I.

DEFINITION OF GUARDIANSHIP (WALIYAT)

As per the Guardians and Wards Act 1995-
“a person having the care of person of minor or of his property or both person
and his property is called Guardian”.

II. WHO IS A MINOR?

 A minor is one who has not attended the age of majority.

 As regards with other matters of guardianship of person and property a Muslim

will be governed by Indian Majority Act, 1875 which prescribes 18 years as the
age of majority.

 While 21 years is the age of majority if the minor is under the court of Wards or
Guardian has been appointed by the court.

III. KINDS OF GUARDIAN

1. GUARDIANSHIP IN GUARDIAN AND WARDS ACT, 1980

When the court is satisfied that it is for the welfare of a minor that an order
should be made for appointing a Guardian of his person or property, then the
court may make an order accordingly.

i. Section 15(1), of the Guardians and Wards Act, 1980 permits for the
appointment of joint Guardian and if anyone of them has died, the survivor
continues to act as Guardian.

ii. Section 20 of the Act imposes a duty on the guardian to deal with the Ward’s
property carefully and honestly.

iii. Section 21, of the Act, provides that a minor is not competent to act as a
Guardian of another minor.

iv. Section 27 of the Act Deals with the duties and limitations on the powers of
guardians.

v. Section 41 Cessation of authority of guardian-

1. The powers of a guardian of the person cease-

a. by his death, removal or discharge;

b.  by the Court of Wards assuming superintendence of the person of the ward;
c.  by the ward ceasing to be a minor;
d.  in the case of a female ward, by her marriage to a husband who is not unfit to
be guardian of her person or, if the guardian was appointed or declared by the
Court, by her marriage to a husband who is not, in the opinion of the Court, so
unfit; or
e. in the case of a ward whose father was unfit to be guardian of the person of
the ward, by the father ceasing to be so or, if the father was deemed by the
Court to be so unfit, by his ceasing to be so in the opinion of the Court.

2. The powers of a guardian of the property cease-

a. by his death, removal or discharge;

b.  by the Court of Wards assuming superintendence of the property of the ward;
or
c. by the ward ceasing to be a minor.
3. When for any cause the powers of a guardian cease, the Court may require
him or, if he is dead, his representative to deliver as it directs any property in
his possession or control belonging to the ward or any accounts in his
possession or control relating to any past or present property of the ward.

4. When he has delivered the property or accounts as required by the Court, the
Court may declare him to be discharged from his liabilities save as regards any
fraud which may subsequently be discovered.

2. GUARDIANSHIP IN MARRIAGE (JABAR)

i. Exception to a valid Marriage

In a valid marriage it is one of the essential that the parties are competent to
enter into marriage contract. However, this general rule covers one exception
i.e. where the marriage is contracted on behalf of minors by guardian.

ii. Jabar
The power of imposition of status of marriage on the minor is called “Jabar.”

iii. Wali
Here, the guardian so empowered is known as “Wali”

iv. No guardian to be appointed by the court

In respect of marriage guardianship no one can be appointed as Guardian by
the court.
v. Hierarchy for Rights of Jabar-

 SUNNI LAW
a. Father
b. Father’s Father
c. Full brothers or and other male relatives on father side.
d. Mother
e. Maternal relations within prohibited degrees
f. Qazi or Court

 SHIA LAW
Shia Law recognises only the father and the father’s father how high so ever as
Guardian in marriage of minor.

vi. Marriage performed by remote Guardian is void.

In Muslim law when a remote garden allowed a boy or a girl to marry when the
nearer one is present the validity of marriage depends upon the latter’s
consent. If consent is given it will be valid otherwise void.

MULK JAHAN V. MOHAMMAD

It was held that in a Muslim law where a minor is contracted in marriage by
any Guardian other than father or father's father the minor has the option to
repudiate the marriage on a team in puberty.

vii. Effect of apostacy on guardianship for marriage.

Under Muslim law a person loses his right to guardianship in marriage as soon
as he gets converted to another faith.

MAHNI BIBI CASE

 In this case it was held that under Muslim system an apostate cannot be a
Guardian for marriage so, the marriage of a minor girl contracted by her
mother against the consent of her father who was converted to another faith
was held to be valid.

