Guardianship

Guardianship may be of the person, of property and in marriage. The mother is

entitled to the custody of male child until he attains the age of the seven years
and of her female child until she has completed the age of puberty . Under the
Muslim Law the mother has a right to custody of the 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 is the legal guardian . The leading cases decided by
various High Courts reflects that while appointing a guardian paramount
consideration is the welfare of the child . Guardianship may be
(i) of the person,
(ii) of property, and
(iii) in marriage.
In the first instance there is guardianship of the person. Guardians of property
as such are rarely appointed in Islamic law; an executor (wasi) is the guardian
of property ,Guardianship in marriage is a species of wilayat and a marriage
guardian is called wali. In this assignment Guardianship of the person of a
minor is being discussed .

Guardianship of person
In Indian law three periods of guardianship of minors have to be considered. A
minor is
(i) a person under 15 in Muslim law,
(ii) a person under 18 under the Indian Majority Act, and
(iii) a person under 21 who has a guardian appointed by the court or who is
under the superintendence of the court of wards.
In India broadly speaking, a minor is a person who has not completed the age
of eighteen years. In Muslim law minors between the ages of 15 and 18 can act
independently of any guardian in marriage, dower and divorce. For instance, a
Muslim wife of 16 may sue for divorce without the intervention of a guardian.
All applications for the appointment of a guardian of person or property of a
minor must be made under, the provisions of the Guardians and Wards Act
1890. The court will, if necessary, make the order consistently with the welfare
of the minor. In making such order the court shall be guided by:
(a) What, consistently with the law to which the minor is subject, is for the
welfare of the minor;
(b)Age, sex and religion of the minor, the character and capacity of the
proposed guardian, and the wishes of a deceased parent; and
(c) Preference of the minor if sufficiently old to form a preference.

Mother’s right to custody (hizanat):

The mother is entitled to the custody(hizanat) of her male child until he has
completed the age of seven years and of her female child until she has
attained puberty . 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 . Under the Shia law, the mother is entitled to the
custody of a male child until he attains the age of two years, and of a female
child until she attains the age of seven years. After the child has attained the
abovementioned age, the custody belongs to the father. If the mother dies
before the child has attained that age, the father is entitled to the custody. On
the death of both the parents, the custody belongs to the father’s father .
Under Shafei Law the mother is entitled to the custody of her daughter even
after she has attained puberty and until she is married.
A mother is the de-facto guardian.
In Zainab v Md. Gouse, the Madras high court held that conversion of mother
to any other religion does not deprieve her of her right of hizanat. In this case
the court allowed the custody of her child although she had become a
Christian.

Female relations in default of mother:

In the absence or on the disqualification, of the mother , the custody of the
child belongs to the following persons in the following order of priority :
(1) mother’s mother,
(2) father’s mother
(3) mother’s grandmother howsoever high;
(4) father’s grandmother howsoever high;
(5) full sister,
(6) uterine sister;
(7) daughter of full sister , howsoever low;
(8) daughter of uterine sister, however low;
(9) full maternal aunt, howsoever high;
(10) uterine maternal aunt, howsoever high;
(11) full paternal aunt, howsoever high.

Right of male relatives for custody :

In default of the mother and the female relations, the custody belongs to the
following persons in the order given as under :-
(i) The father;
(ii) Nearest paternal grandfather;
(iii) Full brother;
(iv) Consanguine brother;
(v) Full brother’s son;
(vi) Consanguine brother’s son;
(vii) Full brother of the father ;
(viii) Consanguine brother of the father;
(ix) Son of father’s full brother;
(x) Son of father’s consanguine brother;
In Siddiqunissa v Nizamuddin, it was held by Allahabad high court that under
the muslim law, the father’s status is a creation of law not requiring even a
single declaration. Therefore, in presence of father who is not unfit for
guardianship, the court cannot appoint any other person as a guardian.
Provided that no male is entitled to the custody of an unmarried girl, unless
he stands within the prohibited degrees of relationship to her. Tyabji has
clarified that no male is entitled to the custody of a female minor, unless he is
related to her by consanguinity within the prohibited degrees. When a female
has attained puberty and there is no male entitled to her custody , the court
may appoint any female as her guardian . Mulla has stated that the mother of
a girl who is married , but has not attained puberty , is entitled to the custody
of the girls as against the husband of the girl. The father is entitled to the
custody of a boy over seven years of age and of an unmarried girl who has
attained puberty. Failing the father, the custody belongs to the paternal

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relations as stated above . If there be none of these, it is for the court to
appoint a guardian of the person of the minor.
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.
According to Section 19 of Guardians and Wards Act, the husband is guardian
of minor wife and court cannot displace him from his position unless he is
found to be unfit. Here there is contradiction between the muslim law which
allows the custody of minor wife to her mother. This contradiction is solved
allowing mother to be the custodian in case the husband is unfit.

