Guardianship and Custody Under Muslim Law

Introduction

Generally, in Muslim law, guardianship is also known as ‘Hizanat’. It simply means overall oversight or take care of the child throughout his/her minority. Normally a father, or his executor or the child’s grandfather is the natural guardian of any child. Custody is different from guardianship. It simply means a physical possession (custody) of a minor up to a certain age.

The sources of law of guardianship in Muslims came from Quran & some Hadis. In Muslims there are only three types of Guardianship:

  • Natural Guardian,
  • Testamentary Guardian,
  • Guardian appointed by the court.

Three Types of Guardianship

Natural Guardian

Generally, in Muslim law, the father is the sole & supreme natural guardian of a child. Even the mother is not considered as a guardian even after the death of the father. It may be possible that father did not have custody of the child but then too the father has control over all the decisions relating to the child. A mother can have the custody of child, but she cannot become the guardian of the child.

When the father is alive, he will be the supreme guardian of his child, held in the case of Imambandi v. Mutsaddi (1918).

In Sunni law, the father is the natural guardian & after his death, the guardianship is passed to the executor of the father. In Shia law also the father is the natural guardian but after the death of the father, grandfather becomes the guardian (if alive) even if father already appointed the executor, it does not matter. 

But when the grandfather dies then the executor appointed by the father will become the guardian. But if the grandfather appoints the executor before his death, then the executor appointed by the grandfather will become the guardian & not the executor appointed by the father.

Testamentary Guardian

It is also called as Wali, guardian, amin, or kaim-mukam. In both Shia & Sunni law, the testamentary guardian is appointed by the father. 

In Sunni law, when the father & executor appointed by his father is not present then the grandfather has the right to appoint a testamentary guardian. Whereas, in Shia law, if the grandfather is not alive then only the guardian appointed by father is valid otherwise the guardian appointed by the grandfather will be supreme. 

In both Shia & Sunni law, the mother can become a guardian only in 2 cases:

  1. She can become executrix only on the father’s will,
  2. She is the owner of a property that the children will get after her death.

A mother can only become the testamentary guardian on the will of father or grandfather. If we talk with regards to non-Muslim mothers then we see that in Shia law, a non-Muslim mother cannot be appointed as guardian. 

Once the guardianship is given to anyone then it cannot be taken back easily. It can be refused or renounced only by the permission of the court. 

Guardian appointed by the court

When the natural and testamentary guardians fail to perform their responsibilities then the court appoints a guardian under the provisions of Guardians and Wards Act, 1890. The district court has the power under this act to appoint a guardian considering the welfare of the child. 

Conclusion

A guardian is necessary for minor because the minor itself is not capable to take care himself & also not enough mature to think about his/her good & bad and take decisions accordingly. A child should be in a good environment where he is comfortable & can be nurtured properly. So, the guardian should be that person who can properly take care of the child. While appointing the guardian the main aim is the welfare of the child. 

References

  1. Ipleaders
  2. Legal Service India
  3. Lexology

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I am Prerit Yadav, a student of Department of Law, PIMR Indore. I am pursuing B.A LL. B (Hons.). I want to help every law student in getting access to the best possible material to ensure no one should be left behind due to lack of resources. Always ready to work in a dynamic environment that offers opportunities to grow and learn new things. My interest is primarily in Criminal law, Human Rights, Constitutional law & Contract law. I also have interest in reading autobiographies of different scholars in the field of law & history. I present an enthusiastic aptitude for research & writing.