3. GUARDIANSHIP OF PERSON OF MINOR FOR CUSTODY (HIZANAT)

The guardian so empowered to take the custody for minor child is called
Hizanat.

In case of custody guardianship has to be studied with reference to the age of

minor and his relationship to the Guardian.

i. Mother

 SUNNI LAW
The mother is entitled to the custody of a male child until the age of 7 years
and of her female child until she has attained puberty. (bulugh)

 SHIA LAW
Mother is entitled to the custody of her male child till the age of 2 years and a
female child till the age of 7 years.

ii. Female relations in default of mother

 SUNNI LAW
Failing the mother, the custody of a boy under the age of 7 years and of a girl
under the age of puberty goes to the following order of females:

a. Mother’s mother, how highsoever

b. Father’s mother how highsoever
c. Uterine sister
d. Consanguine sister
e. Full sister’s daughter
f. Uterine sister’s daughter
g. Consanguine sister’s daughter
h. Maternal aunt
i. Paternal aunt

iii. Other male relations in default of female relations.

a. Father
b. Nearest paternal grandfather
c. Full brother
d. Consanguine brother
e. Full brother’s son
f. Consanguine brother’s son
g. Full brother of father
h. Consanguine brother of father
i. Son of father’s full brother
j. Son of father’s consanguine brother
iv. Father

 SUNNI LAW
Father is entitled to the custody of a boy over 7 years of age and of unmarried
girl who has attained puberty.

 SHIA LAW
Father is entitled to the custody of a boy over 2 years and of an unmarried girl
of 7 years or more.

v. Husband
The husband is entitled to the custody of minor wife as when she attains the
age of puberty or such an age as would permit the consummation of marriage

NATURE OF THE RIGHTS OF HIZANAT

IMAMBANDI V. MUTSADDI
 Here in this case it was observed that it is perfectly clear that under Muslim
Law the mother is entitled only to the custody of the person of her minor
child up to a certain age according to the sex of child.
 But she is not the natural guardian, the father alone or if he's dead his
executer is the legal guardian.

DISQUALIFICATION OF GUARDIANSHIP

a. General Disqualification
 A minor is incompetent to act as a guardian of any other minor.
 But if either parent is a non-Muslim, the other parent is entitled to the
custody of child whatever the child age is.

b. Disqualification of females

1. If she is immoral i.e.,

committed adultery
become a prostitute
committed some criminal offence
is a professional singer or mourner
2. If she goes and resides at such a distance from the husband’s place of
residence during the subsistence of marriage.
3. If she marries a person not related to child within the prohibited degree of
relationship.
4. If she neglects or is incapable of taking care of the child.

 Mother not disqualified by divorce-

The mother does not lose her right to the custody of the child on the ground
of divorce by the father of child.

d. Disqualification of males
It is a general principle of Muslim Law that no male is entitled to the
custody of a female minor who is not related to him within the prohibited
degree or is a profligate.

e. Disqualification of parents

1. If he is unfit in character and conduct

2. If he is unfit as regards to external circumstances.
3. If he waives his right.
 4. If he is out of the jurisdiction of court.

f. Disqualification of husband
The husband is not entitled to the custody of his minor wife unless she attains
the age of puberty or such an age as would permit the consummation of
marriage. The mother is entitled to the custody of minor married girl as against
her husband.

4. GUARDIANSHIP OF MINOR’S PROPERTY

If a minor owns movable or immovable property, a guardian is necessary to
manage it. Muslim law prescribes certain person in an order of preference who
can be Guardian of a minor’s property. The guardianship of the property of the
minor under Muslim law may be classified as follows:

i. Legal/ Natural/ De jure guardian.

ii. Guardian appointed by the court (certified guardian)
iii. De facto guardian

i. Legal / Natural/ De Jure Guardian

1. Person entitled to be guardian of minor’s property-
The person entitled in the order mentioned below to be guardian of the
property of a minor are:

(a) The father,

(b) The executor appointed by the father's will,
(c) The father's father and
(d) The executor appointed by the will of the father's father.

2. No right to mother to be guardian of minor’s property

 Thus, mother, brother, uncles etc. are not entitled as of right to be the legal
guardians of the property of the minor.

