3.

1 Inheritance-General principles of inheritance, Rules of

Inheritance, Rule of representation, Rule of Spes Successionis
Inheritance under Muslim law is a fascinating and intricate subject. Rooted in
centuries-old traditions and guided by divine commandments, it forms an
integral part of the legal framework governing the transfer of property in
Muslim communities. In India, where a significant number of people follow
Muslim personal law, understanding these principles is crucial for both legal
practitioners and laypersons.
General Principles Underpinning Inheritance
Several fundamental principles govern the inheritance process under Muslim
law. These principles ensure that the transfer of property is conducted fairly,
efficiently, and in accordance with divine commandments.
The Doctrine of No Birthright
A cornerstone of Muslim inheritance law is the principle that no inheritance
right accrues until the death of the individual. This means that even if a person
is the apparent heir, the legal right to inherit is only recognised after the
decedent has passed away. This prevents premature claims and ensures that
the distribution of the estate is finalised only when all liabilities, debts, and
funeral expenses have been settled.
The Concept of Fixed Shares
The Quran provides clear directives on the fixed shares of certain heirs. This
prescriptive approach is designed to remove ambiguity and ensure that the
rights of vulnerable family members, such as widows and daughters, are
protected. The fixed share system prevents the arbitrary distribution of assets
and ensures that the estate is partitioned according to divine instruction.
Equity and Proportionality
While the fixed shares are predetermined, the principles of equity and
proportionality still play a significant role. For example, the rule that a son
receives twice the share of a daughter is based on the broader financial
responsibilities that males bear in a traditional Muslim household. Men are
expected to provide for the family, and this additional responsibility is reflected
in the inheritance formula.
The Absence of Joint Tenancy
Unlike Hindu law, which recognises the concept of joint family or coparcenary
property, Muslim law does not. Each heir is considered to have an individual,
distinct share in the estate. This principle of individual ownership ensures that
each heir’s property rights are protected and that the estate does not remain
undivided among the heirs indefinitely.
Accountability and the Doctrine of Tenants-in-Common
Under Muslim law, heirs inherit the estate as tenants-in-common. This means
that while the estate is shared, each heir’s share is distinct and separable.
Consequently, each heir is individually responsible for any debts or obligations
associated with the estate. This doctrine ensures that one heir’s liability does
not become a burden on the others, thereby fostering a sense of individual
accountability.
The Non-Recognition of the Doctrine of Representation
In many Western and even some traditional legal systems, the doctrine of
representation allows the descendants of a predeceased child to inherit in
place of their parent. However, Muslim law does not recognise this doctrine.
Instead, the inheritance is strictly divided among those who are alive at the
time of the decedent’s death, thereby excluding any automatic substitution of a
deceased heir’s share by their progeny.
Rules
MUSLIM LAW
According to Prophet Mohammad, the Muslim Law is a commandment of God and the sovereign in the Muslim
states and it is his (Muslims) duty to follow it literally. Islam means peace by submission and obedience to the
will and commandments of God and those who accept Islam are called Muslim, meaning, those who have
accepted the message of peace by the submission of God.

The Muslim law of succession mainly constitutes four sources of Islamic law i.e.:

1. The Holy Quran

2. The Sunna (the practice of prophet)
3. The Ijma (Consensus of the learned men of the community over the decision over a particular subject
matter)
4. The Qiyas (deductions based on analogy on what is right and just in accordance with good principles).

Muslim law recognizes two types of heirs:

 Sharers
 Residuaries

Sharers are the ones who are entitled to a certain share in the deceased's property and Residuaries would take
up the share in the property that is left over after the sharers have taken their part. Inheritance means the
transfer of property to the living person from the deceased along with any other transferable rights.

