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A guardian is generally understood as a person primarily responsible for a minor's person, property, and education. Guardianship, in this sense, is the responsibility of caring for a child's person and property for the child's benefit, and the individual who bears that responsibility is termed a guardian.[1]

Muslim law approaches this responsibility through two related but distinct categories. Ḥaḍānah refers to the custody and physical upbringing of the child, a right that Muslim jurists overwhelmingly assign to the mother during the child's early years.[2]

Wilāyah, by contrast, refers to guardianship proper authority over the minor's property and legal affairs and, in the specific context of marriage, authority to contract the minor into marriage. The two concepts are frequently conflated in practice: British colonial courts took nearly two centuries to recognise them as analytically distinct, and even now judicial language sometimes uses "guardian" and "custodian" interchangeably.[3]

This article maintains the distinction throughout: ḥaḍānah is discussed as custody of the person, and wilāyah as guardianship of property, of marriage, or of the person in the legal sense.

India's guardianship law reflects the country's plural personal-law structure. Hindu law has been codified in the Hindu Minority and Guardianship Act, 1956, which lays down a statutory hierarchy of natural guardians subject to the paramount consideration of the minor's welfare.

Muslim law, by contrast, remains substantially uncodified: guardianship questions are governed by classical fiqh as applied through the general Guardians and Wards Act, 1890, which supplies the procedural framework without displacing the personal law that determines who qualifies as a guardian in the first place.

This is a qualitative study using descriptive and comparative methods to examine how guardianship is conceptualised in Islamic law and Indian personal law. Within the Islamic legal material, the study focuses primarily on the Shāfiʿī school, drawing on Kanz al-Rāghibīn[4], while also engaging the Ḥanafī tradition underlying Indian Muslim personal law, as recorded in Fatāwā ʿĀlamgīrī[5] and Radd al-Muḥtār[6]. By setting Muslim law against Hindu law, the study identifies points of convergence and divergence in the treatment of guardianship and reviews the Indian judicial decisions that have applied and in places reshaped these classical positions. The aim is to clarify not only what the classical and statutory rules provide, but how they have been applied, and occasionally reinterpreted, by courts.

1. Guardianship under Muslim Law

Meaning

The Guardians and Wards Act, 1890 defines a "guardian" as a person having the care of the person of a minor, of the minor's property, or of both.[7] A minor is a person who has not attained the age of majority; under classical Fiqh, puberty and majority are presumed to be attained on completion of fifteen years. In India, however, Muslims are governed by the Indian Majority Act, 1875, under which a person domiciled in India who is below eighteen years of age is a minor.[8]

Section 4 of the Guardians and Wards Act, 1890 further provides that, for the purpose of marriage, the person entitled to arrange a minor's marriage is treated as having care of that minor's person.

Kinds of Guardianship under Muslim Law

Ḥaḍānah: Custody of the Person

Applications for the appointment of a guardian are made under the Guardians and Wards Act, and courts intervene only where the minor's welfare requires it.[9] Custody of the person ḥaḍānah is treated separately and falls primarily to the mother. According to Kanz al-Rāghibīn, ḥaḍānah means caring for a person who cannot look after themselves and raising them in a manner conducive to their growth; women are regarded as best suited to this role on account of their characteristic patience and nurturing capacity.

The mother is the first person entitled to custody because of her natural affection for the child; close female relatives, such as the grandmother, follow her, on the basis that they share a comparable nurturing bond.[10]

 Wilāyah: Guardianship of Property

Legal or Natural Guardian

Classical Muslim jurists do not use the term "natural guardian," but all schools agree that the father occupies the position modern law would describe by that term.[11] The mother, by contrast, is not recognised as a guardian of property in any school of Muslim law, even after the father's death.[12] Because she is not a legal guardian in this sense, she cannot enter into contracts involving the child's property; her role is instead confined to custody, from which the father's authority is entirely separate.[13] The father's authority over the child's maintenance, education, and religious upbringing subsists even while the mother holds custody. In short, under classical Muslim law the mother is not a natural guardian even of her illegitimate minor children, though she is entitled to their custody a position some Indian courts have qualified, as in Gohar Begum v. Suggi alias Nazma Begum.[14]

