(a) Who is a minor under Muslim Law ? (b) What various kinds of guardians does Muslim law recognise?Explain them in brief.
Here we will learn the topic Who is a minor under Muslim Law ? in detail.
(a) Who is a Minor?
A minor is one who has not attained the age of majority. Under Muslim law, the law determines whether a person is a minor according to the purpose in question. For matters of marriage, dower, and divorce, the law considers a person a minor until they attain puberty, which it presumes to occur at the age of 15. For general matters and property, the minority lasts until age 18 under the Indian Majority Act, 1875. The law presumes that a person attains puberty upon completing the fifteenth year. The Indian Majority Act, 1875, now governs Muslims in matters relating to the age of majority. The existing legal position regarding the age of majority in such cases is as follows:
i. Fifteen years is the age of majority for the purposes of marriage, dower and divorce. At or above this age, he or she is free to do anything in the sphere of marriage, dower and divorce.
ii. According to Section. 2 of the Child Marriage Restraint Act, 1929 (as amended in1978) the minimum age for Marriage is 21 years for males and 18 years for females.
iii. Eighteen years is the age of majority in general. As regards other matters concerning guardianship of the person and property, the Majority Act, 1875, governs Muslims and sets the age of majority at 18 years. Thus, in cases of wills, waqfs, etc., the minority will terminate on the completion of 18 years.
iv. The law sets the age of majority at twenty-one years when the Court of Wards has taken charge of the minor or when the court has appointed a guardian for the minor.
Under Muslim law, a person who attains puberty can act in all matters affecting their status or property. However, the Indian Majority Act has materially changed this rule. Now, a Muslim can act independently upon attaining the age of fifteen years only in matters relating to:
Divorce
In all other matters his minority continues until the completion of eighteen years. Until then, the court can appoint a guardian for the minor’s person, property, or both under the Guardians and Wards Act. In such cases, the law extends the period of minority until the minor completes twenty-one years of age.
Marriage
Muslim Marriage
Under Muslim law, marriage (Nikah) is generally regarded as a civil contract with religious and social significance. It creates legal rights and duties between the husband and wife.
Who is a minor under Muslim Law ? in detail.
Main points
Meaning:Nikah means a lawful union between a man and a woman.
Nature: Muslim marriage is primarily treated as a contract, although it also has religious and social importance.
Essential conditions: A valid marriage generally requires:
Proposal (Ijab)
Acceptance (Qubul)
Competent parties
Free consent
Required witnesses, where applicable
No legal prohibition
Dower (Mahr): The wife has a right to receive Mahr from the husband.
Capacity: The parties must have the legal capacity to marry under the applicable law.
Prohibited relationships: Muslim law prohibits marriage between certain close relatives and in certain other circumstances.
Types: Muslim law traditionally discusses valid (Sahih), void (Batil), and irregular (Fasid) marriages.
Legal effects: A valid marriage creates rights relating to dower, maintenance, legitimacy of children, inheritance, and other marital obligations.
Dissolution: Muslim marriage may end through legally recognised forms of divorce or other modes of dissolution.
Who is a minor under Muslim Law ? in detail.
Dower
Dower (Mahr) — Brief Information
It is the amount of money, property, or other valuable benefit that a Muslim husband is legally required to give to his wife as a consequence of marriage.
Who is a minor under Muslim Law ? in detail.
Main points
Meaning: Mahr is a financial right of the wife arising from marriage.
Right of wife: The wife has an independent right to receive the dower from her husband.
Purpose: It provides financial security and recognises the legal rights of the wife.
Fixation: The parties may agree upon the amount of dower at the time of marriage or later.
Types: Dower is generally classified as:
Specified Dower (Mahr-i-Musamma): The parties specify the amount.
Proper Dower (Mahr-i-Misl): The law determines the amount when the parties have not specified it.
Prompt Dower: The wife can demand it immediately after marriage.
Deferred Dower: The husband becomes liable to pay it at a later agreed time or upon dissolution of marriage, depending on the terms.
Enforceability: The wife can legally claim unpaid dower from her husband.
Who is a minor under Muslim Law ? in detail.
(b) Kinds of Guardians
Muslim law recognises following kinds of guardians-
I) Natural or legal guardian,
II) Testamentary guardian,
III) Guardian appointed by Court or statutory guardian, and
IV) Defacto guardian.
Who is a minor under Muslim Law ? in detail.
a. Natural Guardians
A natural guardian is a person who has a legal right to control and supervise the activities of a child. All schools of Muslim law recognise the father as the natural guardian of his child. The father derives his independent right to act as the guardian of a minor from the substantive law of Islam. We also call a natural guardian a de jure or legal guardian. Only the 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. In the absence of father, his executor, or 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-
(1) Father
(ii) Executor of father.
( iii) Paternal Grandfather.
(iv) Executor of paternal-grandfather
Under Muslim law, if none of the above-mentioned persons is available, the law does not recognise anyone else as the natural guardian of a minor.
Who is a minor under Muslim Law ? in detail.
Shia Law
According to shia law, in the absence of father, only paternal grandfather may act as natural guardian. The father’s father is called the paternal grandfather. Thus, in the presence of the paternal grandfather, the father’s executor has no right to act as the legal guardian of a child.
Who is a minor under Muslim Law ? in detail.
b. Testamentary Guardians
A person who makes a will can appoint a testamentary guardian to act as the guardian of a minor. Only father or, in his absence, paternal grandfather has the right to appoint a testamentary guardian. The law does not require any special formality to appoint a testamentary guardian. However, the person appointed as a testamentary guardian must be competent to act as a guardian. The law also allows a non-Muslim or a female to serve as a testamentary guardian.
Who is a minor under Muslim Law ? in detail.
Shia Law
Muslim law does not allow a non-Muslim to serve as a testamentary guardian.
c. Guardians Appointed by Court
In the absence of a natural or testamentary guardian, the court can appoint a guardian to protect the minor’s person, property, or both.
The Guardians and Wards Act, 1890, governs such appointments and applies to all Indians, regardless of their religion.
In India, the courts appoint the guardians for minors 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.
According to Mulla , in cases of such a conflict, provisions of the Guardians and Wards Act will prevail over the provisions of Muslim personal law.
Section 17(2) of the Guardian and Wards Act provides that 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 parents 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 Vs. Ayub Dadamiya, A.I.R 1989 Bombay.
357, 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.
d. 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 (de-facto), has custody of the person of a minor or of his property. It may be said that a de-facto 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.
Here we will learn the topic Who is a minor under Muslim Law ? in detail.
