Guardianship Under Muslim Law are categorized under the three heads namely: (1) Natural guardians (2) Testamentary guardians (3) Guardians appointed by the court.
(1) Natural Guardians –
In all schools of both Shia and Sunni father is recognized as the guardian which in term in context is equivalent to the natural guardian and the mother is not recognised as a guardian, natural or otherwise even after the death of the father.
The father’s right of guardianship extends to the control of the education of child and the religion of the minor children and their upbringing and their movement.
So long as the father is alive and living he is the sole and supreme guardian of his minor children. The father right of guardianship covers only over his minor legitimate children He is not entitled to the guardianship or to the custody of his minor illegitimate children.
Among Sunnis, the father is the only natural guardian of his minor children. After the death of the father, the guardianship passes to the executor.
Among Shias after the father deaths, the guardianship belongs to grandfather, even if he has appointed an executor, the executor of the father becomes guardian only in the absence of grandfather. No other person can be a natural guardian not even the brother. In absence of grandfather, the guardianship belongs to the grandfather’s executor, if there is any.
(2) Testamentary Guardian –
In Sunnis the father has the full power and right of making a testamentary guardian. In the absence of the father and his executor, the grandfather has the power of appointing a testamentary guardian.
In Shias, the father appointment of testamentary guardian is valid only if the grandfather is not alive.
Among Shia and Sunni mother has no power of appointing a testamentary guardian of her children .
The grandfather also has a power of appointing a testamentary guardian. No other person has such power.
(3) Guardian appointed by the court
On the failure of natural and testamentary guardian, the KAZI was entrusted with the power of appointment of the guardian of a Muslim minor.
Now this matter is governed by the Guardians and Wards Act, 1890. This Act applies to the appointment of guardians of all minors belonging to any community.
The high court also has the inherent powers of appointment of guardians.
Under the Guardians and Wards Act 1890, the power of appointing or declaring any person as a guardian is conferred on the District court.
The welfare is the paramount condition for the appointment of any person as a guardian of minor children and the property of Children.
While appointing the guardian the age, sex, wishes of the child as well as the wishes of the parents and the personal law of the minor.
These are the three kinds of guardianship under Muslim Law and guardian is done according to these three heads.
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