10/17/24, 7:26 PM Guardianship of a child under Muslim Law - iPleaders

Guardianship of a child under

Muslim Law
By Rachit Garg - August 13, 2024

Image Source: https://rb.gy/iint1p

The article was written by Shreya Pandey from Banasthali University,

Jaipur, and has been updated further by Kaustubh Phalke. This article
provides a legal analysis of the guardianship of a child under Muslim

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law. The author has tried to give a brief overview of the topic,
provisions related to guardianship, rights and duties of the guardian,
termination of guardianship under Muslim law, and the difference
between Shia and Sunni guardianship. Further, the author has tried
to explain the topic in simpler terms and essential points to be kept in
mind before the appointment of the guardian.

Table of Contents

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1. Introduction
1.1.
2. Meaning of minor and guardianship
3. Provisions relating to appointment of a guardian under Muslim Law
3.1. Section 6 of Guardians and Wards Act
3.2. Section 15(1) of Guardians and Wards Act
3.3. Section 19 of Guardians and Wards Act
3.4. Section 21 of Guardians and Wards Act
3.5. Section 24 of Guardians and Wards Act
3.6. Section 25 of Guardians and Wards Act
3.7. Section 26 of Guardians and Wards Act
3.8. Section 27 of Guardians and Wards Act
4. Types of guardians under Muslim Law
4.1. Natural guardian
4.2. Testamentary guardian
4.3. Guardian appointed by the court
4.4. De-facto guardian
4.5. Guardianship in marriage (jabr)
5. Powers of natural and testamentary guardians under the Muslim
Law
5.1. Power of alienation
5.2. Power to grant a lease
5.3. Power to carry on business
5.4. Power to incur debts and enter into contracts
5.5. Power to make partition
5.6. Other powers
6. Duties of a guardian under Muslim Law
6.1. Duty to support
6.2. Duty to defend the minor
6.3. Duty to file suits
6.4. Duty for arranging the marriage of the ward
6.5. Duty to control the acts of the wards
6.6. Duty of the father to take charge
6.7. Duty of the guardian to not use the ward’s property
6.8. Duty to maintain records
7. Custody of the children under Muslim Law
7.1. For sons:
7.2. For daughters:
8. Grounds of removal from guardianship
9. Difference between Sunni and Shia guardianship
10. Conclusion
11. Frequently Asked Questions (FAQs)
11.1. Can the guardian under Muslim law delegate his duties to the other
person?
11.2. What are the rights of the ward under the guardianship under
Muslim law?
11.3. How can a person challenge the appointment of a guardian under
Muslim law?
12. References

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Introduction

A minor can be said to be a human incapable of protecting his

interests and rights due to a lack of diligence while making decisions.
A minor is hence safeguarded by a person known as a ‘guardian’.
This is done to fulfil the minor’s legal competency and to make
decisions for his benefit on the minor’s behalf.

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A guardian is a person who is primarily responsible for a child’s

health, needs, education, and other essential needs. Under Muslim
law, a father is a natural guardian, and in his absence or at his death,
the paternal grandfather becomes the guardian of the child. A
guardianship is a responsibility to take care of the child’s person and
his property for his benefit and interest, and the person to whom such
responsibility is given is known as a guardian. The guardian is legally
responsible for the child. When someone is given merely the custody
of the child till he reaches a certain age, he is termed as ‘Hizanat’. A
mother is not a natural guardian of a child under Muslim law but may
claim custody of the child till he reaches a certain age, i.e., she can
claim for hizanat.

Meaning of minor and guardianship

Guardianship means to guard someone incapable of taking
responsibility or is not mature enough to protect his interests or
rights. Guardianship is a responsibility created by state law under
which the court gives a duty to a person or an entity to make
decisions for the benefit and best interest of the ward. Under Muslim
law, the guardianship is called Hizanat.

In the Arabic language, guardianship is known as ‘Wilayat’ whereas

custody is known as ‘Hidhanat’. Hidhanat refers to the possession of
the child and holding the responsibility for its upbringing. Wilayat
refers to protect and defend.

