Guardianship: (Valaya)

Introduction
The Holy Quran considers female infanticide and believes that those who involve in such a crime
shall be punished on the day of judgment. In several other verses the Quran provides for
adoption, parentage and guardianship.
According to Islamic law, minority ceases when the boy or the girl attains puberty that is also
called ‘bulugh’ in Urdu. And the child can decide to marry and there can be no intervention for
the same. In the Hanafi and Shia Muslims, it is assumed that the child attains majority at the age
of fifteen.
It differs from the Indian Majority Act after the completion of the eighteenth year of the child
then he/she becomes an adult. And once in the instance where the marriage has been conducted
by arrangement between the parents of the major boy and girl and has been misrepresented or
concealed in any way then the status of the marriage shall be invalid.
This has been similarly held in the case of Sayid Mohaddin v. Katijabai. On the other hand, the
marriage of a minor child shall be permitted by the parent or the guardian. This power is given to
the parents or the guardian because it is expected of them to act in the interest of the child. There
obviously exists a trust relationship between the minor child and the parent. But the relationship
between the guardian and the child is fiduciary in nature. This is to ensure that the minor child is
not acting unfavourably to their own interest.
Therefore, assuming that the minor child is incapable to maintain himself there is need for
resorting to the appointment of a guardian who shall be an adult and shall be capable to make
decisions on behalf and in the interest of the minor child be it a girl or a boy.
Abdur Rahim defines guardianship as:
A right to control the movement and actions of a person who, owing to mental defects, is unable
to take care of himself and to manage his own affairs: for example, an infant, an idiot, a lunatic.
It extends to the custody of the person and the power to deal with the property of the ward."
Concept of guardianship in Islam
In pre-Islamic Arabia, the properties of minors were looked after by guardians taken from among
the members of the family. In the absence of any code of conduct, misappropriation and
embezzlement were rampant. This necessitated the introduction of most stringent rules for the
protection of minors in the Islamic legal system.
According to Ameer Ali, the Koran is full with denunciation against the gross malpractices
prevalent in Arabia of those days.
"Restore to the orphans," says the Koran, "when they come of age, their substance (property); do
not substitute bad or good (that is, take not what ye find of value among their effects to your own
use and give them worse in its place), nor devour their substance by adding it to your own, for
this is an enormous crime" .
The Koran forbade the waste of the property of wards by their guardians , and directed that the
guardians may take a reasonable and moderate gratuity for their labour, but not more.
Let him who is rich abstain entirely from the orphans estate". It also lays down that "when ye
deliver unto your wards their property,call witnesses thereof in their presence. Surely they who
devour the possession of orphans unjustly shall swallow fire hereafter".
Since the law of guardianship, as we have seen is mainly based on Koran, there is little room for
differences between the Shia and Sunni Schools in this branch of Muslim jurisprudence.
"A remarkable feature of Muslim Law of guardianship and custody', according to Paras Diwan is
that, on the one hand, detailed rules have been laid down for the guardianship of a minor's
property, while on the other, there are very few rules relating to the guardianship of a minor's
person. This is so because they regarded the latter as more of a matter of custody than of
guardianship. The rules regarding the minor's custody have been laid down in great detail. In this
lies their foresightedness that in an essentially patriarchal society, they could lay down that the
custody of children of tender years belonged to the mother. Thus, a clear distinction is
maintained between guardianship and custody-a distinction which could be established in
English law only after a protracted struggle extending over almost two centuries, and that too, by
legislation (Guardianship of Minors Act, 1971). It is unfortunate that in the early days of
administration of Muslim Law during the British Raj, some textbook writers and judges could
not decipher the distinction. On the one side, undue prominence was given to the paternal right,
on the other, the mother was dubbed as guardian of tender age...the Koran, the ahadees and other
authorities on Muslim Law emphatically speak of the guardianship of the property of the minor,
the guardianship of the person is a mere inference
Appointment of guardian
Under Muslim Law, no formal appointment by any authority is necessary for a competent person
to act as guardian. The only consideration is, whether he is competent and entitled to be a
guardian.
According to Muslim Law, a person who has attained the age of 18 years, and who is sane, can
act as guardian.
