Guardianship | Family Law - CLAT PG PDF Download

Introduction 

• In Muslim law, there are specific rules regarding a minor's property, but not for his person, as the latter is considered a matter of custody.

Right of Guardianship 

• According to  Radd-ul-Muhatar  , the right of guardianship over a minor's property goes to the father.
• If the father dies without appointing an executor, the guardianship then passes to the grandfather.
• In the event of the grandfather's death, the  Kazi  (a judicial official in Islamic law) can either act as the guardian himself or nominate others to be guardians.

Sources of Law 

• The sources of law regarding guardianship and custody are found in certain verses of the  Koran  and a few  Ahadis  (sayings of the Prophet Muhammad).

Classification of Guardianship

• Among both  Shia  and  Sunni  Muslims, the father is regarded as the primary  guardian  .
• Even after the father's death, the mother cannot assume the role of guardian. While the mother may obtain  custody  of the child, the father retains guardianship rights.
• The father has the authority to make decisions regarding the child's  education  ,  religion  ,  upbringing  , and  movement  .
• The father can gain guardianship over his minor legitimate child, while the mother may only have custody.
• Among  Sunnis  , if the father passes away, guardianship typically transfers to an  executor  .
• Among  Shias  , after the father's death, guardianship usually passes to the  grandfather  , even if an executor is appointed. However, a grandfather cannot represent the child if the father is still alive.

 2. Testamentary Guardian 

• Among  Sunnis  , the father has the authority to appoint a guardian. If the father is absent, his  executor  or  grandfather  can appoint a guardian.
• Among  Shias  , the father's appointment of a guardian is only valid when the grandfather is deceased.
• Both Shia and Sunni Muslims do not allow the mother to appoint a testamentary guardian for her legitimate and illegitimate children, except in two cases:
  • When she has been appointed a general executrix by the will of the child's father.
  • In respect of her own property that will devolve after her death.
• Among  Sunnis  , the appointment of a non-Muslim mother as a testamentary guardian is valid. However, among  Shias  , it is not valid.
• In both schools of thought, a non-Muslim (zimmi) or alien cannot be appointed as a testamentary guardian, and such an appointment is considered null and void.
• According to  Durr-ul-Muhtar  , if a zimmi is appointed as a guardian, he can be replaced by the Kazi, but his actions before removal are valid.
• Appointment of a minor or insane person as a guardian is void, as stated in  Fatwa Alamgiri  . Even a profligate cannot be appointed.
• The appointment of a guardian can be made either orally or in writing. The testator must be a major and of sound mind when appointing a guardian through a will. The guardian is referred to as  Wasi  ,  Amin  (trustee), or  Kaim Mukam  .

 3. Guardian Appointed by the Court 

• When both the  natural guardian  and  testamentary guardian  fail, a guardian can be appointed by the  Kazi  .
• The practice of appointing a guardian by the Kazi has been replaced by the  Guardians and Wards Act of 1890  , which allows for the appointment of a guardian for a minor of any community.
• The  District Court  has jurisdiction to appoint a guardian within the area where the minor and their property are located. In some cases, the  High Court  also has the authority to appoint a guardian.
• In a case reviewed by the  Gauhati High Court  , it was suggested that if a mother remarries after her husband's death, she should not be appointed as the guardian of her minor daughter. In such cases, the  paternal grandmother  could serve as the guardian.
• If a mother remarries, custody of the child may be granted to the former husband, the mother's mother, or the mother's full sister.

Powers of Natural or Testamentary Guardian 

•  Acts of Guardianship:  Involving actions like contracting a child's marriage or buying and selling goods for the child.
•  Acts Arising from Necessities:  Such as providing food, clothing, and shelter for the child.
•  Acts Beneficial to the Minor:  Examples include accepting gifts or presenting items on behalf of the minor.

