Regarding guardianship, Quran says that:-

Did He not find thee orphan, and gave thee a home? And

found thee needy and fulfilled thy wants?

Then wrong not the orphan,

Nor repel the beggar with harshness;

And proclaimed the bounty of the Lord.

At another place Quran says:

Restore to the orphans when they come of age, their substance; do not substitute bad for
good, not devour their substance by adding it to your own, for this is an enormous crime.

Definition of guardianship:- The term guardianship is defined in the

Guardianship and Wards Act, 1890 as “a person having the care of the person of a minor or
of his property, or of both his person and his property”, and no doubt the individual who has
by law the right and duty of disposing of a boy or a girl in marriage may be said to have, for
that limited purpose, the care of his or her person. But there is no mention of disposal in
marriage in any part of the Act, and nothing to indicate that it was intended to indicate that it
was intended to interfere with the rules of Muslim Law which assigns that function. Under
the name of jabar, it relates to the relatives who are not necessarily those entitled to the
general care and custody (hiznat) of the ward’s person (Wilson). The Quran is the basis of
the law relating to guardianship and, therefore, there is very little room for differences
between Sunni and Shia Schools. Regarding guardianship Quran says that:-

Meaning of guardianship: - The term ‘Guardianship’ (Wilayat) connotes

the guardianship of a minor.

Who is a minor.? A minor is one who has not attained the age of majority. Puberty and
majority are in the Muslim Law one and the same thing. Puberty is presumed to have been
attained on the completion of fifteenth years. But now Muslims are governed by the Indian
Majority Act, 1875, except in matters relating to marriage, divorce and dower. The existing
position regarding the age of majority in such cases is given as below:

15 years is the age of majority for the purposes of marriage, dower and divorce. At or above
this age, he/she is free to do anything in the sphere of marriage, dower and divorce.

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According to section 2 of the Child Marriage Restraint Act, 1929 (as amended in 1978) the
minimum age for Marriage is 21 years for males and 18 years for females.

15 years is the age of majority in general. As regards other matters of guardianship of person
and property, a Muslim will be governed by the Majority Act which prescribes 18 years as
the age of majority. Thus in cases of wills, waqfs, etc, minority will terminate on the
completion of 18 years.

21 years is the age of majority if the minor is under the Court of Wards, or a guardian of him
has been appointed by the Court.

Under Muslim Law, any person who has attained puberty is entitled to act in all matters
affecting his or her status or his or her property. But that law has been materially altered by
the Indian Majority Act, and the only matters in which the Muslim is now entitled to act on
attaining the age of 15 years, are (1) marriage, (2) dower, and (3) divorce, in all other matters
his minority continues until the completion of 18 years. Until then the Court has power to
appoint a guardian of his person or of property or both under the Guardians and Wards Act in
which case the age of minority is prolonged until the minor has completed the age of 21
years.

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 make an order
accordingly.

Section 15(1) of the Guardians and Wards Act, 1890 permits for the appointment of joint
guardian where the Court has appointed joint guardian and any 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 :

(1) The Court shall not be able to appoint a guardian of property under the Guardians
and Wards Act.
(2) In case the Court has been empowered to appoint a guardian of person for the
minor, the same cannot be done by a court under the Guardians and Wards Act.

If the guardian is not performing his duties 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 wards
property carefully and honestly. Section 21 of the Act provides that a minor not competent as
the guardian of another minor, will not act as the guardian.

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 capacity of the
proposed guardian and his nearness of kin to the minor, the wishes, if any, a deceased parent,

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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.

Kinds of guardianship: Muslim Law makes a distinction between guardian

of the person, guardian of the property and guardian for purposes of marriage (Wilayat-ul-
nikah) in the cases of minors.