A guardian may also be appointed under the Guardians and Wards Act, 1890. The application for
the appointment may be made not only by a person desirous of being, or claiming to be the
guardian of the minor but also by any relative or friend of the minor, and in some cases by the
Collector. Reading in between the lines of Section 17 of the Guardians and Wards Act, 1890, it
may be very well inferred that even though the Court is empowered to appoint a guardian, the
application of Muslim Law of Guardianship has been by and large preserved in the Act, which
provides:
 (i) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions
of this section, be guided by what consistently with the law to which the minor is subject,
appears in the circumstances to be for the welfare of the minor..."In appointing the guardian, the
Court shall consider:
(i) the welfare of the minor, (ii) age, sex and religion of the minor, (iii) character and capacity of
the proposed guardian, and his nearness of kin to the minor, (iv) the wishes, if any, of a deceased
parent, (v) any existing or previous relations of the proposed guardian with the minor or his
property, and (vi) preference of the minor, if he is old enough to form an intelligent preference.
The Guardians and Wards Act, 1890 defines a guardian as a person having the care of the person
or his property or of both his person and his property'. The individual who has by law the right
and duty of giving a boy or girl in marriage may also be said to have the care of the person for
that limited purpose; he is called walia species of wilaya. But there is no mention of disposal in
marriage in any part of the Act, and nothing to indicate that it was intended to replace the
persons who, under the traditional law have been assigned the right to give a minor in marriage
Thus guardianship (wilaya) may be of the person, of property and in marriage. The Koran is the
basis of the law relating to guardianship and therefore differences between Sunni and Shia
Schools are relatively less.
Age of majority
Muslim Law:15 years-marriage, dower and divorce,
18 years-guardianship and all other matters.
Indian Law: 18 years-Indian Majority Act, 1875,
21 years Guardians and Wards Act, 1890.
That is, any Muslim of 18 years of age (or above) can act as a guardian of a minor Muslim; but if
formal appointment by the Court under the law (Guardians and Wards Act, 1890) is sought, then
he must be of 21 years at least, for a minor cannot act as a guardian of a minor (Section 21).
Kinds of guardians
Guardians may be classified into three categories natural, testamentary and court-appointed. De
facto guardian-a fizuli, is out of vogue in the modern Muslim Law. Father is the natural guardian
of the legitimate children, though the term natural guardian is not used in Muslim Law. He has
no right of guardianship over the illegitimate children, not even after the death of the mother,
unless the court appoints him. The mother is not a natural guardian of her children, legitimate or
illegitimate neither during the lifetime of the husband nor after his death. Thus father is the sole
guardian. He controls the education, upbringing and religious inculcation of the child as a
supremo. After his death, guardianship passes on to his executor under Sunni Law and to the
grandfather according to the Sharia Law.
A testamentary guardian is a person appointed as guardian by the natural guardian by testament
or will. The father, his executor and then the grandfather, in that order have the power to appoint
a testamentary guardian under the Sunni system. The Shia father cannot appoint a testamentary
guardian if the grandfather is alive; the latter acquires the power only on the father's death, and
the executor is out of picture. The mother is totally deprived by both schools, but she can become
a testamentary guardian by appointment. For this, she must necessarily be a Muslim under the
Shia Law, not so for the Sunnis. However, no non-Muslim alien person can be appointed a
guardian by a testament under any system. A Muslim may appoint a testamentary guardian orally
or in writing, no specific formality being required. But the testator must be a major and of sound
mind at the time of making the will. The executor of the testamentary guardian is called a wasi
(guardian), amin (a trustee) or a kaim-mukam (representative) all allusions to his attributes. Once
the obligation of testamentary guardianship is accepted, expressly or impliedly, it cannot be
renounced without the permission of the court.
The court-appointed guardian takes place when no natural guardian is available and testamentary
guardian has also not been designated. Previously the Kazi was authorised by the traditional law
to appoint a guardian. But now under the Guardians and Wards Act, 1890, that power is
abrogated; for all guardians for minors, irrespective of any religion, can be appointed only under
this law.
The District Court exercises this power. As stated earlier, Section 17 requires the court to make
the appointment consistently with the law to which the minor is subject, i.e., the minor's personal
law.
Muslim Law recognises three kinds of guardianship, namely:
(a) Guardianship of person.
