INTRODUCTION

GUARDIANSHIP UNDER MUSLIM LAW

Regarding guardianship, Quran says that:-

Did He not find thee orphan, and gave thee a home? And

found thee needy and fulfilled thy wants?

Then wrong not the orphan,

Nor repel the beggar with harshness;

And proclaimed the bounty of the Lord.1

At another place Quran says:

Restore to the orphans when they come of age, their substance; do not substitute bad for good,
not devour their substance by adding it to your own, for this is an enormous crime2.

1.) Definition of guardianship - The term guardianship is defined in the Guardianship and
Wards Act, 1890 as “a person having the care of the person of a minor or of 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 or her person. But there is no mention of disposal in marriage in any part of the
Act, and nothing to indicate that it was intended to indicate that it was intended to interfere
with the rules of Muslim Law which assigns that function. Under the name of jabar, it relates
to the relatives who are not necessarily those entitled to the general care and custody (hiznat)
of the ward’s person (Wilson). The Quran is the basis of the law relating to guardianship and,
therefore, there is very little room for differences between Sunni and Shia Schools3.

2.) Meaning of guardianship - The term ‘Guardianship’ (Wilayat) 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 the Muslim Law one and the same thing. Puberty is presumed to have been attained on
the completion of fifteenth years. But now Muslims are governed by the Indian Majority Act,
1875, except in matters relating to marriage, divorce and dower. 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 divorce. At or above
this age, he/she is free to do anything in the sphere of marriage, dower and divorce.

1
Quran, XC 111, 6-11.
2
See Quran, Chapter IV.2.
3
Retrieved from http://www.lawnotes.in/Muslim_Law_Guardianship
1
According to section 2 of the Child Marriage Restraint Act, 1929 (as amended in 1978) the
minimum age for Marriage is 21 years for males 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.
21 years is the age of majority if the minor is under the Court of Wards, 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 that law has been materially altered by the
Indian Majority Act, and the only matters in which the Muslim is now entitled to act on
attaining the age of 15 years, are (1) marriage, (2) dower, and (3) divorce, in all other matters
his minority continues until the completion of 18 years. Until then the Court has power to
appoint a guardian of his 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.

3.) Appointment of Guardian.- When the Court is satisfied that it is for the welfare of a 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(1)4 permits for the appointment of joint guardian where the Court has appointed
joint guardian and any of them has died, the survivor continues to act as guardian. Section 19
of the Act says that in case the superintendence of the property of a minor has been assumed
by a 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.

If the guardian is not performing his duties properly, the Court may remove him. Section 20 of
the Guardian and Wards Act, 1890 imposes a duty on the guardian to deal with the wards
property carefully and honestly. Section 21 of the Act provides that a minor not competent as
the guardian of another minor, will not act as the guardian.

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, the Court shall
have regard to the age, sex and religion of the minor, the character and capacity of the proposed
guardian and his nearness of kin to the minor, the wishes, if any, a deceased parent, and any
existing or previous relations of the proposed guardian with the minor or his property. If the
minor is old enough to form an intelligent preference, the Court may consider that preference5.

4
Guardians and Wards Act, 1890
5
Retrieved from http://www.lawnotes.in/Muslim_Law_Guardianship

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4.) Kinds of guardianship: Muslim Law makes a distinction between guardian of the person,
guardian of the property and guardian for purposes of marriage (Wilayat-ul-nikah) in the cases
of minors.

Mohammedan Law recognizes three kinds of guardianship. They are as follows :

i) Guardianship in marriage (jabar)

ii) Guardianship of person of the minor for custody (Hizanat).
iii) Guardianship of property which has been sub-divided into:-
a) Dejure Guardianship
b) de facto guardianship
c) certified guardianship
d)
i.) Guardianship in marriage (jabar)- It is one of the essentials of a valid marriage that the
party are competent to enter into a contract, i.e., among other things they must have attained
the age of puberty. However, this general rule admits one exception i.e., where the marriage is
contracted on behalf of the minors by the guardian. This exception is the most distinguishing
feature of Islamic jurisprudence because it empowers a father to impose status of marriage on
his children. This power of imposition is called (jabar), the abstract right of guardianship
(wilayat), 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.

