Guardianship in Muslim Laws

The present article, “Guardianship in Muslim Laws” will discuss guardianship under Muslim personal law in India, the different types of guardians, their powers and duties, with reference to statute and case-law, where applicable.

Guardianship in Muslim Laws

Guardianship of a minor refers to the overall supervision of the minor’s personality. It includes the care and welfare of the child including the liability to maintain the same. In Muslim personal law, guardianship largely refers to the guardianship of a minor, including his property by the natural, testamentary, or court-appointed guardian. Guardianship as a concept itself in Muslim personal law has many aspects that are not directly comparable to the Western concept of custody.

For example, guardianship may be distinguished from custody or hizanat under Muslim personal law, with the latter concept being associated with the welfare and care of a minor of tender age by their Muslim mother. The guardian, in whatsoever manner he is established, has certain powers and liabilities accruing to him by virtue of his position.

Introduction

Who is a minor in Muslim personal law?

A minor is an individual who has not attained the age of majority as mentioned in the (Indian) Majority Act, 1875.[1] Except in the matters of marriage, divorce and Mahr, the Muslim community is governed by the rules of majority as defined in the 1875 Act.[2]

According to customary laws, fifteen years of age is the age of majority relating to marriage, divorce and mehr. Thus, while fifteen years is the age of majority in general, in the context of guardianship of a person and property, a minor Muslim will be governed by the 1875 Act which states 18 years of age as the age of majority for all persons.

What are the categories of guardianship in Muslim personal law?

There are three major types of guardianship, and they are:[3]

1. Guardianship in marriage of a minor (Wilayat-ulnikah)
2. Guardianship of property of a minor (Wilayat)
3. Guardianship of person of a minor (Hizanat)

What is guardianship? How is it different from custody?

Before discussing the Muslim personal law relating to guardianship, it is important to note that a statute known as the Guardians and Wards Act, 1890 regulates and defines guardianship in India. The Muslim law of guardianship is customary in nature and the only secular legislation on guardianship rules is the aforementioned 1890 Act. The 1890 Act had been enacted to protect the best interest of a minor and secure his property.

According to Section 4(2) of this legislation, the term ‘guardian’ refers to “a person having the care of a person of a minor or of his property, or of both his person and his property.”[4] However, as there is no express restriction that the provisions of this Act, it does not seem that it would interfere with the rules and customs of Muslim law relating to guardianship- although it shall definitely supplement the same. Thus, this definition of guardianship is also an appropriate description for the function performed by guardianship under Muslim law, saving customary differences.

According to Legal Service India,[5] guardianship or wilayat, refers to the guardianship of a minor Muslim person. It usually refers to the guardianship of property, because “detailed rules have been laid down for the guardianship of minor’s property, while, on the other, there are very few rules relating to the guardianship of a minor’s person.”[6]

Custody on the other hand, which is also known as hizanat, lies with the mother of the minor.[7] The legal sources for guardianship and custody in Muslim law (‘Shariat’) are certain verses in the Quran, along with a few ahadis. In these sources, the Shariat explicitly speaks of the guardianship of the property of the minor, while the guardianship of the person of the minor is seen as a mere inference.[8]

The present article will discuss the three major categories of guardianship under Muslim personal law. Part I will discuss the Guardianship of property of a minor (wilayat). Part II Guardianship in the marriage of a minor (wilayat-ulnikah) and Guardianship of the person of a minor (hizanat).

I. Guardianship in Minor of Property

As mentioned in the introduction, the religious source texts largely refer to the guardianship of property, in terms of rules relating to guardianship in general.

As guardianship is seen as a patriarchal right, according to Radd-ul-Muhtar, the right of guardianship of the property of a minor belongs to the father, by preference and in his absence, it belongs to his executor.[9] In case the father has died intestate, without appointing an executor, then the grandfather is deemed the guardian.

After the death of grandfather, the guardianship belongs to the grandfather’s executor. Moreover, if the grandfather had died without appointing an executor, then guardianship is vested in the kazi who may himself act as such or may nominate someone else to act on his behalf.[10]

According to the Fatwai Alamgiri,[11] a comprehensive legal text of Hanafi law, the law of guardianship of the property of minor is as follows:

“The executor of a father is in the place of the father, so also, the executor of the grandfather is in the place of the grandfather, and the executor of the grandfather’s executor is in the place of the grandfather’s executor, and the executor of the judge is in the place of the judge, when his appointment is in general.”[12]

What are the different types of guardians?