(b) Guardianship of property.
(c) Guardianship in marriage.
A. Guardianship Of Person
In Indian Law three periods of guardianship of minors are relevant. Under the Muslim Law a
minor is a person under 15 years, while under the Indian Majority Act he is one under 18 years;
and if he is under the supervision of the Court of Wards, his minority terminates at 21. Under the
Muslim Law 'minors' between the ages of 15 and 18 can act independently of any guardian in
marriage, dower and divorce. A Muslim wife of 16 may sue for divorce without the intervention
of a guardian.
Guardianship of the person of the minor belongs to the following, in the order they are
mentioned below:
(1) Mother is entitled to the custody (Hizanat) of-
Hanafi Law
(a) A male child till 7 years,
(b) A female child till puberty, which is either 15 or 18 years.
Shia Law
(a) A male child till 2 years
(b) A female child till 7 years.
The mother is, of all persons, the best entitled to the custody of her infant child during marriage
and after separation from her husband, unless she be an apostate, or wicked or unworthy to be
trusted."
Here it must be clearly understood that there is a vast difference between mother's right of
custody (Hizanat) and father's right to be the legal guardian of his minor children. Explaining
this difference, it was observed by the Privy Council in Imambandi v. Mutsaddi 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 the child. But, she is not the natural guardian, the father alone,
or, if he be dead, his executor (under the Sunni Law) is the legal guardian".
From the above Tyabji concludes that where the husband and wife are living together, the child
must stay with them, and the husband cannot take the childaway with him; nor can the mother,
even during the period that she is entitled to the custody of the child, take it away without the
permission of the father.
The father's supervision over the child continues in spite of the child being under the care of
female relations, because, the burden of providing maintenance to the child rests exclusively on
the father. The mother's right of custody is not lost merely by her being divorced. But where she
marries a second husband, the custody of children normally belongs to her former husband." The
fact that wife stayed separately from her husband, because of some dispute, does not destroy her
entitlement to the custody of her children. In this case the husband and wife were living
separately in Madras itself, on account of some property dispute. They had four children of
different ages ranging from 10 months to 7 years. All the four were living with the mother. The
husband married a second wife, but soon divorced her by khula. One day the husband forcibly
removed one daughter of 5 years and the son aged 10 months. The wife sued for the custody of
both the children. The Madras High Court held that the wife was entitled to the custody of the
children and her staying apart from the husband did not constitute any substantial
disqualification.
According to Mulla, mother is entitled to custody (hizanat) of her male child until he has
completed the age of seven years and of her female child until she has attained puberty. The right
continues though she is divorced by father of the child, unless she marries a second husband, in
which case the custody belongs to the father. Approving this principle the High Court of Kerala
held in Yusuf v. Sakeena that where the facts of the case reveal that the paramount interest of the
children will be better served if they are allowed the custody of their mother, the application of
the mother would be accepted. In the facts of this case the Court found that the mother was
looking after the educational interests of the minor children in better way than the father. Even in
such a case, the father would not be denied the right of visitation. For exercise of such right he
would have to seek permission from the lower court. And the Allahabad High Court had also
held that the fact that the mother was a divorcee and had no source of income would not by itself
be a ground to refuse her the custody of her minor daughter. In this case the mother had already
applied for maintenance under Section 125 CrPC on the ground that she had no source of
income. The Court said this did not mean that the Court would overlook the welfare of the
children. It was convinced that the children would have better mental development in being with
their mother than with the father, specially when they are young girls. According to Bombay
High Court there is no absolute bar on giving custody of a child to its mother if she remarries. In
Irfan Ahmad v. Mumtaz", the High Court held:
‘…….it is open to the Court to appoint the mother as the guardian even if she has married a
stranger if the Court considers it to be in the interest of the minor."
In this case to the child had expressed to the Court more than once her unwillingness to go to the
father. The Court said there is no dogmatic insistence in Muhammadan Law that the child must
remain with the father even against her wishes the moment the mother gets remarried to a
stranger.