In respect of marriage guardianship no one can be appointed guardian by the

Court. It is substantive law itself that declared who, for the purpose of marriage, possess the
patria potestas; the Court cannot Wali for marriage although, in some cases, the Quazi or 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 minor, in the order of enumeration.
i) The father
ii) The father’s father, how highsoever.
iii) Full brother and other male relations on the father’s side, in order of inheritance
given under residuaries.
iv) Mother.
v) Maternal relations within prohibited degrees.
vi) The Qazi of the Court

Shia Law recognises only the Father and failing him the Father’s father how highsoever as
guardian in the marriage of a minor.

Marriage performed by remoter guardian is void: The rule of Muslim Law is that when a
remote guardian allowed a boy or a girl to marry, when the nearer one is present, the validity

3
of the marriage is dependent upon the latter’s ratification and consent6. Such a marriage by a
remoter guardian when the nearer guardian is present and has given his consent is not only
irregular 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. This rule cannot apply to case where as between the nearer
guardian and the one who actually disposes of the minor in marriage, there are other relations
who have preferential rights7

Under the Muslim Law where a minor is contracted in a marriage by any guardian other than
the father or father’s father, the minor has option to repudiate the marriage on attaining puberty.
It is not clear when a minor is given in marriage by a guardian other than the father and the
grandfather, he may be able to exercise his rights of repudiation of marriage on the completion
of 15 years or on the completion of 18 years.

Under the Muslim Law, where the marriage is contracted for the minor by the father or father’s
father, the minor has no option on attaining puberty8, 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 2(7) of the Dissolution of Muslim Marriage Act, 1939 says that a woman
married under Muslim Law will be entitled to obtain a decree for the dissolution of her marriage
if she proves (1) that she is having been given in marriage by her father or other guardian before
she attained the age of 15 years, repudiated the marriage before attaining the age of 18 years,
and (2) that the marriage has not been consummated. The Guardians and Wards Act, 1890 is
silent regarding the appointment of guardian in marriage. Under this act the Courts are having
jurisdiction only in the matters or guardianship of person and guardianship of property.
Similarly a person appointed by Court can act as a marriage guardian. The Guardian and Wards
Act, 1890 is silent regarding the appointment of guardian in marriage. Under this Act the courts
are having jurisdiction only in the matter or guardianship of person and guardianship of
property. Similarly,, a person appointed or declared by the Court can act as marriage guardian9

Testamentary guardian for marriage: Under Muslim Law testamentary guardians for
marriage are not recognised. A father has no power to appoint any person as guardian for
marriage by his will10.

Effect of apostacy on guardianship for marriage: Under pure Muslim Law, a person loses
his right to guardianship in marriage as soon as he gets converted to another faith. However,
the Caste Disabilities Removal Act, 1850 provides that a person does not lose his right of
property if he is converted to another faith. On the strength of this Act, the Hon’ble High Court
of Calcutta in Muchoo v. Arzoon11 held that the duties of the director attached to the office
under Mohammedan Law and affecting the interests of other Mohammedans can be validly

6
Ayub Hasan v. Mst. Akhtari, AIR 1963 All.525.
7
Abdul Kasim v. Smt. Jamila Khatun Bibi, AIR 1941 Cal. 251
8
Mulka Jahan v. Mohammad, (1873), 26 W.R.26; Badal v. Queen Empress, (1892) 19 Cal 79.
9
Section 24 of The Guardian and Wards Act, 1890.
10
In re Isso. AIR 1942 Sindh 113.
11
(1866) 5 W.R 235.

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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. Hon’ble Chief Court of Punjab relied
on Muchoo’s case in Gul Mohammad v. Mst Wazir12, in a case where a father has converted
from Mohammedanism to Christianity but he was only parent alive of a boy of 8 years and a
girl of 4 years and the grandmother of the children was contesting for guardianship of minors
and their property. 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 for her mother against the
consent of her father, who was converted to another faith was held valid.

However none of these cases is a direct authority on the above subject i.e., guardianship in
marriage. There is one single authority, viz., Mahni Bibi case13, decided by Calcutta High court.
In this case it was held that under 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 was held valid.

ii.) Guardian of the person of the minor for custody (Hizanat): The guardianship of minor’s
person for custody (hizanat) has to be studied with reference to the age of the minor and his
relationship to the guardian.