As per the principles of Muslim jurisprudence, the natural guardian

of a child is his father, known as the ‘Wali’ of the minor’s person and
property. Sharia law gives importance to both parents i.e. it considers
the equal role of both parents for the custody of the child. Hence, a
mother is given preference while deciding on the custody of a child
under seven years of age. All Sunni schools of thought have a
consensus on this.

The Muslim law discusses four concepts of guardianship in the

context of the family responsibilities towards the child:

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1. Hizanat (custody of child)

2. Wilayat-e-nafs(guardianship of person)

3. Walayat-e-mal (guardianship of property)

4. Walayat-e– Nikah (guardianship in marriage )

According to Section 3 of the Indian Majority Act, of 1875, a minor is

a person who is domiciled in India and is below 18 years of age.

He is deemed to be incapable of making decisions on his own for his

own interest. Hence, the law requires a major and legally competent
person to make decisions for his interest and benefit and to take care
of his health, needs, education, and other essential needs.

According to Section 4 of the Guardians and Wards Act, of 1890, a

guardian is a person having the care of the person of the minor or his
property or both. For a limited purpose of marriage, the person having
the right and duty to dispose of the marriage of a girl or a boy is
deemed to have care of his or her person.

The Quran is the foundation for the concept of guardianship; hence,

there is a minor difference between the Shia and Sunni schools.

Provisions relating to appointment of a

guardian under Muslim Law
When a court deems fit to appoint a guardian in favour of a child
for the best interest of his person or his property, it may make an
order regarding such an appointment. The appointment of guardians
is dealt with under the Guardians and Wards Act, of 1890. The
following are the provisions relating to the appointment of a
guardian:

Section 6 of Guardians and Wards Act

This Section provides that the question of guardianship shall not be
interfered with by the court if the appointment of the guardians of

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the minor’s person or property or both has been made lawfully under
a will.

Section 15(1) of Guardians and Wards Act

As per Section 15(1), the court may appoint the joint guardianship
of a child’s person or his property or both. Where one of the guardians
dies, the other one may continue to be a guardian of the child.

Section 19 of Guardians and Wards Act

As per this Section, The court shall not appoint a guardian for a
minor under the following conditions:

Whose property is under the superintendence of the court of

wards?

Who is a married female, and her husband is deemed to be fit in

the opinion of the court.

Other than a married female whose parents are living and are fit in
the opinion of the court.

Section 21 of Guardians and Wards Act

As per this Section, a minor cannot act as a guardian for another
minor. He can be the guardian for his wife or child, or if he is the
managing member, i.e., the Karta of the undivided Hindu family,
then he can act as a guardian for the wife or child of another minor
member of that family.

Section 24 of Guardians and Wards Act

This Section talks about the duty of the guardian. The guardian must
protect the interest of the minor and take every possible step in the
best interest of the minor. He shall take care of the minor’s health and
education and will provide every necessary support to him.

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Section 25 of Guardians and Wards Act

As per this Section, if, in the court’s opinion, it is beneficial for the
minor to stay in the custody of the guardian and he absconds, then
the court may make an arrest order under Section 100 of CrPC.

The guardianship will not be terminated on the ground that the

ward lives with someone who is not their legal guardian and does so
against the will of their guardian.

Section 26 of Guardians and Wards Act

This Section restricts the guardian from removing the ward without
the court’s permission from the jurisdiction of the court by which he
was appointed or declared. The exceptions of this provision are that
the guardian shall not be a collector or must not be a guardian
appointed by will or other instrument. The leave may be special or
general and may be defined by the order granting it.

Section 27 of Guardians and Wards Act

This Section talks about the duty of the guardian to take every
essential step in the favour of the minor’s person or his property as it
is his own. He is obligated to act prudently. He has the
responsibility to perform all the acts that are adequate and necessary
for the realisation, protection, or benefit of the property.

