Guardianship under Muslim Law:

A minor is someone who has no capacity to understand the legal consequences of his or her activities. The
legal position of a person who has not attained the prescribed age is called a minor.

The age of majority is regulated by two systems under Muslim Law:

1. Personal Law
2. Statutory Law

Age of Majority:

For the purposes of marriage, dower and divorce,

● Male - 15 years
● Female - 15 years or age of puberty, whichever is earlier

For all other purposes, it is 18 years, governed by the provisions of the Indian Majority Act, 1875.

* If a guardian has been appointed by the court for a minor or his property, then the age of majority shall
be 21 years.

Classification of Guardians:

1. Natural or Legal Guardian

2. Testamentary Guardian
3. Guardian appointed by the court or Statutory Guardian
4. Defacto Guardian

Natural or Legal Guardian:

● A person who has a legal right to control and supervise all the activities of a child.
● Father is recognized s the natural guardian, under all schools of Muslim Law.
● In absence of the father, the executor appointed by him shall act as the legal guardian.

The natural or legal guardian of a minor in order of priority is as follows

1. Father
2. Executor of father
3. Paternal Grandfather
4. Executor of Paternal Grandfather

Under Shia Law, in absence of a father, only the paternal grandfather can act as the natural or legal
guardian of the minor.
Testamentary Guardian:

● A person who is appointed as the guardian by a will.

● The father or in the absence of the father, the paternal grandfather is allowed to appoint a
testamentary guardian.
● A non-muslim and female can also be appointed as a testamentary guardian.
● Under Shia Law, a non-muslim can’t be appointed as a testamentary guardian.

Guardians appointed by Court:

● In the absence of a natural and testamentary guardian, the court is empowered to appoint a
guardian for the protection of the minor’s person or property.
● Is governed by the Guardians and Wards Act, 1890. Hence, they are also called Statutory
Guardians.
● No provisions is made for the guardianship of a minor for marriage.

The courts are empowered to appoint a Guardian for a minor upon application this application can be
made by the following persons:

1. Any person who desires or claims to be the guardian of the minor

2. Any relative or friend of the minor
3. The collector of the district in which the minor is residing.

De-Facto Guardian:
In absence of a legal Guardian or testamentary Guardian or statutory guardian, a person can be appointed
as the de facto Guardian if he assumes the custody and care of a child.
_____________________________________________________________________________________

Under three aspects:

1. Minor Person
2. Minor’s Property
3. Minor’s Marriage (Wali)

Guardianship of a Minor’s Person:

● Guardianship of the minor's person means the overall supervision of the minor's personality.
Under Muslim law, the custody of a minor is called Hizanat.
● Guardianship is always with the father, and in the absence of the father, it is with the paternal
grandfather.
● Father enjoys a dominant position for both custody and guardianship of children.
● Guardianship and Custody are different terms, wherein Guardianship refers to the overall
supervision of the child. And Custody merely means the possession of the child.
● Hence, the mother is entitled only to the custody of the child.
Mother’s Right of Custody of the Minor

● The mother is entitled to custody of tender minors. Even then the mother is not considered the
natural guardian of the child.
● In absence of the mother, the female relations of the child are entitled to the custody.

When can the custody of a minor be given to a mother?

Under Sunni Law,
Son - Until he turns 7 years old
Daughter - Until her puberty

Under Shia Law,

Son - Until he turns 2 years old
Daughter - Until she turns 7 years old

When is the Mother's right of custody lost?

1. When the mother remarries another husband

2. When the mother leaves an Immoral life or is of bad character
3. When the mother is unable to take proper care of the minor

The mother’s right to custody continues even if she is divorced from the father of her children, however,
in case she re-married then this right is lost. Not absolute, unto the discretion of the court.

Case Law: Irfan Admad Shaikh v. Mumtaz

The custody of a daughter was given to a mother even though she divorced and remarried. This was done
keeping in mind the welfare of the child.

Father’s Right of Custody of the Minor:

The father is entitled to custody only at two stages of the minor’s life:

1. In the case of a minor boy under 7 years and a girl under puberty, the father is entitled to custody
only in the absence of the mother or any female relations of the minor.
2. In the case of a minor boy over 7 years and an unmarried girl above the age of 15 years, the father
is entitled to the custody of the children till they become adults, that is 18 years of age.

In absence of the father, the custody of the child belongs to the paternal male relations of the father.

Guardianship for marriage:

● The marriage of a boy or girl under the age of puberty is not valid unless it is contracted by a
marriage guardian. Therefore a marriage guardian is a person who is authorized to contract the
marriage of a minor.
● The provisions of the Guardians and Wards Act 1890 only apply to Guardians for Marriage.
 ● The marriage guardian has a right to confer the status of marriage on the minors against or
without their consent.

The following persons are entitled to act as guardians for marriage:

1. Father
2. Paternal Grandfather
3. Brother and other male members of the father’s family
4. Mother
5. Maternal relations
6. Kazi or court

Guardianship of the Property:

The following persons are recognized as the legal guardians of a minor’s property:

1. Father
2. Executor appointed by father under a will
3. Paternal Grandfather
4. Executor appointed by paternal grandfather under a will.
● No other relation such as mother, brother or uncle is given this status. However, they can act as
guardians if they have been appointed testamentary guardians by the father or paternal
grandfather of the minor.

Case Law: Mahboob Saheb v. Syad Ismail

The Supreme Court held that though the mother is the nearest relation of the minor, she is not the
guardian of the property of the minor and therefore has no right to transfer the properties.

Powers of the Guardian:

1. Right to sell for the minor’s essential necessities such as food, clothing, etc.,
2. Right to lease any property of the minors for the benefit of the minor. But the period of time can’t
exceed the duration of the minority.
3. Right to carry on the business of the minor as a prudent man would have.
4. Right to procure and acknowledge the debt in case of an emergency on behalf of the minor. If
there was no emergency or necessity, the debt would not be binding on the minor.
5. Right to enter into contracts on behalf of the minor.
6. Right to pre-emption.

Case Law: Poolakkal Ayisakutty v. PA Samad

Where there is a conflict in the application of the provisions of personal laws and the Guardians and
Wards Act, 1890, the latter will prevail.