Mother: The Mother is entitled (1) in Hanafi law to the custody (hizanat) of her male child
until he has completed the age of 7 years and female child until she has attained puberty and
(2) in Shia law to the custody of her male child till the age of 2 years and to the custody of
female child till the age of 7 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 father14.

A mother is a 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 minor’s property, unless
appointed as guardian by Court15.

Female relations in default of mother: Under Hanafi Law, failing the mother, the custody of
boy under the age of 7 years, and of a girl has not attained puberty goes to the following female
relatives in the order given below:

1) Mother’s mother, how highsoever.

2) Father’s mother, how highsoever.
3) Full sister.
4) Uterine sister.
5) Consanguine sister.
6) Full sister’s daughter.
7) Uterine sister’s daughter.
8) Consanguine sister’s daughter.
9) Maternal Aunt (Father’s sister) in like order as sisters; and

12
(1901) 3 Punj. Rec. 191
13
13 Beng. L.R. 160.
14
Hasamat Ali v. Suraya Begum. AIR 1961 All. 260.
15
Gayasuddin v. Ilah TalaWagf of Masuma, AIR 1986 All 39.

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 10) Paternal aunt, also in order as sisters.

However, this right of mother or any of these female relations is lost in the following cases:

1. If she leads an immoral life, or

2. If she neglects to take proper care of the child, or
3. If she marries a person not related to the child within the prohibited degrees;
4. If during the subsistence of marriage, she goes and resides at a distance from the father’s
place.

In a recent judgement of Rahima v. Saburjanessa16, 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 degrees of relationship.

Other male relations: In default of the mother and other female relations the right of custody
(hizanat) in Hanafi Law, belongs to the following persons in order of enumeration:

1) Father.
2) Nearest paternal grandfather.
3) Full brother.
4) Consanguine brother.
5) Full brother’s son.
6) Consanguine brother’s son
7) Full brother of the father.
8) Consanguine brother of father.
9) Son of father’s full brother.
10) Son of father’s consanguine brother

Provided that no male is entitled to the custody of an unmarried girl, unless he stands within
the prohibited degrees of relationship to her. If there be none of the above guardian, it is for the
Court to appoint a guardian of a person of a minor. In Shia Law, failing the mother, the father,
and failing the father, father’s father is entitled to the custody of a minor’s person. It is doubtful
who would be the guardian failing the father’s father.

Father: Father is entitled in Hanafi Law to the custody of a boy over 7 years of age and of an
unmarried girl who has attained puberty [and in Shia Law to the custody of a male child over
2 years and an unmarried girl of 7 years or more].

In Farznabi V. S.K. Ayub Dadamiya17, 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 7 years of age. The
Court observed that as far as possible the ordinary rule of Muslim Law should be adhered to.
The children were above 7 years of age. The Court al of so found that the welfare of the minors
did not lie in favour residing with their mother. But the Court observed they were not of an age

16
AIR 1996 Gua 33
17
See Mulla: Principles of Mohammedan Law, Section 237 (19th Edit) : See also Farzanabi v. S.K Ayub
Dadamiya; AIR 1989 Bom 357.

6
when they could make an intelligent preference. The Court therefore awarded the custody of
the child to the father.

Failing father, the custody belongs to other paternal relations in the order enumerated above.

The husband is not entitled to custody of his minor wife unless she attains puberty or such an
age as would permit the consummation of marriage. The mother is entitled to the custody of
the minor wife as against her husband.

If none of the above maternal and paternal relations is to be found, it is for the Court to appoint
the guardian of the person of the minor.

Illegitimate child: “A Bastard belongs legally speaking to neither of its parents and it is in
every sense of the word filius nullius but for the purpose of securing its due nourishment and
support, it should, until it has attained the age of 7 years, be left in charge of the mother.

After that it may make his own election with which of the parents it will reside, or it may live
apart from them altogether”.

