About this topic
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These notes cover guardianship under Muslim law: the mother's right of custody (hizanat), guardianship of the child's person (including marriage), guardianship of the child's property, and the court's power to act for the child's welfare under the Guardians and Wards Act, 1890. Three problems frame the topic; their answers are given at the end.
Problem 1. A mother has raised her six-year-old son from birth, feeding him and nursing him through every fever. His father is alive, and under Muslim law she is not the boy's guardian. How can that be?
Problem 2. Must a divorced mother who remarries give up her daughter?
Problem 3. May a grandfather sell his orphaned grandson's land to pay the boy's hospital bills?
The four Cs: a map of the topic
The whole topic can be arranged under four words beginning with C.
| C word | What it stands for |
|---|---|
| Care | Custody: the daily nurturing of the child |
| Control | Guardianship of the child's person, including marriage |
| Cash | Guardianship of the child's property |
| Court | The judge's power to act for the child's welfare |
Custody v. guardianship. Custody asks where the child lives; guardianship asks who holds legal authority over the child. Muslim law can give these two to different people. This is why a mother may have custody of her child while the father remains the guardian.
Care: custody (hizanat)
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The mother's right of hizanat
Muslim law gives the mother the first right to nurture a young child. This right is called hizanat.
- Duration under Hanafi law (followed by most Sunni Muslims in India): hizanat lasts until a son completes seven years and until a daughter attains puberty.
- After that, the father is entitled to custody.
- Divorce does not end hizanat, because the right exists for the child, not for the marriage.
Hanafi period of the mother's hizanat: son — until he completes 7 years; daughter — until she attains puberty. Hizanat survives divorce because it exists for the benefit of the child.
Who gets custody after the mother
- The female line first. If the mother is dead or disqualified, the right moves along the female line, beginning with the mother's mother and then the father's mother.
- Then the men. Only when no such woman is available does custody pass to men, starting with the father and then the paternal grandfather.
The mahram rule: even then, no man may claim custody of an unmarried girl unless he is her mahram, that is, a relative so close (by blood, marriage or fosterage) that marriage between them is forbidden.
Zoya is a twelve-year-old orphan with no female relatives. Her elder brother may take her in, because he is her mahram. Her cousin, the son of her father's brother, may not, because Muslim law allows cousins to marry.
Loss of hizanat
The right of custody can be lost in the following ways.
- Marriage to an outsider. A mother forfeits hizanat if she marries a man not related to the child within the prohibited degrees, that is, an outsider, who may not be kind to another man's child.
- A widow who marries her late husband's brother (the child's own uncle) therefore keeps custody.
- A forfeited right revives if the new marriage ends by death or divorce.
- An immoral life.
- Neglect of the child.
- Moving far from the father while still married to him.
Custody of a child born outside marriage
Under Hanafi law, the father of a child born outside marriage has no right of guardianship or custody, while the mother is entitled to custody.
Gohar Begam v. Suggi (1959), decided by the Supreme Court on 27 August 1959: an unmarried Sunni mother sought the custody of her little daughter, whom the mother's aunt refused to return. Held: the mother was entitled to her daughter's custody, whoever the father might be, and the aunt's refusal to return the girl was an illegal detention. Principle: under Hanafi law, the mother of a child born outside marriage is entitled to its custody.
Control: guardianship of the person
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The father stands first as the natural guardian of the child's person, followed by the paternal grandfather.
Guardianship in marriage (wali)
Control also covers the child's marriage, through a guardian called the wali. However, the Prohibition of Child Marriage Act, 2006 now applies to every child marriage.
Testamentary guardian
- A father may name a guardian in his will. Such a guardian is called a testamentary guardian or executor.
- Under Sunni law, if the father names none, the paternal grandfather may appoint one by his own will.
- The mother generally cannot appoint a testamentary guardian, with two exceptions:
- if the father's will made her his executrix, she may appoint an executor by her own will; and
- she may name an executor for her own property, which will pass to her children after her death.
The mother generally cannot appoint a testamentary guardian. Remember her two exceptions: (1) where she is the executrix under the father's will, and (2) for her own property that will pass to her children.
Cash: guardianship of property
Legal guardians of a minor's property (Sunni law)
Under Sunni law, the legal guardians of a minor's property come in a fixed order:
- the father;
- the executor named in the father's will;
- the paternal grandfather;
- the executor named in the grandfather's will.
Nobody else holds this role as of right, not even the mother, a brother or an uncle, though the court may appoint any of them.
So, for a child born outside marriage, a guardian of property would ordinarily be appointed by the court, which may well choose the mother.
Powers of a legal guardian over the minor's property
Even a legal guardian has limited powers, and the law separates movable from immovable property.
| Type of property / transaction | Power of the legal guardian |
|---|---|
| Movable property | May be sold or pledged for the minor's urgent needs, such as food, clothing and nursing |
| Immovable property | May be sold only in exceptional situations, for example: where the minor has nothing else to live on; where a buyer offers double its value; or where the debts of the deceased cannot otherwise be paid |
| Loans | A loan for the minor's real necessities binds his estate; a loan raised without necessity does not |
| Lease | Allowed when it benefits the minor |
Farhan, aged ten, has lost his father, who left him a small house and some gold coins but named no executor. His paternal grandfather is therefore his guardian.