 Of course, the father or father's father may appoint any of them (Mother,
brother, uncle, etc.) or any other person as his executor or executrix and
the latter shall hold as much power as the father or father's father holds.

 Except father and father's father, no other person, not even the mother, is
legally authorized to appoint, by will, any person as executor or executrix.

 GHULAM HUSANI MANER V. ABDUL RASHID ABDUL RAJAK MANER

The Supreme court of India has held that a mother of the minor cannot be
appointed as his guardian to accept gift on his behalf during the lifetime of
minor’s father.

 AMAR AHMAD KHAN V. SHAMIM AHMAD KHAN,

 The Jharkhand High Court has held that on the death of a Mohammedan his
property immediately devolves on his heirs separately to the extent of
share they are entitled under personal law.
 Thus, immediately on death, each of his heir becomes absolute owner of
property proportionate to his share. Thus, under Islamic law, there is no
concept of jointness of ownership of properties of a deceased Muslim.

3. Power of legal Guardians regarding immovable property-

 Under Muslim law, a legal guardian of the property of a minor can sell the
immovable property of the minor, when the sale is necessary for the
maintenance.
 The word “maintenance” does not exclude other necessary expenses for mental
and physical well-being of a minor, acceding to the status in society of the
family.

 Thus, in the following cases the legal guardian is authorized to deal with the
minor’s property:
a. When there are debts of the deceased, and no other means of paying them;
b. When the minor has no other means of livelihood and the sale is absolutely
necessary for his maintenance;
c. When double the price of the property can be obtained by him;
d. Where the expenses exceed the income of the property;
e. When the property is falling into decay;
f. When the property has been usurped and the guardian has reason to fear
that there is no chance of fair restitution;
g. Where there are legacies to be paid, and no other means of paying them.

 Relative rights of the heirs of a deceased person in the property

inherited by them-
P. NARSIMBHAI V. BAI BHABU,
Facts-
 A widow was in possession of her two minor children’s property. She was
required to pay certain loans of her deceased husband.
 She, therefore, disposed of some of the property which also included the share of
the minors.
 This transaction was challenged. She contested that since the sale was effected
for the purpose of paying off the dues under a decree obtained against all the
heirs, it should be binding on the two children also.

Held-
 It was held by the Gujarat High Court that one of the Muslim co-heir’s property
cannot be lawfully alienated his latter’s share for any purpose whatsoever.

AHMADULLAH V. HAFIZUDDIN AHMED,

Facts-
The validity of the power of the guardian to transfer his ward’s property for the
sake of his education was in question.

Held-
The Guwahati High Court held that in the present state of our society, which is
rapidly advancing in all directions, education up to the higher secondary stage
cannot be said to be extravagant so as to be excluded from maintenance.

ii. Guardian appointed by the court (certified guardian)

1. Court to appoint guardian in absence of legal guardian

 The duty of appointing a guardian for the protection and preservation of the
minor’s property fall in the court.
 While appointing a guardian the court takes into consideration the welfare
of the minor and, as such, may appoint mother instead of paternal uncle, as
the guardian of the property of the minor.
 The court also takes into consideration the will of the father. If the mother is
appointed the guardian, the fact that she is a pardanashin lady will not be
considered as an objection to the appointment.
 The court must pay due regard to the wishes of the minor’s father and the
interest and the welfare of the minor, whatever that may be in a particular
case and a guardian must be appointed with due regard to these two
considerations by the court.
2. Functions which a guardian of the property cannot perform without
the prior permission of court

a. charged immovable property of the minor;

b. mortgage;
c. transfer by sale;
d. transfer by gift;
e. exchange; and
f. lease any part of the immovable property for a term exceeding 5 years or
for any term extending more than 1 years beyond the date with the ward
will cease to be a minor.

 Thus, he can lease the immovable property even without the permission of
the court-
 for a term not exceeding 5 years, or

 for a term not extending more than one year beyond the date on which
the minor will cease to be a minor, whichever is shorter.

3. Alienation of minor’s property without the consent of court

 If search guardian alienates the minor’s property in contravention of the
provision, given above, such alienation will be voidable at the instance of
the minor or any other person affected thereby.
 Permission for such alienation as given above must not be granted by the
court except in the case of necessity or for an evident advantage to the
ward.

