The legal relationships are associated with certain rights and duties. Example: Mutual right of inheritance, Maintenance and Guardianship.
Maternity established in the woman who gave birth to the child irrespective of whether birth of a child is the result of wedlock or Zina(adultery) Under Shia law, mere birth is not sufficient to establish maternity, it has to be proved that the birth was a result of lawful marriage. A child born out of lawful marriage is legitimate and enjoys the inheritance. Under Sunni Law, an illegitimate child has maternity in mother(woman) who gave birth to the child and the child has a right to inherit the mother alone. However, under Shia law an illegitimate child has no right to inherit his begotter(Father) or mother. Thus, maternity is legal status of child which determines the succession and inheritance of child with mother. 2021 | Reliable Institute of Law | Abul Lais 2 Muslim Law PARENTAGE
Paternity The paternity of a child can be established only by marriage between the parents. The marriage may be valid or irregular, but it must not be void. It is established in the husband of the mother of child. An issue of void manage has neither paternity or maternity under Shia law. Under Sunni law, an illegitimate child has only maternity in mother but no paternity. If paternity of child has been established the child is legitimate.
In Gulam Kundu Vs State of West Bengal AIR 1993 SC 2296, it was a dispute about the paternity of child and asked for blood group test. The application was dismissed by High Court as well as Supreme Court and it was held that Section 112 of Evidence Act says wherein continuance of valid marriage if a child is born that is conclusive proof about the legitimacy of child. The section 112 of Evidence Act, provides that the following fact shall be conclusive proof about the legitimacy of child. The person is born during the continuance of valid marriage The person born within the 280 days after the dessolution of said marriage, the mother remaining unmarried Allahabad High Court held that Section 112 of Indian Evidence Act supersedes the Muslim law of legitimacy and is applicable to Muslims also. Sibte Mohammad Vs Mohammad AIR 1926 Allahabad 589
Legitimacy Muslim law insists on existence of valid marriage between the father (begetter) and bearer of child at the time of conception. 2021 | Reliable Institute of Law | Abul Lais 3 Muslim Law PARENTAGE
Acknowledgement (Iqrar - e- Nasab)
Acknowledgement of Paternity means there he had accepted himself as father of a child.
Where the paternity of the child, that is, his legitimate discent from his father can not be proved by establishing marriage between his parents at the time of conception of marriage. Muslim law recognizes acknowledgement as a method whereby such marriage or legitimate discent can be established as a matter of substantive law for the purpose of inheritance.
Acknowledgement is not legitimation. In Muslim law, an acknowledgment of legitimacy is a declaration of
legitimacy and not a legitimation.
In Mohammed Khan Vs Ali Khan AIR 1987 MAD 209, Madras High Court observed that the doctrine of acknowledgment could be invoked only where the factum of marriage or the exact time of marriage could not be proved. In other words, the doctrine applies only to cases of uncertainty as to legitimacy, but the effect of acknowledgement always precedes upon presumption of a lawful marriage between the parents of acknowledged child.
In Muhammad Allahadad Khan Vs Mohammad Ismail ILR 1887 (10) All 289, Justice Mahmood J held the plaintiff established himself as the legitimate son of deceased and was therefore entitled to succeed to him. 2021 | Reliable Institute of Law | Abul Lais 4 Muslim Law PARENTAGE
Conditions For Valid Acknowledgement
1. The child acknowledged must not be offspring of illicit intercourse (Zina). If such marriage is not possible no acknowledgement 2. The paternity of child must be uncertain before acknowledgement 3. There must be such difference in the respective age of the acknowledger and child which conforms to a father- child relationship. 4. The acknowledgment of paternity by a person must not only be an acceptance of the child as his son or daughter. It should also be to the effect that he has accepted the child as his legitimate child for all purposes including inheritance. 5. The acknowledged child has an option to repudiate the acknowledgement upon attaining the age of discretion and understanding.
Acknowledgement of paternity is irrevocable
Legal Effect of Acknowledgement of Paternity
1. The child so acknowledged become legitimate issue of acknowledger and its paternity is established 2. As legitimate issue, the child is entitled to inherit the properties of the acknowledger, its mother and other relations. 3. |Acknowledgement 2021 Reliable Institute of Law | Abul Lais of child's paternity also establishes a5 lawful marriage between the child's mother and Muslim Law acknowledger Guardianship • Introduction • Classification • Power and Function GUARDIANSHIP
Introduction Under Muslim law age of majority is regulated by two systems 1. Classical Muslim law 2. Statutory law
Classical Muslim law
Age of puberty applicable for Marriage, Dower and Divorce 15 years age of majority for Marriage, Dower and Divorce
Statutory law A. For the purpose other than marriage, dower and divorce, the age of majority is governed by the Indian Majority Act 1875. Under this Act, age of majority is 18 years. B. Whether the Muslim is under supervision of any court of law. Where court has appointed a guardian, the age of majority will be 21 years. Thus, except in the matters of Marriage, Dower and Divorce, a Muslim who is under the protection of court of wards or where guardian appointed by the court, a Muslim remains a minor unless he attains the age of 21 years. C. For the purpose of Marriage, Dower and Divorce, a Muslim becomes adult after the attaining the age of puberty i.e., 15 years. But for filing a suit in a court of law, the minimum age is 18 years. Even if the suit relates about Marriage, Dower and Divorce. Therefore, a Muslim under the age of 18 year is a minor relating his or her Marriage, Dower and Divorce. 2021 | Reliable Institute of Law | Abul Lais 7 Muslim Law GUARDIANSHIP A minor is supposed to have no capacity to protect his or her interest. Law, therefore, requires that some adult person must safeguard the interest of that minor person or property and work on his or her behalf. A person so authorized under the law to protect the interest of the person or property of a minor is called GUARDIAN. Under Muslim law guardian is required for marriage of a minor as well as for the custody of the minor and for protecting the minor's property.
