GUARDIANSHIP UNDER MUSLIM LAW

Regarding guardianship, Quran says that- “did he not find thee an orphan, and
gave thee a home? And found the needy and fulfilled thee wants; done wrong
not the orphan; nor repel the beggar with harshness; and proclaim the bounty
of the Lord. Restore to the orphans when the come of age, there is substance
do not substitute bad for good nor devour their substance by adding it to your
own, for this is enormous crime.”

Definition of guardian-the term guardian is defined in the guardians and wards

act as-a person having the care of the person of a minor or his property, or of
both his person and his property, and, no doubt, the individual who has by law
the right and duty of disposing of a boy or a girl in marriage may be said to have,
for that limited purpose, the care of his person or her person. But there is no
mention of disposal in marriage in any part of the act, and nothing Indicates that
it was intended to interfere with the rules of Muslim law which are signs that
function. Under the name of-—, It relates to relatives who are not necessarily
those entitled to the general care and custody of the wards person. The Quran
is the basis of the law relating to guardianship and, therefore it is very little room
for differences between Sunni and Shia schools.
indicates that it was intended to interfere with the rules of Muslim law which
are signs that function. Under the name of----, It relates to relatives who are not
necessarily those entitled to the general care and custody of the wards person.
The Quran is the basis of the law relating to guardianship and, therefore it is very
little room for differences between Sunni and Shia schools.

Meaning of guardianship-the term guardianship connotes the guardianship of a

minor.

Who is a minor? A minor is one who has not attained the age of majority.
Puberty and majority are, in Muslim law, one in the same. Puberty is presumed
to have attained on the completion of the 15th years. But now Muslims are
governed by the Indian majority act 1875, except in the matters relating to
marriage marriage, divorce and Tower. The existing position regarding the age
of majority in such cases is given as below: 15 years is the age of majority for the
purposes of marriage, dower and the divorce. At or above this age, he or she is
free to do anything in the sphere of marriage Dover and divorce.
According to section 2 of the child marriage restraint act, 1929 as amended in
1978, the minimum age for marriage is 21 years for meal and 18 years for
females. 15 years is the age of majority in general. As regards other matters of
guardianship of person and property, a Muslim will be governed by the majority
act which prescribes 18 years as the age of majority. Thus, in cases of wills,
Waqfs. Etc., Minority will terminate on the completion of 18 years. 20-one years
is the age of majority if the minor is under the code of words, or a guardian of
him has been appointed by the court. Under Muslim law, any person who has
attained puberty is entitled to act in all matters affecting his or her status or his
or her property. But the law has been materially altered by the Indian majority
act, and the only matters in which a Muslim is now entitled to act on attaining
the age of 15 years, our-number one marriage, number two dower, and number
three divorce. In all other matters, his minority continues until the completion
of 18th year. Until then the court has power to appoint a guardian office person
or of property or both under the guardians and wards act in which case the age
of minority is prolonged until the minor has completed the age of 21 years

Appointment of guardian-when the court is satisfied that it is for the welfare of