Types of guardians under Muslim Law

The law of guardianship in Muslims came from certain verses in the
Quran and a few hadiths. Under Muslim law, the following are the
types of guardians:

Natural guardian
A natural guardian is a person who has all the legal rights and powers
to control the activities of a child. It is also known as Dejure guardian
or guardian by law. The natural guardian of a child under Muslim law

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is considered to be the father only, and the mother is not considered a

natural guardian even after the death of the father. The father is
considered to be the only natural guardian of the child, even if the
custody of the child is not with him. Even then, he has control over all
the decisions relating to the child.

In Imambandi v. Mutsaddi (1918), the court held that till the father is
alive, he is the sole and supreme guardian of his minor children.

In Sunnis, the father is the natural guardian of a child, and after the
father’s death, the guardianship is passed on to the executor. An
executor is a person appointed by the father or grandfather to act
as guardian on their behalf.

In Shias, the natural guardian is the father, but after the father’s
death, the guardianship is passed on to the grandfather, if alive. If
the grandfather is alive, then the guardianship will be vested upon
him even though the father has appointed an executor. The
executor of the father has no right to act as a legal guardian of the
child.

The Father’s right to be a natural guardian is inevitable even if the

custody of the child is given to the mother since the mother cannot be
considered to be the natural guardian of the child; hence, she has no
right to enter into the property of the child. The executor would
become the guardian only in two cases, either the death of the
grandfather or his absence. If the grandfather appoints an executor
before his death, then after his death, the executor appointed by
the grandfather becomes the guardian.

The guardianship of the father is extended only to his legitimate

children. He has no guardianship entitlement over the illegitimate
children. He cannot claim the custody of such children even after the
death of the mother except when the court declares him guardian of
such child. A Muslim mother cannot be the guardian of the
illegitimate children. Rather, she is only allowed to have custody of
such children.

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Testamentary guardian
Testamentary guardianship refers to guardianship pertaining to
a will. A testamentary guardian is a guardian who is appointed
under a will. A testamentary guardian is also known as wali,
guardian, amin, or kaim-mukam. As per both the school of thought,
the father can appoint a testamentary guardian. He shall be
competent to be a guardian, i.e., he shall be an adult sane person,
and a prodigal person cannot be appointed as a guardian because
that will not be good for the welfare of the child. The acceptance of
the testamentary guardianship is an essential part. This
acceptance can be expressly or implied, but it is not allowed to be
renounced or refused without the permission of the court once it has
been accepted. A non-Muslim can be made a testamentary
guardian; however, this is not allowed under Shia law.

In Sunnis, the father has full power to appoint a testamentary

guardian. The grandfather is empowered to be appointed as a
testamentary guardian in the absence of the father or his executor.
The executor is also known as wasi or the guardian of the minor. As
per the Shias, the appointment of the guardian would be valid only if
the grandfather has died. Otherwise, the grandfather is empowered
to appoint the testamentary guardian. In both Shias and Sunnis,
the mother has no power to appoint a guardian for her children
except in two cases:

1. By the father’s will, she has been appointed as executrix.

2. She is the owner of a property that will devolve to her children

after her death.

By the will of the father or grandfather, a mother can be appointed

as a testamentary guardian or executrix of a child. In Sunnis, a
non-Muslim mother can be made a testamentary guardian, but in
Shias, a non-muslim mother cannot be appointed as a guardian. This
school of thought believes that a non-muslim cannot be a guardian
of the person as well as his property.

According to all Muslim authorities, a non-muslim person cannot be

appointed as a testamentary guardian; if such an appointment is

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made, it is null and void. However, it may be set aside by the Kazi
according to the Malikis and the Shaif law. A zimmi (a protector as
per Muslim law) can be a validly appointed testamentary guardian
of the minor’s property but not of the minor’s person. The Shias also
take the same view.

Guardian appointed by the court

In the absence of natural and testamentary guardians, the court is
empowered to appoint a guardian of a child known as a statutory
guardian or certified guardian. The appointment of a child’s guardian
belonging to any community is governed by the Guardians and
Wards Act, of 1890. Interestingly, since the guardian for marriage
has been nowhere discussed in this Act, the court cannot appoint a
guardian for it. When there is a conflict between two laws, i.e., the
Muslim personal law and the Guardians and Wards Act of 1890, then
the latter shall prevail.