In Gohar Begum V. Suggi Begum18, gohar begum was a singing woman in the keeping of
one Trivedi, a Hindu. She was the unmarried Muslim mother of a natural daughter, Anjum,

Acknowledged by trivedi as his daughter. Anjum was sent to stay with a friend of her mother
Nazma Begum who later refuses to part with her claiming that she had a great affection for the
child and had sufficient means to look after Anjum. It was held by the Supreme Court that the
mother of an illegitimate child is in Mohammedan Law entitled to its custody; and the refusal
to restore the child to its mother was illegal detention. Thus, by the order of Supreme Court,
Anjum was handed over to her mother.

Nature of the rights of Hizanat: In Imambandi v. Mutsaddi19, 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 executor (under the Shia Law) is the
legal guardian.”

The facts of the case are as follows: “The property in suit belonged to originally to one
Ismail Ali Khan, a Sunni Mohammedan. The plaintiffs alleged that on his death he left his three
surviving widows and several children, that for one of these widows, Enayat-uz-Zohra, acting
for herself and for her two children, purchased the share in suit, for the possession of which
they brought the present action. In fact the reliefs sought were of a two-fold character; first a
declaration of the title and the status of the plaintiff’s venders; and secondly, a decree in favour
of the plaintiffs for possession of the shares covered by the deed of the sale. (The deed executed
by Zohra purported to the plaintiffs the shares of both herself and her minor children).

18
(1960) 1 SCR 597: AIR 1960 SC 93.
19
(1918) 45 IA 73.

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 The contesting defendants denied that Zohra was one of Ismail Ali Khan’s married wives
or that her children were his legitimate issues, and they further contended that the share the
plaintiffs claimed to recover did not pass under the sale. The trail Judge made declarations as
proved and a decree for possession. An appeal to the High Court was dismissed. Then an appeal
was taken to the Privy Council.

Decision: (1) On the whole case, their Lordships were of opinion that both Zohra and her
children were entitled to their legal shares in the inheritance of Ismail Ali Khan.

The importance question was whether the plaintiffs acquired any title to the infant’s
shares under the sale by the mother? The objection of the defendants was that Zohra, their
mother, had no power to covey her children’s interest to the plaintiffs.

(2) It is perfectly clear that under the Muslim Law the mother is entitled only to the custody of
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. The mother has no larger power to deal with her minor child’s property than
any outsider or non-relative who happens to have charge for the time being of the infant. She
may incur responsibilities, but can impose no obligations on the infant. This rule, is subject to
certain exceptions provided for the protection of a minor when it has no de jure guardian. It
means a Court may appoint a mother as guardian of the property of minor.

(3) The mother if she pledges (mortgages) the property of her infant child, it is not lawful,
unless she be executrix (of the father) or be authorized therefore by the guardian of the minor;
or the judge should grant her permission to pledge the infant’s property. Then it is lawful, and
the right to possession and the user is established in the murtahin (pledge or the mortgagee)
without power of sale (Fatwa-i-Alamgiri).

It seems that according to their Lordships the power to sell cannot be wider than the
power to mortgage. In another interesting judgement the Bombay High Court in Abdulsattar
Hussain Kudachikar v. Shahina Abdulsattar Kudachikar20, it has been held that the mother is
entitled to the custody of a son aged 5 years even though the father is earning more money than
the mother.

Termination of Hizanat: The disqualifications which terminate the right of guardianship may
be divided into five heads:

a) General disqualifications.
b) Disqualifications affecting females;
c) Disqualifications affecting males;
d) Disqualifications affecting parents, and
e) Disqualifications affecting the husband.

20
AIR 1996 Bom 134

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 (a) General disqualifications: A minor is incompetent to act as a guardian of any minor
other than his own wife or child. If either parent is a non-Muslim, the other is entitled
to the custody of the child, whatever his age and in Shia Law no person is entitled to
the custody of a Shia child who is not a Muslim.
(b) Disqualifications affecting females: The mother remains guardian of the person of
the minor, though she is divorced by the father of the minor. The proof of the fact that
she used to neglect her child before divorce, will not absolve her from her from such
right, if after divorce she leads a respectful life.