Mohammedan Law recognises 3 kinds of guardianship. They are as follows:

(1) Guardianship in marriage (Jabar)

(2) Guardianship of person of the minor for custody (Hizanat).
(3) Guardianship of property which has been sub-divided into:
a. Dejure guardianship
b. De facto guardianship
c. Certified guardianship

(1) Guardianship of marriage (jabar) : It is one of the

essentials of a valid marriage that the party are competent to enter into a contract, i.e.,
among other things they must have attained the age of puberty. However, this general
rule admits one exception i.e., where the marriage is contracted on behalf of the
minors by the guardian. This exception is the most distinguishing feature of Islamic
jurisprudence because it empowers a father to impose status of marriage on his
children. This power of imposition is called (jabar), the abstract right of guardianship
(wilayat), and the guardian so empowered is known as Wali. Thus under the Muslim
Law of all schools, the father has the power to give his children of both sexes in
marriage without their consent, until they reach the age of puberty-known as Bulugh.
In respect of marriage guardianship no one can be appointed guardian by
the Court. It is substantive law itself that declared who, for the purpose of marriage,
possess the patria potestas; the Court cannot Wali for marriage although, in some
cases, the Quazi or Court itself can act as a marriage guardian.

Persons entitled. - The following is the list of persons who can act as guardians
in the marriage of minor, in the order of enumeration.
i. The father.
ii. The father’s father, how highsoever.
iii. Full brother and other male relations on the father’s side, in order of
inheritance given under residuaries.
iv. Mother.
v. Maternal relations within prohibited degrees.

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 vi. The Quazi of the Court

Shia Law recognises only the Father and failing him the Father’s father how highsoever as
guardian in the marriage of a minor.

Marriage performed by remoter guardian is void: The rule of Muslim Law is that
when a remote guardian allowed a boy or a girl to marry, when the nearer one is present, the
validity of the marriage is dependent upon the latter’s ratification and consent. Such a
marriage by a remoter guardian when the nearer guardian is present and has given his consent
is not only irregular but void. The legal consequences would be that it may be terminated by a
single declaration on either side; consummation of marriage does not stand in the way of
terminating it when the marriage is invalid.

Under the Muslim Law where a minor is

contracted in a marriage by any guardian other than the father or father’s father, the minor
has option to repudiate the marriage on attaining puberty. It is not clear when a minor is given
in marriage by a guardian other than the father and the grandfather, he may be able to
exercise his rights of repudiation of marriage on the completion of 15 years or on the
completion of 18 years.

Under the Muslim Law, where the marriage is contracted for the
minor by the father or father’s father, the minor has no option on attaining puberty, unless the
contract is to the manifest disadvantage of the minor or has been fraudulently or negligently
entered into. Under the Dissolution of Muslim Marriage Act, 1939 the right of repudiation of
Muslim female has been modified. Section 2(7) of the Dissolution of Muslim Marriage Act,
1939 says that a woman married under Muslim Law will be entitled to obtain a decree for the
dissolution of her marriage if she proves (1) that she is having been given in marriage by her
father or other guardian before she attained the age of 15 years, repudiated the marriage
before attaining the age of 18 years, and (2) that the marriage has not been consummated. The
Guardians and Wards Act, 1890 is silent regarding the appointment of guardian in marriage.
Under this act the Courts are having jurisdiction only in the matters or guardianship of person
and guardianship of property. Similarly a person appointed by Court can act as a marriage
guardian.

Testamentary guardian for marriage: Under Muslim Law testamentary guardians for
marriage are not recognised. A father has no power to appoint any person as guardian for
marriage by his will.