4. Subsequent ratification binds minor-

Ques-
A, a guardian, appointed by the court, executed a promissory note on his own
behalf and also on behalf of the minor M, though it was not executed under
necessity or for his benefit. After attaining the age of 21 years, M executed a
mortgage deed along with A, and out of the consideration set apart a sum for a
payment towards the pronote.
Is the minor liable?

Ans
Yes, the minor is liable even though A did not execute it under necessity, or for
his benefit. The reason behind this is that the subsequent ratification of the
minor by setting apart a sum for the pronote after his age of 21, binds the
minor.

iii. De facto Guardian

1. Meaning
A person, who is neither a legal guardian, nor a guardian appointed by the
court but has voluntarily placed himself in charge of the person and property
of the minor, is known as de facto guardian.

2. Fazooli
Usually de facto guardians are relatives of the minor but without right to be the
guardian under Islamic law unless appointed by will or by the court. He is thus
 an officious intermedler (fazooli) with the minor’s property and has no status or
position to alienate it without court’s permission.

3. Power to alienate movable property.

A de facto guardian has the same power to sell and pledge goods and chattels
of the minor in his charge for the minor’s imperative necessities, such as food,
clothing, or nursing as a legal guardian of his property.

4. No power to alienate immovable property

a. He has no power authority to alienate the minor’s immovable property. “An
alienation of minor’s immovable property without the authority of the court
by a de facto guardian is absolutely void”.
b. He cannot refer any dispute regarding the immovable property of the minor
to any arbitration;
c. He cannot give consent on behalf of the minor so as to validate a bequest
to his co-heirs;
d. He cannot enter into a contract of partnership or to allow the continuance
of the partnership business dissolved by the death of the minor’s father;
e. He cannot bind the minor by executing a bond in lieu of his father’s debts;
f. He cannot make agreements on minor’s behalf for even purchase of
immovable property.

 IMAMBANDI’S CASE
Facts
one Zohra, a widow of one Ismail Ali Khan, conveyed the shares of herself and
her minor children, for Rs. 10,000 and the sale was opposed in a suit by the
two other widows and children.

Held
it was held that a de facto guardian has no power to convey to another any
right or interest in the immovable property which the transferee can enforce
against

5. Who are de facto guardians?

Legal guardians and guardians appointed by the court are de jure guardian.
The mother, brother, uncle and all relations other than the father and father’s
father are de facto guardians unless they are appointed executors by the will
of the father or father’s father or appointed guardians by the court.

 MOHAMMED AMIN V. VAKIL AHMAD,

The Supreme Court has held at a de facto guardian has no authority to enter
into a family settlement in respect of a minor’s benefit, even though the
settlement might be for his benefit.

 Testamentary guardianship in property-

 Quran specifically provides for the appointment of a testamentary guardian.
Father and the father's father are competent persons to be appointed by will a
guardian of the property of their minor sons and grandsons respectively.
 Under Shia law, the testamentary guardian or executor must be major, sane,
professor of Islam and of good character.
 It is, however, not clear whether in the presence of grandfather, the father
possesses the capacity to appoint a testamentary guardian.

 Atkia Begum v. Mohammad Ibrahim

it was held that in the presence of grandfather, the father has no right to
appoint a guardian.

IV.REMOVAL OF GUARDIAN
A guardian whether de jure or de facto is removable by the court if it is
necessary in the interest of the minor. The court may on the application of any
person interested, or on its own motion, remove a guardian appointed or
declared by the court, or a guardian appointed by will or other instrument, for
any of the following cause:

(1) Abuse of his trust;

(2) Continued failure to perform the duties of his trust;
(3) Incapacity to perform the duties of trust;
(4) Ill treatment, or neglect to take proper care of his ward;
(5) Continuous disregard of any provision of the Guardians and Wards Act,
or of any order of the court;
(6) Conviction of an offence implying, in the opinion of the court, a defect of
character, which unfit him to be the guardian of his ward;
(7) Having an interest adverse to the faithful performance of his duties;
(8) Ceasing to reside within the local limits of the jurisdiction of the court;
(9) In the case of a guardian of the property, for bankruptcy or insolvency;
(10) By reason of guardianship of the guardian ceasing or being liable to
cease, under the law to which minor is subject (wilson).