What Is Guardianship under Muslim Law

April 15, 2022

The general supervision of the minor`s personality is the responsibility of guardianship. This includes protecting the rights of minors, taking care of all their needs and advocating for the well-being of the minor. The guardian then has the responsibility to maintain all these things for the well-being of the minor. Guardianship is not just the custody of a child until they grow up, but it is much more than that. According to Muslim law, the practice of guardianship is known as “HIZANAT”[2]. The two concepts of custody and guardianship are different under Muslim law and different laws are used to regulate the fact that they are both. A father or his tenant, or if both are absent, then the paternal grandfather is the natural guardian of the minor and the minor responsible to the minor. In case of failure of the mother, the custody of the boy under seven years of age and a girl who has not yet reached puberty (Hanafi school) falls to these female parents in the following order:- i. Mother of mother ii.

Mother of father iii. Complete Sister IV. Uterine sister vs. full sister Daughter vi. Uterine sister Daughter VII. Aunt on the maternal side VIII. Aunt on the paternal side A de facto guardian is a person, who is neither a legal guardian nor a testamentary guardian, but who has himself considered the custody and protection of a child. According to Tyabji, “A de facto guardian means an unauthorized person who actually has custody of a minor`s person or property. A de facto guardian could be a person who has no authority over guardianship, but who has assumed the responsibility of acting as guardian of a minor in the circumstances. “The de facto guardian is responsible for the welfare of minors as well as his property, but there are no rights against the minor and his property.7 The sale of a minor`s immovable property without the authority of the court by a de facto guardian is absolutely void. The article was written by Shreya Pandey of Banasthali University, Jaipur. The article analyzes the different guardianship provisions for a child under various personal laws such as Hindu law, Muslim law, etc.

A guardian is a person who has consideration for the person of a minor or his property, or both. The Qur`an is the premise of the law in terms of guardianship, and therefore, there is virtually no room for contrasts between Sunni and Shia schools. Guardianship of a child involves general supervision of the child by his or her minority. The natural guardian is defined as the first legal guardian of the minor. According to various schools of Muslim law, the father is considered the natural guardian of the minor. The right of the father to act as guardian is an absolute right granted to him under the substantive law of Islam. The father is known as the minor`s natural guardian, but in his absence in place of the mother, the grandfather has the power to act as the minor`s guardian. If both are not present or dead, any executor appointed by one of them can act as guardian. A minor cannot be represented by the grandfather if the father is still alive. 2. Guardianship of the minor`s body – This type of guardianship (hizanate) is studied in terms of the age of the minor and the relationship status with the guardian.

(iii) De facto guardian A de facto guardian is a person who is neither a legal guardian nor a court-appointed guardian, but who has intentionally been responsible for the body and property of the minor. He is a mere guardian of the person and property of the minor, but has no rights over both. [9] Normally, de facto guardians are parents of the minor, but under Islamic law they do not have the right to be the guardian unless they are appointed by will or by a court. It is therefore an official interference (fazooli) in the property of the minor and has no status or position to alienate him without the authorization of the court. [10] Tahir Mahmood defines guardianship in Muslim law as “the guardianship of a child by a person belongs primarily to his or her father, the mother being only a right of first refusal to keep the father away for a legally prescribed period of time only from a certain aspect of the guardianship of the person, namely the custody and physical education of the child.” Under Muslim law, the guardianship of minors is known as hizanate. .

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