- If Farhan falls ill, the grandfather may sell or pledge the gold for urgent needs such as food, clothing and nursing.
- The house may be sold only in an exceptional situation, for example where Farhan has nothing else to live on, where a buyer offers double its value, or where the debts of the deceased cannot otherwise be paid.
- A sale of the house to fund the grandfather's own business does not bind Farhan, who can challenge it on reaching majority.
- A loan for Farhan's real necessities binds his estate; one raised without necessity does not.
- A lease is allowed when it benefits Farhan.
Court-appointed guardian: Sections 29 and 30, Guardians and Wards Act, 1890
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If the court, instead of the law, has made a person guardian of the minor's property (for example, if the court had appointed Farhan's maternal uncle, Aadil), Section 29 of the Guardians and Wards Act, 1890 applies.
Section 29. "Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court,
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or
(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor."
Without the court's previous permission, a court-appointed guardian therefore cannot:
- Clause (a): mortgage, charge, or transfer (by sale, gift, exchange or otherwise) any part of the ward's immovable property;
- Clause (b): lease any part of that property
- for a term exceeding five years, or
- for any term extending more than one year beyond the date the ward will cease to be a minor.
Aadil is the court-appointed guardian of Farhan, who is fifteen. A seven-year lease of Farhan's house needs the court's permission on both counts: it is longer than five years, and it runs four years past Farhan's eighteenth birthday.
Section 30. "A disposal of immovable property by a guardian in contravention of either of the two last foregoing sections is voidable at the instance of any other person affected thereby."
Under Section 30, a disposal of immovable property by a guardian in contravention of the restrictions in the two preceding sections (including Section 29) is voidable at the instance of any other person affected by it.
Court: the welfare principle under Section 17
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The final C is the court's power, governed by Section 17 of the Guardians and Wards Act, 1890.
Sub-section (1). "In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor."
Sub-section (2). "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 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."
Sub-section (3). "If the minor is old enough to form an intelligent preference, the Court may consider that preference."
Sub-section (5). "The Court shall not appoint or declare any person to be a guardian against his will."
Sub-section (4) was omitted in 1951.
Factors the court must consider for the minor's welfare (Section 17(2))
- the age, sex and religion of the minor;
- the character and capacity of the proposed guardian;
- the proposed guardian's nearness of kin to the minor;
- the wishes, if any, of a deceased parent;
- any existing or previous relations of the proposed guardian with the minor or his property.
Section 17 in brief: (1) the court is guided by the welfare of the minor, consistently with the law to which the minor is subject; (2) welfare is judged by the listed factors; (3) the court may consider the preference of a minor old enough to form an intelligent preference; (4) omitted in 1951; (5) no one can be appointed guardian against his will.
Judgments on child welfare and the child's preference
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Irfan Ahmed Shaikh v. Mumtaz (1998), decided by Justice R. J. Kochar of the Bombay High Court on 19 June 1998: after the marriage ended, the mother married an outsider, and her daughter of about seven or eight lived with them. The father relied on the disqualification of a mother who marries an outsider, added that he himself had not remarried, and alleged that the girl had been tutored. Speaking with the judge in her own language, the girl refused in tears to go with her father, who, she said, had often beaten her, while her stepfather loved her and had put her in a good school. Held: the father was refused custody. Muslim law takes no pedantic (mechanical) view of remarriage; the rule exists to guard against an unkind outsider, and here unkindness was not even alleged. Muslim law has never ignored the wishes of a minor who has reached the age of discretion, and a growing girl naturally confides in her mother. Approving an earlier ruling, the Court called the minor's interest the paramount law. Principle: the child's welfare and preference can prevail over the mechanical rule that a mother loses custody on marrying an outsider.
Athar Hussain v. Syed Siraj Ahmed (2010), Supreme Court: the Court took the same approach. Held: a father may remain the natural guardian while custody is decided by the child's welfare. Principle: guardianship and custody are separate; custody turns on the welfare of the child.
In custody disputes, the minor's interest is the paramount consideration. Remarriage of the mother to an outsider does not automatically end her custody; the court weighs the child's welfare and, where the child has reached the age of discretion, the child's own preference.
Quick revision
- Problem 1 (the devoted mother): she has Care (custody), while the living father keeps Control (guardianship of the person). Custody and guardianship can lie with different people.
- Problem 2 (the remarried mother): she does not automatically lose her daughter, because the Court weighs the child's welfare and the child's own preference.
- Problem 3 (the grandfather and the hospital bills): as legal guardian, the grandfather may sell the movable property (the gold) for hospital bills, but the land only in an exceptional case.
- The whole topic in four words: Care (custody), Control (guardianship of the person), Cash (guardianship of property) and Court (the welfare power).