Inheritance has a different meaning in Islam. There is no particular definition of Inheritance in the Quran but
many Scholars have defined it in their own ways. According to Sir Abdur Rahim, inheritance is the transfer of the
rights and obligations of the deceased person to his/her heirs. The Mahomedan law governs the succession to a
convert to Mahomedanism's inheritance in the absence of a custom to the contrary. A Hindu cannot inherit a
Mahomedan's fortune, according to Mahomedan law. Therefore, if a Hindu who already has a Hindu wife and
children converts to Mahomedanism and marries and has children with a Mahomedan woman, his property will
transfer to his Mahomedan wife and children upon his death rather than to his Hindu wife or children.
There are two types of heirs under Muslim law – the Sharers and the Residuary.

The Sharers are the ones who are entitled to a certain share in the property of the deceased and, secondly, the
Residuary (as the word Residuary itself say) are the ones who would take up the share in the property that is left
over after the Sharers have taken their part from the property. However, there is divergence in the application of
Quranic principles between the divided sects of Sunni and Shia Muslims, creating slightly different rules of
inheritance – the Sunni law of inheritance and the Shia law of inheritance.

SHARERS:
There are total or mainly 12 relations fall under the category of Sharers in Muslim which are as follows:-

1. Husband,
2. Wife,
3. Daughter,
4. Daughter of a son (or son's son or son's son, and so on),
5. Father,
6. Paternal Grandfather,
7. Mother,
8. Grandmother on the male line,
9. Full sister,
10. Consanguine sister,
 11. Uterine sister,
12. Uterine brother.

The share taken by each sharer will differ in some conditions. For example, a wife of a deceased will takes 1/4th
of the share in case where the couple is without lineal descendants, and 1/8th share otherwise. A husband (in
case of succession to the wife's estate) takes a half share in case where the couple is without lineal
descendants, and a 1/4th share otherwise. A sole daughter takes a half share.
Where the dead person has left behind more than one daughter, all daughters jointly take 2/3rd . If the dead
person had left behind sons and daughters, then the daughters stop to be sharers and become residuary
instead, with the residue being so distributed as to make sure that each son gets double of what each daughter
gets.
The heirs are further divided into two categories under Shia inheritance law:

 Heirs by consanguinity i.e., blood relations

1. Parents
2. Children and other lineal descendants how lowsoever.
 Heirs by marriage i.e. husband and wife
1. Grandparents how high so ever (True as well as False)
2. Brothers and sisters and their descendants how low so ever.


o Paternal
o Maternal, uncles and aunts of the deceased and of his parents and grandparents how high so
ever and their descendants how low so ever.

The whole inheritance, or the residue, as the case may be, passes to Remainders in the order specified when
there aren't any Sharers or if there were Sharers but there remains a residual after fulfilling their claims.

I Descendants:
 i. Son
 ii. Son's son

II Ascendants:
 i. Father.
 ii. True Grandfather

III Descendants of father:

 i. Full brother.
 ii. Full sister.
 iii. Consanguine brothers
 iv. Consanguine sister
 v. Full brother's son
 vi. Consanguine brother's son
 vii. Full brother's son's son
 viii. Consanguine brother's son's son

IV Descendants of true Grandfather:

 i. Full paternal uncle
 ii. Consanguine Paternal Uncle
 iii. Full paternal uncle's son
 iv. Consanguine Paternal uncle's son
 v. Full paternal uncle's son's son
  vi. Consanguine paternal uncle's son's son
 vii. Full paternal uncle's son's son
 viii. Consanguine paternal uncle's son's son
 ix. Consanguine paternal uncle's son's son
 x. Male descendants or more remote true grandfather.

Residuaries: who don't accept the prescribed portion but instead inherit the "remainder" once the shareholders'
claims are met.

