Shia Law to the custody of a male child over 2 years and
an unmarried girl of 7 years or more].
In Farzanabi v. S.K. Ayub Dadamiya,14 the Bombay High Court held that there is no doubt
that under Muslim law the father is entitled to the custody of a son over 7 years of age. The
court observed that as far as possible the ordinary rule of Muslim law should be adhered to. The
children were above 7 years of age. The court also found that the welfare of the minors did not
lie in favour of residing with your mother. The children also expressed the desire to live with
their mother. But the court observed that they were not of an age when they could make an
intelligent preference. The court therefore awarded the custody of the child to the father.
14
See Mulla : Principles of Mohammmedan law, Section 237 (19th Ed) : See also Farzanabi v. S.K. Ayub Dadamiya;
AIR 1989 Bom 357.
Failing father, the custody belongs to other paternal relations in the order enumerated above.
The husband is not entitled to the custody of his minor wife unless she attains puberty or such an
age as would permit the consummation of marriage. The mother is entitled to the custody of the
minor married girl as against her husband.
If none to the above-noted maternal and paternal relation is to be found, it is for the court to
appoint The Guardian of the person of the minor
Illegitimate child -
“A bastard belongs Legally speaking to neither of its parents and it is in every sense of the word
filius nullius but for the purpose of securing its due nourishment and support, it should, untill It
has attained the age of 7 years, be left in charge of the mother. After that it may make his own
election with which of the parents it will recide, or it may live apart from them alltogether”.16
Gohar Begum was a singing woman in the keeping of one Trivedi, a Hindu. She was the
unmarried Muslim mother of a natural daughter, Anjum, acknowledged by Trivedi as his
daughter. Anjum was sent to stay with a friend of her mother Nazma Begum who later refused
to part with her claiming that she had great affection for the child and had sufficient means to
look after Anjum. It was held by the Supreme Court that the mother of an illegitimate daughter
is in Mohammedan law entitled to its custody; and the refusal to restore the child to its mother
15
AIR 2005 Ker. 68
16
Macnaghten, pp. 298-99
The facts of the case are as follows : “The property in suit belonged originally two one Ismail
Ali Khan, a Sunni Mohammedan. The plaintiffs alleged that on his death, he left his surviving
three widows and several children, and that from one of these widows, Enayat-uz-Zohra, acting
for herself and for her two minor children, purchased the share in suit, for the possession of
which they brought the present action. In fact the relief sought were of a two-fold character; first,
a declaration of the title and status of the plaintiff’s venders; and secondly, a decree in favour of
the plaintiffs for possession of the shares covered by the deed of sale. (The deed executed by
Zohra purported to convey to the plaintiffs the shares of both herself and her minor children).
The contesting defendants denied that Zohra was one of Ismail Ali Khan’s married wives or that
her Child were his legitimate issues, and they further contended that the shares the plaintiffs
claimed to recover did not pass under the sale. The trial judge made declarations as proved and a
decree for possession. An appeal to the High Court was dismissed. Then an appeal was taken to
the Privy Council.
Decision-
(1) On the whole case, Their Lordships were of opinion that both Zohra and her children were
entitled to their legal shares in the inheritance of Ismail Ali Khan.
17
Gohar Begum v. Suggi Begum, (1960) 1 SCR 597: AIR 1960 SC 93.
18
(1918) 45 IA 73.
(2) It is perfectly clear that under the Muslim law the mother is entitled only to the custody of
person of her minor child up to a certain age according to the sex of the child. But she is not the
natural guardian the father alone, or if he be dead, his executor (under the Sunni law), is the legal
guardian. The mother has no larger power to deal with her minor child's property than any
outsider or non-relative who happens to have charge for the time being of the Infant. She may
incur responsibilities, but can impose no obligation on the Infant. This rule, however, is subject
to certain exceptions provided for the protection of a minor child when it has no de jure
guardian. It means a Court may appoint a mother as guardian of the property of the minor.
(3) The mother if she pledges (mortgages) the property of her infant child, it is not lawful, unless
she be the executrix (of the father) or be authorized therefore by the guardian of the minor; or the
judge should grant her permission to pledge the infant’s property. Then It is lawful, and the right
to possession and user is established in the murtahin (pledgee or the mortagee) Without power of
sale (fatwa-i-Alamgiri).
It seems that according to their lordships the power to sell cannot be wider than the power to
mortgage.