the minor that an order should be made for appointing a guardian of his person
or property or both as declaring a person to be such Guardian the court may
make an order accordingly. Section 15 subsection 1 of the guardians and wards
act, 19 eight 1890 permits for the appointment of joint guardian where the “has
appointed joint guardian and any one of them has died, survivor continues to
act as guardian. Section 19 of the act says that in case the superintendents of
the property of the minor has been assumed by the Court of wards under any
local law in force:
1. The court shall not be able to appoint a guardian of property under the
guardians and wards act.-
2. In case the court has been empowered to appoint a guardian of person
for the minor, the same cannot be done by a court under the guardians
and wards act.
State governments are empowered to appoint “of wards. The main aim of these
courts is to continue ward quotes for the purpose of regulating, constitution,
working and powers of court of wards.
Sections six, 19 and 21 of the guardian and wards act provides that in the
following matters, the courts should not interfere with the question of
guardianship of a minor:-where a guardian of the minor‘s person, property or
board has been lawfully appointed under a will in accordance with the law to
which the minor subject.
If a guardian has is not performing his duties properly, The court may remove
him. Section 20 of the guardians and wards act, 19 1890 imposes a duty on the
guardian to deal with the words properly carefully and honestly. Section 21 of
the above act provides that a minor not competent to act as guardian of another
minor, will not act as the guardian. Sections 2425 and 26 of the guardians and
wards act provides for the custody of the child by one appointed under the act
as guardian of the person. This is his duty to look to the miners support, health
and education, and such other matters as the law to which the water is subject
requires. Section 27 of the above act deals with the duties and the limitation on
the powers of guardians. The statutory guardian of property is required to deal
with the minus property as a man of ordinary prudence would deal with his own
property. This is the duty of guardian to obtain prior approval of “for disposing
of minus property. Section 31 lays down the procedure for obtaining sanction of
“for transfer by the Guardian. A guardian can also seek the advice of the court
with regard to the management of wards property.
Section 41 of the guardians and wards act says that a guardian appointed by the
court or a testamentary guardian shall cease to be a guardian on the happening
of anyone off the following incidents:
1. In the case of the death, removal or discharge of the garden;
2. On attaining majority by the minor;
3. In the case of guardianship of a person, a guardian shall cease to have any
power: on the marriage of the minor, a female to a person not unfit to be
a guardian of a person;
4. On attaining majority by the minor;
5. In the case of guardianship of a person, a garden ships shall cease to have
any powers-1st on the marriage of the minor, if female to a person not
unfit to be a guardian of her person; secondly revival of guardianship right
of the person in whose disability another person acted as a guardian;
6. In the case of a guardianship of property according shall not be entitled
to act as a guardian on the assumption of the superintendent of the
minors property by the Court of wards.
In appointing or declaring the guardian of a minor the court shall take into
consideration the welfare of the child. In considering what will be for the welfare
of the minor, “shall have regard to the age, sex and religion of the minor, the
character in capacity of the proposed guardian and his nearness of kin to the
minor, the wishes, if any, of the deceased parent, and any existing or previous
relation of the proposed to Guardian with the minor or his property. If the minor
is old enough to form an intelligent preference, the court may consider that
preference, this has been provided in section17 of guardians wards act, 1890.

Kinds of guardianship-

Muslim law makes a distinction between guardian of the person, guardian of the
property and garden for the purposes of marriage in the cases of minors. Muslim
law recognises three kinds of guardianship, and they are as follows:
 1. Guardianship in marriage
2. De facto guardianship
3. Certified guardianship

1.guardianship in marriage-
As stated in the chapter of marriage, it is one of the ascensions of a valid
marriage that the parties are competent to enter into a marriage contract, I.E.,
among other things they must have attained the age of puberty. However, this
general rule admits one exceptions, where the marriage is contract it on behalf
off the minors by the Guardian. This exception is most distinguishing feature of
Islamic jurisprudence because it empowers a father to impose status of marriage
on his minor children. This power of imposition is called Jabar, The abstract right
of guardianship wilLayat , And the guardian so empowered is known as wali.
Thus, under the Muslim law of all schools, the father has the power to give his
children of both sexes in marriage without their consent, until they reach the
age of puberty-known as Bulugh.
It is to be noted, however that in respect of marriage guardianship no one can
be appointed guardian by the court. It is the substantive law itself that declared
who, for the purposes of marriage, possesses the Petrea poTestas; The court
cannot appoint guardian for marriage although, in some cases, the Qazi what is
the court itself can act as a marriage guardian.

Persons entitled-the following is the list of persons who can act as guardians in
the marriage of a minor, in order of enumeration.
1. Father
2. The father’s father, how high so ever
3. Full brother and other mail relations on the father’s side, in order of
inheritance given under residuaries.
4. Mother
5. Maternal relations within prohibited degrees.
6. The Qazi or the Court.
Shia law recognises only the father and the failing him the father’s father how
high so ever as guardian in the marriage of a minor.