Distant Kindred:
It comprises all cognates of the deceased, except those who are included in the sharers category. The heirs
entitled to inherit as distant kindred include descendants, ascendants and collaterals of the deceased.
Collaterals include descendants of parents, immediate grand parent and remoter grand parents how high
soever. Collaterals are limitless (ad infinitum), all the descendants of all the ascendants without any limit as to
degrees are included. Distant Kindred are divided into four classes, namely,

Class I : Descendants of the propositus other than Sharers and Residuaries : In this class, following relations are
included : i. Daughter's children and their descendants. ii. Children of son's daughter and their descendants.

Class II : Ascendants of the parents of propositus other than Sharers and Residuaries : This class comprises of :
i. False grandfather. ii. False grandmother

Class III : Descendants of the parents of propositus other than Sharers and Residuaries:
This class of distant kindreds consists of:

i. Full brother's daughter and her descendants.

ii. Consanguine brother's daughter and her descendants.
iii. Uterine brother's children and their descendants.
iv. Daughters of full brother's sons and their descendants.
v. Daughters of consanguine brother's son and their descendants.
vi. Sister's (full, consanguine or uterine) children and their descendants.

Class IV: Descendants of ascendants other than Residuaries : This class includes descendants of
immediate grand parents (true or false) and the descendant of remoter ancestors (true or false). The
immediate grandparents are:

1. Full paternal uncles' daughter and their descendants.

2. Consanguine paternal uncle's daughters and their descendants.
3. Uterine paternal uncles and their children and their descendants.
4. Daughters of full paternal uncle's sons and their descendants.
5. Daughters of consanguine paternal uncle's sons and their descendants.
6. Paternal aunts (full, consanguine or uterine) and their children and descendants.
7. Maternal uncles and aunts and their children and their descendants.

Distribution of Property under Muslim Law:

Under the Muslim Law of Inheritance, the distribution of the property can be done in two ways:

1. Per Capita Distribution:

This method generally used in Sunni law. According to this method, the property leftover by the
ancestors will get equally divided among the heirs. Therefore, the number of heirs of the dead person will
determine the amount of share for each heir in the property of the deceased. The heir does not represent
the branch from which he or she inherits.

2. Per Strip Distribution:

This method is mostly used in Shia law. According to this method, the property of the deceased is
distributed among the heirs according to the strip they belong to. Hence, the quantum of their inheritance
also depends upon the branch and the number of persons that belong to the branch.
 Devolution of Inheritance:
The whole inheritance of a deceased Mahomedan, or the portion of it not distributed by Will, if he left a Will,
passes to his heirs at the time of his death. This transfer is not halted by the fact that the deceased had
unpaid obligations. In particular shares, the heirs succeed to the estate as tenants-in-common. In contrast to
Hindu Law, if a deceased Mahomedan died intestate, his estate passed to his heirs at the time of his
passing. The Mahomedan Law does not respect birthright.

The heir apparent or presumptive's right does not become legally recognised until the ancestor's death, and
until that time, he is not entitled to any stake in the assets he would inherit if the ancestor had survived him.
Mahomedan law does not recognise dual tenancies, hence the heirs are solely tenants-in-common. As a
result, an heir can seek division of just one among the assets held in common rather than all the holding.[5]

The general principles associated with the Muslim Law of inheritance are as follows:
Nature of heritable property: Heritable property is defined as belongings that may be legally passed on to
heirs. A Muslim's assets are utilised to pay for burial costs, debts, and wills after his death. The property that
remains after paying these costs is referred to as inherited property. The Muslim Law does not distinguish
between corporeal and incorporeal, or between moveable and immovable property, for the purposes of
inheritance. Heritable property is any property that belonged to the deceased person at the time of his death.

 Joint or Ancestral property: The notion of joint family or coparcenaries property is not recognised by
Islamic inheritance law, in contrast to Hindu law. When a Muslim passes away, his or her assets pass to
their heirs in a set share, with the heir taking sole ownership. Similar to this, the property possessed by
such a legal heir will be distributed to his legal heirs upon his death, and this process continues. There is
no provision for ancestral or joint-family property, unlike Hindu law. Additionally, there is no distinction
between property that is self-acquired or inherited.

