The guardianship is a fundamental right of a child since, due to their young age and lack of mental maturity, they are incapable of managing their affairs. Islamic law establishes guardianship as a means to oversee the affairs of minors, encompassing custody, marriage, and property guardianship.
The guardianship of a minor involves overseeing the child’s overall well-being and development, encompassing their maintenance and welfare. In Muslim law, this concept is known as “Hizanat,” which is distinct from custody despite sometimes being perceived as the same. Under Muslim law, these two aspects of guardianship are separate and governed by different laws. Guardianship involves complete supervision of the child until they reach adulthood. In the absence of the father or his appointed representative, the paternal grandfather, being the natural guardian, assumes responsibility for the minor. On the other hand, ‘custody of the child’ refers simply to physical possession or care of the child up to a certain age. While the mother is not the natural guardian in Muslim law, she retains the right to the child’s custody until the child reaches a specific age. However, the father or paternal grandfather maintains authority over the minor throughout their childhood.
Hence, it can be asserted that the mother possesses a right to care for her child during a specific duration since, during infancy, she is the most capable of tending to and nurturing the child. However, her custody of the child is regulated by the father, who, as the legal guardian, is obligated to provide the necessary resources for the child’s upbringing.
Defining the Role of a Guardian
The Guardians and Wards Act, 1890 defines a ‘guardian’ as someone responsible for the care of a minor’s person, property, or both. The Quran forms the basis of guardianship laws, leaving minimal divergence between Sunni and Shia schools. ‘Guardianship’ (Wilayat) signifies the supervision and care of a child throughout their minority.
Defining Minority in Legal Terms
A minor is defined as an individual who hasn’t reached the age of majority. According to Muslim law, reaching maturity aligns with attaining puberty. Upon completing the fifteenth year, it’s presumed that puberty and the majority are achieved. At this stage, they gain autonomy in matters concerning marriage, dowry, and divorce. As per the Child Marriage Restraint Act of 1929 (amended in 1978), the minimum marriage age is 21 for males and 18 for females. The Indian Majority Act grants the right to manage one’s status and property upon reaching puberty, significantly altering legal entitlements.
Muslims adhere to the Indian Majority Act, which designates 18 years as the age of majority concerning guardianship of persons and property. Consequently, minority ceases at 18 years regarding matters like wills and waqfs. However, in all other aspects, an individual remains a minor until reaching 18 years. During this period, the court, under the Guardians and Wards Act, can appoint a guardian for their person or property or both. This appointment extends minority status until the individual reaches 21 years of age.
Present Status of Inherent Guardianship in Muslim Law
Across all branches of Muslim law, the father holds the position of a guardian for a minor, akin to a natural guardian. Conversely, the mother, in all schools of Muslim law, isn’t acknowledged as a guardian, whether natural or otherwise, even in the event of the father’s passing. The father’s right of guardianship exists irrespective of the fact that the mother, or any other female, is entitled to the custody of the minor. The father retains the authority over aspects like upbringing, education, and the religious upbringing of the minor. As long as the father is alive, he remains the exclusive natural guardian of his minor legitimate children. However, this natural guardianship right is limited to legitimate offspring; the father doesn’t hold guardianship or custody rights over his minor illegitimate children in Muslim law. Conversely, the mother is entitled solely to the custody, not guardianship, of her minor illegitimate children under Muslim law. Therefore, despite carrying the child for months during pregnancy, a Muslim woman is regarded as a custodian for a specific duration and not recognized as the natural guardian of her child.
Within the Sunnis, the father holds sole recognition as the natural guardian of minor children. Upon the father’s passing, guardianship transfers to the appointed executor chosen by the father himself. Among the Shia sect, after the father, guardianship of minors shifts to the grandfather, regardless of any executor designated by the father. The executor appointed by the father can assume the role of natural guardian only if the grandfather is absent. No other individual, including the father’s brother, is entitled to natural guardianship. In the grandfather’s absence, guardianship is granted to the appointed executor of the grandfather, if there is one.
The mother holds an entitlement to
A. According to Hanafi law, the mother is entitled to the custody of a female child until she reaches puberty and a male child until he reaches 7 years of age.
B. In Shia law, the mother’s entitlement extends to the custody of a female child until she reaches 7 years old and a male child until he reaches 2 years old.
The mother retains the right of custody even after divorce, but this right ceases upon her remarriage. On the other hand, the father’s remarriage does not terminate his right to guardianship.
The consequences for the mother due to her lack of natural guardianship
A. She doesn’t have the right to relocate the child without the father’s consent, even when she has custody rights.
B. The mother serves as a de facto guardian in contrast to the father’s role as a de jure guardian. However, she lacks entitlement to manage or conduct any transactions related to the minor’s property, whereas the father possesses the freedom to do so for the child’s upkeep.
C. She doesn’t have the authority to impose legal obligations on the child. The father holds all legal rights to determine the child’s future, including education, schooling, health, marriage, and more.
An illegitimate child is legitimately affiliated with neither parent and is, in essence, considered filius nullius. However, to ensure proper care and well-being until the age of 7, the child should remain in the custody of the mother. Until reaching that age, the child can choose from which parent to receive care or live separately.
In a specific case involving Gohar Begum, an unmarried Muslim mother, and her daughter Anjum, who was acknowledged by a Hindu man named Trivedi, the Supreme Court ruled that, according to Mohammedan law, the mother of an illegitimate daughter holds the right to custody. Refusal to return the child to her mother, as in the case of Anjum, was considered unlawful detention by the Supreme Court, leading to Anjum being handed over to her mother as per the court’s order.
Denial of Natural Guardianship Rights Under Muslim Law and Its Conflict with Article 14
Fundamental rights of citizens cannot be superseded by any personal law. The conclusions drawn from the precedents set in the cases of Shayra Bano v. Union of India and Indian Young Lawyers Assn. v. The State of Kerala also supports this notion. Personal laws can be contested through judicial review and may be deemed void if they contravene the Constitution.
“LEX SUPREMA” emphasizes the supremacy of the law of the land. From the aforementioned points, it’s evident that Muslim women face inherent inequality based on their gender. Article 14 of the Constitution specifically prohibits arbitrary discrimination, ensuring fair treatment for all individuals under similar circumstances. Additionally, the argument contends that equality should not be a mere slogan but a tangible reality for all. Therefore, the plea is made for granting Natural Guardianship Rights to Muslim women, aligning with the constitutional principle of promoting equality among all individuals.
The involvement of women in guardianship is typically relegated to a secondary role, primarily limited to custody matters. Conversely, decisions about a minor’s property are deemed to require higher competence and judgment, thereby exclusively vested in the guardian—typically the father—establishing him as the primary natural guardian. The time has arrived for both parents, the father and mother, to be acknowledged as equal guardians, similar to the provisions introduced in the Personal Laws (Amendment) Act of 2010 regarding adoption. The persistent disparity within various personal laws, differentiating between genders, infringes upon fundamental rights and contradicts the constitutional preamble, which guarantees equal treatment for all individuals. This incongruity remains despite 27 years of independence, highlighting the absence of a uniform civil code, which is particularly striking given the nation’s emphasis on secularism, progress, and modernization. This persistence of discriminatory personal laws opposes the spirit of national integration and secularism.
Aditya Pratap is a lawyer and founder of Aditya Pratap Law Offices. He practices in the realm of real estate, corporate, and criminal law. His website is adityapratap.in and his media interviews can be accessed at http://www.youtube.com/@AdityaPratap/featured. Views expressed are personal.
This article has been assisted by Shubh Kumar, 5th year law student pursuing a B.A.LL.B.(Hons.) from Amity Law School, Lucknow