The mother or any other female entitled to the custody of the minor loses that right in the
following cases:

1. If she leads to an immoral life, i.e. –

i. Has committed adultery.
ii. Has become a prostitute.
iii. Committed some criminal offence by gross and open immorality,
iv. Is a professional singer or mourner.
2. If she marries a person not related to the child within the prohibited degree e.g., a stranger.
But the right revives on the dissolution of the marriage by death or divorce.

The reason behind this is that if she marries a stranger, the child may not be treated kindly.

3. 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.
4. If she neglects or is incapable of taking proper care of the child.
(c) Disqualifications affecting males: It is a general principle of Mohammedan Law that
no male is entitled to the custody of a female minor who is not related to him within the
prohibited degrees, or who is a profligate. But it should be noted that this is a rule of
Sunni Law and hardly affects the Shia Law, which does not recognize any guardians as
of rights, except the parents and grandfather.
(d) Disqualifications affecting parents: In Muslim Law, like the English and the Roman
Laws, the distinction has been recognised between the guardianship of person and that
of property of a minor.

In Khatija Begum v. Gulam Dastagir21, it was observed that under Muslim Law, father is
the natural guardian when he is living and is not unfit to be guardian. Mother’s mother is
Hanafi Muslim girl aged 6 years is not entitled to be appointed a guardian. Merely because
the father has married a second time he does not become unfit to be a guardian. The Court
also is not concerned with the comparative fitness of the father and any other person
claiming to be appointed a guardian.

21
AIR 1976 AP 128: AIR 1963 Raj. 239 Dissented from.

9
 The Court further observed that when the minor,
brought up all times by her grandparents, is not aware of the existence of her father and
refers to grand-parents as her parents, at such tender age it will not be desirable to shift her
custody from grand-parents to the father.

However, when the natural guardian ceases to be natural guardian and shows by
his conduct that he has become an unnatural guardian, he loses his right as for the instance
by cruelty to his wife and children, or by felony, or adultery, though adultery by itself is no
disqualification, if woman is not brought into contact with the child.

The following are the grounds where a Court will interfere with the father’s guardianship
with the children:

(1) If he is unfit in character and conduct;

(2) If he is unfit as regards external circumstances;
(3) If he waives his right;
(4) If he enters into an agreement to the contrary;
(5) If he is out of the jurisdiction of the Court or intends to go abroad.

Mother not disqualified by Divorce i.e., The mother does not lose her right to the custody of
the children by divorce by the father of the children.

(e) 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 unless she attains
puberty or to such age as would permit the consummation of marriage. Under section
19(a) of the Guardians and Wards Act, the husband in the majority of the cases, would
be considered by the Court to be unfit to be guardian of the person of the wife, unless
under Mohammedan Law he would be entitled to her custody. The mother is entitled to
the custody of the minor married girl as against her husband22. Minority of the husband
does not deprive him of his right to guardianship of his wife.

iii.) Guardianship of minor’s property: If a minor owns movable or immovable property, a

guardian is necessary to manage it. Muslim Law prescribes certain persons in an order of
preference who can be guardian of a minor’s property. The guardianship of the property of the
minor under Muslim Law may be classified as follows:
1. Legal (de jure) or natural guardian.
2. Guardian appointed by the Court (or certified guardian).
3. De facto guardian.

22
Nur Kadir v. Zuleikha Bibi, 11 Cal 649.

10
(1)Legal guardian: The person entitled in the order mentioned below to be guardian of the
property of a minor are (1) the father, (2) the executor appointed by the father’s will, (3) the
father’s father and (4) the executor appointed by the will of the father’s father.

Thus, mother, brother, uncle etc., are not entitled as of right to be legal guardians of
the property of the minor23. Of course, the father or father’s father may appoint any of them
(mother, brother, uncle etc.) or any of the person as his executor or executrix and the later shall
hold as much power as the father or father’s father holds.

In Gulam Husani Kutubuddin Maner v. Abdul Rashid Abdul Rajak Maner24, the Supreme
Court of India has held that a mother of a minor cannot be appointed as his guardian to accept
gift on his behalf during the lifetime of minor’s father.