Marriage performed by remove the guardian is void -

The rule of Muslim law is that when I remove the Guardian allowed a boy or a
girl to marry, when the near one is present, the Valley ditty of marriage is
dependent upon the latter‘s ratification and consent. The rule contemplates a
case where the boy or a girl is given in marriage by a person who in order or off
priority comes immediately after the proposal guardian at the time. In fact the
consent of the near guardian may have the effect of transferring the authority
to the remote a guardian and exactly the same happens when the nearest
Gardiner resides a Distance and no communication is possible with him. The rule
cannot apply to a case where as between the near guardian and the one who
actually disposes of the minor in marriage, there are other relations who have a
preferential rights of guardianship. Such a marriage by a removed her guardian
when the near guardian is present and has given his consent is not only a regular
but void. The legal consequences would be that it may be terminated by a single
declaration on either side, consummation of marriage does nOt stand in the way
of terminating it when the marriage is invalid. And the Muslim love you
reminders contract it in marriage by any Guardian other than the father or
father‘s father, the minor has the option to repudiates the marriage on attaining
puberty. It is not clear where a minor is given in marriage by the Guardian other
than the father or grandfather, he may be able to exercise his right of
repudiation of marriage on completion of the 15th year or on the completion of
the 18 years,. Aamir Ali says that as the provision of the Muslim law regarding
the capacity of persons in matters of marriage, dower And divorce are left intact,
A minor so contracted in marriage me validly exercised their right of option on
arriving at puberty. He further says that the majority act declares that the
minorities should extend in certain cases up to the 18th year and in other cases
up to the 21st and it nowhere by any exceptional, if not exercised immediately
according to the requirement of that law should drop, it may be Assumed that
no court of justice would debar a minor from exercising their right of option to
cancel a contract of marriage entered into on his or her behalf by her guardian
other than the father or the grandfather, even though it may not be cleaned or
attempted to be enforced until the completion of the age of majority fixed by
the act.
Under the Muslim law, where the marriage is contracted for the minor by the
father or grandfather, the minor has no option on attaining puberty, unless the
contract is to the manifest disadvantage of the minor or has been fraudulently
or negligently entered into. Under the dissolution of Muslim marriage act, 1939
the right of repudiation of Muslim female has been modified. Section to
subsection Vii of the dissolution of Muslim marriage act, 1930 9C is that a
woman married under the Muslim law will be entitled to obtain a decree for
dissolution of her marriage if she proves that she having been given in marriage
by her father or mother guardian before she attained the age of 15 years,
repudiator eat the marriage before attaining the age of 18 years, and that the
marriage has not been consummated. The guardians and wards act 1890 is silent
regarding the appointment of guardian in marriage. Under the act the courts are
having jurisdiction only in the matter oF guardianship of a person and
guardianship of property. Similarly a person appointed or declared by the court
can act as marriage Guardian .

Testamentary guardians for marriage-

Under the Muslim law, testamentary guardians for marriage are not recognised.
The father has no power to appoint any person as guardian for marriage by his
will.

Effect of apostasy on garden ship for marriage-the question whether a convert

from Muslim to another feat is capable of constructing a valid marriage of a
Muslim minor as the guardian of the minor is still open issue. And up your
Muslim law, a person loses his right to guardianship in marriage as soon as he
gets converted to another faith. However, the cast disabilities removal act of
1858 provides that a person does not to say is right of property if he is converted
to another faith. On the strength of this act, the Honourable High Court of
Calcutta in MUCHOO versus ARZOON, held that the duties of the director
attached to the office under Muslim law and affecting the interest of other
Muslims can be validly performed by an unbeliever of Islam and a convert
Muslim father was allowed the custody of his Muslim minor children and to
direct their education. The honourable Chief “of Punjab relied on this case law
in the case of Gul Mohammad versus Mst. Wazir , In a case where the father
had converted from Islam to Christianity but he was only parent alive of a boy
of eight years and a girl or four ears and the grandmother of the children was
contesting for guardianship of the two miners and their property. However,
none of these cases is a direct authority on the above subject. That is
guardianship in marriage. There is one single authority that is mahni bibi case
, decided by the Calcutta High Court.
In this case it was held that under the 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
valid.

3. guardian of the person of the minor for custody- (Hizanat)

The cotton ship of minors person for custody has to be started with reference
to the age of minor and his relation to the Guardian.
Mother.-The mother is in titled-in Hanafee law to the custody of a female child
until she has attained puberty, and in the Shia law to the custody of a male child
till the age of two years and to the custody of a female child till age of 70 years.
The right continues though she is divorced by the father of the child unless she
marries a second husband in which case the custody belongs to the father.
Your mother is the de facto guardian. She cannot execute a waqf on behalf of
the minor. Such execution is void as de facto guardian had no right to alienate
minus property, unless appointed by the court as the Guardian.
Female relations in default of mother-
Under Hanafee law, feeling the mother, the custody of a boy under the age of
seven years and of a girl who has not attained puberty post to the following
female relatives in the order or given below:

1. Mothers mother, how high so ever.

2. Father‘s mother, how high so ever.
3. Full sister
4. Uterine sister
5. Consanguineous sister
6. Full sisters daughter
7. Uterine sisters daughter
8. Consanguine sisters daughter
9. Maternal aunt (fathers sister) like order as sisters; and
10.Paternal aunt, also in like order as sisters.
However, this right of the mother or any of these female relations is lost in the
following cases-
1. If she leads an immoral life.
2. If she neglects to take proper care of the child; or
3. If she marries a person not related to the child within prohibited degrees;
4. If, during the subsistence of marriage, she goes and resides at distance
from the father‘s place.
In the case of Rahima Khatun v. Saburjanessa, The court held that the mother
loses the guardianship of the minor daughter in case she remarries with another
person not related to the child within prohibited degree of relationship. In the
present case, the court granted the certificate of guardianship to the paternal
grandmother with regard to the minors person and property.

Other male relations

In default of the mother and other female relations the right of custody in
Hanafee law, belongs to the following persons in the order of in numeration:
1. Father
2. Nearest paternal grandfather
3. Full brother
4. Consanguine brother
 5. Full brothers son
6. Consanguine brothers son
7. Full brother of the father
8. Consanguine brother of the father
9. Son of father’s full brother
10.Son of fathers consanguine brother
Provided that no meal is entitled to the custody of an unmarried girl, unless he
stands within the prohibited degree of relationship to her. If there be none of
the above Kadian, it is for the court to appoint a guardian for the person of
minor. In the Shia law, feeling the mother, the father, and feeling the father, the
grandfather is entitled to the custody of a minus person. It is doubtful he would
be the guardian feeling the grandfather.
Father-
Father‘s untitled in Hanafee law to the custody of a boy over seven years of age
and of an unmarried girl who has attained puberty and in she eloped to the
custody of male child over two years and an unmarried girl of seven years or
more.
In Farzanabi v. S.K. Ayub Dadamiya, The Bombay High Court held that there is
no doubt that under Muslim law the father is entitled to the custody of a son
over seven years of age. The court observed that as far as possible the ordinary
rules of Muslim law should be adhered to. The children above the age of seven
years of. The court also found that the welfare reminders did not lie in the favour
of residing with her mother. The children also expressed the desire to live with
their mother. The court observed that they Were not of an age to make an
intelligence preference. The court therefore about the custody of the child to
the father.
In Poolakkal Ajisakutty v. Parat Abdul Samad, The mother of a child committed
suicide and the child was with the maternal grandmother who was diabetic
patient and dependent on her other daughter. The father later and remarried“
children. The court held that the conduct of the marriage by the father of the
child itself is not a ground to direct the prayer for custody. Welfare of the child
is of paramount consideration. By giving due respect to the sentiments
expressed by the grandmother, the court was of the view, it is for welfare of the
child that the child be with the father.
Feeling father, the custody belongs to the other paternal relations in order in
enumerated above.
The husband is not in title to the custody of his minor wife and she attains
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.
If none too the above-08 maternal and paternal relation is to be found, it is for
the court to appoint a guardian of the person of the minor.

Illegitimate child- “A bastard belongs to legally speaking to neither of its parents