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Effect of apostacy on guardianship for marriage: Under pure Muslim Law, a person
loses his right to guardianship in marriage as soon as he gets converted to another faith.
However, the Caste Disabilities Removal Act, 1850 provides that a person does not lose his
right of property if he is converted to another faith. On the strength of this Act, the Hon’ble
High Court of Calcutta in Muchoo V. Arzoon held that the duties of the director
attached to the office under Mohammedan Law and affecting the interests of other
Mohammedans can be validly performed by an unbeliever of Islam and a convert Muslim
father was allowed the custody of his Muslim minor children and to direct their education.
Hon’ble Chief Court of Punjab relied on Muchoo’s case in Gul Mohammad V. Mst
Wazir, in a case where a father has converted from Mohammedanism to Christianity but he
was only parent alive of a boy of 8 years and a girl of 4 years and the grandmother of the
children was contesting for guardianship of minors and their property. In this case it was held
that under the Muslim system, an apostate cannot be a guardian for marriage, so the marriage
of a minor girl contracted for her mother against the consent of her father, who was converted
to another faith was held valid.

(2) Guardian of the person of the minor for

custody (Hizanat):
The guardianship of minor’s person for custody (hizanat) has to be studied with
reference to the age of the minor and his relationship to the guardian.

Mother: The Mother is entitled (1) in Hanafi law to the custody (hizanat) of her male child
until he has completed the age of 7 years and female child until she has attained puberty and
(2) in Shia law to the custody of her male child till the age of 2 years and to the custody of
female child till the age of 7 years. The right continues though she is divorced by the father of
the child unless she marries a second husband in which case the custody belongs to the father.

A mother is a de facto guardian. She cannot execute a waqf on behalf of the

minor. Such execution is void as de facto guardian had no right to alienate minor’s property,
unless appointed as guardian by Court.

Female relations in default of mother: Under Hanafi Law, failing the mother, the
custody of boy under the age of 7 years, and of a girl has not attained puberty goes to the
following female relatives in the order given below:

1) Mother’s mother, how highsoever.

2) Father’s mother, how highsoever.
3) Full sister.
4) Uterine sister.
5) Consanguine sister.
6) Full sister’s daughter.
7) Uterine sister’s daughter.

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 8) Maternal Aunt (Father’s sister) in like order as sisters; and
9) Paternal aunt, also in order as sisters.

However, this right of mother or any of these female relations is lost in the following cases:

1. If she leads an immoral life, or

2. If she neglects to take proper care of the child, or
3. If she marries a person not related to the child within the prohibited degrees;
4. If during the subsistence of marriage, she goes and resides at a distance from the
father’s place.

In a recent judgement of Rahima V. Saburjanessa, AIR 1996 Gua 33 the Court

held that the Mother loses the guardianship of the minor daughter in case she remarries
with another person not related to the child within prohibited degrees of relationship.

Other male relations: In default of the mother and other female relations the right of
custody (hizanat) in Hanafi Law, belongs to the following persons in order of
enumeration:

1) Father.
2) Nearest paternal grandfather.
3) Full brother.
4) Consanguine brother.
5) Full brother’s son.
6) Consanguine brother’s son
7) Full brother of the father.
8) Consanguine brother of father.
9) Son of father’s full brother.
10) Son of father’s consanguine brother

Provided that no male is entitled to the custody of an unmarried girl, unless he stands within
the prohibited degrees of relationship to her. If there be none of the above guardian, it is for
the Court to appoint a guardian of a person of a minor. In Shia Law, failing the mother, the
father, and failing the father, father’s father is entitled to the custody of a minor’s person. It is
doubtful who would be the guardian failing the father’s father.

Father: Father is entitled in Hanafi Law to the custody of a boy over 7 years of age and of an
unmarried girl who has attained puberty [and in Shia Law to the custody of a male child over
2 years and an unmarried girl of 7 years or more].

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In Farznabi V. S.K. Ayub Dadamiya, the Bombay High Court held that there is no
doubt that under Muslim Law the father is entitled to the custody of a son over 7 years of age.
The Court observed that as far as possible the ordinary rule of Muslim Law should be
adhered to. The children were above 7 years of age. The Court al of so found that the welfare
of the minors did not lie in favour residing with their mother. But the Court observed they
were not of an age when they could make an intelligent preference. The Court therefore
awarded the custody of the child to the father.

Failing father, the custody belongs to other paternal relations in the order enumerated above.