 Birthright under the Muslim Inheritance Law: Only when a Muslim dies does inheritance become
available. The fundamental tenet of Islamic law is that "nemo est haeres viventis," or that no one may
succeed to the estate of a live individual. It implies that the legal right to inherit property will only
materialise at the passing of a decedent and not with the birth of a child.

 Doctrine of Representation: The Roman, English, and Hindu rules of inheritance all acknowledge this
doctrine as a well-known philosophical premise. The son of a predeceased son represents his father for
the purposes of inheritance in accordance with the concept of representation. This Doctrine is not
recognised by Islamic inheritance law. Because in accordance with Islamic rule, the closer ones will be
excluded from the farther ones.

 Rights of Females: The Islamic law of inheritance accords equal rights to males and women. Nothing
can prevent a female kid from inheriting a piece of property legally once an ancestor passes away. The
quantum of a female heir's share is often determined to be half that of a male heir. This is necessary
because, according to Islamic law, a woman must receive Mehr and maintenance from her husband at
the marriage ceremony. Males are responsible for supporting their wives and children, whereas females
merely get the inheritance of the ancestors' property. [6]

 Rights of a Widow: A Muslim widow who is childless is entitled to receive one-fourth of her late
husband's property under Shia law. The widow of a deceased spouse, however, is entitled to one-eighth
of his property if she had children or grandchildren. The widow should not be entitled to any ownership
over her deceased husband's property in circumstances when a Muslim man marries while experiencing
some mental illness and without consummating the marriage. However, if her sick husband divorces her
and later passes away from the sickness, the widow will be entitled to a portion of her husband's assets
until she marries again.

 Rights of Inheritance of a child in womb: A kid in a mother's womb at the time of a father's passing is
only eligible to inherit property under Muslim law if the infant is born alive. If the infant is born dead, the
portion that belonged to him will cease to exist and be taken as though it never been.[7]

 Right of Inheritance of the stepchildren: There is no right for the stepchildren to receive any
inheritance from their stepparents. Similar to this, the stepchildren's property cannot be inherited by the
stepparents. However, the stepchild has the legal right to inherit from either his natural mother or father.
The stepbrothers (or stepsisters) might also inherit one another's possession.
  Escheat: It alludes to the giving of the government the authority to seize estate assets or unclaimed
property. When a Muslim passes away without leaving a will or any heirs, the government will get their
possessions. The State is then regarded as the property's legal successor in the end.

Non-Testamentary and Testamentary succession under Muslim law

"The Muslim Personal Law (Shariat)" Application Act, 1937 is used in non-testamentary succession. On the
other hand, when a person passes away testate, that is, before making a will, the inheritance is controlled by the
appropriate Muslim Shariat Law that is applicable to both Shias and Sunni.
"The Indian Succession Act, 1925" is applicable in circumstances where the subject of the ownership is an
immovable property located in the states of West Bengal, Chennai, or Bombay. Only for the reason of
testamentary succession does this exemption apply."
Rule of Representation
1. Estate Planning
Understanding the doctrine of representation is important for effective estate
planning. Individuals must consider how their assets will be distributed among
their heirs and any potential scenarios where an heir might predecease them.
Legal advisors often recommend detailed wills that specify conditions or
alternative plans to manage such situations.
2. Family Law Disputes
The doctrine can often be a point of contention in family law disputes,
especially in complex family structures or where significant assets are involved.
Legal professionals must navigate these disputes by carefully interpreting wills,
statutes and case law to determine the rightful heirs according to the doctrine
of representation.
3. Cross-Jurisdictional Issues
In an increasingly globalised world, cross-jurisdictional issues frequently arise,
especially when heirs reside in different countries with differing inheritance
laws. Lawyers must be adept at understanding how the doctrine of
representation works under various legal frameworks to effectively manage
international estates.
The rule of spes successionis in Muslim Law
The doctrine of spes successionis is an important rule relating to the transfer of property. Spes successionis is a Latin
maxim that translates to 'expectation of succession'. It means a person who is the apparent heir of another person is
expected to succeed to his estate after the death of that person. The rule states that just because a person is
expected to inherit a property after the death of another person, it does not mean that it amounts to him having an
interest in that property. Thus, mere 'expectation' or 'chance' to succeed to a property does not provide him with
any legal right over the property. The transferability of a Spes Successionis is prohibited in Indian law under the
provision of Section 6(a) of the Transfer of Property Act, 1882.