and it is in every sense of the word file Arsenal yes but for the purposes of
securing its due nourishment and support, it should, until it has attained the age
of seven years, be left in charge of the mother. After that it will make his own
election with which of the parents it will reside, or it may live apart from them
all together.”
Gohur BegumWas the singing woman in the keeping of a Hindu. She was
unmarried Muslim mother of natural daughter, acknowledged by a Hindu as his
daughter.This girl was sent to Steve with a friend of her mother who later
refused to part with her claiming that she had great affection for the child and
had sufficient means to look after the child. It was held by the Supreme Court
that the mother of Anil illegitimate daughter in Muslim law is in title to its
custody; and the refusal to restore the child to mother was illegal detention.
Thus, by the order of Supreme Court, the girl was handed over back to her
mother.
Nature of the rights of guardianship (hizanat)-
In Imambandi v. Mutsadi, it was observed that; “it is perfectly clear that under
the 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 the child. But she is not
the natural guardian. The father alone, or if he is dead, his exit cuter as under
the Sunni -law is the legal guardian.”
The facts of the case are as follows-the property in suit belonged originally to
one I-Khan, Sunni Mohammedan. The plaintive alleged that on his death, he left
his surviving three widows and several children, and that from one of these
widows, acting for herself and for her two minor children, but she is still the
share in the suit, for the possession of which they brought the present action. In
fact the relieves sought were of a twofold character; first, a declaration of the
title and status of the plaintiffs benders; and secondly, a decree in favour of the
plaintiff is for the position of the shares covered by the deed of sale. The deed
executed by the way do reported to convey to the plaintiffs the shares of both
herself and her minor children. The contesting defendants denied that Z was one
of Cons married pipes or that her children were his legitimate issues, and he
further contended that the shares the plaintiff claims to recover did not pass
under the seal. The trial judge made declarations as proved and decree for
possession. An appeal to High Court was dismissed. Then and appeal was taken
to the privy council.
Disseisin-on the whole keys, their lordships part of the opinion that both Z and
her children were in title to the legal shares in the inheritance of I-Khan.
The important question was whether the plaintiff is acquired any title to the
infants shares under the seal by the mother? Objective of the defendants was
that Z, their mother, had no power to convey her children’s interest to the
plaintiffs. Following propositions all to be noted. It is perfectly clear that under
the Muslim law the mother is in title only to the custody of person of her minor
children up to a certain age according to the sex of the child, but she is not the
natural guardian of children, the father alone or if he beat it, his exit cuter The
important question was whether the plaintiffs acquired a new title to the infants
shares under the seal by the mother? Objective of the defendants was that Z,
their mother, had no power to convey her children’s interest to the plaintiffs.
Following propositions are to be noted. It is perfectly clear that under the
Muslim law the mother is entitled to only to the custody of person of a minor
children up to a certain age according to the sex of the child, but she is not the
natural guardian of the children, the father or if he be dead, is executor as under
the Sunni law is the legal guardian.
The mother has no larger power to deal with the minor child property than any
outsider or non-relative who happens to have charged for the time being of the
infant. She may incur responsibilities but cannot impose any obligations on the
infant. This rule, however is subject to certain exceptions provided for the
protection of a minor child when it has no de jure guardian.
It means a court may appoint a mother as the guardian of the property of the
minor. The mother if she mod gauge is the property of her infant, it is not lawful,
unless she has been appointed as executrix of father, or be authorised therefore
by the guardian of the minor; or the judge should grant her permission to pledge
the infants property. Then it is lawful, and the right to possession and user is
established in murtahin without the power of sale.
It seems according to their lordships the power to sell cannot be wider than the
power to mortgage.
It was held in Smt. Aninunnisa v. Mukhtar Ahmed and Others, that where a
minor aged 10 to 11 years is in the custody of his mother and has intelligently
exercised his preference to continue to stay with her, his custody cannot be
disturbed and given to his father do he is a legal guardian of the minor under
the personal law that is the Muslim law. I’m your claim to legal guardianship in
search tuition will not stand on a higher footing then the cleaning of real mother
to continue to have custody of the minor who has remained in her custody or in
the custody of the mother since the birth of the child. It was further observed
by the court that it is true that the father is the natural guardian of his minor son
under Muslim law. But still as is too well established to be disputed, in
proceedings under section 25 of guardians and wards act it is not the
guardianship of the minor which is of importance but the welfare of the minor
which has to be taken into consideration while deciding about the custody of
the minor.
In another interesting judgement of the Bombay High Court in Abdul Sattar
hussain Kudachikar v. Shahina Abdulsattar kudichikar, The court held that the
mother is entitled to the custody of a son aged five even though the father is
earning more money then the mother. The brace of the case or-the parties or
Sony. Muslims and were married in June 1988. The father is working as a medical
representative where is the mother is working in telecommunications. In 1990
a son was born to them any 9091 a daughter. In 1994 the app and it gave divorce
to the respondent and in 1995 he was remarried to another girl. An application
was filed by the mother in 1994 to clean the custody of her son alleging that in
accordance with the personal Law cable to the parties, she was entitled to the
custody of her son. The mother complained that that the child was from August
30 and was indeed it did detained by the father in his custody. Since the child
was below the age of seven years, she was entering to the custody of her male
child. On the other hand the father, apple apple and contended that he was able
to look after his son who is welfare was so far with him. While deciding the issue
of custody, the court in the case applied the principle of paramount
consideration that is the welfare of the child and held that though there is no
dispute that and go according to the principle of Muslim law, it is the mother
who is in title to the custody of male child until he has completed the age of
seven years but for the welfare of the child the “further of served that in this
case to keep the child in the custody of the mother is also in the welfare and
interest of the child.