Paras Diwan summarises the position thus: among the Sunnis, the father is the sole natural guardian, and on his death guardianship passes to his executor; among the Shias, guardianship after the father passes to the grandfather even where the father has appointed an executor, and no other relative  not even a brother  can serve as natural guardian.[15] Kanz al-Rāghibīn records a comparable Shāfiʿī sequence: the father, then the paternal grandfather, then an executor appointed by either of them, and finally the qāḍī or a person appointed by the qāḍī, where none of the foregoing exists.[16] The difference between the two accounts is instructive: Diwan's summary of Sunni law places the executor immediately after the father, whereas the Shāfiʿī sequence in Kanz al-Rāghibīn inserts the grandfather before the executor. Both, however, share the same underlying logic guardianship of property follows the male agnatic line, extending outward from the father only where no closer male relative, or his appointee, is available.

Testamentary Guardian

Among the Sunnis, the father has full power to appoint a testamentary guardian; in the absence of the father and his executor, this power passes to the grandfather. Among the Shias, the father's testamentary appointment is valid only where the grandfather is not living.[17]

Guardian Appointed by Court

Where no natural or testamentary guardian exists, the court may appoint a statutory guardian under the Guardians and Wards Act, 1890, irrespective of the minor's community. Where a mother  or another female custodian  remarries a person not within the prohibited degrees of relationship to the child, this operates as a bar to her continuing to hold custody; on remarriage, custody reverts to the former husband, or, where the mother is otherwise disqualified, to the paternal grandmother.[18] Kanz al-Rāghibīn sets out a corresponding order of priority among female relatives entitled to custody: the mother first, then her own female relatives (her mother, grandmother, and others related through the female line), ranked by closeness of relationship, followed by the paternal grandmother and her female ancestors in the same line.[19]

De Facto Guardian

A person who is neither a natural, testamentary, nor statutory guardian, but who has nonetheless assumed responsibility for a minor's person or property, is termed a de facto guardian. Such a person has no legal right over the minor's property and is, at most, a custodian in fact; being generally a relative of the child, he cannot alienate the minor's property without being formally appointed guardian by will or by the court. Diwan notes that Muslim authorities discuss a comparable figure under the heading fuḍūlī, who "has practically no position in the Muslim law of modern India."

Wilāyah in Marriage (Wilāyat al-Nikāḥ)

Islamic law's most distinctive contribution to guardianship doctrine is the guardian's power, called jabr, to contract a minor into marriage; the right itself is termed wilāyah, and the guardian who holds it, walī. Ordinarily, a valid marriage requires that both parties have attained puberty (bulūgh); the guardian's power to contract on behalf of a minor is the exception to this rule. Under Shia law, only the father and, in his absence, the paternal grandfather holds this power.[20] Under Sunni law, the order of priority runs from the father through the paternal grandfather and upward through the male ancestral line, each preferred over collateral relatives by combining direct blood relationship with agnatic connection; among guardians of equal degree, the closer in line takes priority.[21]

2. Guardianship under Hindu Law

Natural Guardians

Under Hindu law, a natural guardian holds authority to act on a minor's behalf without requiring judicial appointment.[22] The Hindu Minority and Guardianship Act, 1956 names the father as the first natural guardian, and the mother as guardian only after him for instance, on his death or incapacity.

Judicial interpretation has since qualified this hierarchy considerably: courts have recognised the mother as natural guardian in a growing range of circumstances, and have, in some contexts, treated maternal grandmothers and other female relatives as capable of the role. Natural guardianship terminates where the guardian ceases to be Hindu, or renounces the world.

Several decisions illustrate this evolution. In E.M. Nadar v. Shri Haran (1992)[23] and Vijayalakshmi v. Police Inspector (1991)[24], and in Chandra v. Prem Nath (1969), courts have held that the mother is guardian of a child below five years of age. Where the father is unable, or lacks the means, to discharge his responsibilities, courts have similarly recognised the mother as natural guardian, as in I.R. Venkat Subaiya v. M. Kamalamma (1992)[25] and, most significantly, Smt. Geeta Hariharan v. Reserve Bank of India (1999).[26]

Testamentary Guardians

A parent may appoint a testamentary guardian by will to care for a minor child after the parent's death. The testamentary guardian is responsible for managing the child's needs and protecting the child's interests until the age of majority, and such an appointment is valid only so far as it does not adversely affect the child's welfare.

