Muslim law recognises following kinds of guardians:
(1) Natural or legal guardian,
(2) Testamentary guardian,
(3) Guardian appointed by Court or statutory guardian, and
(4) Defacto guardian.
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1. Natural Guardians:
Natural guardian is a person who has a legal right to control and supervise the activities of a child. Father is recognised as the natural guardian of his child under all the schools of Muslim law. The father’s right to act as guardian of the minor is an independent right, and is given to him under the substantive law of Islam. Natural guardian is also called Dejure or the legal guardian.
As stated above, only father is the natural or legal guardian of his child. But in the absence of father, the father’s executor may also act as legal guardian. Executor is a person who is appointed by father or grandfather to act as guardian of his minor child on his behalf.
In the absence of father or his executor, paternal grandfather or paternal grandfather’s executor acts as legal guardian. Thus, the natural (or legal) guardians of a minor, in order of priority, are as under:
(ii) Executor of father.
(iii) Paternal Grandfather.
(iv) Executor of paternal-grandfather.
Under Muslim law, in the absence of any of the above mentioned persons, nobody else is recognised as the natural or legal guardian of a minor.
According to Shia law, in the absence of father only paternal grandfather may act as natural or legal guardian. Father’s father is known as paternal- grandfather. Thus, in presence of paternal grandfather, the father’s executor has no right to act as legal guardian of a child.
2. Testamentary Guardians:
Testamentary guardian is a person who is appointed as guardian of a minor under a will. Only father or, in his absence, paternal grandfather has right to appoint a testamentary guardian. No special formality is required for the appoitntment of a testamentary guardian but, as is obvious, such a testamentary guardian must be competent to act as guardian. That is to say, he should be adult and sane person. A non-Muslim and a female may also be appointed as a testamentary guardian.
A non-Muslim cannot be appointed as testamentary guardian.
3. Guardians Appointed by Court:
In the absence of a natural and testamentary guardian, the court is empowered to appoint a guardian for the protection of the minor’s person or property or for both. The appointment of guardians by court is governed by the Guardians and Wards Act, 1890 which is applicable to all the Indians irrespective of their religion. In India, the courts appoint the guardians for minor’s person or property under this Statute. Therefore, such guardians are also called Statutory Guardians.
It may be noted that no provision has been made under this Act for the guardianship for marriage. The result is that except the guardians for marriage, the guardians for a Muslim minor’s person or property may be appointed by a court of law.
In some cases, there may be a conflict between Muslim personal law and the Guardians and Wards Act. In cases of such a conflict, provisions of the Guardians and Wards Act will prevail over the provisions of Muslim personal law. Court here means court of the District Judge.
The courts are empowered to appoint the guardians for a minor upon an application. Such application may be made by any of the following persons:
(i) Any person desirous of being or claiming to be the guardian of the minor, or
(ii) Any relative or friend of the minor, or
(iii) The Collector of the district in which the minor generally resides.
If the court is satisfied that it is for the welfare of the minor that an order should be made, then it may make an order:
(a) Appointing a guardian of minor’s person or property, or both, or
(b) Declaring a person to be such a guardian.
Section 17(2) of the Act provides that in considering the welfare of a 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, of a deceased parent and any existing or previous relations of the proposed guardian with the minor or his property.
Moreover, if the minor is old enough to form an intelligent preference the court may consider that preference too. It may be noted that although the Act lays down a uniform rule for the guardianship of all the persons in India irrespective of religion, yet the religion and the personal law of the minor may be taken into account while appointing a guardian.
In Smt. Farzanabai v. Ayub Dadamiya, the Bombay High Court observed that under Guardians and Wards Act, the personal law of the parties is a factor which is to be kept in mind by courts subject to the interest of the child. However, as the central idea should be the welfare of the minor; therefore, the rules of Muslim personal law may be considered by the court only where they are conducive to his welfare.
4. De-Facto Guardians:
A de facto guardian is a person who is neither a legal guardian nor a testamentary or statutory guardian, but has himself assumed the custody and care of a child. According to Tyabji a de facto guardian means an unauthorised person who, as a matter of fact (defacto) has custody of the person of a minor or of his property. It may be said that a defacto guardian is a person having no authority for the guardianship but under the circumstances has taken the responsibility to act as the guardian of a minor.