Guardianship under Muslim Law

The word Guardian comes from the Arabic word Hijanat. The word hijanat means to nurture, supervise and take responsibility. Guardian means the person who has the custody of a minor or the minor's person, property or both and minor means the person who is under someone's guardianship over it's person or property or both.

Sections 348-368 of the Muslim Law and the Guardianship and Wards Act, 1890 deal with minor and guardianship. Generally, guardianship is considered in relation to the minor's person, property and marriage. Muslim Law refers to a minor who has not reached the age of 15, while in other laws a minor refers to someone who has not completed the age of 18 years. Note that if a guardian has been appointed for the person and property of a minor, he or she will be considered a minor until the age of 21 years. (Section-348).

Now let's see who is suitable as a guardian of a minor's person, property and marriage in Muslim Law:
First, a mother is only a de facto guardian of the child. The mother is entitled to the custody of her male child till the child attain the age of seven year and in case of female child till the child attains the age of puberty. But she is not the natural and legal guardian. Rather the father or grandfather or their appointed executor is the lawful and legal guardian (Section-352). After the death of the mother or if the right to 'mother' is lost due to any logical reason, the responsibility of guardianship falls on the female members among the minor's relatives viz grandmothers, sister and other closest relatives(Section-353). On the other hand, women of other close relatives, including mothers, lose custody or guardianship for various reasons. For example; If the guardian marries any person who the minor is not related, moves away from the residence of the parents, engages in immoral life, does not take proper care of the minor, converts to another religion, prevents the father from approaching the minor (Section -354). Apart from that, father's right of custody arises after the age of 7 years of the son and the puberty of the daughter. This right extends to the grandfather in the absence of the father and in grandfather's absence, it extends to the males among other nearest relatives.

Provided in this case, no man shall be entitled to the custody of an unmarried girl, unless he is related to the girl by the prohibited step under Sections 260-261 of the Muslim Law (Section-355). It should be noted that often the father and other male relatives lose the custody due to the same reason for which mothers or other immediate female relatives lose that. In the absence of the father or nearest male relative, the responsibility of appointing a guardian rests with the court (Section-357). Apart from this, the mother of the minor wife is suitable as her guardian (Section-356).

Secondly, property of minors:
In respect of property, the father and grandfather of the minor are the lawful and legal guardians and in their absence, their appointees can also be appointed guardians (Section-359). Such a guardian can transfer the movable and immovable property of the minor without the permission of the court (Section-362 and 366). For the benefit of the minor, in the absence of a lawful and legal guardian, the court may appoint any person on behalf of the paternal or maternal family of the minor as guardian of the property (360) and such guardian shall not, without the permission of the court, transfer the movable and immovable property of the minor for lawful reasons (Section-363). On the other hand, in the case of immovable property, a guardian shall look after the property of a minor in the same way as he looks after his own property (Section-367).

Apart from that, sometimes someone who voluntarily takes custody of the person and property of a minor, despite not being a legal guardian, is called a de facto or de facto guardian (Section-361). Such a guardian also has no power to transfer the property of the minor (Section-364) and in respect of movable property the power of such a guardian is equal to that of a legal guardian (Section-368).Thirdly, minor marriage: In the case of marriage between minors, also, the father, the grandfather, however ascendant, prevails over them. In their absence, it falls on the relatives of the matrilineal family (Section-271). However, under-age marriage is a legally punishable offense under current law.

Any person may apply to the Family Court for appointment of guardian for the person and property of the minor (Section-349). The court orders the appointment of a guardian of the person and property of the minor after considering the above mentioned factors including the applicant's physical and mental fitness to perform the duties of guardian, character and temperament, financial condition and overall well-being of the minor (Section-350-351).

Finally, guardian's role is immense in making a minor a worthy heir. The duty of a guardian is to take proper care of the person and property of the minor with the aim of establishing him/her as a real person in the society.

Author: Advocate, Bangladesh Supreme Court.