Project on

Guardianship of Minor in Muslim Law

[ SU B MI T TE D A S P A RT I A L R E QU I RE ME N T S F OR B.A. L.L.B. HON OU R S ]

Submitted by – Siddharth Dhabhai Submitted to – Dr. Juhi Pawa

Roll no – 071

Semester – 5 B

Date of submission – 7th January 2023

University Five Year Law College,

University of Rajasthan, Jaipur

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 Table of Contents

DECLARATION .......................................................................................................................3
ACKNOWLEDGEMENT ........................................................................................................4
CERTIFICATE .........................................................................................................................5
Abstract .....................................................................................................................................6
Ch-1 Introduction .....................................................................................................................7
Ch-2 Guardianship of a minor under Muslim Law .................................................................8
Its Recognition And Removal of Guardian ..............................................................................8
Guardianship: .................................................................................................................8
types of Guardianship recognised under Muslim Law: ................................................8
Removal of Guardian: .................................................................................................. 10
Ch-3 Guardianship of Property and ...................................................................................... 11
Guardianship in Marriage ...................................................................................................... 11
Guardianship of Property: ........................................................................................... 11
Guardianship in Marriage: .......................................................................................... 12
Conclusion ............................................................................................................................... 13
Bibliography and Websources ................................................................................................ 14

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 DECLARATION

I, Siddharth Dhabhai hereby declare that this project titled Guardianship in Muslim Law is based
on original research work carried out by me under the guidance and supervision of Dr. Juhi
Pawa.

The interpretation put forth are based on my reading and understanding of original text . The
books , articles etc used by me have been duly acknowledged at the respective places.

For the present project which I am submitting to the university , no degree or diploma has been
conferred to me before , either in this or any other university

Date – 7th January 2023

Name – Siddharth Dhabhai

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 ACKNOWLEDGEMENT

In the accomplishment of this project successfully many people have best uponed me their
blessings and heart pledged support , this time I am utilizing to thank all the people concerned
with this project.

First of all I would like to thank our Director Dr. Akhil Kumar for giving me an opportunity. I
would also like to thank our supervisor Dr. Juhi Pawa whose valuable suggestions helped me a
lot .

Last but not the least I would like to thank my parents and friends who helped me in making of
the project

Siddharth Dhabhai

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 CERTIFICATE

Dr. Juhi Pawa.

Faculty

University Five Year Law College

University of Rajasthan , Jaipur

This is to certify that Mr. Siddharth Dhabhai of semester 5 B of University Five Year Law
College ,University of Rajasthan , Jaipur has carried out the project entitled “Guardianship in
Muslim Law ” under my supervision and guidance . It is an investigation report of a minor
project. The student has completed research work in my stipulated time and according to norms
prescribed for the purpose.

Supervisor

Dr. Juhi Pawa

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 Abstract

A guardian is a person who is appointed to look after another person or his property. He
or she assumes the care and protection of the person for whom he/she is appointed the
guardian. The guardian takes all legal decisions on behalf of the person and the property
of the ward. A person who is authorized underneath the law to guard the person or property
of a minor is called a guardian. Under Muslim law, guardians are needed for the aim of a
wedding, for protecting the minor’s person and for protecting the minor’s property.

Research Methodology

 This research is based on doctrinal pattern. It is based on already available and analysed
information. This research involves secondary data.

Research Question

 Guardianship of minor under Muslim Law

 It’s Recognition , removal
 Guardianship of Property of Minor, Guardianship in property

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 Ch-1 Introduction

Before discussing about Guardianship under muslim law it is important to understand the
meaning of guardianship and minor. A guardian is a person who is appointed to look after
another person or his property. He or she assumes the care and protection of the person for
whom he/she is appointed the guardian. The guardian takes all legal decisions on behalf of the
person and the property of the ward

According to Section three of the Indian Majority Act, 1875, someone domiciled in the Republic of
India who is below the age of eighteen years, is a minor.

A minor is assumed to have no capacity to protect his or her own interests. Law thus, requires that
some adult person must safeguard the minor’s person or property and do everything on his or her
behalf because such a minor is legally incompetent.

A person who is authorized underneath the law to guard the person or property of a minor is called a
guardian. Under Muslim law, guardians are needed for the aim of a wedding, for protecting the
minor’s person and for protecting the minor’s property.

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 Ch-2 Guardianship of a minor under Muslim Law

Its Recognition And Removal of Guardian

 G UARDIANSHI P :

1. Under Muslim law, it is called HIZANAT. They are sometimes taken to mean the same thing.
But underneath Muslim law, these two aspects of the guardianship are different and are
governed by the different laws.

2. The guardianship of a child means that overall oversight of the kid throughout its minority.
Father or his executor or in his absence, the paternal grandfather, being the natural guardian, is
in charge of the minor’s person. On the opposite hand, ‘custody of the child’ simply means a
physical possession (custody) of the child upon a certain age.

3. Although the mother is not the natural guardian of the child under Muslim law, she has a right to
the custody of the child, until the child attains a specific age. But the father or the paternal
grandfather encompasses control over the minor throughout the complete interval of the
minority.

 TYPE S O F G UARDIANSHI P RECOGNI S ED UNDER M USLIM L AW :

1. Natural or Legal Guardian:

Natural guardian is a one that encompasses a right to regulate and supervise the activities of a
minor. Father is recognized as the natural guardian of his kid underneath all the schools of
Muslim law. The father’s right to act as guardian of a minor is an independent right and is given
to him underneath the substantive law of Islam. A natural guardian is additionally known as a
legal guardian. But within the absence of the father, the father’s executor might also act as a
legal guardian.

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 The executor could be one who is appointed by the father or grandfather to act as the guardian
of his minor kid on his behalf.

