Explain Guardian under Muslim Personal Law and Who is Entitled To Become Guardian For Property & Person Of Minor?

Headings in this questions

  1. Who is Entitled To Become Guardian For Property & Person Of Minor?
  2. Duties Or General Liabilities of Guardian Of Property & Person Of Minor
  3. Removal Of Guardian
  4. Disposal Of Moveable & Immoveable Property Of Minor By De-Facto Guardian
  5. What Factors Should Court Consider To Appoint Guardian Of Minor?
  6. Conclusion

 

(i) Introduction

In Pakistan, concept of guardianship of property and person of minor is covered not only by Muhammadan Law, but also by Guardians and Wards Act of 1890. Basic purpose of these two laws is same; both these laws emphasize on this principle that guardian of property and person of minor should be appointed only for benefit of minor.

(2) Who is Entitled To Become Guardian For Property & Person Of Minor?

Following persons are entitled to become guardian of property and person of minor:

  • (i) Persons, who are entitled to become guardian of property of minor
  • (ii) Persons, who are entitled to to become guardian of person of minor

 (i) Persons, who are entitled to become guardian of property of minor

Following persons are entitled to become guardian of property of minor:

  • (a) Legal guardians
  • (b) Testamentary guardian.
  • (c) Guardian appointed by court
  • (d) De-facto guardian

(a) Legal Guardians

Four persons can be guardians of property of minor and such guardians are called legal guardians. In order of priority, followings are entitled to become guardian of property of minor:

  • (a-i) Father of minor
  • (a-ii) Father’s executor
  • (a-iii) Father’s father
  • (a-iv) Paternal grand father’s executor

(a-i) Father Of Minor

In priority, minor’s father is first person, who is entitled to become guardian of minor’s property.

(a-ii) Father’s Executor

In absence of minor’s father, father’s executor is entitled to become guardian of minor’s property.

(a-iii) Father’s Father

In absence of minor’s father and father’s executor, father’s father is entitled to become guardian of minor’s property.

(a-iv) Paternal Grand Father’s Executor

In absence of minor’s father, father’s executor and father’s father, parental grandfather’s executor is entitled to become guardian of minor’s property.

(b) Testamentary Guardian

When father or parental grandfather of minor appoints some person as executor, and such executor appoints any person as guardian of minor’s property, such guardian is called testamentary guardian. It reveals that any person is also entitled to become guardian of minor’s property when executor of father or parental grandfather of minor appoints such person as guardian of minor’s property.

(c) Guardian Appointed By Court

When legal guardians are not present, court is entitled to appoint a guardian for preservation of minor’s property. However, court is bound to consider welfare of minor while appointing any person as guardian of minor’s property.

(d) De-facto Guardian

When a person is not legal guardian or is not appointed as guardian by court, but he/she has placed himself/herself in charge of property and person of minor, such guardian is called de-facto guardian. However, de-facto guardian is merely custodian of minor’s property and person. (ع) کی ولی

(ii) Persons, Who Are Entitled To Become Guardian Of Person Of Minor

There is some differences between Sunni and Shia schools of thought as far as entitlement to guardianship of minor’s person is concerned:

  • (a) Sunni school of thought
  • (b) Shia school of thought

(a) Sunni School Of Thought

According to Sunni school of thought, mother is entitled to become guardian of person of minor son of seven years. Similarly, mother is entitled till his age to become guardian of person of minor daughter till of relatives of minor can be mentioned as guardian of her age of puberty. However, following two categories person of minor in absence of mother.

  • (x) Entitlement of female relatives
  • (z) Entitlement of male parental relatives

(x) Entitlement Of Female Relatives

In absence of mother, female relatives of minor are entitled to become guardian of minor’s person in following order of priority:

  • (i) Mother’s mother (how high-so-ever)
  • (ii) Father’s mother (how high-so-ever)
  • (iii) Full sister
  • (iv) Uterine mother
  • (v) Consanguine sister
  • (vi) Full sister’s daughter
  • (vii) Uterine sister’s daughter
  • (viii) Consanguine sister’s daughter
  • (ix) Maternal aunts in like order as sisters
  • (x) Paternal aunts in like order as sisters

(z) Entitlement Of Male Parental Relatives

In absence of mother and female relatives of minor, male parental relatives are entiled to become guardian of minor’s person in following order of prority:

  • (i) Father
  • (ii) Nearest parental grand father
  • (iii) Full brother
  • (iv) Consanguine brother
  • (v) Full brother’s son
  • (vii) Consanguine brother’s son
  • (vii) Full brother of father
  • (viii) Consanguine brother of father
  • (ix) Son of father’s full brother
  • (x) Son of father’s consanguine brother

(b) Shia School Of Thought

According to Shia school of thought, following persons are entitled to become guardian of minor’s person:

  • (b-i) Mother
  • (b-ii) Father
  • (b-iii) Father’s father

(b-i) Mother

Mother is entitled to become guardian of person of minor son till his age of two years. Similarly, mother is entitled to become guardian of person of minor daughter till her age of seven years.