It was held in Smt. Aninunnisa v. Mukhtar Ahmad and Others,19 that where a minor aged 10-
11 years is in the custody of his mother and has intelligently exercised his preference to continue
to stay with her, his custody cannot be disturbed and given to his father, though he is the legal
guardian of the Minor under the personal law. A mere claim to legal guardianship in such a
situation will not stand on a higher footing than the claim of the real mother to continue to have
the custody of the minor who has remained in her custody or in the custody of the mother since
the birth of the child. It was further observed by the court that it is true that the father is a natural
guardian of his minor son under Muslim law. But still, as it is too well established to be disputed,
19
AIR 1975 ALL 67.
In another interesting judgment the Bombay High Court in Abdulsattar Hussain Kudachikar v.
Shahina Abdulsattar Kudichikar, AIR 1996 Bom 134 has held that the mother is entitled to the
custody of a son aged 5 years even though the father is earning more money than the mother.
An application was filed by the mother in 1994 to claim the custody of her son alleging that in
accordance with the personal law applicable to the parties, she was entitled to the custody of her
son. The mother complained that the child was snatched from her custody and was illegally
detained by the father in his custody. Since the child was below 7 years of age, she was entitled
to the custody of her male child. On the other hand, the father, appellant contended that he was
able to look after his son whose welfare was so far with him.
While deciding the issue of custody, the court in this case applied the principle “the paramount
consideration is the welfare of the child and held that though there is no dispute that in
accordance with the principle of Muslim law, it is the mother who is entitle to the custody of a
male child until he has completed the age of 7 years but the welfare of the child should also be
taken into account. The court further observed that in this case to keep the child in the custody of
the mother is also in the Welfare and interest of the child.
Termination of Hizanat-
The disqualifications which terminate the right of guardianship may be divided into 5 heads-
1. general disqualification;
2. disqualifications affecting females;
3. disqualifications affecting males;
4. disqualifications affecting parents, and
5. disqualifications affecting the husband.
The mother or any other female entitled to the custody of the minor loses that right in the
following cases:
1. If she is Immoral, i.e.,-
(i) has committed adultery,
(ii) has become a prostitute,
(iii) committed some criminal offence by gross and open immorality,
(iv) is a professional singer or mourner.
2. If she marries a person not related to the child within the prohibited degree example a
stranger. But the right revives on the dissolution of the marriage by death or divorce.
3. If she goes and resides at such a distance from the father's place of residence during the
subsistence of the marriage that he cannot frequently visit her and the child.
4. If she neglects or is incapable of taking proper care of the child.
It was observed in Khatija Begum v. Ghulam Dastagir,20 that under Muslim Law, father is the
natural guardian when he is living and is not unfit to be guardian. Mother's mother of Hanafi
Muslim girl aged six years is not entitled to be appointed a guardian. Merely because the father
has married a second time he does not become unfit to be the guardian. The court also is not
concerned with the comparative fitness of the father and any other person claiming to be
appointed a guardian. The only question relevant is fitness or otherwise of the father for being a
guardian. But that does not mean that the mother's mother of the girl can't be given the custody.
Under Hanafi School, the mother is entitled to the custody of a female child till she attains
puberty. In the absence of the mother such custody belongs to the mother's mother. Section 19 of
the Act, (Guardians and Wards Act) does not prohibit the court from dealing with the custody of
the girl. The section only prohibits appointment of a guardian when father is living and is not
unfit to be the guardian.
The court further observed (in the above mentioned case) that when the minor, brought
up all the times by her grand-parents, is not aware of the existence of her father and refers to
grand-parents as her parents, at such tender age it will not be desirable to shift her custody from
the grand-parents to the father.
However, when the natural guardian ceases to be natural guardian and shows by his conduct that
he has become an unnatural guardian, he loses his right as for instance by cruelty to his wife and
children, or by felony, or adultery, though adultery by itself is no disqualification, if the woman
is not brought into contact with the child. (wilson)
The following are the grounds where a court will interfere with the father's guardianship of
his children:
1. If he is unfit in character and conduct;
2. If he is unfit as regards external circumstances;
3. If he waives his right;
4. If you entered into an agreement to the contrary;
20
AIR 1976 AP 128 : AIR 1963 Raj. 239 dissented from.
21
Nur Kadir v. Zuleikha Bibi, 11 Cal 649.
Thus, mother, brother, uncles etc. are not entitled as of right to be the legal guardians of the
property of the minor.22 Of course, the father or father's father may appoint any of them
(Mother, brother, uncle, etc.) or any other person as his executor or executrix and the latter shall
hold as much power as the father or father's father holds.
Except father and father's father, no other person, not even the mother, is legally authorized to
appoint, by will, any person as executor or executrix.
In Ghulam Husani Kutubuddin Maner v. Abdul Rashid Abdul Rajak Maner,23 the supreme
court of India has held that a mother of the minor cannot be appointed as his guardian to accept
gift on his behalf during the lifetime of minor’s father.