Thus, the natural guardian of a minor in order of priority are as follows:

1. Father

2. Executor of father

3. Paternal grandfather

4. The executor of Paternal grandfather

Under Muslim law within the absence of any of the above-mentioned persons, no one else is
recognized as the natural guardian of a minor.

Shia Law: Within the absence of father only paternal grandfather could act as a legal guardian.
In the presence of paternal grandfather, the father’s executor has no right to act as legal guardian

of a child. A non- Muslim cannot be chosen as a testamentary guardian

2. Testamentary Guardian:
A testamentary guardian may be a one that is appointed as guardian of a minor beneath a will.
Only father or, in his absence, paternal grandfather has the right to appoint a testamentary
guardian.
A non-Muslim and a feminine might also be appointed as a testamentary guardian

3. Guardians appointed by court:

In case of the absence of a natural and legal document guardian, the court is authorized to appoint
a guardian for the aim of the minor’s person or property or for both.
The appointment of a guardian by the court is ruled by the Guardianship and Wards Act, 1890
which is applicable to all the Indians irrespective of their religion. Such guardians are also called

Statutory Guardian.

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 Though a guardian appointed by the courts has full right to take care of the property of the
minor but certain limitations are also prescribed in which prior permission of the Courts is
required which are as follows:
o Mortgage;
o Transfer by sale;
o Transfer by gift; and
o Exchange the property.

4. Defacto Guardians: A de-facto guardian is a person who is neither a legal guardian nor a
testamentary guardian or statutory guardian, but has himself assumed the custody and care of a
child.
According to Tyabji a de-facto guardian means that an unauthorized person who, as a matter of
fact, has custody of the person of a minor or his property. A de facto guardian could be a person
having no authority for the guardianship however underneath the circumstances has taken the
responsibility to act as the guardian of a minor.

 R EMOVAL O F G UARDIAN :

A guardian whether de jure or de facto is removable by the court if it is necessary for the
interest of the minor. Following grounds are laid on which Court can remove the guardian
which is as follows:

o Misuse of Trust
o Fail to perform duties
o Incapacity
o Ill-treatment of minor
o Adverse interest in minor's property.

In case of Gulam Husani Kutubuddin Manner Vs Abdul Rashid Abdul Rajak Maner 1969
the Supreme Court of India has held that a mother of a minor child cannot be appointed as his
guardian for the purpose of accepting gift on the behalf of minor during the lifetime of minor's
father.1

1
https://www.toppr.com/guides/legal-aptitude/family-law-I/

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 Ch-3 Guardianship of Property and

Guardianship in Marriage

 G UARDIANSHI P O F P RO PER TY :

1. De-Jure Guardianship (legal or natural guardian):

The person entitled to be the guardianship of the property of the minor are father,
executor appointed by father's will, father's father, executor appointed by the will of
father's father. The guardian has the power to sell immovable property to the minor, and
it is required for maintenance. The legal guardian can deal with the property of the minor
in the following condition:
 When there are obligations of the perished and no different methods for paying and the
deal is totally vital for work and support
 When twofold the cost of the property can be gotten, costs surpass the pay, property falls
into rot
 Where property has been usurped and the gatekeeper has motivation to expect that there
exists no way of reasonable compensation

2. Certified guardianship:
Without a legitimate watchman, the obligation of selecting a guardian for the assurance
and protection of the minor's property tumbles to the Court. The Court takes over the
government assistance of the minor. Lawful guardian of the property of a minor have
ability to sell or pledge the merchandise and belongings of the minor for the minor's
necessities.

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 3. De Facto guardian:
A de facto guardian is a mere custodian of the minor's individual, and property however
has no authority over the property. He has just duties towards the minor's individual or
property or both however no rights in regard thereof. They are normally the family
members of the minor yet without rights to be the watchman under the Islamic law. He is
an impertinent busybody (Fazooli) with the minor's property and has no status or position
to distance it without Court's consent. He has no force or position to estrange the minor's
property. A deal by a true gatekeeper of the minor's unflinching property without Court's
authorization is void and not just voidable.

 G UARDIANSHI P IN M ARRIAGE :

1. Marriage is often contracted on behalf of the minors by the guardian. the father can
impose status of marriage on his minor children. This power of imposition is named
'jabar', the abstract right of guardianship (wilayat) and therefore the guardian so
empowered is understood as 'Wali'.
2. The role of guardian is often played by father, father's father, mother, maternal relations,
full brother and other male relatives, Qazi, or the Court. Testamentary guardians for
marriage do not seem to be recognized and marriage performed by remoter guardian is
void.2

2
https://www.legalserviceindia.com/legal/article-7215-concept-of-guardianship-under-
muslim-personal-law.html

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 Conclusion

As per Islamic law, a boy or a girl’s minority ends when they reach puberty, also known
as ‘Bulugh’ in Urdu. And the youngster can choose whether or not to marry without any
intervention. It is thought that a child reaches adulthood at the age of fifteen in Hanafi and Shia
Muslims.

The guardian’s connection with the child is fiduciary in nature. This is to verify that the underage
child is acting in their own best interests.

As a result, if the minor kid is unable to care for himself, a guardian must be appointed, who
must be an adult and capable of making decisions on behalf and in the best interests of the minor
child, whether she is a girl or a male. In Urdu, the word ‘Hizzanat’ means ‘Guardianship.’

Guardianship under Muslim Law is an important element of people’s personal laws, and it has
been codified via legislation over time. The Guardians and Wards Act is a piece of legislation
passed by Parliament that deals with guardianship rules and procedures in India.

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 Bibliography and Websources

1. https://www.toppr.com/guides/legal-aptitude/family-law-I/
2. https://www.legalserviceindia.com/legal/article-7215-concept-of-guardianship-under-
muslim-personal-law.html

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