There are three types of guardians under Muslim law:[13]

• Natural guardians

While the term ‘natural guardian’ is not used explicitly by Muslim jurists or appropriate texts, it is a useful term to consider because the father is recognized as guardian in all the schools of both the Sunnis and the Shias. In contrast, while the father of the minor is recognized as guardian, which is synonymous with the term ‘natural guardian,’ the mother of the minor in all schools of Muslim law is not given due recognition as a guardian, even after the death of the father.[14]

The father’s role and function as guardian subsist even when the mother, or any other female, is entitled to the custody of the minor. The father’s right to control the education and religion of minor children has been judicially recognized.[15] He also has the right to control the upbringing and the movement of his minor children. Thus, as long as the father is alive, he is the sole and supreme guardian of his minor children.[16]

While Shariat does not recognize the mother as a natural guardian- whether minor legitimate or minor illegitimate children, she is still entitled to their custody.[17] In contrast, the father’s right of guardianship extends only over his minor legitimate children and is neither entitled to guardianship nor to the custody of his minor illegitimate children at any time, even after the death of the mother.[18]

• Testamentary guardians

The rules relating to testamentary guardianship is different for Sunni and Shia schools. In the Sunnis, the father has the full power of making a testamentary appointment of guardian.[19]

In the absence of the father or his executor, the grandfather has the power of appointing a testamentary guardian. In the case of the Shias, the father’s appointment of a testamentary guardian is deemed valid under Shariat only if the grandfather is not alive. This is because in the Shia traditions, the grandfather, too, has the power of appointing a testamentary guardian.[20] Apart from the father and the father’s father, no other person has any power of making an appointment of a testamentary guardian.

That the mother has no power of appointing a testamentary guardian of her children is a common feature among both the Shias and the Sunnis. According to Dr. Diwan, there are only in two cases in which the mother can appoint a testamentary guardian of the property of her minor children, (both legitimate and illegitimate):[21]

Firstly, when she has been appointed a general executrix by the will of the minor child’s father, she can appoint an executor by her will, and

Secondly, she can appoint an executor in respect of her own property which will devolve after her death on her children.

There are no specific formalities for the appointment of testamentary guardians under Muslim law. This implies that an appointment may be made by the appropriate party in writing or orally: however, in each case, the intention to appoint a testamentary guardian must be clear and unequivocal.[22]

• Guardians appointed by the court

It is only on failure of the natural and testamentary guardians, that the kazi is entrusted with the power of appointment of a guardian of a Muslim minor.[23] However, in modern India, the Muslim law of appointment of guardians by the kazi stands abrogated and instead, the matter is governed by the Guardians and Wards Act, 1890.[24]

As mentioned above, this Act safeguards the best interests of minors and also applies to the appointment of guardians of all minors belonging to any community. Thus, the High Courts and District Courts also have inherent powers of appointment of guardians, though the power is exercised sparingly.[25]

Section 17 of the 1890 Act deals with the matters to be considered by a Court when appointing a guardian and it may do so whenever it considers it necessary for the welfare of the minor, taking into consideration the age, sex, wishes, of the child as well as the wishes of the parents and the personal law of the minor.[26]

In a 1996 case[27], the Gauhati High Court held that when the Muslim mother had remarried after the death of her husband, she should not be appointed a guardian of her minor daughter. Instead, the paternal grandmother was held to be a preferable guardian in the view of the court, and the court-appointed her accordingly.

What are the powers of guardians?

In Muslim law, no hierarchy is made between powers of the natural guardian’s powers and testamentary guardian’s power over minor’s property. The relevant scripture provided by the Muslim law-givers first establish the powers of a testamentary guardian and then state that the natural guardian has the same powers.[28]

The various powers available to guardians of the minor’s property include the following:

1. Power of alienation

According to Dr. Diwan, Muslim law-givers speak of the sale of minor’s property to the exception of any other types of alienation.[29] There is a distinction made between immovable and movable property. The guardian in fact has wider powers over the minor’s movable properties than his immovable properties. Alienation or disposal of minor’s immovable property is permissible by the guardian only in exceptional cases. This is because the Hedaya[30] sets forth the reason for this distinction thus:

“The ground of this is that the sale of movable property is a species of conservation, as articles of this description are liable to decay…on the contrary, with respect to immovable property, it is in a state of conservation in its own nature, whence it is unlawful to sell it-unless, however, if it be that it will otherwise perish or be lost, in which case the sale of it is allowed.”[31]

Thus, the sale of movable property is justified not just for the necessity of the minor, but on the basis of its conservation. It is provided that the guardian is allowed to take all reasonable risks which are involved in the world of business in his handling of movable property.

