JAMIA MILLIA ISLAMIA

CUSTODY AND GUARDIANSHIP

(FAMILY LAW)

Submitted by:

FIZA HUSSAIN BABA

Roll no.-16

BA-LLB (HONS)(SF)

Submitted to:

KAHKASHAN Y. DANYAL

Professor, FOL, JMI.

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 CONTENTS

INTRODUCTION……………………………………………………………….

APPOINTMENT OF GUARDIAN………………………………………………

MOTHER’S RIGHT OF HIZANAT…………………………………………......

FATHER’S RIGHT OF HIZANAT ……………………………….…………….

TERMINATION OF HIZANAT………………………………….......................

TYPES OF GUARDIANSHIP……………………………………………..........

BIBLOGRAPHY…………………………………………………………………

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INTRODUCTION1
A minor is supposed to have no capacity to protect his or her own interests. Law therefore,
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 protect the person or property of a minor, is called a guardian.
Under   Muslim law guardians are required for the purpose of marriage, for the protecting the
minor’s person and for protecting the minor’s property. Guardianship of a minor person
means an overall supervision of the minor’s personality. It means care and welfare of the
child including the liability to maintain it. It is more than simply custody of the child upon a
certain age. Under Muslim law, it is called HIZANAT. Under Muslim laws, the guardianship
of a child means overall supervision of the child during its minority. Father or his executer or
in his absence, the paternal grandfather, being the natural guardian, are in charge of the
minor’s person. On the other-hand ‘custody of the child’ simply means a physical possession
(custody) of the child upon a certain age. Although mother is not the natural guardian of the
child under Muslim law, but she has a right to the custody of the child, till the child attains a
specific age. But the father or the paternal grandfather has a control over the minor during the
whole period of the minority. Tahir Mahmood states that:

“Guardianship of a person in relation to a child belongs primarily to its father, the mother’s
being only a pre-emptive right to keep the father away for a legally prescribed period only
from a particular aspect of the guardianship of person, namely, the custody and the physical
upbringing of the child’’2. 

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 take an order accordingly.

Section 15(1) of the Guardians and Wards Act, 1890 permits for the appointment of a
joint guardian where the court has appointed a joint guardian and any one 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:
(i)The court shall not be able to appoint a guardian of property under the Guardian and
Wards Act.
(ii)in case the court has been empowered to appoint a guardian of the person for the
minor, the same cannot be done by a court under the Guardians and Wards Act.

1
Gohar begum v. Suggi, AIR (1960) SC 63
2
Dr.R.K. Sinha, muslim law, VIth edition, page 122

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State Governments are also empowered to appoint a court of wards. The main aim of
these courts is to constitute ward courts for the purpose of regulating, constitution,
working, and powers of courts of wards. Sections 6, 19 and 21 of the Act provides that
in the following matters, the courts should not interfere with the question of
guardianship of a minor:
Where a guardian of the minor’s person, property or both has been lawfully appointed
under a will in accordance with the law to which the minor is subject.
If a guardian is not performing his duty 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
ward's property carefully and honestly. Section 21 of the above act provides that minor
not competent to act as guardian of another minor, will not act as the guardian. Section
24, 25 and 26 of the Guardian and Wards Act provides for the custody of the child by
one appointed under the Act as guardian of the person. This is a duty to look to the
minor support, health and education, and such other matters as the law to which the
ward is subject required. Section 27 of the above deal with the duties and the limitations
on the power of guardians. The statutory Guardian of the property is required to deal
with the minor's property as a man of ordinary prudence would deal with his own
property. This is the duty of the guardian to obtain prior approval of the court for
disposing of minor’s property. (See Section 30 of the Act). Section 31 lays down the
procedure for obtaining the sanction of the court for a transfer by the guardian. A
Guardian can also seek the advice or opinion of the court with regard to the management
of the ward’s property.

Section 41 of the above Act says that a guardian appointed by the court or a
testamentary guardian shall cease to be a guardian on the happening of any one of the
following incidents:

(i) In the case of the death, removal or discharge of the guardian;

(ii) On attaining majority by the minor;
(iii) In the case of guardianship of the person, Guardian shall cease to have any power:
 On attaining majority by the minor;
 On the marriage of the minor, if female to a person not unfit to be Guardian of her
person;
 In the case of guardianship of the person, guardianship shall cease to have any
powers-

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(a) On the marriage of the minor, if female to a person not unfit to be the guardian of
her person
(b) The revival of guardianship right of the person in whose disability another person
acted as the guardian;
(iv) In case of a guardianship of property a guardian shall not be entitled to act as
guardian on the assumption of the superintendence of the minor's property by a court of
wards.
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 the
capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if
any, of 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 preference.3

