Guardianship Of A Person And His Property Complete Notes

Guardianship ; is of property ; of person ; or in marriage
Minor     ;   A minor is a person under the age of 15 in  Islamic law and who can not protect his welfare and interest , in Islamic law minor between the ages  of  any guardian in marriage .
Important To Note ; All application for the  appointment of the Guardian of the person or of the property or of both  of a minor must be made under the provision of the guardian and the ward act 1890. For the appointment of the guardian the court will look the interest of the minor by age, sex and religion of the minor,  by the character and the capacity of the proposed guardian   and the prefrence of the minor himself.
Mother As Guardian,
The custody of an infant child belong to the mother, the mother is entitled in hanifi law to the custody of a male child under the age of seven  and of her female  child till the age of puberty .
When a Minor act as Guardian 
A  Minor cannot act as a guardian except in the case of his own wife or child .

Disqualification Of  Mother 

The mother of a child will be disqualify from guardianship in the following case

1   Marry with 2nd Husband
2   Leading immoral Life
3 Neglect to proper care of her child

guardianship Of Other Relatives In Case Of Disqualification  Of Mother



failing the mother by absence or disqualification the following female relation or entitled to the custody in order of  priority

1  Mother's Mother how so high ever

2  Father's Mother how so high ever

3 Full sister and the female relations including aunts


Failing the mother and female relation a, the following relation are entitled to the custody of a Muslim child  in order of priority

1 the father

2 nearest paternal grandfathers

3 consinguine brother and other paternal relation

4 full brother

if the child is female the relationship goes to the nearest male paternal relatives with in the prohibited degrees .

guardianship Of Property 

In islamic  law the father is the guardian of the minor's property failing him , in order of priority , the following are entitled

1  the father's Executer

2 the father's fathers

3 the paternal grandfather Executer

these are the legal guardian of the property  of the minor , it must emphasized that the substantive law of Islam does not recognize any other relatives, such as mother , the uncle or brother , etc. as legal guardian, but they may be appointed by the court

Guardian Appointed by the court

failing the above the court is entitled to appoint a guardian and in the exercise of his judgement , It may appoint the mother or some other person as guardian , a women can be also appointed


Dejure  And difactio  gaurdian 

A person not being a legal guardian  with the authority of the Guardian by the court,  place himself in the position of the guardian by intermeding  with the property of the minor such a person is defacto guardian , as distinguished from the dejure guardian who are the legal guardian and guardian appointed by the court such defacto guardian or mere custodian of the person or the property of the minor , have no right but only obligation , Neither the mother , Nor the brother nor the uncle can with out he authority of the court deal with the property of the minor.

Termination  Of Guardianship

No person is entitled to the custody of a child after he has attained puberty ,
a person appointed by the court may for sufficient reason  be removed or be resign .


Difference Between Ward and  Minor

When a guardian of a minor is appointed under guardian and ward act 1890  will be called a  Ward ,
While a person have no guardian is Known as Minor