Laws For everyday life
Guardianship of children
Shah Md. Mushfiqur Rahman
Guardianship refers to the right to control the movement and actions of a minor. Guardianship is also needed for other people unable to take care of themselves e.g. an idiot or a lunatic. For the purpose of this article our discussion would be confined to guardianship of minors.
Categories of guardianship
Guardianship may be of:
a) the person (body),
b) the property, and
c) in marriage.
But as our statutory law criminalized the incident of child marriage, guardianship in marriage is no more relevant for our purpose.
Natural guardian
In Muslim law father is the natural and legal guardian of the person and property of his minor child. So to act as a guardian the father does not require an order of the Court. Even if he takes away his minor child from the custody of its mother, that will not constitute the offence of kidnapping.
Guardians appointed by the court
Though mother or other relatives are not natural guardians of minor children, they are not debarred from applying to the appropriate court for such guardianship. All applications for the appointment of a guardian of the person or property or both of minor are to be made under the Guardians and Wards Act, 1890. The court, upon such application, can appoint any person as the legitimate guardian other than the father. In doing so the court shall put paramount importance on the welfare of the concerned minor. It shall also see what decision will be consistent with the personal law of that minor.
In determining the welfare, the court shall have regard to the age, sex and religion or the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes of a deceased parent and any existing or previous relations of the proposed guardian with the minor or his property.
If the court thinks that the minor is old enough to form an intelligent preference, such preference would also be taken into account.
Guardianship of property
We already have seen that the father is the natural guardian of his minor child. Failing the father the following persons are entitled to the guardianship of the minor in question in order of priority:
* The father's executor;
* The father's father
* The paternal grandfather's executor
It must be borne in mind that the substantive law of Islam does not recognize any other relatives, like mother or uncle or brother as legal guardians. However, these relatives can be appointed by the court as the guardians of minor children.
Who is an executor?
Since executors of father and grandfather get their place in the list of legal guardians for minor's property, we must understand who they really are. Executor is an individual appointed through a will to administrate the estate of a deceased person. The executor's main duty is to carry out the instructions and wishes of the deceased. The executor is appointed by the person making the will.
If legal guardians fail
Failing the abovementioned legal guardians, the court is entitled to appoint a guardian for the protection and preservation of the minor's property. In the exercise of its duty to appoint a guardian, the court may appoint the mother or some other person as such guardian, since a woman is under no disqualification to be so appointed.
De facto guardian
A person, who is neither a legal guardian nor appointed by the court, may place himself in the position of a guardian and can be termed a de facto guardian. Such de facto guardians are merely custodians of the person or the property of a minor. They have no rights but they have to incur obligations.
Limitation of guardians
Guardians, be they are legal or appointed by the court, are under some serious limitations in exercising their rights especially when it comes to transfer of minor's immovable property. Usually they have to obtain a prior approval of a competent court before they can sell, gift or exchange immovable property of a minor.
Rules are quite flexible in relation to movable properties. Even a de facto guardian can sell the movable property of the minor for the minor's necessities, such as: food, clothing and nursing. But a guardian has to deal with the property of the minor as carefully as a person of ordinary prudence would deal with it if it were his own.
The writer is advocate, member of Dhaka Bar Association.
