What is Law of Guardianship under Muslim law?

Introduction 

Guardianship, known as Wilayat in Muslim law, refers to the legal authority and responsibility of managing the personal and property interests of a minor, a person deemed incapable of managing their own affairs. According to the Indian Majority Act, 1875, a minor is defined as any individual below the age of eighteen, domiciled in India. Minors are presumed legally incompetent, and thus, an adult must be appointed to act in their best interests. 

Meaning of Guardianship

 Guardianship (Wilayat) encompasses the duty to oversee the person and property of a minor, who lacks the legal capacity to safeguard their own interests. Under Muslim law, this responsibility extends to various aspects, such as marriage, personal care, and the protection of property. A guardian may be appointed by law to act on behalf of the minor in these matters.

Muslim law recognizes four types of guardians:

1. Natural or Legal Guardian – The father or paternal grandfather.
2. Testamentary Guardian – Appointed by the father in his will.
3. Guardian Appointed by Courts or Statutory or Certified Guardian – Appointed by legal authorities.
4. De-facto Guardian – A person who assumes the role without legal authority but is not widely recognized in modern Muslim law.

Guardianships under Muslim Law

1. Natural or De-jure Guardianship

A natural guardian is responsible for overseeing and controlling the affairs of a minor, ensuring their well-being and protecting their interests. In all schools of Muslim law, the father is universally acknowledged as the natural guardian of his child. This right is vested in him under the substantive law of Islam and is independent of any other right.

However, if the father is absent or incapacitated, his appointed executor can serve as the guardian of the minor. An executor may be someone chosen by the father or paternal grandfather to act on their behalf. Thus, the hierarchy of natural guardians under Muslim law is as follows:

1. Father
2. Executor of father
3. Paternal grandfather
4. Executor of paternal grandfather

In the absence of these individuals, no one else is recognized as a natural guardian under Muslim law.

Shia Law: In Shia law, if the father is absent, only the paternal grandfather can act as a legal guardian. The executor of the father has no rights as a guardian if the paternal grandfather is alive.

2. Testamentary Guardianship

A testamentary guardian is appointed through a will, typically by the father or, in his absence, the paternal grandfather. They can be non-Muslims or females, except under Shia law, where non-Muslims cannot be appointed as testamentary guardians. The Supreme Court in Ghulam Husani Kuttubudin Manner v. Abdul Rashid Abdul Razzak Manner[1] ruled that a mother cannot be appointed as a guardian while the father is alive. The Allahabad High Court in Atika Begum v. Mohammad Ibrahim[2] ruled that in the presence of a father, the paternal grandfather cannot appoint a guardian. 

3. Guardians Appointed by Court (Statutory or Certified Guardianship)

In the absence of a natural or testamentary guardian, the court can appoint a guardian under the Guardianship and Wards Act, 1890, applicable to all Indians regardless of religion. The court-appointed guardian, also known as a statutory guardian, can manage the minor's person, property, or both, with a focus on the child's welfare, age, sex, and personal wishes. The court-appointed guardian has the legal authority to manage, sell, or pledge the minor's property to meet their needs. 

4. De-facto Guardianship

A de-facto guardian is someone who, without legal authority, assumes responsibility for the care and custody of a minor and their property. While they may provide care, they lack the legal authority to make decisions regarding the minor’s property, and any such transactions conducted without court approval are void. 

Guardianship v/s Custody (Hizanat)

 In Islamic jurisprudence, guardianship and custody (referred to as Hizanat) are distinct, though often confused. Guardianship involves the comprehensive responsibility for the child’s welfare throughout the minority, particularly in legal and financial matters. On the other hand, custody pertains only to the physical possession and care of the child, primarily in the formative years.

• Guardianship (Wilayat): This is the overall control and responsibility of a minor's welfare, including decision-making over their education, marriage, and property. The natural guardian, in the absence of the father, is typically the paternal grandfather or an appointed executor.
• Custody (Hizanat): Under Muslim law, custody refers to the right to physically care for and live with the child. While the mother does not qualify as a natural guardian, she has the primary right to custody during the child’s early years, depending on factors like the child’s welfare and the mother’s conduct. This custody generally continues until a specific age, after which the father or paternal grandfather assumes greater control. 

Rights and Responsibilities

The mother’s right to custody under Hizanat is recognized despite her lack of status as a natural guardian. The father or paternal grandfather retains ultimate authority over the minor until they reach adulthood. This dynamic reflects the division of roles between custody (physical care) and guardianship (legal responsibility). 

Disqualifications for Guardianship

Muslim law imposes specific disqualifications to ensure the minor’s best interests. These disqualifications apply to both male and female guardians:

For Female Guardians:

A female can be disqualified from guardianship if:

1. She marries someone outside the permissible kinship lines.
2. She leads an immoral life.
3. She converts to another religion.
4. She resides far from the father during their marriage, hindering day-to-day care.

For Male Guardians:

A male may be disqualified if:

1. The minor is an unmarried girl and not closely related within the required kinship boundaries.
2. A closer male relative, such as a maternal uncle, is available. 

Cessation of Guardianship

Guardianship ceases under the following circumstances:

1. The death, removal, or discharge of the guardian.
2. The court assuming superintendence over the ward or the ward ceasing to be a minor.
3. In the case of female minors, guardianship ceases upon marriage, provided the husband is fit to be the guardian.

For property guardianship, the powers cease upon the guardian’s death, removal, or when the ward reaches adulthood. 

Conclusion

Muslim law provides a well-defined structure for guardianship, prioritizing the minor’s welfare by ensuring both personal care and legal oversight of their affairs. Guardianship (Wilayat) encompasses the legal authority over a minor’s personal and property matters, while custody (Hizanat) refers to the physical care of the child. Although the mother holds the right to custody in the child's early years, guardianship, especially concerning legal and financial responsibilities, remains with the father or paternal grandfather. This dual structure, balancing physical care and legal oversight, safeguards the child's well-being through different types of guardianship, including natural, testamentary, de facto, and court-appointed guardians. Disqualifications for guardianship exist to further protect the minor's interests, ensuring that only suitable individuals manage their affairs.

[1] [2000] 8 SCC 507 (SC).

[2] [1912] 16 IND CAS 597.