The husband is not entitled to custody of his minor wife unless she attains puberty or such an
age as would permit the consummation of marriage. The mother is entitled to the custody of
the minor wife as against her husband.

If none of the above maternal and paternal relations is to be found, it is for the Court to
appoint the guardian of the person of the minor.

Illegitimate child: “A Bastard belongs legally speaking to neither of its parents and it is in
every sense of the word filius nullius but for the purpose of securing its due nourishment
and support, it should, until it has attained the age of 7 years, be left in charge of the mother.

After that it may make his own election with which of the parents it will reside, or it may live
apart from them altogether”.

In Gohar Begum V. Suggi Begum, gohar begum was a singing woman in the keeping
of one Trivedi, a Hindu. She was the unmarried Muslim mother of a natural daughter, Anjum,

Acknowledged by trivedi as his daughter. Anjum was sent to stay with a friend of her mother
Nazma Begum who later refuses to part with her claiming that she had a great affection for
the child and had sufficient means to look after Anjum. It was held by the Supreme Court that
the mother of an illegitimate child is in Mohammedan Law entitled to its custody; and the
refusal to restore the child to its mother was illegal detention. Thus, by the order of Supreme
Court, Anjum was handed over to her mother.

Nature of the rights of Hizanat: In Imambandi V. Mutsaddi, it was observed

that; “It is perfectly clear that under the Muslim Law the mother is entitled only to the
custody of the person of her minor child up to a certain age according to the sex of the child.
But, she is not the natural guardian, the father alone, or if he is dead, his executor (under the
Shia Law) is the legal guardian.”

The facts of the case are as follows: “The property in suit belonged to originally to one
Ismail Ali Khan, a Sunni Mohammedan. The plaintiffs alleged that on his death he left his
three surviving widows and several children, that for one of these widows, Enayat-uz-Zohra,

7
acting for herself and for her two children, purchased the share in suit, for the possession of
which they brought the present action. In fact the reliefs sought were of a two-fold character;
first a declaration of the title and the status of the plaintiff’s venders; and secondly, a decree
in favour of the plaintiffs for possession of the shares covered by the deed of the sale. (The
deed executed by Zohra purported to the plaintiffs the shares of both herself and her minor
children).

The contesting defendants denied that Zohra was one of Ismail Ali Khan’s married wives
or that her children were his legitimate issues, and they further contended that the share the
plaintiffs claimed to recover did not pass under the sale. The trail Judge made declarations as
proved and a decree for possession. An appeal to the High Court was dismissed. Then an
appeal was taken to the Privy Council.

Decision: (1) On the whole case, their Lordships were of opinion that both Zohra and her
children were entitled to their legal shares in the inheritance of Ismail Ali Khan.

The importance question was whether the plaintiffs acquired any title to the infant’s
shares under the sale by the mother? The objection of the defendants was that Zohra, their
mother, had no power to covey her children’s interest to the plaintiffs.

(2)It is perfectly clear that under the Muslim Law the mother is entitled only to the custody of
person of her minor child up to a certain age according to the sex of the child. But she is not
the natural guardian the father alone, or if he be dead, his executor (under the Sunni Law), is
the legal guardian. The mother has no larger power to deal with her minor child’s property
than any outsider or non-relative who happens to have charge for the time being of the infant.
She may incur responsibilities, but can impose no obligations on the infant. This rule, is
subject to certain exceptions provided for the protection of a minor when it has no de jure
guardian.

It means a Court may appoint a mother as guardian of the property of minor.

(3)The mother if she pledges (mortgages) the property of her infant child, it is not lawful,
unless she be executrix (of the father) or be authorized therefore by the guardian of the minor;
or the judge should grant her permission to pledge the infant’s property. Then it is lawful, and
the right to possession and the user is established in the murtahin (pledge or the mortgagee)
without power of sale (Fatwa-i-Alamgiri).

