In Muslim law, guardians fall under the following three categories:
(i) Natural guardians,
(ii) Testamentary guardians, and
ADVERTISEMENTS:
(iii) Guardians appointed by the court.
To this list, we may add the de facto guardian who has been discussed by the Muslim authorities under the head, fizuli, and who has practically no position in the Muslim law of modern India.
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1. Natural Guardians:
The Muslim law-givers and jurists do not use the expression “natural guardian”, but it seems to be clear that in all schools of both the Sunnis and the Shias, the father is recognized as guardian—which term in the context is equivalent to natural guardian, and the mother in all schools of Muslim law is not recognized as a guardian, natural or otherwise, even after the death of the father. Since the mother is not the legal guardian of her minor children, she has no right to enter into a contract to alienate the minor’s property.
ADVERTISEMENTS:
The question of her being the natural guardian during the life time of the father does not arise. The father’s right of guardianship exists 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 is recognized. He also has the right to control the upbringing and the movement of his minor children. So long as the father is alive, he is the sole and supreme guardian of his minor children.
The father’s right of guardianship extends only over his minor legitimate children. He is neither entitled to guardianship nor to custody of his minor illegitimate children at any time, even after the death of the mother, though it is a different matter that he may be appointed as guardian by the court.
In Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody.
ADVERTISEMENTS:
Among the Sunnis, the father is the only natural guardian of the minor children. After the death of the father, the guardianship passes on to his executor. Among the Shias, after the father, the guardianship belongs to the grandfather, even if the father has appointed an executor; the executor of the father becomes the guardian only in the absence of the grandfather.
It appears that the Shias consider the father as a natural guardian, and in his absence the grandfather is considered to be the natural guardian. No other person can be a natural guardian, not even the brother. In the absence of the grandfather, the guardianship belongs to the grandfather’s executor, if any.
A minor cannot be represented by the grandfather when father is alive.
2. Testamentary Guardian:
Among the Sunnis, the father has full power of making a testamentary appointment of guardian. In the absence of the father and his executor, the grandfather has the power of appointing a testamentary guardian.
Among the Shias, the father’s appointment of testamentary guardian is valid only if the grandfather is not alive. The grandfather, too, has the power of appointing a testamentary guardian. No other person has any power of making an appointment of a testamentary guardian.
Among both the Shias and the Sunnis, the mother has no power of appointing a testamentary guardian of her children. It is only in two cases in which the mother can appoint a testamentary guardian of the property of her minor children, both legitimate and illegitimate viz., first when she has been appointed a general executrix by the Will of the 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.
The first exception is more apparent than real: any executor of the father has the power to appoint an executor by his Will: this provision applies to all executors. The latter exception, too, has little significance, since every person is free to appoint an executor of his or her own property.
The mother can be appointed a testamentary guardian or executor by the father, or by the grandfather, whenever he can exercise this power. Among the Sunnis, the appointment of a non-Muslim mother as testamentary guardian is valid, but among the Shias such as appointment is not valid, as they hold the view that a non -Muslim cannot be a guardian of the person as well as the property of a minor.
According to all Muslim authorities, a non-Muslim alien cannot be appointed as a testamentary guardian; if such an appointment is made it is null and void. It seems that the appointment of non-Muslim fellow-subject (zimmi) is valid, though it may be set aside by the kazi According to the Malikis and the Shafii law, a zimmi can be validly appointed testamentary guardian of the property of the minor, but not of the person of the minor. The Shias also take the same view.
The Durr-ul-Muhtar states that’ if a minor, a bondman, non-Muslim or a fasik (reprobate), is appointed as ‘a testamentary guardian, then he should be replaced by the Kazi. But any act done by them before their removal, will be valid.
Further, if disability ceases to exist before their removal, they cannot be removed. The Fatwai Alamgiri also takes this view, but holds that the appointment of a minor or insane person as guardian is void, and, therefore, any act done by them before or after his removal will be void and non-effective.
There is some controversy among the Muslim jurists on the point whether a person, who was a minor at the time of his appointment but who ceased to be so before his removal, can be removed on the ground that when his appointment was made, he was unqualified. It appears that when two persons are appointed as guardians, and one of them is disqualified, the other can act as guardian.
The Muslim jurists of all schools agree that a profligate, i.e., a person who bears in public walk of life a notoriously bad character, cannot be appointed as guardian. However, all acts done by such a person before his removal are valid and binding unless found to be contrary to the interest of the minor.
Acceptance of the appointment of testamentary guardianship is necessary, though acceptance may be express or implied. But once the guardianship is accepted, it cannot be renounced save with the permission of the court.
Muslim law does not lay down any specific formalities for the appointment of testamentary guardians. Appointment may be made in writing or orally. In every case the intention to appoint a testamentary guardian must be clear and unequivocal.
A testamentary deposition made by a testator may be invalid, but appointment of the testamentary guardian of minor children will be valid. The appointment of the executor may be general or particular.
The testator must have the capacity to make the Will at the time when it was executed. This means that the testator should be major, of sound mind, i.e., at the time of execution of the Will he should be in full possession of his senses.
The executor of the testamentary guardian is designated variously by Muslim law-givers, indicating his position and powers. He is commonly called, wasi or guardian. He is also called amin, i.e., a trustee. He is also termed as kaim-mukam, i.e., the personal representative of the testator.
As in other systems of law, it is the duty of the executor under Muslim law to administer the estate and assets of the testator, to carry out the wishes of the testator with utmost fidelity, and to act as guardian of the minor children whenever he is appointed as a testamentary guardian.
3. Guardian appointed by the Court:
On the failure of the natural guardians and testamentary guardians, the kazi was entrusted with the power of appointment of guardian of a Muslim minor. In modern India, the Muslim law of appointment of guardians by the Kazi stands abrogated.
Now the matter is governed by the Guardians and Wards Act, 1890. This Act applies to the appointment of guardians of all minors belonging to any community. The High Court’s also have inherent powers of appointment of guardians, though the power is exercised sparingly.
Under the Guardians and Wards Act, 1890, the power of appointing or declaring any person as guardian is conferred on the District Court. The District Court may appoint or declare any person as guardian of a minor child’s person as well as property 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.
In Rahima v. Sabuijaness, the Gauhati High Court said that when mother had remarried after the death of her husband, she should not be appointed a guardian of her minor daughter. The paternal grandmother would be a preferable guardian and the court appointed her accordingly, M. Sharma, J. said:
The disqualification to be a guardian is, if the mother married second time. As regards the mother or a female guardian, marriage to a person not related to the child within the prohibited degrees is a bar to guardianship.
It is further provided that the mother does not lose the custody of her infant children merely because she is no longer the wife of her former husband, but where she marries a second husband, the custody of such children normally belongs to her former husband.
In that case other relations failing the mother, by absence or disqualification, the following female relations are entitled to custody in order of priority—
(i) Mother’s mother, how high so ever,
(ii) Father’s mother, how high so ever and
(iii) Full sister and other female relations including aunts.