The sale of movable property can be avoided by the minor on attaining majority only on the ground of fraud resulting in the inadequacy of consideration, or when the inadequacy of consideration is such as to cause serious loss or detriment to the minor, though there is no indication of fraud.[32]

The case law on the guardian’s power of alienation is fairly clear. It has been held that the guardian can sell the minor’s property in cases of urgent necessity^[33] or for the benefit of the minor,^[34] or for maintenance of the minor,^[35] or for the conservation of the property.^[36]

The Supreme Court in Meethiyan v. Md. Kunju,^[37] held that the father as a natural guardian has the power to alienate the minor’s property and, in his absence, the legal guardian is competent to do so. However, the sale of the minor’s property by the mother, who is not a legal guardian nor was she appointed as such, is void. In this case, the father had died and the contention of the mother was that as she was natural guardian, her sale of the minor’s property was not void.

2. Power to grant lease

The provisions of the Fatwai Alamgiri[38] were not in favour of conferring any power on the guardian of leasing out the minor’s properties.[39] In fact, Ameer Ali has taken the view that the executor may give on lease the minor’s property, only if there be need to do so, and if it is advantageous to the minor. Moreover, he has also the power to pledge the goods and other movable property of the minor if it is essential for the maintenance of the minor.

In Zeebunissa v. Danaghar,^[40] the Madras High Court held that a guardian of the minor has the power to lease out minor’s property if and only if it is for the benefit of the minor. It appears that the guardian cannot give leases of the minor properties extending beyond the period of the minority of the child.

3. Power to carry on business

According to the Hedaya, the guardian has power to carry on trade or business on behalf of the minor just like a person of ordinary prudence, provided that the trade is not speculative of hazardous in nature.[41] Another text, the Fatwai Alamgiri[42] endows an executor to invest minor’s property in partnership and goes so far to state that he may enter into partnership with others.

However, it can be argued that the element of risk that any trade or business offers, especially in the case of partnerships may pose a danger to the best interests of the minor in cases where aggrieved persons sue the minor for his involvement in any failed venture. The Privy Council in the past has held that though the guardian had the power to enter into partnership on behalf of the minor, the minor’s liability was only to the extent to which he had shared in partnership; in no case, the minor was personally liable.[43]

4. Power to incur debts and enter into contracts

The position on whether the guardian of a minor has the power to incur debts on behalf of the minor is yet unclear. In essence, a debt contracted without any necessity is not binding on the minor. However, it has been held that the guardian has the power to execute a promissory note on behalf of the minor in those cases where the incurring of debt is justified.[44]

In India, there has been a conflict of judicial opinion as to whether the guardian of a minor under Muslim law as well as Hindu law, could enter into a contract on behalf of the minor, and whether such a contract is especially enforceable against the minor.[45] A slew of cases dealt with this question, starting with the Privy Council case in 1912,[46] wherein it held that it was not within the power of the guardian to bind the minor’s estate by contract for the purchase of the immovable property.

The issue, in that case, was whether the specific performance of a contract validly entered into on behalf of a minor could be granted. Following this, the observations in a case relating to Hindu personal law is relevant in this context because the obiter in this judgment was made in a way to be applicable to all bodies of personal law in India.[47]

In 1948, the Privy Council held that a contract entered into by a guardian on behalf of the minor, which is within the capacity of competence of the guardian and which is for the express benefit of the minor, is especially enforceable against the minor.

5. Power to make partition

According to the Fatwai Alamgiri, the executor has no power to affect partition among the minors, and if he does so, the partition is not void in law and therefore unlawful.[48] Further, it is stated that if among the heirs some are minors, and some are adults, the the executor can separate the share of the adult heirs from the share of the minor heirs and hand it over to them, and retain the share of the minors in his hands.[49] However, it is forbidden in all cases that the guardian separate the shares of each minor and if so done, the entire partition is deemed invalid. If all the heirs are minors, the executor may allot the shares to the legatees, and retain the rest. In case a guardian is appointed by the court with general powers to deal with all matters of the minor, then the guardian has power to effect a partition.[50]

II. Guardianship of Minor in Marriage and Person

Guardianship in marriage (Jabar)

Under this form of guardianship, the father as an empowered guardian or ‘wali’ may contract marriage on the behalf of his minors. The power of imposition of marriage by the wali is known as ‘jabar.’[51] Apart from the father, the role of wali may even be assumed by the grandfather, mother, maternal relatives, full brother and other male relatives.