(b-ii) Father

When minor son attains age of two years or minor daughter attains age of seven years, his/her father becomes entitled for guardianship of his/her person. Even if mother dies before minor son or minor daughter attains specified age, father becomes entitled for guardianship of his/her person.

(b-iii) Father’s Father

In case of death of both mother and father, father’s father is entitled to become guardian of minor’s person.

(3) Duties Or General Liabilities of Guardian Of Property & Person Of Minor

Duties or general liabilities of guardian of property and person of minor can be explained in following manner:

  • (i) Duties or general liabilities of guardian of of Minor’s Property
  • (ii) minor’s property Duties or general liabilities of guardian of minor’s person

(i) Duties or General Liabilities of guardian of minor’s property:

According to Guardians and Wards Act, following are duties or general liabilities of guardian of minor’s property:

  • (a) Realization, protection & benefit of minor’s property
  • (b) Duties of testamentary guardian
  • (c) Duties of guardian appointed by court
  • (d)Transfer of property

 (a) Realization, Protection & Benefit Of Minor’s Property

It is duty of guardian to do all those acts, which are reasonable and proper for realization, protection and benefit of minor’s property. In fact, guardian is considered under obligation to act as a person of ordinary prudence to deal with minor’s property.

(b) Duties Of Testamentary Guardian

When guardian is appointed by will or other instrument, he/she should mortgage or charge minor’s immoveable property or transfer it by sale, gift, exchange or other mode according to those restrictions, which have been imposed through will or instrument. Even if court declares him/her as guardian. he/she can do it only in that manner, which court permits.

(c) Duties Of Guardian Appointed By Court

Guardian, who is appointed or declared as guardian by court, is bound to get permission of court before mortgaging or charging minor’s immoveable property or before transferring it through sale, gift, exchange or other mode or before leasing minor’s property.

(d) Transfer Of Property

It is duty of guardian to transfer minor’s immoveable property only in necessity and for advantage of minor.

(ii) Duties or General Liabilities Of Guardian Of Minor’s Person

Followings are duties or general liabilities of guardian of minor’s person:

  • (a) Maintenance of minor
  • (b) Education of minor
  • (c) Health of minor
  • (d) Religion of minor
  • (e) Welfare of minor

(a) Maintenance Of Minor

Guardian is bound to provide maintenance for However, guardian is to maintain minor out of his/her property or other income.

(b) Education Of Minor

Guardian is to make arrangement for proper education of minor.

(c) Health Of Minor

Guardian is to take all those steps, which are necessary for better health of minor.

(d) Religion Of Minor

Usually minor child follows religion of his/her father. Therefore, it is duty of guardian to bring minor up in those circumstances, which are according to religion of minor’s father. However, guardian can bring minor up according to his own wishes when minor’s father changes his religion.

(e) Welfare Of Minor

Guardian remains under obligation to take all those steps, which are essential for welfare of minor.

(4) Removal Of Guardian

Either through its own motion or through application, court can remove guardian under following circumstances when guardian is appointed or declared by court or when guardian is appointed by will or other instrument:

  • (i) Abuse of trust
  • (ii) Failure to perform duties
  • (iii) Incapacity to perform duties
  • (iv) Ill-treatment or negligence
  • (v) Disregard of provisions of Guardians & Wards Act
  • (vi) Disregard of order of court
  • (vii) Conviction of offence
  • (viii) Adverse interest
  • (ix) Cessation of residence within local limits of jurisdiction of court
  • (x) Cessation of guardianship under personal law of minor
  • (xi) Bankruptcy or insolvency

(i) Abuse Of Trust

Such guardian can be removed when he/she commits breach of his/her trust.

(ii) Failure To Perform Duties

Such guardian can be removed when he/she continuously fails to perform his/her duties.

(iii) Incapacity To Perform Duties

Such guardian can be removed when he/she becomes incapable to perform his/her duties.

(iv) Ill-treatment Or Negligence

Such guardian can be removed when he/she commits ill-treatment or commits negligence to take proper care of minor.