In Amar Ahmed Khan v. Shamin Ahmad Khan,25

Power of legal guardian regarding immovable property: Under Muslim Law, a legal
guardian of the property of a minor can sell the immovable property of the minor, when the
sale is necessary for the maintenance and when the minor has no other property. The word
“maintenance” does not exclude other necessary expenses for mental and physical well-being
of a minor, acceding to the status in the society of the family. Thus, the expense of ordinary
and reasonable education of a child forms part of his maintenance. In the present state of the
society, which is rapidly advancing in all directions education up to higher secondary stage
cannot be said to be extravagant. Thus in the following cases the legal guardian is authorised
to deal with the minor’s property:

i. When there are debts of the deceased, and no other means of paying them;
ii. When the minor has no other means of livelihood and the sale is absolutely
necessary for his maintenance;
iii. When double the price of the property can be obtained by him;
iv. Where the expenses exceed the income of the property;
v. When the property is falling into decay;
vi. When the property has been usurped and the guardian has reason to fear that
there is no chance of fair restitution;
vii. Where there are legacies to be paid, and no other means of paying them.

The guardian has no power to carry on business of his ward, especially if the business is one
which may involve the minor’s estate in speculation or loss. In India, the Guardians and Wards
Act, 1890 imposes on every guardian of property the duty to deal with the minor’s property as
carefully as a man of ordinary prudence would deal with it if it were his own and entitles such
guardian to do all acts which are reasonable and proper for the realisation, protection or benefit
of the property. Section 28 of the Act says that a testamentary guardian of property cannot
transfer the property against any restriction in this behalf imposed by the will under which he

23
Syed Shah Gulam Ghose v. Syed Shah Ahmad AIR 1971 SC 2184.
24
(2000) 8 SCC 507.
25
AIR 2012 Jhar 39.

11
functions. Section 30 of the Act says that violation of these rules, will, in either case, make the
alienation voidable.

Relative rights of the heirs of a deceased person in the property inherited by them: In P.
Narsimbhai v. Bai Babu26, a widow was in possession of her two minor children’s property.
She was required to pay certain loans of her deceased husband. She, therefore, disposed of
some of the property which also included the shares of the minors. This transaction was
challenged, she, contested that since the sale was affected for the purpose of paying off the
dues under a decree obtained against all the heirs, it should be binding on the two children also.

It was held by the Gujarat High Court that one of the Muslim co-heir’s property cannot be
lawfully alienated his latter’s share for any purpose whatsoever.

In Ahmadullah v. Hafizuddin Ahmed27, the validity of the power of the guardian to transfer
his ward’s property for the sake of his education was in question. The Gauhati High Court held,
in the present state of our society, which is rapidly advancing in all directions, education up to
the higher secondary stage cannot be said to be extravagant so as to be excluded from
maintenance.

(2)Guardian appointed by the Court: In absence of legal guardians, the duty of appointing
a guardian for the protection and preservation of the minor’s property fall in the Court.

While appointing a guardian the Court 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 mino28r. The Court also takes into consideration the will of the father. If the mother is
appointed the guardian, the fact that she is a father pardanashin lady will not be considered as
an objection to the appointment. The Court must pay due regard to the regard to the wishes of
the minor’s father and the interest and the welfare of the minor, whatever that may be in a
particular case and guardian must be appointed with due regard to these two considerations by
the Court. Without the previous permission and sanction of the Court a guardian of the property
appointed by the Court:

i. Charge the immovable property of the minor;

ii. Mortgage;
iii. Transfer by sale;
iv. Transfer by gift;
v. Exchange; and
vi. Lease any part of the immovable property for a term exceeding 5 years or for any term
extending more than one year beyond the date with the ward will cease to be a minor.

Thus he can lease the immovable property even without the permission of the Court:

i. For a term not exceeding 5 years, or

26
AIR 1973 Guj. 38.
27
AIR 1973 Gau 56.
28
See Salmat Ali v. Smt. Majjo Begum, AIR 1985 All. 29.

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 ii. For a term not exceeding more than one beyond the date on which the minor will cease
to be minor, whichever is shorter.

If such guardian alienates the minor’s property in contravention of the provisions, given above,
such alienation will be voidable at the instance of the minor or any other person affected
thereby. Permission for such alienation as given above must not be granted by the Court except
in the case of necessity or for an evident advantage to the ward.

