Theoretical overview –
Father enjoys a dominant position under the Muslim law as a guardian. It is to be noted that custody of a child cannot be given to a person except muhrim. Muhrim is a person who is in the relation of the child and within the prohibited relationship of the minor.
Guardianship under Muslim law is given in three aspects: –
- Guardianship of Person (Walayat-e-Nafs)
- Guardianship during Marriage (Walayat-e- Nikah)
- Guardianship of Property (Walayat-e- Mal)
In all three aspects, guardianship is given to the father and after him, the grandfather is given the right of guardianship. The father enjoys a dominant position for both the custody and guardianship of the children.
Mother could be given the custody but she is not considered as the natural guardian. In Sunni law, she has the custody of son till 7 years of age and daughter till puberty. In Shia law, she has the custody of son from 2 years to 7 years.
This right of mother continues till she remarries. However, it is not a rigid law, the court can deviate it for the welfare of the child.
According the court, the Muslim law has not only laid down a general rule, but has also, in different matters, provided for exceptional circumstances to be met with. It has never ignored the wishes of a minor child
Testamentary guardian
Testamentary guardian is the guardian appointed by the will. Father has full right to appoint the guardian and after the father, executor has this right. After both of them, the grandfather has the right.
Mother has no right to appoint but she can appoint under two circumstances: –
- If she is appointed as an executrix by child’s father
- If it relates to the property which is going to be devolved after her death to the children.
Illegitimate children
Father has no right over the guardianship of an illegitimate child. Even the mother is a custodian and not a guardian.
Powers of the guardian –
- Guardian can only sell movable property only for the minor’s necessity.
- He can sell immovable property only in exceptional circumstances
- He can lease the property for the benefit or the need of the minor.
- He can carry on the business of the minor
- He can also procure debt on behalf of minor in case of emergency.
De facto guardian
The term de facto has not been mentioned in any text but its relevance in Muslim law cannot be denied. When one person takes the liability on behalf of a minor without any legal sanctity, it is termed as de facto guardian. This type of guardian makes continuous effect to take care of a minor without any legal obligation. He is not a legal guardian but has a justification about his conduct.
Certified guardian
A certified guardian is that guardian who is appointed by the court. The district court is empowered to appoint a person as a guardian for the welfare of the child.
Important case laws –
Poolakkal Ayisakutty v. P.A. Samad (2005) – in case of conflict in provision of personal law, the guardians and wards act, 1890 will prevail.
Irfan Ahmad Shaikh v. Mumtaz AIR 1999 – child’s custody was given to mother even when she remarried. The court had given custody to the mother as the child has also expressed a desire to remain with mother.
Points to remember –
- Father enjoys a dominant position under the Muslim law as a guardian
- The father enjoys a dominant position for both the custody and guardianship of the children.
- Mother could be given the custody but she is not considered as the natural guardian
- According the court, the Muslim law has not only laid down a general rule, but has also, in different matters, provided for exceptional circumstances to be met with. It has never ignored the wishes of a minor child
- Testamentary guardian is the guardian appointed by the will. Father has full right to appoint the guardian