It seems that according to their Lordships the power to sell cannot be

wider than the power to mortgage. In another interesting judgement the Bombay High Court
in Abdulsattar Hussain Kudachikar V. Shahina Abdulsattar Kudachikar,
AIR 1996 Bom 134 has held that the mother is entitled to the custody of a son aged 5 years
even though the father is earning more money than the mother.

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Termination of Hizanat: The disqualifications which terminate the right of
guardianship may be divided into five heads:

a) General disqualifications.
b) Disqualifications affecting females;
c) Disqualifications affecting males;
d) Disqualifications affecting parents, and
e) Disqualifications affecting the husband.

(a) General disqualifications: 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, whatever his age and in Shia Law no person is
entitled to the custody of a 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 her from
such right, if after divorce she leads a respectful life.

The mother or any other female entitled to the custody of the minor loses that right in the
following cases:

1. If she leads to an immoral life, i.e. –

i. Has committed adultery.
ii. Has become a prostitute.
iii. Committed some criminal offence by gross and open immorality,
iv. Is a professional singer or mourner.
2. If she marries a person not related to the child within the prohibited degree e.g., a
stranger. But the right revives on the dissolution of the marriage by death or divorce.

The reason behind this is that if 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) Disqualifications affecting males: It is a general principle of Mohammedan Law
that no male is entitled to the custody of a female minor who is not related to him
within the prohibited degrees, or who is a profligate. But it should be noted that this is
a rule of Sunni Law and hardly affects the Shia Law, which does not recognize any
guardians as of rights, except the parents and grandfather.
(d) Disqualifications affecting parents: In Muslim Law, like the English and the
Roman Laws, the distinction has been recognised between the guardianship of person
and that of property of a minor.

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In Khatija Begum V. Gulam Dastagir, it was observed that under Muslim Law,
father is the natural guardian when he is living and is not unfit to be guardian. Mother’s
mother is Hanafi Muslim girl aged 6 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 a
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 Court further observed that when the minor,

brought up all times by her grandparents, 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 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 the instance by cruelty to his wife and children, or by felony, or adultery,
though adultery by itself is no disqualification, if woman is not brought into contact with
the child.
The following are the grounds where a Court will interfere with the father’s
guardianship with the children:

(1) If he is unfit in character and conduct;

(2) If he is unfit as regards external circumstances;
(3) If he waives his right;
(4) If he enters into an agreement to the contrary;
(5) If he is out of the jurisdiction of the Court or intends to go abroad.

(e) Disqualifications affecting the husband: 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 permit 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.
Minority of the husband does not deprive him of his right to guardianship of his wife.

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(3)Guardianship of minor’s property: If a minor owns movable or
immovable property, a guardian is necessary to manage it. Muslim Law prescribes certain
persons in an order of preference who can be guardian of a minor’s property. The
guardianship of the property of the minor under Muslim Law may be classified as follows:

1. Legal (de jure) or natural guardian.

2. Guardian appointed by the Court (or certified guardian).
3. De facto guardian.

(1)Legal guardian: The person entitled in the order mentioned below to be guardian of
the property of a minor are (1) the father, (2) the executor appointed by the father’s will, (3)
the father’s father and (4) the executor appointed by the will of the father’s father.

Thus, mother, brother, uncle etc., are not entitled as of right to be legal guardians of
the property of the minor. Of course, the father or father’s father may appoint any of them
(mother, brother, uncle etc.) or any of the person as his executor or executrix and the later
shall hold as much power as the father or father’s father holds.

In Gulam Husani Kutubuddin Maner V. Abdul Rashid Abdul Rajak Maner,

the Supreme Court of India has held that a mother of a minor cannot be appointed as his
guardian to accept gift on his behalf during the lifetime of minor’s father.