If a mother re-marries, as regards the mother or a female guardian,

marries a person not related to the child within the prohibited
degrees of relationship is a bar to the guardianship. The custody of
an infant will still be with the mother if she has separated from her
former husband, but if she remarries, the custody will then be given
to the former husband. If a mother fails to be the guardian due to
absence or disqualification, then the following female relations in
priority are entitled to guardianship:

1. Mother’s mother

2. Father’s mother

3. Full sister and other female relations, including aunts.

The district court is empowered under the Act to appoint a guardian

after considering the age, sex, wishes of the child, wishes of the
deceased parents, and welfare of the child. The High Court also has
inherent power to appoint a guardian for a minor, which the court
sparingly exercises.

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De-facto guardian
Such a person who is neither a natural guardian, testamentary
guardian, statutory guardian, etc, and has placed himself in charge
of the minor’s person or his property is known as a de facto
guardian. He has no right over the person or property of the minor
and is merely a custodian of the person and his property. A de facto
guardian is generally a relative of the child, and hence he has no right
to alienate the property without being appointed as the guardian by
the will or by the court. He is thus an officious intermeddler known
as ‘fazooli’ and has no right to alienate the property without the
permission of the court.

Guardianship in marriage (jabr)

This is the most vibrant feature of Islamic law since it gives the
power to the father to impose the status of marriage on his minor
children. This power is called ‘jabr’, the right of guardianship is
called ‘wilayat’, and the guardian is called ‘wali’. The essential for a
valid marriage is that the parties to the marriage have attained the
age of puberty. An exception to this general rule is that the marriage
is contracted on behalf of minors by the guardians. Under all the
schools of Muslim law, the father has this exclusive right to tie his
minor children in the relation of marriage without their consent till the
age of attaining puberty, known as ‘bulugh’. Interestingly since
the guardian for marriage has been nowhere discussed in the
Guardians and Wards Act, the court cannot appoint a guardian for
the same.

The following is the list of priorities in the appointment of guardians

for marriage under Sunni law:

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1. The father.

2. The father’s father, how high so ever.

3. Full brother and other male relations on the father’s side, in order
of inheritance given under residuary.

4. Mother.

5. Maternal relations within the prohibited degree.

6. The Qazi or the court.

Under Shia law, only the father has the right to become the guardian
in marriage and, in his absence, the father’s father.

The minor has the right to repudiate the marriage if it has been
contracted by a guardian other than the father or his grandfather. The
minor is eligible to use this power at the age of 15 or 18 years of age
i.e., the majority. The age limit for this power is still unclear. He
cannot exercise any such power in case the marriage has been
contracted by his father or grandfather except when the marriage is
contracted through fraud or negligence.

Powers of natural and testamentary

guardians under the Muslim Law
The powers of the natural guardians and testamentary guardians are
nearly the same:

Power of alienation
The guardian has the power to alienate the property of the minor for
his utmost benefit. The immovable property of the minor can be
sold out for the conservation of the minor, but this sale can only be
made under exceptional circumstances. In the case of Meethiyan
Sidhiqu Vs. Muhammed Kunju Pareeth Kutty and Ors. (1996), the
apex court stated that the father, as a natural guardian, has the right
to sell the property of the minor but the sale of the property by the
mother is void.

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Power to grant a lease

The executor has the power to grant the property of the minor on a
lease, this may be done for the advantage of the minor. The property
may be given on lease for the maintenance of the minor. The guardian
may also pledge the goods or movable property for the benefit of
the minor but not for a longer period than his minority. In the case of
Zeebunnissa Begum vs. Mrs H. B. Danagher and Anr (1936), the
Madaras High Court held that the guardian has the power to lease out
the property of the minor for his benefit, but he cannot let it on lease
for a period extending the minority of the minor.