However, the rule of spes successionis is not recognized in the Muslim law of inheritance.
Thus, the transfer of spes successionis is considered the renunciation of the chance of succession. The chance of a
Muslim heir apparent succeeding an estate cannot be the subject of a valid transfer or release.
In the case of Snehammal ve Hasan Khani Rawther and Ors. (2011), it was ruled that the doctrine of spes
successionis need not be considered in a family arrangement. In this case, the respondent was one of the heirs-
apparent to inherit a share of the plaintiff's property. But even before inheriting his share, the respondent executed
a deed with his father to relinquish his rights over the property in exchange for some consideration. The Apex Court
was to decide whether a Mohammedan can relinquish his right to inherit by way of a family
Agreement even before acquiring the property. It was ruled the doctrine of spes succession can be awarded in family
arrangements or in case of relinquishment of inheritance right over consideration
 3.3 Guardianship-Concept of Guardianship, Minority under Muslim Law, Kinds of
Guardians, Power and Duties of Guardian, Removal and Cessation of Guardianship
Guardianship represents a legal right and responsibility to manage the affairs
and oversee the well-being of individuals who cannot take care of themselves
due to age or mental incapacities, such as minors, imbeciles or lunatics. This
role extends to both managing the custodial care of the ward and overseeing
the ward’s property.
Meaning of Guardianship
In Muslim law, guardianship, known as “Wilayat,” primarily refers to the care of
minors. As per the Indian Majority Act, 1875, any individual under eighteen
years, domiciled in India, is considered a minor. Minors are presumed incapable
of managing their own interests, necessitating the appointment of a competent
adult to manage their personal and property interests.
Concept of Natural Guardian
Hindu law recognizes three persons as a natural guardian: Father, Mother and
Husband.
Section 6 of the act says that the natural guardians of a Hindu minor in respect
of the minor’s person as well as in respect of the minor’s property are the
father in the case of a boy or an unmarried girl and next to him the mother but
the custody of the minor who has not completed the age of five years will
usually be with the mother. The natural guardian in the case of an illegitimate
boy or an illegitimate unmarried girl will be the mother and then her father and
in the case of a married girl the natural guardian will be the husband.
Under this section any person will not be entitled to act as the natural guardian
of a minor if he is not a hindu or he has finally left this world by becoming a
hermit (vanaprastha) or an ascetic (yati or sanyasi). In this section the meaning
of the word “Father” and “Mother” do not include a step father and a step
mother.
Section 7 of this act says that the natural guardianship of an adopted son who
is a minor at the time of adoption passes to the adoptive father and after him
to the adoptive mother[1].
Concept of Testamentary Guardian
Section 9 of this act says about the testamentary guardians and their powers. A
Hindu father who is entitled to act as the natural guardian of his minor
legitimate children may by will appoint a guardian for any of them in respect of
the minor’s person or in respect of the minor’s property or in respect of both.
But any appointment made by the father under this section, will have no effect
if the father dies before the death of the mother, but shall revive if the mother
dies without appointing, by will, any person as guardian of the minor child.
A Hindu widow who is entitled to act as the natural guardian of her minor
legitimate children and a Hindu mother who is entitled to act as the natural
guardian of her minor legitimate children may by will appoint a guardian for
any of them in respect of the minor’s person or in respect of the minor’s
 property or in respect of both by reason of the fact that the father has become
disentitled to act as such.
A Hindu mother who is entitled to act as the natural guardian of her minor
illegitimate children may, by will, appoint a guardian for any of them in respect
of the minor’s person or in respect of the minor’s property or in respect of both.
The guardian so appointed by will has the right to act as the guardian of
minor’s after the death of the minor’s father or mother and to exercise all the
rights of a natural guardian under this Act to such extent and subject to such
restrictions, if any, as are specified in this Act and in the will. Where the minor
is a girl then the right of the guardian so appointed by will shall cease on her
marriage[2].