In Amar Ahmad Khan v. Shamim Ahmad Khan,24 the Jharkhand High Court has held that on
the death of a Mohammedan his property immediately devolves on his heirs separately to the
extent of share they are entitled under personal law. Thus Immediately on death, each of his heir
becomes absolute owner of property proportionate to his share. Thus, under Islamic law, there is
no concept of jointness of ownership of properties of a deceased Muslim.
Muslim heirs are independent owners of their specific shares and their liability is also
proportionate to the extent of their share in the estate. Under said circumstances, one share
holder has no right, title and interest to alienate property of another share-holder.
22
Syed Shah Gulam Ghoshe v. Syed Shah Ahmad, AIR 1971 SC 2184.
23
(2000) 8 SCC 507.
24
AIR 2012 Jhar 39.
(1) When there are debts of the deceased, and no other means of paying them;
(2) When the minor has no other means of livelihood and the sale is absolutely necessary for
his maintenance;
(3) When double the price of the property can be obtained by him;
(4) Where the expenses exceed the income of the property;
(5) When the property is falling into decay;
(6) When the property has been usurped and the guardian has reason to fear that there is no
chance of fair restitution;
(7) Where there are legacies to be paid, and no other means of paying them.
The guardian has no power to carry on business of his ward, especially if the business is one
which may involve the minor’s estate in speculation or loss. From the fact that minor member
25
Ahmadullah v. Mafiruddin Ahmad, AIR 1973 Gauhai 56.
In India, the Guardians and Wards Act, 1890 imposes on every guardian of property the duty
to deal with the minor’s property as carefully as a man of ordinary prudence would deal With it
if it were his own and entitles every such guardian to do all acts which are reasonable and proper
for the realisation, protection or benefit of the property.26 Section 28 of the aforesaid Act says
that a testamentary guardian of property cannot transfer the property against any restrictions in
this behalf imposed by the will under which he functions. Section 30 of the above Act says that
violation of these rule, will, in either case, make the alienation voidable.
It was held by the Gujarat High Court that one of the Muslim co-heir’s property cannot be
lawfully alienated his latter’s share for any purpose whatsoever.
In Ahmadullah v. Hafizuddin Ahmed,28 the validity of the power of the guardian to transfer his
ward’s property for the sake of his education was in question. The Gauhati High Court held that
in the present state of our society, which is rapidly advancing in all directions, education up to
the higher secondary stage cannot be said to be extravagant so as to be excluded from
maintenance.
26
See Section 66 of the Act.
27
AIR 1973 Guj. 38.
28
AIR 1973 Gau 56.
While appointing a guardian the court takes into consideration the welfare of the minor
and, as such, may appoint mother instead of paternal uncle, as the guardian of the property of the
minor.29 The court also takes into consideration the will of the father. If the mother is appointed
the guardian, the fact that she is a pardanashin lady will not be considered as an objection to the
appointment. The court must pay due regard to the wishes of the minor’s father and the interest
and the welfare of the minor, whatever that may be in a particular case and a guardian must be
appointed with due regard to these two considerations by the court. Without the previous
permission and sanction of the court a guardian of the property appointed by the court cannot-
Thus , he can lease the immovable property even without the permission of the court-
(i) for a term not exceeding 5 years, or
(ii) for a term not extending more than one year beyond the date on which the minor will
cease to be a minor, whichever is shorter.
If search guardian alienates the minor’s property in contravention of the provision, given above,
such alienation will be voidable at the instance of the minor or any other person affected thereby.
29
See salamat Ali v. Smt. Majjo Begum, AIR 1985 ALL. 29
3. De facto guardians-
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.31 He has only responsibilities towards the minor’s person or property or
both but no rights in respect thereof. Usually de facto guardians are relatives of the minor but
30
AIR 1940 Mad 106.
31
M. Fiaz v. Iftikhar, AIR 1932 PC 78.
Legal guardians and guardians appointed by the court are de jure guardian. The mother, brother,
uncle and all relations other than the father and father's father are de facto guardians unless they
are appointed executors by the will of the father or father's father or appointed guardians by the
court.
a. He cannot refer any dispute regarding the immovable property of the minor to any
arbitration;
b. He cannot give consent on behalf of the minor so as to validate a bequest to his co-heirs;
c. He cannot enter into a contract of partnership or to allow the continuance of the
partnership business dissolved by the death of the minor’s father;
d. He cannot bind the minor by executing a bond in lieu of his father's debts;
e. He cannot make agreements on minor’s behalf for even purchase of immovable property.
In Imambandi’s case,34 where one Zohra, a widow of one Ismail Ali Khan, conveyed the
shares of herself and her minor children, for Rs. 10,000 and the sale was opposed in a suit by the
two other widows and children, it was held that a de facto guardian has no power to convey to
another any right or interest in the immovable property which the transferee can enforce against
32
Ali Mohammad v. Ram Niwas, AIR 1967 Raj 268.