Power to carry on business

The guardian has the power to carry on business and enter into
partnerships on behalf of the minor. The fatawai alamgiri (a very
large collection of legal codes reflecting the Mughals’ primary means
of attempting to rule their empire) empowers an executor to
partnerships on behalf of the minor, and he may enter into
partnerships with others. In the case of Jafferali Bhaloo Lakha vs.
Standard Bank of South Africa Ltd. (1929), the court held that the
liability of the minor is to the extent of his share in the partnership,
i.e., he cannot be held personally liable for any liability.

Power to incur debts and enter into

contracts
The guardian has the power to incur debts on behalf of the minor
only when necessary. The minor may not be bound for the debt
incurred if the court deems that the debt incurred was a necessity.

Power to make partition

The guardian has the power to make the partition of the property on
the behalf of the minor. In case the guardian is appointed to deal
with all the matters of the minor, the executor may then make the
partition of the property and separate the share of the minor. If all
the members are minor then the partition is invalid but if some of

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them are major and are present at the time of the partition, then
they can separate their share and hand over the share of the minor to
him. The guardian cannot separate shares of each minor as it is
unlawful, the whole partition will result in invalidity.

Other powers
The guardian holds the right of preemption on behalf of the minors.
It can refuse or accept an offer of a share under such right, and if
done in good faith, the minor will be bound by such an act. The de
jure guardian, i.e., the legal guardian, has the power to acknowledge
debts on behalf of the minor.

Duties of a guardian under Muslim Law

Duty to support
The guardian must support the ward and should take due care of the
education, health, and every necessary facility for the ward. He must
take due care of the ward in the legal matters as well. He shall act as
the parent of the ward.

Duty to defend the minor

The guardian must defend the minor in every aspect possible. It is his
duty to use reasonable and necessary force to protect the infant. He
shall take all the necessary steps for the protection of the minor.

Duty to file suits

The guardian shall have the duty to file the suit on behalf of the
minor. As per Order 32 of the Civil Procedure Code, 1908, under which
no other person can act as a guardian or a next friend where a
competent authority has already appointed a guardian.

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Duty for arranging the marriage of the ward

The guardian must arrange the marriage of the ward and make all
the necessary arrangements for his marriage.

Duty to control the acts of the wards

The parents generally must engross good values in the minor, but in
the absence of the parents, the guardians are duty-bound to teach
them good values. They must take care of the conduct of the wards.

Duty of the father to take charge

Under Muslim law, the father is considered the natural guardian of the
child but the mother has the right to take custody of the child up to a
certain age. After reaching that age the father must take custody of
the child and make all the necessary arrangements for a good
upbringing of the child.

Duty of the guardian to not use the ward’s

property
The guardian should not make any profit out of the property of the
minor. He is not allowed to sell his own property to the minor to make
a profit out of that sale. Though he can use the property for the
benefit of the minor.

Duty to maintain records

It is the duty of the guardian to make a record of his income and
expenditures for the benefit of the minor. He shall make these
records with utmost honesty.

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Custody of the children under Muslim

Law
The custody under Muslim law is known as ‘Hizanat’, and usually, the
mother has the right to custody for a period prescribed under Muslim
law. The mother’s interest is slowly recognised for the welfare of the
children. The right to hizanat under Muslim law is considered a right
to rearing. Under Muslim law, the legal guardians are entitled to the
physical custody (tahwil) and upbringing of the minor (parvarish) of
the minor. The right of the mother to the custody of the child
continues even if she has separated from her husband, except she has
not apostate. The Muslim law made a distinction in the custody of a
boy and a girl. The following is the distinction between the custody of
sons and daughters.

For sons:
As per the Hanafi, Shafi, and Hanabali schools, the mother’s right to
keep the hizanat of the son is seven years.

As far as Maliki school is concerned, the right exists up to the age of

puberty, and after the completion of this age, the right is shifted to
the father.

As per Shia school, the right of the mother exists until the son
attains two years of age and then the right shifts to the father.

For daughters:
As per Hanafi School, the right of a mother exists up to the puberty
of her daughter.

As per Maliki, Shafi, and Hanabali schools, the mother has the right till
the girl is married.

