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Guardianship Under Muslim Law
Guardianship Under Muslim Law
Guardianship Under Muslim Law
According to Section three of the Indian Majority Act, 1875, someone domiciled in the
Republic of India who is below the age of eighteen years, is a minor.
A minor is assumed to have no capacity to protect his or her own interests. Law thus,
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 underneath the law to guard the person or property of a
minor is called a guardian. Under Muslim law, guardians are needed for the aim of a
wedding, for protecting the minor’s person and for protecting the minor’s property.
What is Guardianship?
Under Muslim law, it is called HIZANAT. They are sometimes taken to mean the same
thing. But underneath Muslim law, these two aspects of the guardianship are different
and are governed by the different laws.
The guardianship of a child means that overall oversight of the kid throughout its
minority. Father or his executor or in his absence, the paternal grandfather, being the
natural guardian, is in charge of the minor’s person. On the opposite hand, ‘custody of
the child’ simply means a physical possession (custody) of the child upon a certain age.
Although the mother is not the natural guardian of the child under Muslim law, she has
a right to the custody of the child, until the child attains a specific age. But the father or
the paternal grandfather encompasses control over the minor throughout the complete
interval of the minority.
Natural guardian is a one that encompasses a right to regulate and supervise the
activities of a minor. Father is recognized as the natural guardian of his kid underneath
all the schools of Muslim law. The father’s right to act as guardian of a minor is an
independent right and is given to him underneath the substantive law of Islam.
A natural guardian is additionally known as a legal guardian. But within the absence of
the father, the father’s executor might also act as a legal guardian. The executor could
be one who is appointed by the father or grandfather to act as the guardian of his minor
kid on his behalf.
1. Father
2. Executor of father
3. Paternal grandfather
4. The executor of Paternal grandfather
Under Muslim law within the absence of any of the above-mentioned persons, no one
else is recognized as the natural guardian of a minor.
Shia Law
Within the absence of father only paternal grandfather could act as a legal guardian. In
the presence of paternal grandfather, the father’s executor has no right to act as legal
guardian of a child.
Testamentary Guardians
Shia Law
In case of the absence of a natural and legal document guardian, the court is authorized
to appoint a guardian for the aim of the minor’s person or property or for both. The
appointment of a guardian by the court is ruled by the Guardianship and Wards Act,
1890 which is applicable to all the Indians irrespective of their religion. Such guardians
are also called Statutory Guardian.
De-facto Guardians
a. Father
b. Paternal uncle
c. Brother’s wife
d. None of these
Ques. Under Shia law Failing the mother, the custody of a boy under the age of seven
years belongs to:
a. Father
b. Paternal uncle
c. Brother’s wife
d. None of these