33
Section 27, Guardians and Wards Act, 1890.
34
Immambandi v. Mutasaddi, (1918) 45 L.A. 73.
If a minor seeks to assail the legality and the binding nature of the alienation made by de facto
guardian, it is always open to him to avoid the contract as being void. But when it is not
challenged, it is not open to the third parties to impugn the alienation.35
In case where one Sultan Rowther died in February, 1957 and the plaintiffs (respondents)
being minors (also sons and daughters of the deceased) instituted the present suit for a
35
Ruqia Begum v. Iqbal Ali Khan, AIR 1969 A.P. 30; Mohd. Amin v. Vakil Ahmed, AIR 1952 SC 358.
36
Tikam Chand Lumina v. Rahim Khan Ishakhan, AIR 1971 M.P. 23; Assiz v. Chithamma, AIR 1954 Tra- Coich
370
In Mohammed Amin v. Vakil Ahmad, the Supreme Court has held at a de facto guardian has no
authority to enter into a family settlement in respect of a minor’s benefit, even though the
settlement might be for his benefit.
It is, however, not clear whether in the presence of grandfather, the father possess the capacity to
appoint a testamentary guardian. In Mst. Atkia Begum v. Mohammad Ibrahim38 it was held that
in the presence of grandfather, the father has no right to appoint a guardian.
37
Fatima Bibi v. Sadakatallah, AIR 1977 Mad 215.
38
AIR 1916 PC 250.
Removal of guardian
A guardian whether de jure or de facto is removable by the court if it is necessary in the interest
of the minor. The court may on the application of any person interested, or on its own motion,
remove a guardian appointed or declared by the court, or a guardian appointed by will or other
instrument, for any of the following cause:
(1) Abuse of his trust;
(2) Continued failure to perform the duties of his trust;
(3) Incapacity to perform the duties of trust;
(4) Ill treatment, or neglect to take proper care of his ward;
(5) Continuous disregard of any provision of the Guardians and Wards Act, or of any order
of the court;
(6) Conviction of an offence implying, in the opinion of the court, a defect of character,
which unfit him to be the guardian of his ward;
(7) Having an interest adverse to the faithful performance of his duties;
(8) Ceasing to reside within the local limits of the jurisdiction of the court;
(9) In the case of a guardian of the property, for bankruptcy or insolvency;
(10) By reason of guardianship of the guardian ceasing or being liable to cease, under
the law to which minor is subject (wilson).
Thus, it is obvious that a guardian appointed by the court may for sufficient reason be removed
or he may resign. In a fit case, the court is entitled to appoint a person other than the legal
guardian if the legal guardian is, in the opinion of the court, unfit for the responsible
guardianship.
Duty to support- This is the duty of the guardian to support his ward. He should take full
care of the health, education and such other matters as the law to which the ward is subject
requires.
Use the force defend minor- This is the duty of the guardian to take all necessary steps to
protect an infant child. He can use force to defend his ward.
Duty to files suits- This is the duty of the guardian to file a suit on behalf of the minor.
Order 32 of the Civil Procedure Code says that where a minor has a guardian appointed or
declared by competent authority, no person other than such guardian, shall act as the next friend
of the minor or be appointed his guardian for the suit.
Duty for arranging the marriage of the ward- This is the duty of the guardian to
make necessary arrangements for the marriage of his ward. It is doubtful whether the guardian is
bound to arrange marriage of his ward.
Control of guardian by the court- The courts are fully competent to regulate the conduct
and proceedings of a guardian of the minor’s person, appointed or declared by the court.
Right to control the acts of the ward- A guardian possesses the right to control the act
and conduct of the ward. The father of the minor also possesses the right to inflict correction on
the child if he feels that the ward is not obeying his reasonable orders.
Duty of the father to take charge- A father is the natural guardian. However, at the same
time the mother of the child has been given right to keep the child with her up to certain age.
After crossing that age, the father of the child is bound to take proper care of the child.
Duty of the guardian not to use ward’s property- This is the duty of the guardian
not to use ward's property. This is his duty not to make any profit cut of the property of the
minor. A guardian is not expected to make profit by selling his own property to minor.
Duty to take proper care- This is also the duty of the guardian to take proper care while
dealing with the property of the minor. He is bound to deal with it as carefully as a man of
ordinary prudence would deal with it.
Duty to maintain proper accounts- This is the duty of the guardian to maintain proper
accounts of all the receipts and expenditure incurred by him.
39
Wilson : Anglo-Mohammedan Law, pp. 194-195
BIBLIOGRAPHY
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