Power of legal guardian regarding immovable property: Under Muslim Law, a legal
guardian of the property of a minor can sell the immovable property of the minor, when the
sale is necessary for the maintenance and when the minor has no other property. The word
“maintenance” does not exclude other necessary expenses for mental and physical well-being
of a minor, acceding to the status in the society of the family. Thus, the expense of ordinary
and reasonable education of a child forms part of his maintenance. In the present state of the
society, which is rapidly advancing in all directions education up to higher secondary stage
cannot be said to be extravagant. Thus in the following cases the legal guardian is authorised
to deal with the minor’s property:

i. When there are debts of the deceased, and no other means of paying them;
ii. When the minor has no other means of livelihood and the sale is absolutely
necessary for his maintenance;
iii. When double the price of the property can be obtained by him;
iv. Where the expenses exceed the income of the property;
v. When the property is falling into decay;
vi. When the property has been usurped and the guardian has reason to fear that
there is no chance of fair restitution;
vii. Where there are legacies to be paid, and no other means of paying them.

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The guardian has no power to carry on business of his ward, especially if the business is one
which may involve the minor’s estate in speculation or loss. In India, the Guardians and
Wards Act, 1890 imposes on every guardian of property the duty to deal with the minor’s
property as carefully as a man of ordinary prudence would deal with it if it were his own and
entitles such guardian to do all acts which are reasonable and proper for the realisation,
protection or benefit of the property. Section 28 of the Act says that a testamentary guardian
of property cannot transfer the property against any restriction in this behalf imposed by the
will under which he functions. Section 30 of the Act says that violation of these rules, will, in
either case, make the alienation voidable.

Relative rights of the heirs of a deceased person in the property inherited by

them: In P. Narsimbhai V. Bai Babu, a widow was in possession of her two minor
children’s property. She was required to pay certain loans of her deceased husband. She,
therefore, disposed of some of the property which also included the shares of the minors. This
transaction was challenged, she, contested that since the sale was affected for the purpose of
paying off the dues under a decree obtained against all the heirs, it should be binding on the
two children also.

It was held by the Gujarat High Court that one of the Muslim co-heir’s
property cannot be lawfully alienated his latter’s share for any purpose whatsoever.

In Ahmadullah V. Hafizuddin Ahmed, the validity of the power of

the guardian to transfer his ward’s property for the sake of his education was in question. The
Gauhati High Court held, in the present state of our society, which is rapidly advancing in all
directions, education up to the higher secondary stage cannot be said to be extravagant so as
to be excluded from maintenance.

(2)Guardian appointed by the Court: In absence of legal guardians, the duty of

appointing a guardian for the protection and preservation of the minor’s property fall in the
Court.

While appointing a guardian the Court takes into consideration the welfare of the minor
and, as such, may appoint mother instead of paternal uncle, as the guardian of the property of
the minor. The Court also takes into consideration the will of the father. If the mother is
appointed the guardian, the fact that she is a father pardanashin lady will not be considered
as an objection to the appointment. The Court must pay due regard to the regard to the wishes
of the minor’s father and the interest and the welfare of the minor, whatever that may be in a
particular case and guardian must be appointed with due regard to these two considerations
by the Court. Without the previous permission and sanction of the Court a guardian of the
property appointed by the Court:

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 i. Charge the immovable property of the minor;
ii. Mortgage;
iii. Transfer by sale;
iv. Transfer by gift;
v. Exchange; and
vi. Lease any part of the immovable property for a term exceeding 5 years or for any
term extending more than one year beyond the date with the ward will cease to be a
minor.

Thus he can lease the immovable property even without the permission of the Court:

i. For a term not exceeding 5 years, or

ii. For a term not exceeding more than one beyond the date on which the minor will
cease to be minor, whichever is shorter.

If such guardian alienates the minor’s property in contravention of the provisions, given
above, such alienation will be voidable at the instance of the minor or any other person
affected thereby. Permission for such alienation as given above must not be granted by the
Court except in the case of necessity or for an evident advantage to the ward.