 Guardians Appointed by the Court

Where parents cannot care for a child, or a dispute arises over guardianship, the court may appoint a guardian to act on the child's behalf. Such an appointment is conditional on serving the child's best interests, and courts weigh factors such as the proposed guardian's financial position, capacity to care for the child, and personal character before making an appointment.

3. Comparative Analysis 

Philosophical Foundations

The two systems begin from different starting points. Hindu guardianship law, as codified in 1956, is a creature of statute: Parliament fixed a hierarchy of natural guardians and made it expressly subordinate to the minor's welfare, leaving courts free to depart from that hierarchy where welfare requires it. Muslim guardianship law, by contrast, is not codified in India; it is derived from classical fiqh texts whose structure is agnatic rather than welfare-driven at the point of origin.

Wilāyah of property and of marriage follows the male line because classical jurists treated the capacity to protect a minor's interests as running through paternal kinship, while ḥaḍānah is allocated to the mother not as an alternative form of guardianship but as a separate right of custody, justified by presumed maternal affection rather than legal authority.

The result is that Muslim law formally separates who protects the child's legal and proprietary interests (the walī) from who physically raises the child (the mother, as ḥāḍinah), whereas Hindu law, after 1956, increasingly folds both functions into a single, welfare-oriented inquiry.

The Welfare Principle in Both Systems

Despite this difference in origin, the welfare principle has entered Muslim personal-law adjudication through judicial interpretation rather than statutory amendment. In Gohar Begum (see note 14 above), the Supreme Court treated the mother's custodial right over her illegitimate child as enforceable even against the letter of classical doctrine.

In Fathima Bi and Gurbux v. Rafia (note 13), courts subordinated the father's formal claim as natural guardian to the child's welfare, and in Rahima v. Saburjanessa (note 18), a mother's remarriage displaced her custody only because the court read the classical bar through a welfare lens, transferring custody to the paternal grandmother rather than automatically to the father.

None of these decisions purports to alter the classical structure of wilāyah; each operates by treating welfare as an equitable qualification on ḥaḍānah. Hindu law reaches a structurally similar result by a different route: Geeta Hariharan (note 26) did not create a new category of guardian but reinterpreted the word "after" in section 6 of the 1956 Act so that the mother could act as natural guardian during the father's lifetime wherever he was absent, indifferent, or otherwise unable to perform his duties.

In both systems, welfare functions less as a standalone rule than as an interpretive principle that courts use to soften rigid textual hierarchies agnatic in Muslim law, sequential in Hindu law without formally dismantling them.

Judicial Evolution: From Textual Literalism to Welfare Jurisprudence

The trajectory in both systems runs from strict adherence to text toward a more discretionary, child-centred approach, though the pace differs. Early colonial-era treatment of Muslim law could not clearly distinguish ḥaḍānah from wilāyah as separate concepts, let alone weigh welfare against either (note 3). Imambandi v. Mutsaddi (1918) still applied the classical rule strictly, denying the mother any authority over the minor's property regardless of circumstance (note 12). By the late twentieth century, however, courts were prepared to qualify custody outcomes by reference to welfare while leaving the underlying doctrine of wilāyah untouched.

Hindu law's evolution has been more explicit because it operates through open statutory language: the 1956 Act names welfare as the paramount consideration on its face, and Geeta Hariharan simply gave that language its fullest effect. This suggests that codification does not, by itself, determine how welfare-oriented a system becomes; the two traditions have converged on similar outcomes through different institutional routes statutory reinterpretation in Hindu law, and equitable qualification of custody in Muslim law.