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 (hizanat). The ground for this rule seems to be the
apprehension that if she marries a stranger she would not be able to devote the same care to the
child in the home of the stranger a gair-mahram. The paternal uncle is a mahram by
consanguinity, so a marriage with him would not attract the disqualification. But is this rule
absolute? The courts are not unanimous about it. Paras Diwan has mentioned the cases in which
sind, Lahore and Madras High Courts have held that where the law was definite the Court could
not disregard it in the interest of the child. On the other hand Oudh Chief Court, Allahabad,
Calcutta, Jammu and Kashmir and Andhra Pradesh High Courts have held that the prohibition
was relative and could be waived in the interest of the child. The Jammu and Kashmir High
Court has held though a Muslim mother may lose her preferential right of hizanat by her
marriage with a gair-mahram, she may still be appointed a guardian by the Court in the interest
of the child, for such marriage does not disqualify her for a judicial appointment, if otherwise
found suitable, the welfare of the child being of paramount importance.
Keeping this fact in view that a child born in India assumes father's religion, it is interesting to
note the effect of religion on mother's right to custody. In Skinner v. Order, an infant daughter of
a Christian father and the issue of a Christian marriage was brought up by her mother a Christian.
The Christian father died. Meanwhile, the mother embraced Islam and married another Christian,
who also embraced Islam. The daughter, after attaining the age of 14 years, showed her
willingness to become a Muslim. However, the relations of the deceased Christian husband
objected over the manner in which the girl was brought up and requested the Court to remove her
from the custody of her mother, and placed under a Christian guardian. The Court in India
accepted the request of girl's relatives. On appeal the Privy Council confirmed the Court's
decision and observed:
"It would be very easy, of course, for a mother, under such circumstances, to procure from a
young daughter the expression of a wish to remain with her and to become a Muhammadan like
her, rather than continue a Christian... Their Lordships are, therefore, of opinion, that the Order,
insofar as it removed the Ward from her mother and stepfather, and placed her under a Christian
Guardian, was right."
An unmarried Hanafi mother of an illegitimate child made an application under Section 491 of
the Code of Criminal Procedure for the recovery of the child from the respondent. It was held by
the Supreme Court that under Muslim Law the mother of an illegitimate female infant child is
entitled to its custody.
Nevertheless, before making the order for the custody of the child, the Court is called upon to
consider its welfare. The Supreme Court observed:
"The child Anjum is the illegitimate daughter the appellant who is a Muslim woman. The child
was at the date of the application less than six years old now she is just over seven years old. The
appellant stated in her affidavit that the respondent was in the keeping of a man and this the
respondent has not denied. It is not the respondent's case that she is a married woman leading a
respectable life. In fact she admits that she allowed Trivedi to live in her flat with the appellant
as his mistress and took money from him for 'lodging and boarding charges. Trivedi has swom
an affidavit acknowledging the paternity of the child and undertaking to bring her up properly as
his own child.
Under Muhammadan Law which applies to this case, the appellant is entitled to the custody of
Anjum who is her illegitimate daughter, no matter who the father of Anjum is. The respondent
has no legal right whatsoever to the custody of the child. Her refusal to make over the child to
the appellant therefore resulted in an illegal detention of the child within the meaning of Section
491 CrPC. This position is clearly recognised in the English cases concerning writs of habeas
corpus for the production of infants.
Before making the order, the Court is certainly called upon to consider the welfare of the infant
concerned. Now there is no reason to think that it is in the interest of the child Anjum to keep her
with the respondent.
Both parties belong to the community of singing girls. The atmosphere in the home of either is
the same. The appellant as the mother can be expected to take better care of the child than the
respondent... We have not been able to find a single reason how the interests of the child would
be better served if she was left in the custody of the respondent and not with the appellant.”
In a very recent case the court has re-emphasised the right of the children, the welfare of the
minor in the complex modern scenario of the present day society. Personal rights of either of the
parties cannot be permitted to override the welfare of the children - Md. Riazuddin Ahmed v. Ms
Farida Begum. In this case the appellant father had divorced the respondent and claimed custody
of son (14 years) and daughter (16 years). The single judge had personally heard in his chamber
and talked to the four persons. Now the husband had expressed desire to remarry the respondent;
to which she had flatly refused. The children were already living with the mother and refused to
go to the father. The learned judge gave the custody to the mother.
