Guardianship certificate for minor son
Aakhan
(Querist) 19 May 2018
This query is : Resolved
One of relative husband expired 17 months back. His wife wanted to withdra epf money and pension. She, minor son and her mother in law are having share in pf amount. Pf office people are asking guardianship certificate to issue minor son share. Though mother is a natural guardian but still they are asking because in muslim personal law only father is natural guardian. How can she get guardianship certficate for her minor son. How much legal charges will be there.
Ms.Usha Kapoor
(Expert) 20 May 2018
Nothing is there. Following paragraphs relevant thingsare there.
Ms.Usha Kapoor
(Expert) 20 May 2018
Guardianship of a minor person means an overall supervision of the minor’s personality. It means care and welfare of the child including the liability to maintain it. It is more than simply custody of the child upon a certain age. Under Muslim law, is called HIZANAT. They are sometime taken to mean the same thing .But under Muslim law, these two aspects of the guardianship are different and are governed by the different laws. The guardianship of a child means overall supervision of the child during its minority. Father or his executer or in his absence, the paternal grandfather, being the natural guardian, are in charge of the minor’s person. On the other hand ‘custody of the child’ simply means a physical possession (custody) of the child upon a certain age. Although mother is not the natural guardian of the child under Muslim law, but she has a right to the custody of the child, till the child attains a specific age.[1] But the father or the paternal grandfather has a control over the minor during the whole period of the minority. Tahir Mohmood states that:
“Guardianship of a person in relation to a child belongs primarily to its father, the mother’s being only a pre-emptive right to keep the father away for a legally prescribed period only from a particular aspect of the guardianship of person, namely, the custody and physical upbringing of the child’’. [2]
It may be said therefore, that mother has a right to the custody of her child for some time, because except her, no one can handle and nurse a child during its infancy. But her custody of the child is subject to the supervision of the father who, as a legal guardian, is under an obligation to provide means for the upbringing of child.
In this paper we will understand the different possibilities and move of our legal system for every circumstances arising regarding guardianship under Muslim law.
Ms.Usha Kapoor
(Expert) 20 May 2018
1. Father
2. Paternal grandfather
3. Executor of Paternal grandfather
Under Muslim law in the absence of any of the above mentioned persons, nobody else is recognized as the natural guardian of a minor.[3]
Shia Law: In the absence of father only paternal grandfather may act as a legal guardian .In the presence of paternal grandfather, the father’s executor has no right to act as legal guardian of a child.
Testamentary Guardians: Testamentary guardian is a person who is appointed as guardian of a minor under a will. Only father or, in his absence, paternal grandfather has right to appoint a testamentary guardian. No special formality is required for the appointment of a testamentary guardian, but, as obvious, such a person should be competent to act as a guardian. A non-Muslim and a female may also be appointed as a testamentary guardian.
Shia Law: A non- Muslim cannot be appointed as testamentary guardian.
Ms.Usha Kapoor
(Expert) 20 May 2018
Guardians appointed by Court: In the absence of a natural and testamentary guardian, the court is empowered to appoint a guardian for the purpose of the minor’s person or property or for both. The appointment of guardian by court is governed by the Guardianship and Wards Act, 1890 which is applicable to all the Indians irrespective of their religion. Such guardians are also called Statutory Guardian. It may be noted that no provision has been made under this act for the guardianship for the marriage. The result is that except the guardian for marriage, the guardian for a Muslim minor’s person or property may be appointed by the court of law. In case of conflict between Muslim personal law & Guardianship & wards act, provisions of acts prevail over the provisions of Muslim personal laws.
The courts are empowered to appoint the guardians for a minor upon an application. Such application may made by any of the following persons:
1. any person desirous of being or claiming to be the guardian of the minor, or
2. any relative or friend of the minor, or
3. The collector of the district in which the minor generally resides
If the court is satisfied that it is for welfare of the minor that an order should be made, then it may make an order –
1. Appointing a guardian of minor’s person, or both ,or
2. Declaring a person to be such a guardian.[4]
Guardianship of proposed guardian00 17 (2) of the act says about the various grounds for deciding the guardianship like: sex, age of the minor, capacity of the proposed guardian etc.
In Smt. Farzanabai v. Ayub Dadamiya[5], the Bombay high court observed that under Guardians and Wards act, the per
Personal law of the parties is a factor which is to be kept in mind by the court subject to the interest of the minor.
Ms.Usha Kapoor
(Expert) 20 May 2018
In view of the above mother can petition the court in the absence of father or \paternal grand father or their executors to handover the custody and to be appointed as Guardian under Guardian and wards Act.for her minor son.11111. Court will consider welfare of the child as paramount consideration and accordingly appoint her as guardian of the child.
Ms.Usha Kapoor
(Expert) 21 May 2018
In the above paras we've seen how a Muslim mother also can be appointed as guardian of minor son.
Kumar Doab
(Expert) 21 May 2018
Approach Distt Courts..
Kumar Doab
(Expert) 21 May 2018
If you are unable to handle on your own approach your own very able senior LOCAL counsel that has proven and successful track record in such matters..and worth his/her salt..
The FEE cannot be forecasted...
IT is otherwise simple matter..
Kumar Doab
(Expert) 21 May 2018
The Lady can also seek FREE legal aid from LOCAL DLSA that is usually within courts complex.
T. Kalaiselvan, Advocate
(Expert) 21 May 2018
If the authorities are insisting on the guardianship certificate for the minor claimants, you have to approach court with an application under the GW Act.
The minor's property cannot be alienated or sold during their minority without the permission of court hence this precaution is made as provisions of law in the welfare of the minor children.
If the PF authorities agree to deposit the share of minor children in a bank as a long term deposit, you can proceed that way by having an audience with the PF commissioner in this regard.
This can help you avoid unnecessary litigation and the expenses thereon.