Mothers as Guardians: Converging Trends, Persistent Limits

The clearest point of contemporary comparison concerns the mother's position. Hindu law has moved furthest: since Geeta Hariharan, a mother may act as natural guardian during the father's lifetime, not merely after his death or disqualification, and custody of children below five is now routinely awarded to her (notes 23–26). Muslim law has not undergone an equivalent formal shift no school of fiqh treats the mother as a wilāyah-holding guardian of property, and Kanz al-Rāghibīn confirms that this classical position remains unchanged (notes 11, 16).

What has shifted, instead, is the scope courts are willing to give to the mother's custodial right: Gohar Begum treated that right as strong enough to override a competing claim to the child, and later custody decisions have generally favoured the mother's physical care of young children unless a specific welfare concern points the other way.

The functional gap between the two systems has therefore narrowed for young children in practice, even though it remains wide in formal doctrine: Hindu law grants the mother guardianship in the full legal sense, while Muslim law continues to grant her custody alone.

Classical Fiqh and Constitutional Principles

A fuller account of this convergence would need to examine how far Indian courts treat welfare-based reasoning in Muslim personal law as an internal development of Fiqh, as opposed to a value imported into it from outside. That question and the related one of how the Guardians and Wards Act's welfare mandate interacts with uncodified personal law more generally is beyond the classical texts and case law surveyed in this article, and would benefit from more sustained engagement with constitutional and personal-law scholarship than has been possible here.

Conclusion

This comparative study confirms that Hindu and Muslim guardianship law in India begin from different structural premises one statutory and welfare-first, the other classical and agnatic but arrive, in practice, at converging outcomes for the custody of young children. The distinction between ḥaḍānah and wilāyah remains doctrinally important in Muslim law and should not be collapsed into a single Hindu-law-style category of "guardian": doing so would obscure the specific textual basis on which Indian courts have extended welfare protection to Muslim minors. At the same time, the case law reviewed here shows that welfare has become a genuine interpretive principle within Muslim personal law, not merely an external value imposed on it.  The courts have used it to qualify custody outcomes (Gohar Begum, Fathima Bi, Rahima v. Saburjanessa) in ways that parallel, without replicating, Hindu law's statutory welfare mandate. Harmonising the two systems further need not mean assimilating Muslim wilāyah into the Hindu model of natural guardianship; it could instead mean making explicit, through legislation or clearer appellate guidance, the welfare principle that Muslim courts already apply case by case, so that outcomes for children depend less on which court, and which precedent, a given family happens to encounter. That would preserve the distinct classical structure of Muslim guardianship law while giving it the same doctrinal clarity and predictability that codification gave Hindu law in 1956.

About the author:

Swalahuddeen K.A or Swalahuddeen Kodagu is a research scholar mastering in department of Fiqh and Usul Fiqh at Darul Huda Islamic University, Kerala, India, working under the guidance of Mohamed Jabir Ali Al-Hudawi of the Sultan Omar 'Ali Saifuddien Centre for Islamic Studies (SOASCIS), Universiti Brunei Darussalam.

References

1. Diwan, P. (2014). Muslim law in modern India (5th ed.). Allahabad Law Agency.
2. Fyzee, A. A. (2008). Outlines of Muhammadan law (5th ed.). Oxford University Press.
3. Derrett, J. D. M. (1968). Introduction to modern Hindu law. Oxford University Press.
4. Coulson, N. J. (2011). A history of Islamic law. Edinburgh University Press.
5. Pandey, S. Guardianship of child under Muslim law. Legal Service India. https://www.legalserviceindia.com
6. Tyabji, F. (1968). Muslim law: The personal law of Muslims in India & Pakistan (4th ed.). N. M. Tripathi.
7. al-Maḥallī, A. ibn Q. (n.d.). Kanz al-Rāghibīn fī Sharḥ Minhāj al-Ṭālibīn. (Classical Shāfiʿī legal commentary).
8. Al-Fatāwā al-Hindiyya (Fatāwā ʿĀlamgīrī). (1890). Government Press, Calcutta.
9. Guardians and Wards Act, No. 8 of 1890, India Code.
10. Indian Majority Act, No. 9 of 1875, India Code.
11. Hindu Minority and Guardianship Act, No. 32 of 1956, India Code.
12. Imambandi v. Mutsaddi, (1918) 45 Cal 887 (PC).
13. Fathima Bi v. Sadhakautalla, (1977) Mad 251.
14. Gurbux v. Rafia, (1979) HP 66.
15. Gohar Begum v. Suggi alias Nazma Begum, (1960) 1 SCR 597.
16. Smt. Geeta Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.