(2) Other female relations. In the absence or disqualification of the mother, the custody of the
male child, until he attains the age of 17 years, and of a female child, until she attains
puberty, belongs to the following persons in the order of priority in which they are
mentioned:
i. mother's mother,
ii. father's mother,
iii. mother's grandmother, h.h.s.
iv. father's grandmother, h.h.s.
v. full sister,
vi. uterine sister,
vii. daughter of full sister, h.1.s.
viii. daughter of uterine sister, h.1.s.
ix. full maternal aunt, h.h.s.
x. uterine maternal aunt, h.h.s., and
xi. full paternal aunt, h...
The inclusion of paternal grandmother (No. iv) and paternal aunt (No. xi) is doubtful according
to Tyabji, because they do not belong to the category of mother's relations.
(3) Male relations- Failing mother and female relations, the following male relations may act
as guardian in the order they are mentioned below:
a. Father;
b. Nearest paternal grandfather;,
c. Full brother;
d. Consanguine brother; and other paternal relations within the prohibited degrees,
reckoning proximity in the same order as for inheritance.
Wilson says that the reason for not carrying the series of the above relations beyond the
prohibited degrees is the fear that in the case of a girl, for instance, the paternal cousin or other
agnate could forcibly marry her to himself, which he could more easily do by reason of his being
also guardian for marriage, and in case of a boy, he could be murdered for the sake of his
inheritance. Whereas a brother or uncle could not so marry, and the natural affection would
restrain him from killing or harming the minor.
The custody of a boy over seven years of age, and of an unmarried girl who has attained puberty
(only when she is related within prohibited degrees) belongs to:
(i) The father;
(ii) The "executor" appointed by the father's will;
(iii) The father's father, h.h.s.;
(iv) The male paternal relations in the same order as for inheritance; and
(v) Failing all the above, it is for the Court to appoint a guardian of such minors.
Custody of minor wife and illegitimate child. The mother is entitled to the custody of her married
minor daughter as against the minor daughter's husband.
The custody of an illegitimate child belongs to mother and her relations and to no one else, as
held by the Supreme Court.
Disqualifications of guardianship of persons (a) In the case of mother and other female relations:
(i) If she married a person who is not related to the child within the prohibited
degrees by consanguinity: (the right of guardianship revives on the dissolution
of such a marriage);
(ii) if she leads an immoral life; or
(iii) if she resides, during the subsistence of marriage at a distance from the
father's place of residence.
The Rudd-ul-Mukhtar lays down the general rule thus: Hazina is not disentitled to custody in
every case of misconduct, but only such conduct as is detrimental or injurious to the child. Thus
if she treats the child with cruelty or neglects it grossly, she would lose her hizanat. Poverty, as
such would also not disqualify her, for the main responsibility of maintenance of the child is that
of the father. If the child has property, then of course she can provide it with house and daily
necessities out of the property. The true test is the welfare of the child, other considerations are
subordinate; the criterion of her conduct is relative to the interest of the child and would vary
from case to case.
(iv) If she converts to another religion. According to Hedaya, if a Muslim mother
converts to another religion, she is deprived of her right to hizanat, for a non-
Muslim female cannot keep in her custody a Muslim child. So is the Shia
Law. Paras Diwan is of the view that after coming into force of the Caste
Disabilities Removal Act, 1850, change of religion cannot strip a person of his
or her rights or property. This view is held by Mulla also, though Ameer Ali
advocates the opposite view. "In several cases it has been held that the change
of religion by the guardian by itself is not enough to deprive him or her of the
right of guardianship or custody'.
(b) In the case of a male.--If the minor is an unmarried girl and is not related to him within the
prohibited degrees. If a non-agnate within the prohibited degrees, such as a maternal uncle is
available, he should be preferred over an agnate not within prohibited degrees (i.e. a gair-
mahram). The object of this Islamic rule is to avoid the custody of a male hazin who may marry
the girl.
However this rule is not recognised by the Shias. This rule, according to Paras Diwan, should not
come in the way of handing over a boy to the custody of the paternal uncle's son. Similarly a
hazin who is minor, or of unsound mind or aprofligate, i.e. one leading an immoral life would
also be debarred from hizanat.
Since among Shias no person other than mother, father or grandfather (f.f.) can act as such
guardian, it is a moot point what adverse effect profligacy would have on such father.