MOTHER’S RIGHT OF HIZANAT

Mother has a right to the custody of her child for some time, because except her, no one can
handle and nurse a child during its infancy. But her custody of the child is subject to the
supervision of the father who, as a legal guardian, is under an obligation to provide means for
the upbringing of child. The mother has the right to custody of the child which is her natural
right. She cannot be deprived of this right as long as she is not guilty. This right is known as
the right of HIZANAT and was solely recognized in the interest of the children. Under the
Hanafi law, the mother’s right over the son terminates at the age of seven years. Whereas the
Shias have an established rule that the mother has the custody of her son till he is weaned.
The Maliki School purports that mother’s right continues till the son has reached the age of
puberty. In case of daughters, Hanafi law entitles the custody of daughters to the mother till
they attain the age of puberty. Whereas among the Maliki, Shafi and Hanbali law the
mother’s right to custody continues till the daughters are married. These rights accrue to the
mother irrespective of the fact whether the child is legitimate or illegitimate. Under the Shia
school, after the mother, the HIZANAT belongs to the father. In the absence of both the
parents the custody lies with the grandfather. All the schools of Muslim law agree that a
HIZANA should be of sound mind, good moral character, living at such a place which poses
no kind of threat to the child and of such an age that would qualify her to bestow the needed
care on the child.

The first and foremost right to have the custody of children belongs to the mother and she
cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has
the right of custody so long as she is not disqualified. This right is known as right of

3
S.17, Guardians and Wards Act, 1890

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HIZANAT and it can be enforced against the father or any other person. The mother's right of
HIZANAT was solely recognized in the interest of the children and in no sense, it is an
absolute right''

FATHER’S RIGHT OF HIZANAT

All the schools of Muslim law recognize father's right of HIZANAT under two conditions
that are:

 On the completion of the age by the child up to which mother or other females are
entitled to custody. In the absence of mother or other females who have the right to
HIZANAT of minor children.
 Father undoubtedly has the power of appointing a testamentary guardian and
entrusting him with the custody of his children. Other male relations entitled to
HIZANAT are:
 Nearest paternal grandfather.
 Full brother.
 Consanguine brother.
 Full brother's son.
 Consanguine brother's father.
 Full brother of the father.
 Consanguine brother of the father.
 Father's full brother's son.
 Father's consanguine brother's son.

TERMINATION OF HIZANAT

The disqualifications which terminate the right of guardianship may be divided into 5 heads-
 General disqualification;
 Disqualifications affecting females;
 Disqualifications affecting males;
 Disqualifications affecting parents, and
 Disqualifications affecting the husband.

(A) GENERAL DISQUALIFICATION

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,

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whatever his age and in Shia law no person is entitled to the custody of the 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 such right, if after divorce she leads a respectable life.
The mother does not lose her right to the custody of the children by divorce by the father
of the children. The mother or any other female entitled to the custody of the minor loses
that right in the following cases:

(1) If she is Immoral, i.e., -

 Has committed adultery,

 Has become a prostitute,
 Committed some criminal offence by gross and open immorality,
(2) If she marries a person not related to the child within the prohibited degree example
a stranger. But the right revives on the dissolution of the marriage by death or divorce.
The reason behind this is that 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) DISQUALIFICATION AFFECTING MALES

It is a general principle of Mohammedan law that no male is entitle to the custody of a

female minor who is not related to him within the prohibited degree, or who is a
profligate. But it should be noted that this is a rule of Sunni law and hardly affect the
Shia Law, which does not recognize any guardians as of right, except the parents and
grandfather. But there being no special mention of this disqualifications either in the
Shia Books or in the Guardians and Wards Act, the Court in appointing a guardian will
not consider this rule as implying absolute disqualifications amongst Shias, though it
may consider it in choosing from real claimants. The Court is required by section 25 of
the Guardians and Wards Act to be guided in appointing or declaring by what appears to
be for the Welfare of minor consistent with the law to which the minor is subject.
(D) DISQUALIFICATION AFFECTING PARENTS

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In Muslim Law, like the English and the Romans law, the distinction has been
recognized between the guardianship of person and that of property of a minor. The
Muslim Law goes further and distinguishes between the two kinds of guardianship of
the person of a minor, viz.,
(1) For custody and education
(2) For contracting marriage.

In respect of the former, it is not liberal to the weaker sex, as it gives the custody of the Infant
children (boys up to seven and girls up to the age of puberty in Hanafi law and boy up to 2
and girl up to 7 in Shia law) to mother as against the father. The father is the natural guardian
of a minor, and the court has no power under the Guardians and wards Act to appoint a
Guardian of the person of a minor whose father is living and is not in the opinion of the court
unfit to be Guardian of the minor.
It was observed in Khatija Begum v. Ghulam Dastagir,4 that under Muslim Law, father
is the natural guardian when he is living and is not unfit to be guardian. Mother's mother
of Hanafi Muslim girl aged six 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 the
guardian. The court also is not concerned with the comparative fitness of the father and
any other person claiming to be appointed a guardian. The only question relevant is
fitness or otherwise of the father for being a guardian. But that does not mean that the
mother's mother of the girl can't be given the custody. Under Hanafi School, the mother
is entitled to the custody of a female child till she attains puberty. In the absence of the
mother such custody belongs to the mother's mother. Section 19 of the Act, (Guardians
and Wards Act) does not prohibit the court from dealing with the custody of the girl.
The section only prohibits appointment of a guardian when father is living and is not
unfit to be the guardian. The court further observed (in the above mentioned case) that
when the minor, brought up all the times by her grand-parents, 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 the 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 instance by cruelty to his
wife and children, or by felony, or adultery, though adultery by itself is no
disqualification, if the woman is not brought into contact with the child. (Wilson)
The following are the grounds where a court will interfere with the father's guardianship
of his children:
 If he is unfit in character and conduct;