Termination of guardianship

The disqualifications which terminates the right of guardianship may be divided

into five heads-
1. General disqualifications,
2. Disqualification is affecting females;
3. DisQualification is affecting males;
4. Disqualifications affecting parents, and
5. DisQualifications affecting the husband
Firstly-general disqualifications-a minor is incomplete and to act as a guardian
of any minor other than his own wife or child. If either parent is non-Muslim-the
other is in title to the custody of the child, what ever his age and in the Shia law
no person is entitled to the custody of the Shia child who is not a Muslim.
Secondly disqualifications of acting females-the mother remains guardian of the
person of the minor, though she is the worst by the father of the minor. The
proof of the fact that she used to know neglect her child before the divorce, will
not absolve her from her right, if after divorce she leads a respectable life. The
mother of any other female entitled to the custody of the minor loses that right
in the following cases:
 If she is immoral, that is,-
a. Has committed adultery,
b. Has been a prostitute
c. Committed some crime, Which is grossly and openly immoral
d. Is a professional singer or Mourner
 If she married a person not related to the child within prohibited degree
example, a stranger. But the right revives on the dissolution of the
marriage by death or by divorce.
The reason behind this is that if she marries the stranger, the child may not
be treated kindly.

 If she goes and resides at such a distance from the father’s place of
residence during the subsistence of the marriage that he cannot
frequently visit her and the child.
 If you neglect or is incapable of taking proper care of the child

Thirdly,Disqualification is affecting males- it is journal principle of

Muslim law that no mail is entitled to the custody of a female minor
who is not related to him within the property degrees of relationship,
or who is a profligate. But it should be noted that this is a rule of Sunil
and hardly affects the Shia law, which does not recognise any
guardians or as of right, except the parents and the grandfather. But
there being no special mention of this disqualification either in the Shia
books or in the guardians and wards act the court in appointing a
guardian will not consider this role as implying absolute
disqualification among Shias, though it may consider it in choosing
from real payments the court is required by section 25 of the guardians
and wards act to be guided in appointing order declaring by what
appears to be for the welfare of the minor consistent with the law to
which the minor subject.

Fourthly, disqualification is affecting parents-in Muslim law, like the English and
the Roman law, the distinction has been recognise between the guardianship of
a person and of property of the minor. The Muslim law goes further and
distinguishes between the two kinds of guardianship of the person of the minor,
first is for the custody and education of the minor and second is for contacting
the marriage of the minor. In respect of the former it is not liberal to the weaker
sex, as it gives the custody of infant children, boys up to 7 and the girls up to the
age of puberty in Hanafee law and boy up to 2 years of age and girl after seven
years of age in the Fourthly, disqualification is affecting parents-in Muslim law,
like the English and the Roman law, the distinction has been recognised between
the guardianship of a person and of property of the minor. The Muslim law goes
further and distinguishes between the two kinds of guardianship of the person
of the minor, first is for the custody and education of the minor and second is
for contacting the marriage of the minor. In respect of the former it is not liberal
to the weaker sex, as it gives the custody of infant children, boys up to 7 and the
girls up to the age of puberty in Hanafee law and boy up to 2 years of age and
girl after seven years of age in the shia law,To mother as against the father. The
father is the natural guardian of a minor, and the court has no power under the
guardians and wards act to appoint a guardian of the person of a minor whose
father is leaving and is not in the opinion of the court unfit to be guardian of the
minor.
It was observed in khatija Begum v. Gulam Dastagir, that animals Lucknow,
father is the natural guardian when he’s leaving and is not afraid to be Guardian.
Mothers mother of one of the Muslim girls aged six years is not entitled to be
appointed as the Guardian. Merely because the father is married or second time
he does not become on fit to be Guardian. The court also is not concerned with
the competitive fitness of the Father and any other person concerned with the
comparative fitness of the Father and any other person claiming to be appointed
guardian. The only question relevant is fitness or otherwise of the father for
being a garden. But does not mean that the mother‘s mother of the girl can’t be
Given custody. Under the hanafi school, The mother is entitled to the custody of
a female child till she attains puberty. In the absence of the mother search for
study belongs to the mother‘s mother. Section 19 of the act, guardians and
wards act does not prohibit the quote from dealing with the custody of a girl.
The section only prohibits appointment of a guardian and father is living and is
not unfit to be in the Guardian. The forefather of served that when the minder,
brought up all the times by her grandparents, is not aware of the existence of
her father and refers to grandparents as her parents, at such a tender age it will
not be desirable to shift the custody from the grandparents to the father.
However, when natural guardian ceases to be natural guardian and shows by his
conduct that he is becoming a natural guardian, he loses his right for custody as
for instance by quality to his wife and children, or by felony, or adultery, if the
woman is not brought into contact with the child.
The following are the grounds where the code will interfere with the father’s
guardianship of the children:
Firstly if he is unfit and character and conduct; secondly if he’s unfit as regards
external circumstances; if he waves his right; fourthly if he enters into
agreement to the contrary; fifthly if he’s out of the jurisdiction of the court or
intends to go abroad.
Mother not disqualified by Divorce-
The mother does not lose the right to custody of the children by divorce by the
father of the children.

