How would you classify the guardians under Muslim Law in Modern India? What are the powers of the Natural Guardian?

Question: How would you classify the guardians under Muslim Law in Modern India? What are the powers of the Natural Guardian? [BJS 1986]

Find the question and answer of Muslim Law only on Legal Bites. [How would you classify the guardians under Muslim Law in Modern India? What are the powers of the Natural Guardian?]

Answer

According to Section three of the Indian Majority Act, of 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 under the law to guard the person or property of a minor is called a guardian. The guardianship of a minor refers to the overall supervision of the minor's personality. It includes the care and welfare of the child including the liability to maintain the same.

In Muslim personal law, guardianship largely refers to the guardianship of a minor, including his property by the natural, testamentary, or court-appointed guardian. Guardianship as a concept itself in Muslim personal law has many aspects that are not directly comparable to the Western concept of custody.

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

The guardianship of a child means 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 physical possession (custody) of the child at a certain age.

Although the mother is not the natural guardian of the child under Muslim law, she has a right to 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.

Muslim law recognizes the following kind of guardianship:

• A natural or legal guardian
• Testamentary guardian
• Guardian appointed by courts or statutory guardian
• De-facto guardian
• Natural or Legal Guardian

Natural Guardian

The Muslim law-givers and jurists do not use the expression "natural guardian", but it seems to be clear that in all schools of both the Sunnis and the Shias, the father is recognized as guardian—which term in the context is equivalent to the natural guardian, and the mother in all schools of Muslim law is not recognized as a guardian, natural or otherwise, even after the death of the father. Since the mother is not the legal guardian of her minor children, she has no right to enter into a contract to alienate the minor's property.

The question of her being the natural guardian during the lifetime of the father does not arise. The father's right of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor.

The father's right to control the education and religion of minor children is recognized. He also has the right to control the upbringing and the movement of his minor children. So long as the father is alive, he is the sole and supreme guardian of his minor children.

The father's right of guardianship extends only to his minor legitimate children. He is neither entitled to guardianship nor to the custody of his minor illegitimate children at any time, even after the death of the mother, though it is a different matter that he may be appointed as guardian by the court.

In Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody. Among the Sunnis, the father is the only natural guardian of the minor children. After the death of the father, the guardianship passes on to his executor. Among the Shias, after the father, the guardianship belongs to the grandfather, even if the father has appointed an executor; the executor of the father becomes the guardian only in the absence of the grandfather.

It appears that the Shias consider the father as a natural guardian, and in his absence, the grandfather is considered to be the natural guardian. No other person can be a natural guardian, not even a brother. In the absence of the grandfather, the guardianship belongs to the grandfather's executor, if any.

A minor cannot be represented by the grandfather when the father is alive.

Powers of Natural Guardians

In Muslim law, no hierarchy is made between the powers of the natural guardian's powers and the testamentary guardian's power over the minor's property. The relevant scripture provided by the Muslim law-givers first establishes the powers of a testamentary guardian and then states that the natural guardian has the same powers.

The various powers available to guardians of the minor's property include the following:

1. Power of alienation

According to Dr. Diwan, Muslim law-givers speak of the sale of minor property with the exception of any other types of alienation. There is a distinction made between immovable and movable property. The guardian in fact has wider powers over the minor's movable properties than his immovable properties. Alienation or disposal of the minor's immovable property is permissible by the guardian only in exceptional cases.

Thus, the sale of movable property is justified not just for the necessity of the minor, but on the basis of its conservation. It is provided that the guardian is allowed to take all reasonable risks which are involved in the world of business in his handling of movable property.

The Supreme Court in Meethiyan v. Md. Kunju, 1996 AIR 1003, held that the father as a natural guardian has the power to alienate the minor's property and, in his absence, the legal guardian is competent to do so. However, the sale of the minor's property by the mother, who is not a legal guardian nor was she appointed as such, is void. In this case, the father had died and the contention of the mother was that as she was the natural guardian, her sale of the minor's property was not void.

2. Power to grant the lease

In Zeebunissa v. Danaghar, (1936) 49 Mad 942 the Madras High Court held that a guardian of the minor has the power to lease out the minor's property if and only if it is for the benefit of the minor. It appears that the guardian cannot give leases of the minor properties extending beyond the period of the minority of the child.

3. Power to carry on business

According to the Hedaya, the guardian has the power to carry on trade or business on behalf of the minor just like a person of ordinary prudence, provided that the trade is not speculative or hazardous in nature. The Privy Council in Jaffar v. Standard Bank Ltd., 1929 PC 130 has held that though the guardian had the power to enter into partnership on behalf of the minor, the minor's liability was only to the extent to which he had shared in partnership; in no case, the minor was personally liable.

4. Power to incur debts and enter into contracts

The position on whether the guardian of a minor has the power to incur debts on behalf of the minor is yet unclear. In essence, a debt contracted without any necessity is not binding on the minor. However, it has been held that the guardian has the power to execute a promissory note on behalf of the minor in those cases where the incurring of debt is justified.

5. Power to make partition

It is forbidden in all cases that the guardian separates the shares of each minor and if so done, the entire partition is deemed invalid. If all the heirs are minors, the executor may allot the shares to the legatees, and retain the rest. In case a guardian is appointed by the court with general powers to deal with all matters of the minor, then the guardian has the power to effect a partition.

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