Power of legal guardians regarding movable properties: Legal guardian of the

property of a minor has power to sell or pledge the goods and chattels of the minor for the
minor’s imperative necessities, such as, food, clothing and nursing and de facto guardian has
guardian has similar rights. But guardian appointed by the Court has larger powers.

Such a guardian is bound to deal with the property as carefully as the man of
ordinary prudence would deal with it as if it were his own.

(3)De facto guardians: A person, who is neither a legal guardian, nor a guardian
appointed by the Court but has voluntarily placed himself in charge of the person and
property of the minor, is known as de facto guardian. A de facto guardian is a mere custodian
of the minor’s person and property but has no right over either. He has only responsibilities
towards the minor’s person or property or both but no rights in respect thereof. Usually de
facto guardians are relatives of the minor but without right to be the guardian under Islamic
law unless appointed by will or by the Court. He is thus an officious intermedler (Fazooli)
with the minor’s property and has no status or position to alienate it without Court’s
permission.

Legal guardians and guardians appointed by the Court de jure guardian. The
mother, brother, uncle and all relations other than the father and father’s father are de facto
guardians unless they are appointed executors by the will of the father or father’s father or
appointed guardians by the Court.

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No power to alienate immovable property: The position of de facto guardian is quite
different from that of the legal guardian and guardian appointed by the Court. He has no
power or authority to alienate the minor’s property. An alienation of minor’s immovable
property without the authority of the authority of the Court by a de facto guardian is
absolutely void.

a. He cannot refer any dispute regarding the immovable property of the minor to any
arbitration;
b. He cannot give consent on behalf of the minor so as to validate a bequest to his co-
heirs;
c. He cannot enter into a contract of partnership or to allow the continuance of the
partnership business dissolved by the death of the minor’s father;
d. He cannot bind the minor by executing a bond in lieu of his father’s debts;
e. He cannot make agreements on minor’s behalf for even purchase of immovable
property.

In Imambandi’s case, where one Zohra, a widow of one Ismail Ali Khan, conveyed the
shares of herself and her minor children, for Rs. 10,000 and the sale was opposed in a suit by
the two other widows and children, it was held that a de facto guardian has no power to
convey to another any right or interest in the immovable property which the transferee can
enforce against the infant; nor such transferee, if let into possession of the property under
such unauthorised transfer, resist an action in ejection as trespasser, on behalf of the infant.

Alienation, not only voidable but void: A sale by a de facto guardian of the minor’s
immovable property without courts permission is void and not merely voidable. The question
of ratification by the minor or attaining majority does not arise as the alienate is void in its
inception.

If a minor seeks to assail the legality and binding nature of the alienation made by a
de facto guardian, it is always open to him to avoid the contract as being void. But when it is
not open to the third parties to impugn the alienation.

Testamentary guardianship in property: Quran specifically provides for the

appointment of a testamentary guardian. Father and father’s father are competent persons to
be appointed by will a guardian of the property of their minor sons and grandsons
respectively. Under Shia Law the testamentary guardian or executor must be major, sane,
professor of Islam and of good character.

It is, however, not clear whether in the presence of grandfather, the father
possess the capacity to appoint a testamentary guardian. In Mst. Atkia Begum V.
Muhammad Ibrahim. It was held that in the presence of grandfather, the father has no
right to appoint a guardian.

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(4)Alienation of movable property: A de facto guardian has the same power
to sell and pledge goods and chattels of the minor in his charge for the charge for the minor’s
imperative necessities, such as food, clothing, or nursing as a legal guardian of his property.