The Qazi or Court may also assume this role. A person who has renounced Islam cannot be a guardian of a minor Muslim girl for marriage.

Guardianship of person (Hizanat)

Just as modern systems of law place the best interests of the child at the centre of guardianship in any form, the central principle of hizanat in Muslim law is the welfare of the minor.

It is for this reason that Shariat has always preferred the mother to the father in the case of guardianship of minor children in their tender years. If the hazina (the person who performs the function of hizanat) is cruel or neglectful towards the minor then she likely forfeits her right of hizanat.[52]

Interestingly, however, the lack of funds does not mean that the hazina loses her right of hizanat- if the hazina has no funds to maintain the child, then it shall be the responsibility of the father to provide for the hazina with a house and relevant financial support which is essential for the maintenance of the minor. Thus, poverty of the hazina is no ground for depriving her from custody. In case the child has property, then, the hazina may provide maintenance out of that property for the benefit of the minor.

What is remarkable about the Muslim law of hizanat is that every other consideration is subordinated to the welfare of the child. A woman who is unworthy of credit may still retain the custody of child, if the welfare of the child so requires. This means that every misconduct which otherwise disentitle a hazina from the custody of the child is tested on the touchstone of welfare of the child. Thus, no misconduct is absolute, and what amounts to misconduct will vary from case to case.

Conclusion

The legal concept of guardianship of property has been formulated due to the fact that minors are incapable of managing their person and property until they are of age. This article has discussed the concept of guardianship in customary laws of the Muslim community and has examined the various categories of guardianship and guardians, with reference to relevant scriptures, statutes and case-law.

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[1] Section 3(1), Majority Act, 1875.

[2] P. Yadav, Concept of Guardianship Under Muslim Personal Law, Legal Service India, available here

[3] A. Roy, “A Study Of Guardianship Of Person And Property Under The Muslim Law,” (07/07/2010), available here

[4] Section 4(2), Guardians and Wards Act, 1890.

[5] Supra, at note 2.

[6] Dr. P. Diwan, Muslim Law in Modern India, 13^th ed., 2018.

[7] Ibid.

[8] Ibid.

[9] Supra, at note 6.

[10] Ibid.

[11] The Fatwai Alamgiri, VI, 214.

[12] Supra, at note 6.

[13] Ibid.

[14] Supra, at note 6.

[15] Abdul Aziz vs. Nanhe, 29 All 332.

[16] Dr. P. Diwan, Muslim Law in Modern India, 13^th ed., 2018.

[17] Ibid.

[18] Ibid.

[19] Supra, at note 3.

[20] Supra, at note 6.

[21] Supra, at note 6.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Section 9(1), Guardians and Wards Act, 1890.

[26] Section 17, Guardians and Wards Act, 1890.

[27] Rahima v. Saburjaness AIR 1996 Gau 33.

[28] Supra, at note 6.

[29] Ibid.

[30] The Hedaya, IV, 553.

[31] Supra, at note 6.

[32] Ibid.

[33] Bhutnath v. Ahmed, (1885) II Cal 417; Hurbai v Heeraji, (1895) 25 Bom 116.

[34] Thotali v. Kunhammad, (1910) 34 Mas 527.

[35] Asafudulla v. Ramaratan, 1940 All 74.

[36] Abdul v. Jain, 1951 All 74.

[37] 1996 AIR 1003.

[38] The Fatwai Alamgiri VI, 227.

[39] Supra, at note 6.

[40] (1936) 49 Mad 942.

[41] Ameer Ali, I, 686.

[42] Supra, at note 38.

[43] Jaffar v. Standard Bank Ltd., 1929 PC 130.

[44] Kashnupalli v. Ayina Kashim, 1935 Mad 041

[45] Following Waghela Rajsanji v. Shek Mosliuddin, (1887) 14 IA 89, Some of our High Courts have taken the view that the guardian has no power to bind the minor, though the case (Waghela’s case) merely lays down that the guardian has no power to impose personal liability on the minor.

[46] Mir Savarjan v. Fakhruddin (1912) 39 IA 1.

[47] Shri Kakulam v. Kurra Subba Rao 1948 PC 95.

[48] The Fatwai Alamgiri VI, 221.

[49] Supra, at note 48.

[50] The Fatwai Alamgiri VI, 222.

[51] Supra, at note 3.

[52] Supra, at note 6.

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