Guardianship under Muslim law

This Article is written by Mihuka singh Chouhan  & this article discuss the concept of Guardianship under Muslim law

• Introduction
• Concept of Guardianship
• Kinds of Guardianship
• Conclusion

Introduction

Guardianship under Muslim law in India is a complex legal system that is deeply woven into the fabric of Islamic principles, covering the obligations and rights involved with the protection and care of persons, particularly children and those who are unable to handle their own affairs. At its core, guardianship represents a sacred duty entrusted to individuals to protect the welfare and interests of those deemed vulnerable in the community. This guardianship takes many forms, with natural guardianship assigning specific tasks based on familial relationships, with the father taking precedence, followed by the paternal grandparents. Beyond the natural order, testamentary guardianship allows parents to nominate guardians for their minor children through the formal act of making a will, whereas court-appointed guardianship intervenes when familial arrangements are unsuitable, with the individual’s welfare as the top priority. In terms of practicality, the idea of de facto guardianship recognizes persons who, despite a lack of formal legal designations, carry out guardianship tasks on a daily basis. This complicated tapestry of guardianship in Muslim law represents a dynamic interplay between Islamic tenets and contemporary legal needs, resulting in a complete framework that prioritizes the welfare and best interests of the vulnerable.

Concept of Guardianship

The term “guardian” refers to someone responsible for a minor’s person, property, or both.^[1] Guardianship is a legal and ethical framework that establishes a relationship of responsibility and authority over an individual who, due to age, incapacity, or other conditions, is deemed incapable of making decisions in their own best interests. The guardian serves as a protector, decision-maker, and caretaker for the individual under their custody. Guardianship is an important legal tool that balances the need for protection with respect for individual rights. The notion changes throughout legal systems, and the laws and procedures governing guardianship might differ greatly. It is critical to guaranteeing the care and protection of vulnerable people who are unable to advocate for themselves.

Guardianship under Muslim law is referred to as ‘Hizanat’. Guardianship and Hizanat are frequently considered to mean the same thing. However, under Islamic law, these two types of guardianship are distinct and subject to separate regulations.^[2] The concept of guardianship in Muslim law is deeply established in Islamic values, representing the broader ethos of duty, care, and protection for people who are unable to handle their own affairs. Guardianship involves a variety of issues, including the well-being of minors and those who lack ability, and is influenced by both religious and legal principles.

Kinds of Guardianship

• Natural or legal guardian – The father is known as the minor’s natural guardian, but in the absence of his father instead of mother, the grandfather has the ability to act as guardian.^[3] If both are not present or have died, any executor nominated by either can serve as guardian. In Ghulam Husani Kuttubudin Manner v. Abdul Rashid Abdul Razzak Manner^[4] , the Supreme Court ruled that a minor’s mother cannot be designated guardian to receive a gift on his behalf while the minor’s father is still alive.
• Testamentary Guardian – Testamentary guardianship gives parents the ability to name a guardian for their minor children through a testamentary provision known as “wasiyat.” By integrating their preferences into a legally enforceable will, parents can ensure that guardianship is transferred smoothly in the case of their death. The testamentary guardian, appointed as part of this process, ensures that care continues in accordance with the parents’ preferences. However, this appointment is subject to court permission, which determines its acceptability based on the child’s best interests. In Atika Begum v. Mohammad Ibrahim^[5] , the Allahabad High Court ruled that in the presence of a father, the grandpa had no authority to appoint a guardian for a minor.
• Guardian appointed by court – The Guardianship and Wards Act of 1890 governs the appointment of guardians by the court and applies to all Indians, regardless of religion.^[6] In circumstances where natural or testamentary guardians are unavailable or unfit, the court can step in and appoint a guardian. The court’s decision is governed by the most important consideration: the individual’s welfare. This legal procedure ensures that a competent and capable guardian is appointed to protect the interests and well-being of the minor or person who lacks capacity. The court’s intervention provides a safeguard, particularly when familial arrangements are not optimal.
• De-facto Guardian – De-facto guardianship refers to someone who take on guardianship responsibilities without a formal legal appointment. In practice, these people actively care for and raise minors or people who are unable to manage their own affairs. While not formally named, de-facto guardians can have a substantial impact on day-to-day decision-making. This informal sort of guardianship emphasizes the need of recognizing persons who, through deeds rather than formalities, contribute to the well-being of those in their care.

Conclusion

In conclusion, the concept of guardianship in Muslim law in India is a dynamic structure created to protect the welfare and well-being of individuals who are unable to handle their affairs independently. This comprehensive system acknowledges several types of guardianship, each with a critical function in assuring the safety of vulnerable people. The natural guardian forms a hierarchy of familial ties, often beginning with the father and progressing to the paternal grandparents. Testamentary guardianship allows parents to appoint a guardian in their will, connecting religious values with legal formalities, subject to court confirmation. The court’s action as a guardian-appointing authority is required in instances when natural or testamentary arrangements are judged unsuitable, with the court prioritizing the best interests of the individual under guardianship. Furthermore, the recognition of de-facto guardians acknowledges people who actively participate in the day-to-day care of individuals, even in the lack of any legal designations. This complete approach to guardianship achieves a balance between Islamic beliefs and modern legal requirements, with justice, equity, and compassion serving as guiding principles within the framework. As the legal landscape evolves, the dedication to protecting the vulnerable remains unwavering, demonstrating Muslim law’s adaptability to meet the complex aspects of guardianship in the best interests of those it serves.

1. References

   The Guardians and Wards Act, 1890, s. 4(2). ↑

2. ‘Law of Guardianship under Muslim law’ (Drishti Judiciary, 15 November 2023) < https://www.drishtijudiciary.com/to-the-point/ttp-muslim-law/law-of-guardianship-under-muslim-law > accessed 28 November 2024 ↑
3. Abhinav Chauhan, ‘Guardianship under Muslim Law’ (Legal Service India) < https://www.legalserviceindia.com/legal/article-8416-guardianship-under-muslim-law.html > accessed 28 January 2024 ↑
4. [2000] 8 SCC 507 (SC). ↑
5. [1912] 16 IND CAS 597. ↑
6. ‘Guardianship under Muslim Law’ (Toppr) < https://www.toppr.com/guides/legal-aptitude/family-law-I/guardianship-under-muslim-law/#:~:text=Father%20is%20recognized%20as%20the,known%20as%20a%20legal%20guardian. > accessed 28 November 2024 ↑