Power of legal guardians regarding movable properties: Legal guardian of the property of
a minor has power to sell or pledge the goods and chattels of the minor for the minor’s
imperative necessities, such as, food, clothing and nursing and de facto guardian has guardian
has similar rights. But guardian appointed by the Court has larger powers.

Such a guardian is bound to deal with the property as carefully as the man of ordinary
prudence would deal with it as if it were his own29.

(3)De facto guardians: A person, who is neither a legal guardian, nor a guardian appointed
by the Court but has voluntarily placed himself in charge of the person and property of the
minor, is known as de facto guardian. A de facto guardian is a mere custodian of the minor’s
person and property but has no right over either30. He has only responsibilities towards the
minor’s person or property or both but no rights in respect thereof. Usually de facto guardians
are relatives of the minor but without right to be the guardian under Islamic law unless
appointed by will or by the Court. He is thus an officious intermedler (Fazooli) with the minor’s
property and has no status or position to alienate it without Court’s permission31.

Legal guardians and guardians appointed by the Court de jure guardian. The
mother, brother, uncle and all relations other than the father and father’s father are de facto
guardians unless they are appointed executors by the will of the father or father’s father or
appointed guardians by the Court.

No power to alienate immovable property: The position of de facto guardian is quite different
from that of the legal guardian and guardian appointed by the Court. He has no power or
authority to alienate the minor’s property. An alienation of minor’s immovable property
without the authority of the authority of the Court by a de facto guardian is absolutely void 32.

a. He cannot refer any dispute regarding the immovable property of the minor to any
arbitration;
b. He cannot give consent on behalf of the minor so as to validate a bequest to his co-
heirs;
c. He cannot enter into a contract of partnership or to allow the continuance of the
partnership business dissolved by the death of the minor’s father;
d. He cannot bind the minor by executing a bond in lieu of his father’s debts;

29
AIR 1940 Mad 106.
30
M. Fiaz v. Iftikhar, AIR 1932 PC 78.
31
Ali Mohammad v. Ram Niwas, AIR 1967 Raj 268.
32
Section 27,The Guardians and Wards Act, 1890.

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 e. He cannot make agreements on minor’s behalf for even purchase of immovable
property.

In Imambandi’s case33, where one Zohra, a widow of one Ismail Ali Khan, conveyed the shares
of herself and her minor children, for Rs. 10,000 and the sale was opposed in a suit by the two
other widows and children, it was held that a de facto guardian has no power to convey to
another any right or interest in the immovable property which the transferee can enforce against
the infant; nor such transferee, if let into possession of the property under such unauthorised
transfer, resist an action in ejection as trespasser, on behalf of the infant.

Alienation, not only voidable but void: A sale by a de facto guardian of the minor’s
immovable property without courts permission is void and not merely voidable. The question
of ratification by the minor or attaining majority does not arise as the alienate is void in its
inception.

If a minor seeks to assail the legality and binding nature of the alienation made by a de facto
guardian, it is always open to him to avoid the contract as being void. But when it is not open
to the third parties to impugn the alienation.34

Testamentary guardianship in property: Quran specifically provides for the appointment

of a testamentary guardian. Father and father’s father are competent persons to be appointed
by will a guardian of the property of their minor sons and grandsons respectively. Under Shia
Law the testamentary guardian or executor must be major, sane, professor of Islam and of good
character.

It is, however, not clear whether in the presence of grandfather, the father possess the capacity
to appoint a testamentary guardian. In Mst. Atkia Begum V. Muhammad Ibrahim. It was held
that in the presence of grandfather, the father has no right to appoint a guardian.

5.) Alienation of movable property: A de facto guardian has the same power to sell and
pledge goods and chattels of the minor in his charge for the charge for the minor’s imperative
necessities, such as food, clothing, or nursing as a legal guardian of his property.

6.) Removal of guardian: A guardian whether de jure or de facto is removable by the Court
if it is necessary in the interest of the minor. The Court may on the application of any person
interested, or on its own motion, remove a guardian appointed or declared by the Court, or a
guardian appointed by will or other instrument, for any of the following causes:

1. Abuse of his trust;

2. Continued failure to perfume the duties of his trust;
3. Incapacity to perform the duties of trust;
4. Ill-treatment, or neglect to take proper care his ward;
5. Continuous disregard of any provision of the Guardians and Wards Act, or any order
of the Court;

33
Immambandi v. Mutasaddi, (1918) 45 L.A. 73.
34
Ruqia Begum v. Iqbal Ali Khan, AIR 1969 A.P. 30; Mohd. Amin v. Vakil Ahmed, AIR 1952 SC 358.