Guardian Appointed by The Court
The courts have power to appoint guardians under the Guardians and Wards
Act, 1890. The High Courts also have inherent jurisdiction to appoint guardians
but this power is exercised scarcely. The Hindu Minority and Guardianship Act
is supplementary to Guardians and Wards Act. The jurisdiction is conferred on
the District Court under the Guardians and Wards Act, 1890. The District Court
may appoint any person as the guardian whenever it finds that it is compulsory
for the benefit of the child. While appointing guardian, court shall take into
consideration various factors like age of child, sex, wish of parent’s, and
personal law of child. But main motive is the welfare of the children. The
District Court has the power to appoint or declare a guardian in respect of the
person as well as for separate property of the minor or for both. This power
extends to the undivided interest of a coparcener. The guardian appointed by
the court is known as a certificated guardian.
De Facto Guardianship
A de facto guardian means self – appointed guardian. He is a person who takes
continuous interest in the welfare of minor’s person or in management or
administration of minor’s property without any authority of law. Alienation
made by de facto guardian is void. According to Section 1, De Facto guardian is
not allowed to dispose or deal with the property of the minor and it is given
that the guardian does not have the rights to take any debt.
Guardianship By Affinity
Before 1956, there was a guardian called guardianship by affinity. It was the
guardian of a minor widow which was given by the Guardianship and Wards
Act, 1850. No provision is given under the Hindu Minority and Guardianship Act,
1956 for the guardianship of a minor widow.
Guardianship by affinity is the guardian of a minor widow. In the earlier days of
the Smritis child marriages were very common. After the marriage happened of
a minor girl with the husband, then the husband became the guardian of the
girl. If in any situation, the husband died then the minor widow should not feel
unsafe. Because when a minor girl becomes a widow then the husband’s
relatives have the responsibility to protect and maintain her but if in husband’s
family no one is there, then the father of the widow takes the responsibilities of
the widow to protect her.
Relevant Case Laws
 Nil Ratan Kundu & Anr Vs. Abhijit Kundu
The present appeal was filed in the Supreme Court of India against the
judgment and order passed by the Additional District & Sessions Judge, Fast
 Track, 1st Court, Barasat on July 15, 2006 and confirmed by the Calcutta High
Court on December 7, 2007. By the impugned orders, both the Courts had
directed handing over the custody of the minor child Antariksh Kundu to father
Abhijit Kundu, who is respondent herein.
In the instant case, on overall considerations we were certain that the Courts
were not right or justified in granting custody of minor child Antariksh to Abhijit-
respondent herein without applying relevant and well-settled principle of
welfare of the child as supreme consideration. The trial Court should have
ascertained the wishes of Antariksh as to with whom he wanted to stay.
We had called Antariksh in our chamber. To us, he appeared to be
quite intelligent. When we had asked him whether he wanted to go to his father
and to stay with him, he clearly refused to go with him or to stay with him. He
had also stated that he was very happy with his maternal grand-parents and
would like to continue to stay with them. So Supreme Court were, therefore, of
the considered view that it would not be proper according to the facts and the
circumstances to give custody of Antariksh to his father who is respondent
herein.
For the above stated reasons, the appeal was deserve to be allowed and was
accordingly allowed. The application filed by the respondent Abhijit for custody
of his son Antariksh was ordered to be dismissed. In view of the facts and
circumstances of the case, however, there had been no order as to costs.
Guardianship of Minors Under Indian Law
In India, the legal definition and age of a minor vary depending on religious
laws and general statutes. Here is an overview of the different categories
concerning the age of minors:
 Under Muslim Law: A person under the age of 15 is considered a minor.
 Under the Indian Majority Act: The age of majority is set at 18 years.
 Under the Guardians and Wards Act, 1890: A person under 21 who has a
court-appointed guardian is still considered a minor.
Muslim Law Specifics
In the context of Muslim law, minors aged between 15 and 18 have a certain
autonomy in matters of marriage, dower and divorce. For instance, a Muslim