(c) In the case of a husband. If the minor wife has not attained the age of puberty, or is not of
such an age as to allow consummation of marriage.
Termination of guardianship of person. In the following instances the guardian's right of hizanat
comes to an end:
(i) Death of the guardian.
(ii) His removal (or her removal).
(iii) Court of Wards taking over the superintendence of the minor's person.
(iv) The minor attaining majority.
(v) The minor girl marrying a person capable to be her hazin.
(vi) The father of the male minor again qualifying to be his guardian.
It was observed by the Andhra Pradesh High Court in Khadija Begum v.Ghulam Dastagir, that
merely by marrying second time the father did not disqualify to remain a guardian unless his
continuation was against the interests of the child.
This view was reiterated by the Kerala High Court in Poolakkal Ayisakkutty v. Parat Abdul
Samad. This was an appeal against the order of the Family Court granting custody of the minor
child aged 4 years to the father in preference to the maternal grandmother. The mother of the
child had committed suicide and after her death the child was brought up by the maternal
grandparents. The father filed an application for custody of the child which was earlier allowed
by the Family Court. Against this the maternal party filed this appeal. Father had remarried and
got children. The grandmother was dependent on her another daughter. Held, conduct of
remarriage by the father of the child itself is not a ground to reject the prayer for custody.
Welfare of the child is of paramount consideration. It is for the welfare of the child that the child
be with the father.
B. Guardianship Of Property
Three types of guardians are recognised for the purposes of guardianship of property, namely:
i. Legal guardians;
ii. Guardians appointed by Court; and
iii. De facto guardians.

Legal guardians. Under Hanafi Law, the following are the guardians of minor's property, in order
of priority:
(a) Father:
(b) Executor appointed by father's will;
(c) Father's father;
(d) Executor appointed by paternal grandfather; and
(e) Executor of the last named executor.
Thus, the only persons who are entitled to appoint a guardian of the property of a minor by will
are his father and father's father. The mother has no power to appointment by will a guardian of
the property of her minor child. It must be remembered that mother, brother, uncle, etc., are not
legal guardians. However, there is nothing to prevent the father or father's father from appointing
the mother, brother or uncle, etc. as executrix or executor, and on such appointment she or he
will be as much competent as any other person to manage the property.
As Paras Diwan observes, the term 'natural guardian' is not used by the Muslim Law-givers and
jurists, they use the term wilaya, or 'guardianship' and the term 'legal guardian' is of English
usage, as also the term 'natural guardian', both being used as synonyms.
The executor of the father's will, according to Hanafi Law, has preference over the grandfather.
In Shia Law, however, some hold that the father cannot appoint an executor in the presence of a
grandfather, who will have preference over father's executor in superintending the property.
According to another view, the nomination of an executor by the father is valid to the extent of
one-third of the property and for the discharge of all rights or claims upon his estate. The power
of the executor can be further limited if the executor so desires.
According to Shafii Law, the grandfather has preferential rights over the father's executor in
matters of property management.
Removal of Guardianship under Muslim Law
There are certain duties which are imposed upon a guardian that is required to be performed by
the guardian. On the failure of which the guardian can be removed. This removal is usually taken
place in the court.
The Court shall have the power the remove the guardian under certain circumstances which are:
If the husband has abused the trust of the woman
He has not performed any duties as the husband
The husband does not have any capacity to perform the duties
That the husband has not treated the woman well
That there is no regard to the orders of the court by the husband and he is also not regarding the
provisions of the Guardianship Act
When the husband has been found guilty for moral turpitude
Have different interests as a guardian
That the wife ceases to be a minor.
Conclusion
Guardianship under Muslim Law is an essential part of personal laws of people and with the
passage of time, it has been codified by way of legislations. The Guardians and Wards Act is the
legislation passed by the Parliament which deals with the laws and process related to
guardianship in India.
However, it cannot be ignored that personal laws are based on customs and need to be taken into
consideration. Considering this, the Bombay High Court in Smt. Farzanabai v. Ayub Dadamiya
clearly held that personal law and beliefs of the parties need to be kept in mind by the
adjudicating bodies whenever they hear any matter of guardianship.