CLASSIFICATION Muslim law recognizes following kinds of guardian: 1. Natural and Legal (De-Jure ) 2. Testamentary guardian 3. Guardian appointed by the court 4. De-facto guardian
Natural Guardian Natural guardian is person who has legal right to control & supervise the activities of a minor (child). Father is recognized as a natural guardian under all schools of Muslim law. Father's right to act as a guardian of minor is an independent right and is given to him under the substantive law of Islam. Only father is the natural or legal guardian of a minor child. But in the absence of father, the father's executor may also act as legal guardian (executor is a person appointed by the father or grand father to act as guardian of his minor child on his behalf). In the absence of father or his executor the paternal grand father’s executor act as a legal guardian. 2021 | Reliable Institute of Law | Abul Lais 8 Muslim Law GUARDIANSHIP Thus, a natural or legal guardian of a minor, in order of priority are as under: 1. Father 2. Executor Of Father 3. Paternal Grand Father 4. Executive Paternal Grandfather
Under Muslim law in the absence of any of the above-mentioned persons, nobody else is recognized as natural Guardian of a minor.
Sayed Shah Vs Sayed Shah 1971 SC 2184
According to Shia law in absence of father, paternal Grand father may act as natural Guardian. Thus, in the presence of paternal Grand father, the father’s executor has no right to act as legal Guardian of the child.
Testamentary Guardian Testamentary guardian is a person who is appointed as guardian of a minor under a will. Only father or in his absence paternal grand father has right to appoint for testamentary guardian. No special formalities are required for the appointment of a testamentary guardian but as is obvious such a testamentary guardian must be competent to act as guardian. This is to say he should be adult and sane person. A non Muslim and woman (female ) may also be appointed as testamentary guardian. Shia Law: A non-Muslim can't be appointed as testamentary guardian 2021 | Reliable Institute of Law | Abul Lais 9 Muslim Law GUARDIANSHIP Guardian Appointed by Court
In the absence of natural and testamentary guardian, the court is empowered to appoint a guardian for the protection of minor’s person and property or for both.
Appointment of guardian by court is governed by the Guardians and Ward Act 1890, which is applicable to all the Indians irrespective of their religion. Since the court appoint the guardian under statute therefore, they are called statutory guardian too.
Since no provision has been made for marriage under this Act of 1890, the result is that except the guardian for marriage, the Guardian for Muslim minors' person or property may be appointed by a court of law
In case of conflict between Muslim law and Guardians of Wards Act 1890, the provision of Guardians of Wards Act will prevail over provisions of Muslim law.
Court here means Court of District Judge
The Court of District Judge empowered under the Act 1890 to appoint the guardian for the minor upon an application. Such application may be made by the following person: • Any person desirous of or being or claiming to be the guardian of the minor • Any relative of friend of the minor • The Collector of The District in which the minor generally resides 2021 | Reliable Institute of Law | Abul Lais 10 Muslim Law GUARDIANSHIP If the court is satisfied that it is for the welfare of the minor that in order should be made, then it may make an order:
• Appointing a guardian of minor’s person or property or both
• Declaring a person to be such a guardian
Section 17 (2) of the Act 1890 provides that in considering the welfare of minor the court shall have regard to the age, sex and religion of minor. The character and capacity of the proposed guardian and his nearness of him to the minor, the wish of any of a deceased parent and existing or previous relation of the proposed guardian with minor or his property. If the minor is old enough to form an intelligent preference, the court may consider that preference too. Though the act lays down a uniform rule for guardianship of all person in India irrespective of religion, yet the religion and personal law of minor may be taken into account while appointing a guardian.
In Shrimati Farzana Bai Vs Ayyub Dada Mian, the Honorable Bombay High Court observed that under Guardian And Wards Act, the personal law of parties is a key factor. However, welfare of the child is the central idea, therefore, the rule of Muslim personal law may be considered by the court where they are conducive to the welfare of the minor.
Mohammad Amin Vs Atika Banu AIR 1963 J&K 32
De-facto Guardia A de-facto guardian is a person who is neither a legal Guardian nor testamentary or a statutory guardian but has himself assumed the custody and care of the child. A de-facto Guardian is a person having no authority for guardianship but under the circumstances has the responsibility to act as the Guardian of the minor. 2021 | Reliable Institute of Law | Abul Lais 11 Muslim Law GUARDIANSHIP
Power and Function of Guardian
The powers and function of the Guardian is in respect of minor’s person, property and for marriage are different. Discussed as under:
A.Guardian of Person Guardianship of minor person means an overall supervision of minor’s personality. It means care and welfare of the child. It is more than simply the custody of the child up to a certain age. Guardianship of minor person is called Wilayat-e-Nafs. Custody of minor is called HIZANAT. There are sometimes taken to mean the same thing.
