Essay on the Guardianship under Muslim Law

(1) The classical Muslim law and

(2) The statutory law.

Under the classical Muslim law, a person is said to be minor if he or she has not attained the age of puberty. The age of puberty is fifteen years. But, as already discussed, fifteen years is the age of majority only for marriage, dower and divorce.

Thus, for purposes of marriage, dower and divorce, a Muslim who has not attained the age of puberty is called a minor. Statutory rules which regulate the age of majority of the Muslims are given below:

(a) For purposes other than marriage, dower and divorce, the age of majority is governed by the Indian Majority Act, 1875. Under this Act the age of majority is eighteen years. A Muslim, who has not attained the age of eighteen years, is a minor in respect of all matters except marriage, dower and divorce.

(b) Where a Muslim is within the supervision of a guardian appointed by court of law, or is a Muslim whose property has been under the supervision of Court of Wards, the age of majority for such Muslim is twenty-one years.

Therefore, except in matters of marriage, dower and divorce, a Muslim who is in the supervision of a guardian appointed by court or is under protection of Court of Wards, remains a minor so long as he (or she) has not attained the age of twenty-one years.

(c) For purposes of marriage, dower and divorce, a Muslim becomes adult after attaining the age of puberty (fifteen years). But for filing a suit in a court of law, the minimum age is eighteen years (not fifteen years) even if the suit may relate to marriage, dower and divorce. The result is that a Muslim, under the age of eighteen years is minor and cannot file any suit relating to his or her marriage, dower and divorce without the ‘next friend’.

A minor is supposed to have no capacity to protect his or her own interests. Law therefore, requires that some adult person must safeguard the minor’s person or property and do everything on his (her) behalf because such a minor person is legally incompetent.

A person, who is authorised under the law to protect the person or property of a minor, is called a guardian. Under Muslim law guardians are required for purposes of marriage, for protecting the minor’s person (including the custody of the minor) and for protecting the minor’s property.

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