Guardianship Meaning

GUARDIANSHIP. Guardianship over a minor is of two kinds: wilāyah (ولاية‎), or guardianship of the property and education and marriage of the ward, and ḥiẓānah (حضانة‎), or guardianship over the rearing and bringing up of the child.

Guardians are either so by natural right or by testament, or by appointment by a judge.

The guardianship of a minor for the management and preservation of his property devolves first on his or her father, then on the father’s executor, next on the paternal grandfather, then on his executor, then on the executors of such executors, next on the ruling power or his representative, the Qāẓī, or judge. In default of a father, father’s father, and their executors, as above, all of whom are termed near guardians, it rests in the Qāẓī to appoint a guardian of an infant’s property. 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 have no right to be guardians of his property, unless appointed to be so by the ruling authority, or in the original proprietor’s will, proved by competent witnesses. The mother’s right of guardianship is, however, forfeited upon her being remarried to a stranger, but regained when she is divorced by him, and has again become a widow.

In default of the mother as well as of the paternal kindred of a minor, his maternal relations are, according to proximity, entitled to guardianship for the purposes of education and marriage, and not for the management of his property, unless so appointed in the late owner’s will or by the Qāẓī.

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 ward.

A guardian may sell or purchase moveables on account of his ward, either for an equivalent or at such a rate as to occasion an inconsiderable loss, but not at such a rate as to make the loss great and apparent. (Hidāyah, vol. iv. p. 553.)

A guardian is allowed to borrow money for the support and education of his ward, even by pawning the minor’s property; the debt so contracted must be paid out of his (the minor’s) estate, or by him when he comes of age.

It is not lawful for a guardian to pledge into his own hands goods belonging to his ward on account of a debt due to him, or into the hands of his child being an infant, or into the hands of his slave being a merchant and free from debt. (Hidāyah, vol. iv. p. 214.)

A father can pawn the goods of his infant child into his own hands for a debt due from the child, or into the hands of another of his children being an infant.

A father may also pawn on account of his own debt the goods belonging to his minor son, who on coming of age will redeem the goods discharging the debt, and have a claim on the father for the sum.

The contract of pawn entered into by a father with respect to his minor child’s goods cannot be annulled by the minor, even if it were not for his own debt or for his own benefit.

The mother is, of all the persons, the best entitled to the custody (ḥiẓānah) of her infant child during marriage and after separation from her husband, unless she be an apostate, or wicked, or unworthy to be trusted. (Fatāwā-i-ʿĀlamgīrī, vol. i. p. 728.) [152]

Next the mother’s mother how high soever is entitled to the custody (ḥiẓānah) of a child; failing her by death, or marriage to a stranger, the full sister is entitled; failing her by death or marriage to a stranger, the half-sister by the mother. On 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. (Fatāwā-i-ʿĀlamgīrī, vol. i. p. 728.)

An umm-i-walad (or a female slave who has borne a child to her master), when emancipated, obtains the right of taking her child. (Hidāyah, vol. i. p. 389.)

When it is necessary to remove a boy from the custody of women, or there is no woman of his own people to take charge of him, he is to be given up to his agnate male relatives (ʿaṣābah). Of these the father is the first, then the paternal grandfather, how high soever, then the full brother, then the half-brother by the father, then the son of the full brother, then the son of the half-brother by the father, then the full paternal uncle, then the half paternal uncle by the father, then the sons of paternal uncles in the same order. But though a boy may be given up to the son of his paternal uncle, a girl should not be entrusted to him.

No male has any right to the custody of a female child, but one who is within the prohibited degrees of relationship to her; and an ʿaṣābah who is profligate has no right to her custody. (Fatāwā-i-ʿĀlamgīrī, vol. i. p. 729.)

A female’s custody of a boy terminates when he is seven years old, and of a girl at her puberty.

Male custody of a boy continues till puberty, of a female not only till puberty, but till she can be safely left to herself and trusted to take care of herself.

When a female has neither father nor grandfather nor any of her ʿaṣābah to take charge of her, or the ʿaṣābah is profligate, it is the duty of the judge to take cognizance of her condition; and if she can be trusted to take care of herself, he should allow her to live alone, whether she be a virgin or a saiyidah, and if not, he should place her with some female amīn, or trustee, in whom he has confidence; for he is the superintendent of all Muslims. (Fatāwā-i-ʿĀlamgīrī, vol. i. p. 730.)

When a mother refuses to take charge of a child without hire, it may be committed to another.

A boy or girl having passed the period of ḥiẓānah, has no option to be with one parent in preference to the other, but must necessarily thenceforth remain in charge of the father. (Hidāyah, vol. i. p. 389.)

Before the completion of ʿiddah, or dissolution of marriage, the proper place of ḥiẓānah is that where the husband and wife live, and the former cannot take away the child out of the custody of the latter. After completion of her ʿiddah, and separation from her husband, a woman can take her child to the place of her nativity, provided the marriage had been contracted there, or it is so near from the place of separation or husband’s residence, that if the husband should leave the latter in the morning to visit the child, he can return to his residence before night. There is also no objection to her removing with the child from a village to the city or chief town of the district, the same being advantageous to the child, and in no respect injurious to the father. If the child’s mother be dead, and its ḥiẓānah or custody has passed to the maternal grandfather, she cannot remove the child to her own city, though the marriage had taken place there. Other women than the grandmother are like her in respect to the place of ḥiẓānah.

When an umm-i-walad has been emancipated, she has no right to take her child from the city in which the father is residing.

(Hidāyah, vol. i.; Fatāwā-i-ʿĀlamgīrī, vol. i.; Durru ʾl-Muk͟htār, p. 846; Jāmiʿu ʾr-Rumūz; Tagore Lectures, 1879; Baillie’s Digest, p. 430.)