(5)Removal of guardian: A guardian whether de jure or de facto is removable by

the Court if it is necessary in the interest of the minor. The Court may on the application of
any person interested, or on its own motion, remove a guardian appointed or declared by the
Court, or a guardian appointed by will or other instrument, for any of the following causes:

1. Abuse of his trust;

2. Continued failure to perfume the duties of his trust;
3. Incapacity to perform the duties of trust;
4. Ill-treatment, or neglect to take proper care his ward;
5. Continuous disregard of any provision of the Guardians and Wards Act, or any
order of the Court;
6. Conviction of an offence implying, in the opinion of the Court, a defect of character,
which unfits him to be the guardian of his ward;
7. Having an interest adverse to the faithful performance of his duties;
8. Ceasing to reside within the local limits of the jurisdiction of the Court.
9. In the case of a guardian of the property, for bankruptcy or insolvency.
10. By reason of guardianship of the guardian ceasing or being liable to cease, under the
law to which the minor is subject.

Thus, it is obvious that a guardian appointed by the Court may for sufficient reason be
removed or he may resign. In a fit case, the Court is entitled to appoint a person other than
legal guardian if the legal guardian is, in the opinion of the Court, unfit for the responsible
guardianship.

Duty to support: This is the duty of the guardian to support his ward. He should take full
care of the health, education and such other matters as the law to which the ward is subject
requires.

Use of force to defend minor: This is the duty of the guardian to take all necessary steps
to protect an infant child. He can use force to defend his ward.

Duty to file suits: This is the duty of the guardian to file a suit on behalf of the minor.
Order 32 of the Civil Procedure Code says that where a minor has a guardian appointed or
declared by competent authority, no person other than such guardian shall act as the next
friend of the minor or be appointed his guardian for the suit.

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Duty for arranging the marriage of the ward: This is the duty of the guardian to make
necessary arrangement for the marriage of his ward. It is doubtful whether the guardian is
bound to arrange marriage of his ward.

Control of guardian by the Court: The Courts are fully competent to regulate the
conduct and proceedings of a guardian of the minor’s person, appointed or declared by the
Court.

Rights to control the acts of the ward: A guardian possesses the right to control acts and
conduct of the ward. The father of the minor also possesses the right to inflict correction on
the child if he feels that the ward is not obeying his reasonable orders.

Duty of the father to take charge: A father is the natural guardian. However, at the same
time mother of the child has been given right to keep the child with her up to certain age.
After crossing that age, father of the child is bound to take proper care of the child.

Duty of the guardian not to use ward’s property: This is the duty of the guardian not
use ward’s property. This is his duty not to make any profit out of the property of the minor.
A guardian is not expected to make profit by selling his own property to minor.

Duty to take proper care: This is also the duty of the guardian to take proper care while
dealing with the property of the minor. He is bound to deal with it as carefully as a man of
ordinary prudence would deal with it.

Right of pre-emption: This is the discretion of the guardian to exercise or refuse to

exercise the right of pre-emption on behalf of the ward.

Duty to maintain proper accounts: This is the duty of the guardian to maintain proper
accounts of all the receipts and expenditure incurred by him.

6.Cessation of the authority of guardianship: The powers of a

“guardian of the person” cease:

1) By his death, removal or discharge;

2) By the Court of Wards Assuming superintendence of the person;
3) By the ward ceasing to be a minor;
4) In the case of a female ward, by her marriage to husband who is not unfit to be
guardian of her person;
5) In the case of a ward, whose father was unfit to be the guardian of the person of the
ward, by the father ceasing to be so.

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The powers of the “guardian of the property” cease:

1. By his death, removal or discharge;

2. By the Courts of the Wards assuming superintendence of the property of the wards.
3. By the ward ceasing to be minor.

7.Comparison of Sunni and Shia Laws relating to Guardianship

a) In Sunni Law, besides the father and true grandfather there are several relations who
are guardians for marriage. In Shia Law only guardians for marriage are father and
true grandfather.
b) In Sunni Law marriage by guardians other than father and grandfather may be
repudiated after attaining majority. In Shia Law, such marriage was wholly ineffective
till it was expressly ratified.
c) In Sunni Law mother is the guardian of the person of her son up to the age of 7 and of
her daughter up to puberty. In Shia Law mother is guardian of the person of the son
up to the age of 2 and of her daughter up to the age of 7 years.

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