But actually, these two aspects of guardianship are different and are governed by distinct rules. Guardianship of minor person (Wilayat-e-Nafs) means for all supervision of child during its minority. Father or in his absence the paternal grand father or their executor being the natural guardian are in charge of minor person. On the other hand, custody of the child (HIZANAT) simply means a physical possession of the child up to certain age.
Though mother is not a natural guardian, yet she has right to custody of a child up to certain age while the father being the natural guardian has the control over the person of his minor child during the whole period of minority.
Mother has right to the custody of a child because no one can nurse or handle a child during its infancy. But her custody of the child is subject to supervision of the father who is a legal/natural guardian is under an obligation to provide means for upbringing of the child.
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GUARDIANSHIP
Mother's Right of Custody
Under all schools of Muslim law, the general rule is that mother is entitled to the custody (HIZANAT) or the physical possession of her child up to a certain age. She is obviously the best person to give that natural love and affection which a child requires during its infancy including its dependence for feeding.
Mother’s right of HIZANAT not lost even if she ceases to be a Muslim.
In Zainab Vs Mohammed Ghause, the Madras High Court held that the conversion of the mother to any other religion doesn't deprives her of the right of HIZANAT.
When Mother's Right of Custody is Lost
The Mother is considered to be disqualified for the physical possession of the infant, and her right to custody is lost in the following circumstances: • Where the divorced or the widowed mother, having custody of a child has remarried another husband. • Where the mother leads an immoral life or is of bad character or is otherwise found guilty of such conduct which is against the interest of the child . • Where she is unable to take proper care of the child due to her own self created problem.
In the absence of mother or where she has disqualified on account of above grounds, the following female relation of the child are entitled to the custody in order of priority given below. Order of preference should be followed strictly.
1. Mother's Mother 4. Father’s Grandmother 7. Full Sister’s Daughter 10. Uterine Maternal Aunt 2. Father's Mother 5. Full Sister 8. Uterine Sister’s Daughter 11. Full Paternal Aunt 3. Mother’s Grandmother 6. Uterine Sister 9. Full Maternal Aunt 2021 | Reliable Institute of Law | Abul Lais 13 Muslim Law GUARDIANSHIP Shia law : Under the Shia Law, a mother is entitled to the custody of her infant son up to two years and of her daughter up to seven years. If the mother dies before the son attends two years or the daughter attend seven years, the custody is to be given to the father. In the absence of father, the father's father is entitled to the custody of the child.
Father's Right of Custody (HIZANAT) of a Child
Father is entitled to custody in following two occasions of child's minorit: A. In respect of a minor boy under the age of seven years and a girl under the age of puberty, the father is entitled to the custody of the child only in the absence or disqualification of mother and another female relation of the child. B. In respect of boy over the age of seven years and girl over the age of puberty, the father is entitled to the custody of the child as natural (legal) guardian till the child becomes adult, i.e., attends the age of 18 years. Provided the girl child remains unmarried.
Thus, father is entitled to have the custody of a minor child in two circumstance: 1. Firstly, where the child is under the age limit in which mother or female relations are legally authorized to have the custody but they are either disqualified or not available. 2. Secondly, after the age limit beyond which the mother or other female relatives have no right to the custody of a child
Custody Of Illegitimate Child
Guardianship of an illegitimate child belongs to its mother. She is entitled to have the custody of such a child as a natural guardian in the absence of mother, the substitute female relation will hold the custody. Putative father of an illegitimate child is not regarded as natural or legal guardian.
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GUARDIANSHIP
Custody Of Minor Wife
Where a Muslim girl has been married before attaining the age of puberty, the custody of the girl is not given to the husband, till she attains the puberty. Nur Kadir Vs Zuleikha Bibi, it was held that under the age of puberty the mother or in her absence a substitute of mother is entitled to custody of minor wife. But Section 19 of the Guardian and Wards Act 1890, the husband is Guardian of his minor wife and court cannot displace him until found unfit.
Guardianship of Marriage Guardian and Wards Act 1890 is silent about marriage. Marriage of boy or girl under the age of puberty is not valid until it is contracted by a marriage Guardian.A marriage Guardian is person who is authorized to contract the marriage of a minor.
Guardian Of Marriage Wilayat-e-Nikah Or Wilayat-e-Jabar
The Guardian of marriage is different from Guardian of person and property. Guardianship of marriage is governed by pure Muslim law as Guardian and Wards Act 1890 does not apply here in case of marriage. Marriage Guardian has right to confer the status of marriage on the minors against or without their consent.
Faizee observes thus:
“It is substantive law itself that declares who for the purpose of marriage possesses the Patria Protestus, the court cannot appoint a Wali (Marriage Guardian) although in some cases, the Qazi (the court) himself could act as marriage Guardian.
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