To begin with, one has to bear in mind that there are two types of guardianship over a minor: –
1. Wilayah or guardianship of the property and education and marriage of the ward
2. Hizanah or guardianship over the rearing and bringing up of the child.
Guardians are appointed in the following manner: –
1. by natural right, or
2. by testament, or
3. by appointment by a judge
Neil B.E. Baillie in his ‘Digest of Moohummadan Law‘, which is a condensed presentation of the Hanafi code of jurisprudence (Fatawa-e-Alamgiri — page xxxiii of the Introduction), treats these three methods of appointment in this way: “Of Guardians there seems to be two kinds the lineal and the testamentary guardian. The powers and duties of the former are limited to the marriage of his ward, and of the latter to the care of his person and property. The testamentary guardian does not appear to be distinguished from the ordinary executor. No executor has authority to contract minor in marriage, unless he happens to be the lineal guardian also.”
Guardianship for purposes of marriage:
Guardianship for the purpose of marriage is allowed because of the necessity for a proper and suitable match which may not always be available. Guardianship extends to the father and grandfather and other relations in their absence.
But when a minor is given in marriage by a guardian, other than the father or the grandfather, he or she can, in exercise of what is called the option of puberty, refuse to be bound by the marriage and ask the court to annul the marriage.
If the guardian was the father or grandfather, a legal presumption is raised that they must have acted in the best interest of the minor. The presumption is, however, not conclusive and such a marriage can also be set aside in certain cases where it is plainly undesirable, and injurious to the minor.
There is a difference of opinion among the Hanafis as to the circumstances under which a marriage contracted by the father can be set aside. The accepted view seems to be that if the father was not a man of proper judgment and was of reckless character and married his minor daughter to a man of immoral habits, it is liable to be set aside.
Abu Yousuf and Muhammad go further that an evidently unequal or undesirable marriage or marriage for less than a proper dower of a minor female or an excessive dower for a minor male is not valid, but Abu Hanifa does not share this view.
Guardianship for purposes of management and preservation of property:
The guardianship of a minor for the management and preservation of his property devolves (1) first on his or her father, (2) then on the father’s executor, (3) next on the paternal grandfather, (4) then on his executor, (5) then on the executors of such executors, (6) finally on the ruling power or his representative — a Qazi or judge. Ultimately it rests upon the Qazi to appoint a guardian for an infant’s property when there is no near guardian (i.e., the father, the father’s father and their executors). The other paternal kinsmen who are termed ‘remote kindred’, and the mother succeed, according to proximity, to the guardianship of an infant for the purpose of education and marriage.
They do not have the right to be guardians of the minor’s property unless appointed to do so by the ruling authorities, or unless appointed to be a guardian in the original proprietor’s Will, which has been duly attested by competent witnesses. If the mother remarries, she forfeits her right to guardianship. However, she can regain this right should she become divorced again and has thus returned to widowhood.
In case of default of the mother as well as the paternal kindred of a minor, the minor’s maternal relations (according to proximity) are entitled to guardianship for the purposes of education and marriage, and not management of the ward’s property, unless appointed in the late owner’s Will or by the Qazi.
The general rule is that a guardian, executor, or anyone who has the care of the person and property of a minor, can enter into a contract which is (or likely to be) advantageous and not injurious to his or her ward.
A guardian may sell or purchase moveable items on account of his ward, either for an equal rate or at such a rate that may leave a slight loss, but not at such a rate which would make the loss great and apparent (Hidayah, vol. IV, pg. 553)
Guardianship (custody) for purposes of bringing up children (education etc.)
Of all the persons, the mother is the most entitled to the custody (Hizanah) of her infant child during marriage and after separation from her husband, unless she: 1) has become an apostate, 2) is wicked, or 3) is unworthy to be trusted (Fatawa-i-‘Alamgiri vol. 1, pg. 728)
Next, the mother’s mother, no matter how high, is entitled to the custody (Hizanah) of her infant child. If she has died or is married to a stranger, then the full sister is entitled. If the sister has died or is married to a stranger, then the half-sister by the mother is entitled to custody of the child.. On the failure of her in the same way, the daughter of the full sister, then the daughter of the half-sister by the mother. Next the maternal aunt in the same way, and then the paternal aunts also in like manner. (Fatawa-i-‘Alamgiri vol 1. Pg. 728)
The woman’s custody of a boy terminates when he is 7-years old, whereas the custody of a girl terminates when she reaches puberty.
The man’s custody continues until puberty for a boy, and not just until puberty for a girl, but until she can safely be left to herself and trusted to take care of herself.
It is important to always bear in mind that under Muslim Law, personal emancipation does not necessarily lead to an emancipation of property. As a matter of fact, the Islamic system recognizes two distinct periods of majority: 1) One has reference to the emancipation of the person of the minors from the patria protestas (bulughyet), 2) The other to the assumption by them of the management and direction of their property (rushd).
Among the Hanafi’s and the Shi’ah, puberty is presumed to occur upon the completion of the 15thyear; among the Maliki’s upon the completion of the 18thyear. The Hanafi’s and the Shi’ahs generally consider Rushd (discretion) and bulughyet (puberty) to go together, and therefore the personal emancipation of minors which occurs on their attaining puberty, carries with it the emancipation of their goods from the hands of their guardians. They thus become entitled to take charge of their own property.
There are cases, however, in which a boy or a girl may have arrived at puberty and may yet not be sufficiently discreet (possessed of understanding) to assume the direction of his or her own property. In such cases, the Muhammedan Law separates the two ages of majority, and while according to the minor personal emancipation from the right of jabr, (i.e. the right to impose the status of marriage on a minor) takes care (in the minor’s own interest) to retain the administration of his or her property in the hands of the legal guardian.
If a minor should not be discreet at the age of puberty, he or she will be presumed to be so when the ward completes their 18th year, unless there is any direct evidence to the contrary. (Syed Amir Ali, Muhammedan Law, Vol. II, pg 493, Published by All Pakistan Legal Decisions, Nabha Rd., Lahore, 1965)
The principle of two distinct, and yet concurrent, periods of majority has been adopted in the Indian Majority Act, going back as far as 1875 (See chapter: The Status of Infancy – Personal Emancipation – emancipation of Property – Indian Act IX of 1875)
For further elaboration of provisions relating to puberty, we have reproduced below the entry under the heading of “puberty” from The Dictionary of Islam, by T.P. Hughes (published by Premier Book House, Katchery Road, Lahore, Pakistan):
“Puberty. Arabic bulugh, bulughiyat. The puberty of a boy is established as soon as the usual signs of manhood are known to exist; but if none of these signs exist, his puberty is not clearly established until he has completed his eighteenth year.
The puberty of a girl is established in the same way; but if the usual signs of womanhood are known not to exist, her puberty is not established until her seventeenth year has been completed. This is according to the teaching of the Imam Abu Hanifah. But his two disciples maintain that upon either a boy or girl completing the fifteenth year, they are to be declared adult. The Imam ash-Shafi’i concurs in this opinion, and it is said there is also a report of Abu Hanifah to the same effect. The earliest period of puberty with respect to a boy is twelve years, and with respect to a girl nine years.