A de-facto guardian is a person who takes continuous interest in the welfare of the minor’s person or in the management and administration of his property without any authority of law. Hindu jurisprudence has all along recognized the principle that if liability is incurred by one on behalf of another in a case where it is justified, then the person, on whose behalf the liability is incurred or, at least, his property, is liable, notwithstanding the fact that no authorization was made for incurring the liability.
Child custody and Guardianship in Muslim Law
As per my consideration, Muslim law is of utmost importance when it comes to gauging the actual representation of women when asking for the custody and guardianship of children. As for that matter, the chapter has been further divided into suitable sub-headings.
The term 'guardianship' connotes guardianship of a minor i.e. a person who has not attained puberty. Puberty is assumed to have been attained at age 15 years in general. However, as far as guardianship is concerned, a Muslim will be governed by the Indian Majority Act of 1875 which provides that the age of majority is 18 years and 21 years if the minor has been appointed a guardian by the court. A guardian will be appointed by the court under the Guardian and Wards Act of 1890 for the welfare of the minor.
Kinds Of Guardianship
Muslim law recognizes three types of guardianship
(i) guardianship in marriage (Jabar)
(ii) guardianship of persons of the minor for custody (Hizanat);
(iii) guardianship of property which is divided into three sub groups:
a. de jure guardianship;
b. de facto guardianship;
c. Certified guardianship.
Guardianship of the Person of the Minor for Custody
Under Sunni Law the mother is entitled to the custody of a male child up to 7 years and a female child till she attains puberty. Under Shia law she has custody of male child till the age of 2 years and female child till the age of 7 years; She is the de facto guardian; Under Sunni law failing the mother the custody of a boy up to 7 year and girl up to puberty goes to the following female relatives in order:-
(i) Mother’s mother how highsoever;
(ii) Father’s mother how highsoever;
(iii) Full sister ;
(iv) Uterine sister;
(v) Consanguine sister;
(vi) Full sister’s daughter
(vii) Uterine sister’s daughter;
(viii) Consanguine sister’s daughter;
(ix) Maternal aunt in like order as sisters;
(x) Paternal aunt in like order as sisters
In default of mother and female relatives, the custody goes to the following:
(ii) Paternal grandfather (nearest )
(iii) Full brother;
(iv) Consanguine brother;
(v) Full brother’s son
(vi) Consanguine brother’s son;
(vii) Full brother of the father;
(viii) Consanguine brother of the father;
(ix) Son of father’s full brother;
(x) Son of father’s consanguine brother;
Under Shia law the custody goes to the mother, failing her to the father and failing him to the father’s father.
Under Sunni law the father is entitled to custody of the boy over 7 and an unmarried girl who has attained puberty and in Shia law to the custody of a male child over two year and unmarried girl of 7 years. The custody of an illegitimate child goes to the mother.
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