 2. Classification by Other Authorities:  Other authorities in Muslim Law classify the acts of a guardian as follows:

•  Beneficial Acts:  Those that are advantageous to the minor.
•  Injurious Acts:  Acts that are harmful to the minor.
•  Intermediate Acts:  Those that fall between beneficial and injurious.

 3. Powers of Guardian:  The powers of a guardian include:

 a. Power of Alienation: 

•  Movable Property:  A guardian can sell movable property of a minor for necessity. The Hedaya states that selling movable property for adequate consideration and investing the proceeds in a more profitable venture is justified. Guardians can take reasonable business risks, but the sale can be challenged by the minor upon reaching majority if fraud is involved.
•  Immovable Property: The power to alienate immovable property is limited. The Durr-ul-Muhatar allows the executor to sell immovable property in cases such as:
  •  Imminent Danger:  If the property is at risk of being lost.
  •  Profitability:  If the sale can fetch double its value.
  •  Maintenance:  For the maintenance of minors.
  •  Debts:  To discharge the testator's debts.
  •  Legacies:  For payment of legacies that cannot be fulfilled otherwise.
  •  Income vs. Upkeep:  If the property's income is less than its upkeep cost.
  •  Decay:  If the property is deteriorating.
  •  Usurpation:  If the property is in the hands of an usurper and recovery is unlikely.
  •  Necessity:  If the minor has no other property and the sale is essential for their maintenance.
•  Legal Precedent:  In the case of Meethiyan v. Md. Kunj AIR 1996 SC 1003, it was established that a father, as a natural guardian, has the right to sell a minor's property. However, a sale by the mother, who is neither a legal guardian nor a testamentary guardian, is considered void.

b. Power to Grant Lease:

•  Leasing Authority:  A guardian can lease out a minor's property if it benefits the minor. However, leases cannot extend beyond the minority period of the child. In the case of Zeebuniss v. Danaghar (1936) 49 Mad 942, it was stated that a guardian has the power to lease out a minor's property for the minor's benefit, but leases cannot exceed the child's minority period.

 c. Power to Carry on Business: 

•  Business Conduct:  A guardian must conduct business prudently and can enter into partnerships on behalf of the minor. The Fatawai Alamgiri allows an executor to invest a minor's property in partnerships.
•  Legal Liability:  In the case of Jaffer v. Standard Bank Ltd. 1929 PC 130, the Privy Council ruled that while a guardian can enter into partnerships for the minor, the minor's liability is limited to their share in the partnership, and they are not personally liable beyond that.

 d. Power to Incur Debts and Enter into Contracts: 

• A guardian can incur debts and enter into contracts on behalf of the minor only in cases of necessity. Debts contracted without necessity are not binding on the minor.

 e. Power to Make Partition: 

•  Partition Authority:  If all parties are minors, the partition is invalid. However, if some parties are minors and some are adults, the executor can separate the shares of the adults from the minors' shares if the adults are present. The guardian cannot separate the shares of each minor individually, as it is unlawful.

 f. Other Powers: 

•  Pre-emption Rights:  The Bombay and Allahabad High Courts hold that a guardian can assert a right of pre-emption on behalf of the minor, or refuse or accept an offer of a share in pursuance of such right, binding the minor to such acts if done in good faith.
•  Acknowledgment of Debts:  The legal guardian (de jure guardian) has the power to acknowledge debts on behalf of the minor.

Certificated Guardian (Guardian Appointed by the Court

 Powers and Limitations of the Guardian 

•  General Powers and Obligations  : The guardian has general powers and obligations as per Section 27 of the Guardians and Wards Act, 1890. However, these powers are limited by the requirement that the guardian must manage the minor's property with the same care as a person of ordinary prudence would manage their own property.
•  Limitations on Alienation  : Section 20 of the Act imposes limitations on the guardian's powers regarding the alienation of the minor's property.
•  Court's Authority  : Section 33 of the Guardians and Wards Act empowers the court to restrict or extend the powers of the guardian as necessary, allowing for flexibility in the guardian's role over time.

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