4
AIR 1976 AP 128: AIR 1963 Raj. 239 dissented from

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  If he is unfit as regards external circumstances;
 If he waives his right;
 If you entered into an agreement to the contrary;

 If he is out of the jurisdiction of the court or intends to be go abroad..

(E) DISQUALIFICATION AFFECTING THE HUSBANDS

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 permits 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
husband.5 Minority of the husband does not deprive him of his right to guardianship of his
wife.

TYPES OF GUARDIANSHIP
Muslim law recognizes following kinds of guardianship;

 Natural or legal guardian.

 Testamentary guardian.
 Guardian appointed by courts or statutory guardian, and
 De-facto guardian.

(A) NATURAL OR LEGAL GUARDIAN

Natural guardian is a person who has a legal right to control and supervise the activities of a
child. Father is recognized as the natural guardian of his child under 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 under the substantive law of Islam. Natural guardian is also called de-jure or
legal guardian. As stated above, only father is the legal guardian of his child. But in the
absence of father, the father’s executor may also act as a legal guardian. Executor is a person
who is appointed by the father or grandfather to act as a guardian of his minor child on his
behalf. In the absence of the father or his executor, paternal grandfather or paternal
grandfather’s executor acts as a legal guardian. Thus, the nature guardian of a minor, in order
of priority, are as under:

5
Nur Kadir v. Zuleika Bibi, 11 Cal 649.

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  Father.
 Executor of father.
 Paternal grandfather.
 Executor of Paternal grandfather.

Under Muslim law in the absence of any of the above-mentioned persons, nobody else is
recognized as the natural guardian of a minor.

Shia Law: In the absence of father only paternal grandfather may 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.

(B) 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 grandfather has
right to appoint a testamentary guardian. No special formality is required for the appointment
of a testamentary guardian, but, as obvious, such a person should be competent to act as a
guardian. A non-Muslim and a female may also be appointed as a testamentary guardian.

Shia Law: A non- Muslim cannot be appointed as testamentary guardian.

(C) GUARDIANS APPOINTED BY COURT

In the absence of a natural and testamentary guardian, the court is empowered to appoint a
guardian for the purpose of the minor’s person or property or for both. The appointment of
guardian by court is governed 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. It may be noted that no provision has been made under this act for the guardianship
for the marriage. The result is that except the guardian for marriage, the guardian for a
Muslim minor’s person or property may be appointed by the court of law. In case of conflict
between Muslim personal law & Guardianship & wards act, provisions of acts prevail over
the provisions of Muslim personal laws. Courts are empowered to appoint the guardians for a
minor upon an application. Such application may made by any of the following persons:

 Any person desirous of being or claiming to be the guardian of the minor, or

 Any relative or friend of the minor, or
 The collector of the district in which the minor generally resides

If the court is satisfied that it is for welfare of the minor that an order should be made, then it
may make an order –

 Appointing a guardian of minor’s person, or both, or

 Declaring a person to be such a guardian.

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Sec. 17 (2) of the act says about the various grounds for deciding the guardianship like: sex,
age of the minor, capacity of the proposed guardian etc.

In Smt. Farzanabai v. Ayub Dadamiya, the Bombay high court observed that under
Guardians and Wards act, the personal law of the parties is a factor which is to be kept in
mind by the court subject to the interest of the minor.6

(D) DE-FACTO GUARDIAN 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 an unauthorized
person who, as a matter of fact, has custody of the person of a minor or his property. De facto
guardian is a person having no authority for the guardianship but under the circumstances has
taken the responsibility to act as the guardian of a minor.7

6
See Salamat Ali v. Smt. Majjo Begum, AIR 1985 ALL. 29

7
M. Fiaz v. Iftikhar, AIR 1932 PC 78

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 BIBLIOGRAPHY

ONLINE DATABASE

 MANUPATRA

 SCC ONLINE

 LEGAL SERVICE INDIA

 INDIAN KANOON

VARIOUS ACTS

 THE GUARDIANSHIP AND WARDS ACT, 1890

BOOKS

 AQIL AHMAD, MOHAMMEDAN LAW, EDITION 25TH, CENTRAL

LAW AGENCY, 2015

 SYED KHALID RASHID, MUSLIM LAW, EDITION 5TH, EASTERN

BOOK AGENCY COMPANY, 2010

 TAHIR MAHMOOD, INTRODUCTION TO MUSLIM LAW, EDITION

2ND, UNIVERSAL PUBLCATION, 2016

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