Now we come to the fifthly, disqualifications affecting the husband- under the
Muslim law, the husband is not entitled to the custody of his minor wife in
preference to her mother and she attains the property or to such age as good
for medical confirmation of marriage. Under section 19 (a) of the card is that
wards act, the husband majority of the cases, would be considered by the court
to be unfit to be a guardian of the person of the five, unless under Muslim law
he would be entitled to her custody. The mother is an in titled to the custody of
the minor married girls as against her husband. Minority of the husband does
not deprive him of the right of guardianship of his wife.

Guardianship of minors property- If a minor owns movable or immovable

property, accordion is necessary to manage it. Muslim law prescribes certain
persons in order of preference who can be guardian of a minus property. The
guardianship of the property of minor under Muslim law may be classified as
follows-firstly legal or de jure or natural gaurdian, secondly, guardian appointed
by the court or certified gaurdian, Thirdly, de facto guardian.

Who is the legal guardian? The person entitled in the order mentioned below
to the guardian of the property of a minor or firstly the father, secondly the
executor appointed by the father is well, thirdly grandfather and the executor
appointed by the will of the grandfather. Das, mother, brother, uncle etc. Or not
entitled as of right to be legal guardians of the property of a minor. Of course,
the father or the grandfather of me a point any of them or any other person as
his executor and later shall hold as much power as the father or grandfather
holes. Except father and grandfather, no other person, not even the mother, is
legally authorised to appoint, by will any person as executor. The Supreme Court
of India has held that a mother of a minor cannot be appointed as guardian to
accept gifts on his behalf during the lifetime of minors father.
Muslim legal representatives are independent owners of their specific shares
and there liabilities in proportion and to the extent of their share in the state.
Underside circumstances, one shareholder has no right, title and interestingly
need property of another shareholder. The court held that the mother is not de
jure guardian offer minor children therefore has no right to sell interest of a
minor children in immovable property and such transaction is not merely
voidable but void.

Guardian appointed by the Court-

In the absence of legal guardians, the duty of appointing a guardian for
protection and provision of the miners property falls in the code. While
appointing a guardian ago 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 Pardanashin
Lady will not be considered as an objection to the appointment. The court must
be due regard to the wishes of the minus father and the interest and welfare of
the minor, whatever that may be in a particular case and the guardian must be
appointed due regard to these two considerations by the code. Without the
biggest permission and sanction of the quarter garden of the property
appointment the court cannot charge the immovable property of the minor or
mortgage all transferred by sale or transfer by gift or exchange or please any
part of the immovable property for a term exceeding five years or for any
turmeric sitting one you’ll be on the deed with the word will cease to be a minor.
Thus, he can release the immovable property even without the permission of
the coUrt for a term not Reading five years, or for a term not exceeding more
than one-year be on the date on which the mineable seized to be a minor, which
runs shorter.
If such guardian alienates the minus property in contravention of the provisions,
given above, such alienation that would be voidable at the instance of the minor
or any other person affected thereby. Permission for such intimation as given
above must not be granted by the court except in the case of necessity or foreign
evident advantage to the ward.