(v) Disregard Of Provisions Of Guardians & Wards Act

Such guardian can be removed when he/she commits disobedient disregard of any provision of Guardians and Wards Act.

(vi) Disregard Of Order Of Court

Such guardian can be removed when he/she commits disobedient disregard of any order of court.

(vii) Conviction Of Offence

Such guardian can be removed when he/she commits an offence, and court considers this offence defect of character, and such defect unfits him/her to be guardian of minor.

(viii) Adverse Interest

Such guardian can be removed when he/she has some interest, which is adverse to faithful performance of his/her duties.

(ix) Cessation Of Residence Within Local Limits Of Jurisdiction Of Court

Such guardian can be removed when he/she ceases to reside within local limits of jurisdiction of competent court.

(x) Cessation Of Guardianship Under Personal Law Of Minor

Such guardian can be removed when he/she ceases to be guardian under that personal law to which minor is subject.

(xi) Bankruptcy Or Insolvency

Guardian of property can be removed when he/she becomes bankrupt or insolvent.

(5) Disposal Of Moveable & Immoveable Property Of Minor By De-Facto Guardian

 Disposal of moveable and immoveable property of minor by de-facto guardian can be explained in following manner:

  • (i) Disposal of moveable property of minor by de-facto guardian
  • (ii) Disposal of immoveable property of minor by de-facto guardian

(i) Disposal of Moveable Property of Minor By De-facto Guardian

A de-facto guardian can sell and pledge minor’s moveable property including goods and chattels, which are in his/her charge. However, he/she can do it only for imperative necessities like food, clothing or nursing of minor.

(ii) Disposal Of Immoveable Property Of Minor By De-facto Guardian

A de-facto guardian cannot transfer any right or interest in minor’s immoveable property. The reality is that if such right or interest is transferred, such transfer is not voidable, but is void.

(6) What Factors Should Court Consider To Appoint Guardian Of Minor?

Under Muhammadan Law and Guardians and Wards Act, court is to consider following factors while appointing guardian of minor:

  • (i) Welfare Of Minor
  • (ii) Appointment according to law to which minor is subject
  • (iii) Age, sex & religion of minor
  • (iv) Character, social status & capacity of proposed guradian
  • (v) Nearness of kin of proposed guardian with minor
  • (vi) Wishes of deceased parents
  • (vii) Existing or previous relations of proposed guardian with minor
  • (viii) Preference of minor

(i) Welfare Of Minor

Welfare of minor is the most important factor. Which court is to consider for appointment of guardian of minor. And court is to consider following points for determination of welfare of minor:

  • (a) Accommodation for minor
  • (b) Approval of ward
  • (c) Child’s need for his/her parents
  • (d) Financial resources of proposed guardian
  • (e) Standard of living of proposed guardian

(a) Accomodation For Minor

To determine welfare of minor, court is to consider that accomodation, which can be provided for minor.

(b) Approval Of Ward

To determine welfare of minor, court is to consider approval of ward.

(c) Child’s Need For His/Her Parents

To determine welfare of minor, court is to consider child’s need for his/her parents.

(d) Financial Resources Of Proposed Guardian

To determine welfare of minor, court is to consider financial resources of proposed guardian.

(e) Standard Of Living Of Proposed Guardian

To determine welfare of minor, court is to consider standard of living of proposed guardian.

(ii) Appointment According To Law To Which Minor Is Subject

Guardian of minor should be appointed according to that law to which minor is subject. It reveals that court is to consider such law for of guardian of minor.

(iii) Age, Sex & Religion Of Minor

For appointment of guardian of minor, court is to consider age, sex and religion of minor.

(iv) Character, Social Status & Capacity Of Proposed Guradian

For appointment of guardian of minor, court is to consider character, social status and capacity of proposed guardian.

(v) Nearness of Kin Of Proposed Guardian With Minor

For appointment of guardian of minor, court is to consider nearness of kin of proposed guardian with minor.

(vi) Wishes Of Deceased Parents

For appointment of guardian of minor, court is to consider wishes of deceased parents.

(vii) Existing Or Previous Relations Of Proposed Guardian With Winor

For appointment of guardian of minor, court is to consider existing or previous relations of proposed guardian with minor.

(viii) Preference Of Minor

When minor is old enough to make some intelligent preference, court is to consider this preference for appointment of guardian of minor.

(7) Conclusion

To conclude, it can be stated that important consideration for appointment of guardian is not right of those parties, who either apply or claim to be guardian of minor’s property and person, but is welfare of minor whose guardianship of property and person is sought.

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