Illegitimate child
Macnaghten says, 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, until it has attained the
age of seven years, be left in charge of the mother, After that age it may make
its own election with which of the parent it will reside, or it may live apart
from them altogether.
In Gohar Begum V. Suggi Begum, Gohar Begam 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 say with a friend that she had great affection for the child and had
sufficient means to look after Anjum. It was held by the Supreme Court that:
a. The mother of an illegitimate daughter is in Muslim law entitled to his
custody
b. Refusal to restore the child to its mother was illegal detention within the
meaning of Section 491 of the Criminal Procedure Code
c. A dispute as to paternity of a child was irreverent for the purpose of the
application
d. Before making the order for custody the court will consider the welfare of
the child
e. The fact that a person has a remedy under the Guardians and Wards Act has
no justification for denying him the remedy under Section 491 of the Criminal
Procedure Code;
f. It is well established in England that in issuing a writ of habeas corpus a
court has power in the case of an infant to direct its custody to be placed with
a certain person
g. The Supreme Court will interfere with the discretionary powers of the High
Court if the discretion was not judicially exercised. The order of the High Court
of Bombay was reversed and Anjum was handed over to her mother Gohar
Begum.

Termination of Hizanat
(a) general disqualification;
(b) disqualifications affecting females;
(c) disqualifications affecting males;
(d) disqualifications affecting parents; and
(e) disqualifications affecting husband.
(a) General disqualifications: A minor is incompetent to act as a guardian of
any minor other than his own wife and or child. If either parent is a non-
muslim, the other is entitled to the custody of the child, whatever his age
and in the Shia law no person is entitled to the custody of the Shia child
who is not a muslim.
(b) Disqualification affection females: The mother remains the guardian of the
child, though she is divorced by the father of the minor. The proof of the
fact that she used to neglect her child before divorce, will not absolve her
from such rights, if after divorce she leads a respectable life.
The females are disqualified for custody of a child, in the following
circumstances :
(i) If she marries a person not related to the child within the prohibited
degrees, e.g., a stranger, but the right revives on the dissolution of
marriage by death or divorce; or,
(ii) if she goes and resides, during the subsistence of the marriage , at a
distance from the father’s place of residence; or ,
(iii)if she is leading an immoral life , or
(iv) if she neglects to take proper care of the child .

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 In Rahima Khatoon v Saburjanessa, the court held that the mother loses
the guardianship of the minor daughter if she remarries with a person not
related to the child within prohibited degrees. In this case, the court
granted the certificate of guardianship to the child’s paternal grandmother.
(C) Disqualification affecting males: It is the general principle of
Mohammedan Law that no male is entitled to the custody of a female minor
who is not related to him within the prohibited degrees, or who is profligate.
But it should be noted that this is a rule of Sunni Law and hardly affects the
Shia Law, which does not recognize any guardian as of right, except the
parents and grandfather. But there is no special mention of this
disqualification. Section 25 of Guardians and Wards Act guides in appointing or
declaring by what appears to be for welfare of minor consistent with law to
which minor is subject to.
(d) Disqualification affecting parents:
Following are the grounds in which the court will interfere with 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 is right;
4.if he enters into an agreement to the contrary;
5.if he is out of the jurisdiction of the Court or intends to go abroad.
Mother is not lose her right to the custody of the children by divorce by father
of the children.
(e) Disqualification affecting the husband: Under muslim law, the husband is
not entitled to the custody of his minor wife in preference to her mother
unless she attains the age f puberty or to such age as would permit the
consummation of marriage. Under Section 19(a) of the Guardians and Wards
Act, the husband in majority of the cases, would be considered by the court to
be unfit to be guardian of the person of the wife, unless under the
Mohammedan Law he would be entitled to the custody of the minor married
girl as against her husband. Minority of husband does not deprive him of his
right to guardianship of his wife.
Bibliography
 Mohammedan law by Aqil Ahmad
 www.lexology.com
 www.legalbites.com
 www.shareyouressays.com
 Muslim law in modern India by Paras Diwan.

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Index
1. Guardianship introduction
2. Guardianship of person
3. Hizanat of child under muslim law
 Mother’s right of custody
 Female relations in default of mother
 Right of male relatives for custody
 Illegitimate child
4. Termination of hizanat
5. bibliography
 UNIVERSITY OF LUCKNOW
Faculty of Law

Assignment of
Family Law
Topic on:
Guardianship of person and Hizanat of child
Under Muslim Law

Submitted to: submitted by:

Mrs. Kiran Manjari Patel
LL.B.(Hons) III sem
Section: “B”
Roll no: 24

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