As per Shia school, especially the Ithna-Ashari school, the right

extends up to seven years of age. In all the schools of Muslim law, the

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right of the mother for the custody of her married daughter below the
age of puberty exists in preference to the husband.

Grounds of removal from guardianship

A guardian, whether de jure or de facto, can be removed from the
duty of guardianship. The court holds all the powers to remove the
ward from the custody of guardianship of the guardian. Following
are the grounds for removal of the guardians under Section 39 of the
Guardians and Wards Act, 1890:

If the guardian has committed an abuse of trust which resulted in

adverse effects on the minor.

When the guardian has failed to perform his duty and

responsibilities towards the ward.

When the guardian becomes incapable of performing his duties and

responsibilities.

When the guardian is negligent in taking proper care of the ward

and omits his duties and responsibilities towards the ward.

He can be removed on the grounds of violation of the provisions of

the Guardian and Wards Act.

When the guardian has some adverse interest in fulfilling his duties
and responsibilities towards the ward.

When the guardian stands convicted for some offence punishable

by law,

When the guardian ceases to reside within the local limits of the
court’s jurisdiction.

When the guardian is declared to be insolvent or bankrupt.

Difference between Sunni and Shia

guardianship
Sr. no. Sunni Shia

1 There can be several Only the father and

relations other than grandfather are

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that of the father guardians of the

and grandfather, who marriage
can be the guardians
of marriage.

The minors have the

right to repudiate
the marriage
The marriage shall
arranged by
be wholly ratified to
2 guardians other than
make it wholly
the father and
effective.
grandfather after
attaining the age of
majority.

The mother is
entitled to the right The mother is the
of guardianship up to guardian of the son
3 7 years of age in the up to 2 years of age
case of a boy and up and of the daughter
to the age of puberty up to 7 years of age.
in the case of a girl.

Conclusion
Guardianship arises from the incapacity of a minor or person of
unsound mind etc. A guardian should take care of the ward and
should fulfil all the necessary needs of the ward as he is the young
blood that will form the foundation for the country. The guardian is
not only responsible for taking care of the minor’s person but his
property as well hence he should not make any profit out of the
ward’s property and shall be honest towards the benefits of the ward.
The guardian has the responsibility to take care of the marriage and
the overall development of the child. Fathers under Muslim law are
considered more dominating and the general right of the father to
control and supervise the child always succeeds. The mother is not
recognised to be a natural guardian in any condition under both laws,
even after the death of the father the mother is not entitled to
guardianship. The main consideration while appointing guardians
should be that the welfare of the child should be considered.

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Frequently Asked Questions (FAQs)

Can the guardian under Muslim law

delegate his duties to the other person?
Yes, the guardian under the Muslim law can delegate his duties to
relatives, caregivers etc, as far as the benefit of the minor is not
affected. Such delegation should not be violative of Islamic principles
and beliefs.

What are the rights of the ward under the

guardianship under Muslim law?
According to Islamic teachings, a ward has the right to be treated
with dignity and respect, proper education, good care, maintenance,
and other necessary support from the guardian. He has the right to be
represented and protected, and the right to inheritance.

How can a person challenge the

appointment of a guardian under Muslim
law?
An interested person may challenge the appointment of a guardian if
he feels that the guardian has breached his responsibilities and
duties. The court will then review the evidence and adjudicate the
matter thereon.

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References
https://jiwaji.edu/pdf/ecourse/law/Muslim_Law_12.pdf

https://gyansanchay.csjmu.ac.in/wp-content/uploads/2023/06/07-
Guardianship-2.pdf

https://calr.in/wp-content/uploads/2021/05/Guardianship-Under-
Muslim-Law-A-Mere-Prejudice-Against-Women-in-India.pdf

https://supremoamicus.org/wp-
content/uploads/2019/07/A22.v12.pdf

https://www.pcasupportgroup.org/guardianship-under-muslim-law-
pdf-importance-and-guidelines/

https://bnwjournal.com/wp-content/uploads/2020/03/fam-law-
m5.pdf

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