Health Care Law at Nepal
Guardianship under Muslim Law
In Muslim law, the concept of guardianship (known as "wilayah" or "custody" in Islamic jurisprudence) pertains to the care, upbringing, and management of a minor’s personal and property rights. The guardian is responsible for ensuring the well-being of the minor, both in terms of physical care and legal matters. The Islamic law regarding guardianship is influenced by religious texts (Quran, Hadith) and the interpretations made by various schools of thought, which can slightly differ in some instances.
Muslim law provides distinct categories of guardianship for personal care and custody of a child (called hizanat) and the management of the child’s property (called wilayah).
1. Types of Guardianship in Muslim Law
Muslim law recognizes two broad categories of guardianship:
Guardianship of Person (Hizanat): This refers to the right and responsibility to look after the minor's personal care, custody, and upbringing. This includes the child’s physical, emotional, and educational needs.
Guardianship of Property (Wilayah): This refers to the management of the minor’s property, ensuring that the minor’s property is protected, invested prudently, and not misused. This includes managing both movable and immovable property.
2. Guardianship of Person (Hizanat)
The guardianship of person primarily deals with custody and care of the child. The rules regarding the custody of a child under Muslim law are not as rigid as those under Hindu law. In Muslim law, custody depends on various factors like the age of the child, gender, and the capacity of the guardian to provide care.
Who is the Guardian of the Person?
Mother’s Custody (Hizanat): In Muslim law, the mother has the first right of custody of her children, particularly sons and daughters under the age of 7 years (or up to the age of discretion). The mother is considered the primary custodian because of her ability to provide for the emotional and physical well-being of the child.
The mother has custody even if the father is alive and capable, provided she is in a fit condition to take care of the child.
For daughters, the mother retains custody until they reach puberty (the age of maturity, or baligh).
For sons, the mother can retain custody until they are around 7 years old, after which custody may be transferred to the father or another relative, as per the father’s right of guardianship.
Father’s Right: Once the mother’s right of custody ends (when the child reaches the age of discretion or maturity), the father becomes the natural guardian and can request custody of the child. The father’s right is considered secondary to that of the mother during the early years of a child's life but becomes primary once the child matures.
Other Relatives: In the event that the mother is unfit, or if she remarries, or if she is unable to take care of the child due to illness or incapacity, the father or other male relatives such as paternal grandparents may be appointed as the guardian of the child.
Key Principles:
The best interest of the child is a guiding principle in determining the guardianship of a child.
Mother generally has primary custody for sons up to 7 years and for daughters up to puberty.
Custody can be modified by the court, especially if either parent is deemed unfit or incapable of providing appropriate care.
The Role of the Guardian of Person:
The guardian of the person is responsible for:
The day-to-day care of the minor (physical, emotional, and educational).
Looking after the child's health, education, and moral development.
Providing for the child's basic needs, such as food, shelter, clothing, and emotional support.
The custodian does not have the right to dispose of the child’s property (which is separate from guardianship of property).
3. Guardianship of Property (Wilayah)
Guardianship of property refers to the management and protection of the minor’s financial interests. This involves managing the minor’s property, making investment decisions, and ensuring that the child’s assets are not misused.
Who Can Be a Guardian of Property?
Father: The father is generally the natural guardian of the minor's property and has the right to manage and protect the minor’s assets. This right can be exercised until the child attains majority, which is 18 years in India.
Paternal Grandfather: In the father’s absence, the paternal grandfather can act as the guardian of the minor’s property. The paternal grandfather's rights are typically secondary to the father’s rights.
Mother: The mother may be considered a guardian of the property in the absence of both the father and the paternal grandfather, but her role is secondary to that of the father or paternal grandfather.
Court Appointed Guardians: In cases where there is no clear natural guardian (i.e., the father and paternal grandfather are both deceased or unfit), the court may appoint a guardian for the property of the minor.
Powers of Guardians of Property:
The guardian of property is responsible for managing and safeguarding the minor's assets.
The guardian must act prudently in managing the property and may need court permission to sell, transfer, or dispose of any immovable property belonging to the minor.
The guardian has no right to misuse the minor’s property for their own personal benefit.
Key Principles:
The guardian of property is entrusted with the duty to protect the child’s inheritance and manage it responsibly.
They are required to use the minor’s assets for the child’s benefit (such as education, healthcare, etc.).
The guardian must seek court approval before taking any action regarding the sale or transfer of property, especially immovable property.
4. Guardianship of a Female Child
For a female child, the mother retains custody until the age of puberty. After puberty, the father becomes the primary guardian of the person and property.
The father has the right to make important decisions regarding the child's marriage and property.
In some cases, the court can override the father’s decisions if the child's welfare is at risk, especially in matters like forced marriage or neglect.
5. Judicial Intervention in Guardianship
While Muslim law provides for the natural guardianship of parents, judicial intervention is often required in cases of disputes between the parents, or where one parent is unfit to act as the guardian due to factors such as:
Mental illness
Criminal conviction
Inability to provide proper care
Under Indian law, particularly after the Guardian and Wards Act, 1890, the court can intervene and appoint a guardian in the best interest of the child, even if the parents are contesting the guardianship.
The welfare of the child is the paramount consideration in such decisions.
Court-appointed guardians may be either a parent, a relative, or any person deemed fit by the court.
6. Difference Between Guardianship and Custody
Guardianship (in the context of Muslim law) refers to the overall responsibility for the child’s well-being and the management of their property.
Custody refers specifically to the care and physical custody of the child, which includes day-to-day responsibilities like education, living arrangements, and healthcare.
While guardianship encompasses both personal care and property management, custody focuses mainly on the child’s immediate well-being.
Conclusion
In Muslim law, guardianship of a minor is split into two key aspects: guardianship of the person (related to the child’s care and custody) and guardianship of property (related to the management of the child’s assets). The father generally holds primary responsibility for the child’s property, but the mother is the primary custodian for young children, particularly sons under 7 years of age and daughters until puberty. Courts can intervene in cases of disputes or if a parent is unfit, with the welfare of the child being the paramount consideration.
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