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 6. Conviction of an offence implying, in the opinion of the Court, a defect of character,
which unfits him to be the guardian of his ward;
7. Having an interest adverse to the faithful performance of his duties;
8. Ceasing to reside within the local limits of the jurisdiction of the Court.
9. In the case of a guardian of the property, for bankruptcy or insolvency.
10. By reason of guardianship of the guardian ceasing or being liable to cease, under the
law to which the minor is subject.

Thus, it is obvious that a guardian appointed by the Court may for sufficient reason be removed
or he may resign. In a fit case, the Court is entitled to appoint a person other than legal guardian
if the legal guardian is, in the opinion of the Court, unfit for the responsible guardianship.

Duty to support: This is the duty of the guardian to support his ward. He should take full care
of the health, education and such other matters as the law to which the ward is subject requires.

Use of force to defend minor: This is the duty of the guardian to take all necessary steps to
protect an infant child. He can use force to defend his ward.

Duty to file suits: This is the duty of the guardian to file a suit on behalf of the minor. Order
32 of the Civil Procedure Code says that where a minor has a guardian appointed or declared
by competent authority, no person other than such guardian shall act as the next friend of the
minor or be appointed his guardian for the suit.

Duty for arranging the marriage of the ward: This is the duty of the guardian to make
necessary arrangement for the marriage of his ward. It is doubtful whether the guardian is
bound to arrange marriage of his ward.

Control of guardian by the Court: The Courts are fully competent to regulate the conduct
and proceedings of a guardian of the minor’s person, appointed or declared by the Court.

Rights to control the acts of the ward: A guardian possesses the right to control acts and
conduct of the ward. The father of the minor also possesses the right to inflict correction on the
child if he feels that the ward is not obeying his reasonable orders.

Duty of the father to take charge: A father is the natural guardian. However, at the same
time mother of the child has been given right to keep the child with her up to certain age. After
crossing that age, father of the child is bound to take proper care of the child.

Duty of the guardian not to use ward’s property: This is the duty of the guardian not use
ward’s property. This is his duty not to make any profit out of the property of the minor. A
guardian is not expected to make profit by selling his own property to minor.

Duty to take proper care: This is also the duty of the guardian to take proper care while
dealing with the property of the minor. He is bound to deal with it as carefully as a man of
ordinary prudence would deal with it.

Right of pre-emption: This is the discretion of the guardian to exercise or refuse to exercise
the right of pre-emption on behalf of the ward.
15
Duty to maintain proper accounts: This is the duty of the guardian to maintain proper
accounts of all the receipts and expenditure incurred by him.

7.) Cessation of the authority of guardianship: The powers of a “guardian of the person”
cease:

1) By his death, removal or discharge;

2) By the Court of Wards Assuming superintendence of the person;
3) By the ward ceasing to be a minor;
4) In the case of a female ward, by her marriage to husband who is not unfit to be guardian
of her person;
5) In the case of a ward, whose father was unfit to be the guardian of the person of the
ward, by the father ceasing to be so.

The powers of the “guardian of the property” cease:

1. By his death, removal or discharge;

2. By the Courts of the Wards assuming superintendence of the property of the wards.
3. By the ward ceasing to be minor.

8.) Comparison of Sunni and Shia Laws relating to Guardianship

a) In Sunni Law, besides the father and true grandfather there are several relations who
are guardians for marriage. In Shia Law only guardians for marriage are father and true
grandfather.
b) In Sunni Law marriage by guardians other than father and grandfather may be
repudiated after attaining majority. In Shia Law, such marriage was wholly ineffective
till it was expressly ratified.
c) In Sunni Law mother is the guardian of the person of her son up to the age of 7 and of
her daughter up to puberty. In Shia Law mother is guardian of the person of the son up
to the age of 2 and of her daughter up to the age of 7 years.

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