spouse aged 16 may independently initiate a divorce without the need for a
guardian’s intervention.
Legal Framework for Guardianship
The appointment of guardians for minors, whether for personal or property
management, is governed by the Guardians and Wards Act, 1890. This act
mandates the court to ensure that all decisions made concerning guardianship
align with the minor’s welfare.
In determining the most suitable guardian, the court considers:
 The laws applicable to the minor’s religion.
 The minor’s age, gender and religion.
 The character and capacity of the proposed guardian.
 The wishes of any deceased parent.
 The minor’s own preferences, if they are of sufficient age to express a reasoned
choice.
Role of Parents
 Although the mother typically holds custody of young children, this does not
negate the father’s rights. According to the Privy Council ruling in Imambandi
vs. Mutsaddi, the mother is entitled to custody only until a certain age, which
varies based on the child’s sex. However, the father remains the natural
guardian and retains overarching responsibilities.
Disputes and Resolutions
In situations where both parents reside together, neither parent can remove
the child without the other’s consent. This holds even during periods when the
mother legally holds custody. The father’s obligation to support and maintain
the child persists regardless of the mother’s custodial rights.
Disqualifications for Guardianship
For mothers or female guardians, several factors can disqualify them from
holding custody:
 Marriage to a person unrelated to the child within certain degrees of kinship.
 Immoral behaviour, such as adultery or neglect of the child.
 A living arrangement deemed unsuitable for the child’s upbringing.
Case Law
In Zynabi Bi vs. Mohammad Ghouse, a mother retained custody of her
children even after separation from the father. The court reaffirmed her
custodial rights, highlighting that living separately from her husband does not
constitute a disqualification.
Custody Beyond the Mother
If the mother is unable to take custody, other female relatives may be
considered, such as:
 The maternal and paternal grandmothers.
 Full sisters and other close female relatives like aunts.
 These relatives may take custody, especially when no suitable male guardian is
available.
Paternal Priority
Custody typically reverts to the paternal side of the family, following a
sequence similar to inheritance laws. This prioritises:
 The father.
 The nearest male paternal relatives, such as full and consanguine brothers
Kinds of Guardians
1. Natural Guardian (Section 6):
 Section 6 of the Act deals with natural guardianship. A “natural guardian” is defined by Section 6 as
the father and after him, the mother, with regard to the minor’s person. For property, the father is
the natural guardian, and after him, the mother.
 Powers of a Natural Guardian (Section 8):
 Power over Minor’s Person (Section 6):
 The natural guardian has the power to make decisions concerning the person of the minor,
including matters related to the minor’s health, education, and upbringing.
 Power over Minor’s Property (Section 8):
  The natural guardian has the power to deal with the minor’s property in the best interest of the
minor. However, certain transactions may require court approval.
 Power to Act in Emergency (Section 6):
 In emergency situations, the natural guardian can take immediate action to protect the minor’s
well-being without seeking court permission.
 Functions, Rights, and Duties:
 Education and Upbringing:
 The natural guardian is responsible for the minor’s education, moral, and cultural upbringing.
This includes making decisions about the minor’s schooling and overall development.
 Health and Medical Decisions:
 The natural guardian has the authority to make decisions regarding the minor’s health and
medical treatment. This encompasses choosing healthcare providers and consenting to
medical procedures.
 Management of Property:
 The natural guardian is entrusted with the management and protection of the minor’s property.
This involves handling financial matters on behalf of the minor.
 Representing the Minor:
 The natural guardian can represent the minor in legal matters and contractual agreements.
However, certain significant transactions may require court approval.
 Maintenance and Support:
 Providing for the minor’s maintenance, support, and general well-being is a duty of the natural
guardian. This includes ensuring that the minor has access to basic necessities.
 Religious and Cultural Decisions:
 The natural guardian can make decisions regarding the minor’s religious upbringing and
participation in cultural and social activities.
Powers of a Guardian and Duties of a Guardian:

Under Muslim law, a guardian's powers and duties revolve around ensuring the
welfare and well-being of a minor, particularly in matters of property, marriage,
and education. The primary duty is to act in the best interests of the child,
prioritizing their physical, moral, and religious upbringing. Guardians have the
power to manage the minor's property, including selling or pledging assets for
necessities, but they must exercise these powers responsibly and with the
minor's welfare in mind.

Powers of a Guardian:

Property Management:

Guardians can manage and administer the minor's property, including selling or
pledging assets to meet the minor's needs.

Legal Representation:

They can represent the minor in legal matters and act on their behalf in court.
Custody and Upbringing:

Guardians have the right to the physical custody (tahwil) and upbringing of the
minor (parvarish), ensuring their education, health, and general well-being.

Marriage:

In some cases, guardians can act as representatives for the minor in matters of
marriage, particularly if the minor is not of age or is not capable of making their
own decisions.

Duties of a Guardian:

Welfare and Best Interests:

The guardian must always act in the best interests of the minor, considering
their age, sex, and wishes.

Moral and Religious Upbringing:

Guardians are responsible for ensuring the child's moral and religious
upbringing in accordance with Islamic principles.

Support and Care:

They must provide for the minor's basic needs, including food, shelter, clothing,
and education.

Protection:

Guardians are responsible for protecting the minor from harm and ensuring
their safety.

Accountability:
They are accountable for the management of the minor's property and must
ensure that it is used solely for the minor's benefit.

Under Muslim law, guardianship can be removed or cease for various reasons,
primarily for the best interests of the minor. Removal can occur if a guardian
abuses trust, fails to fulfill duties, or is deemed unfit. Cessation happens
through the guardian's death, the minor reaching adulthood, or the minor's
marriage (in the case of a female).
Removal of Guardianship and Cessation of Guardianship

Removal of Guardianship:

Court Intervention: A guardian can be removed by the court in the minor's

best interest.

Grounds for Removal:

Abuse of Trust: If the guardian misuses their position or fails to act in the
minor's best interest.

Failure to Perform Duties: If the guardian neglects their responsibilities,

such as providing care or support.

Incapacity: If the guardian is unable to fulfill their duties due to illness or other
reasons.

Neglect or Ill-treatment: If the guardian neglects or mistreats the minor.

Disregard for Court Orders: If the guardian ignores court orders or the
Guardianship and Wards Act.

Moral Turpitude: If the guardian is convicted of an offense indicating moral

turpitude.

Conflict of Interest: If the guardian's interests conflict with the minor's

interests.

Court's Role: The court can remove a guardian appointed by it, by will, or by
any other instrument.

Cessation of Guardianship:

Death or Removal: The guardian's death or removal by the court ends their
guardianship.

Minority Ends: Guardianship ceases when the minor reaches the age of
majority.

Marriage: In the case of a female minor, marriage to a suitable husband can

terminate her guardianship.

Court Assuming Superintendence: If the court takes over the care of the
minor's person or property, the guardian's authority is also terminated.
Father Ceasing to be Unfit: If the father, who was initially deemed unfit, is
no longer so, the guardianship may be returned to him.