Guardianship under Muslim Law (UGC/NET)

Lunatics and minors who have not attained puberty may be validly married by their guardians. Under Muslim law, guardianship in marriage is known as jabar.

Under the sunni law, the order of guardianship for the purpose of marriage is as to father, paternal grandfather, brother and other relatives, in the same order as for inheritance, mother, other maternal relations and the last government. The father has a preferential right to contract his minor child into marriage.

Under the shia law, the only guardians recognised are father and paternal grandfather.

The right to custody of a male child (till the age of 7 years; in case of shia) is 2 years and of a female child (till she attains puberty; in case of shia, it is 7 years) belongs in the first place to the mother. Mother's right to custody is known as hizanat.

The right of the mother to the custody of a minor child is forfeited if she marries another man. Therefore, the custody belongs to the father, unless her remarriage is dissolved by death or divorce.

A legal guardian has the right to alienate the property of the minor in case of urgent necessity. The legal guardian of a Muslim minor female is the father.

The guardians of the property of a minor are called legal guardians. Father and father's father are the legal guardians of the property. Father and father's father are entitled to appoint the executors under a will.

Under all of the above circumstances, the legal guardian may alienate the immovable property of a minor.

A de facto guardian is merely a custodian of the person and property of the minor; he or she has no rights, but only obligations in comparison to rights and duties of a natural or legal guardian. He may alienate the movable property of the minor in case of necessity, but he cannot alienate the immovable property. An alienation of the minor's immovable property without the authority of the court by a de facto guardian is absolutely void.

The mother has the right to custody of her children up to the ages specified in each school of Muslims, irrespective of the fact whether the child is legitimate or illegitimate.

Legal guardian and certified guardian are known as de jure guardians under the Muslim law. The court may appoint anyone as a guardian with regard to the welfare of a minor or minor's property.

The mother has the right of custody so long as she is not disqualified. This right of hizanat can be enforced against the father or any other person.

Under the sunni law for the mother, the right to the custody of a male child is till the age of seven years and that of a female child is till she attains the age of puberty.

Under the shia law, the mother is entitled to the custody of a female child till the age of seven years.

Wali is someone who has “walayah”, which is the authority or guardianship over property. He takes care of the property as a man of ordinary prudence would deal with it if it were his own.