Citations:

[1]Shreya Pandey, "Guardianship of Child under Muslim Law," Legal Service India.

[2]Paras Diwan, Muslim Law in Modern India, 168.

[3]Tyabji's Muhammadan Law, s. 231: "Guardianship of the person is referred to in Muslim law as Hizanat."

[4]Shihāb al-Dīn Aḥmad ibn Qāsim al-Maḥallī, Kanz al-Rāghibīn fī Sharḥ Minhāj al-Ṭālibīn (Commentary on Imam al-Nawawī's Minhāj al-Ṭālibīn).

[5]Fatāwā ʿĀlamgīrī (also al-Fatāwā al-Hindiyya) is a seventeenth-century Ḥanafī compilation organised under Emperor Aurangzeb ʿĀlamgīr, systematising classical Ḥanafī rulings drawn from major juristic authorities. It remains frequently cited in Indian courts on guardianship, marriage, and personal-law matters.

[6]Radd al-Muḥtār ʿalā al-Durr al-Mukhtār, by Ibn ʿĀbidīn (1784–1836), is a leading commentary on Ḥanafī law, widely cited by courts and scholars on guardianship, custody, marriage, and personal-status matters.

[7]Guardians and Wards Act, 1890, s. 4 — India's general law on the appointment of guardians, applicable across communities, with the minor's welfare as its core principle.

[8]Indian Majority Act, 1875, s. 3.

[9]Fyzee, Outlines of Muhammadan Law, 189.

[10]Kanz al-Rāghibīn, vol. 4, 89.

[11]Paras Diwan, Muslim Law in Modern India, 126.

[12]Imambandi v. Mutsaddi, (1918) 45 Cal 887 (PC): under Muslim law the mother is not the legal or natural guardian of a minor's property; only the father or his executor may act in that capacity, and a property transaction by the mother is void. The case sharply separated custody from legal guardianship.

[13]Fathima Bi v. Sadhakautalla, (1977) Mad 251; Gurbux v. Rafia, (1979) HP 66: the courts held that the child's welfare may prevail over strict personal-law entitlement even in custody disputes between parents, and that a mother may retain custody where this serves the child's welfare, notwithstanding the father's claim as natural guardian.

[14]Gohar Begum v. Suggi alias Nazma Begum, (1960) 1 SCR 597: the Supreme Court held that the mother of an illegitimate child has an enforceable right to custody under Muslim law, and that withholding the child from her amounted to unlawful confinement; the child was ordered returned to the mother.

[15]Paras Diwan, Muslim Law in Modern India, 127.

[16]Kanz al-Rāghibīn, vol. 2, 380.

[17]Paras Diwan, Muslim Law in Modern India, 127.

[18]Rahima v. Saburjanessa, AIR 1996 Gau 33: a mother forfeits her custodial right on remarriage to a person outside the child's prohibited degrees of relationship; the court treated the child's welfare as the primary concern and transferred custody to the paternal grandmother.

[19]Kanz al-Rāghibīn, vol. 4, 89.

[20]Shreya Pandey, "Guardianship of Child under Muslim Law."

[21]Kanz al-Rāghibīn, vol. 3, 225.

[22]M. Srivastava, "Comparative Analysis of Guardianship Laws in India" (2022).

[23]E.M. Nadar v. Shri Haran (1992): a father remains natural guardian of his minor child even while living separately from the child; physical separation does not extinguish legal guardianship, though the child's welfare may still justify judicial intervention.

[24]Vijayalakshmi v. Police Inspector (1991): where the father ceases to be Hindu, the mother becomes the natural guardian.

[25]I.R. Venkat Subaiya v. M. Kamalamma (1992): a mother may be appointed guardian where this best serves the child's welfare; guardianship is not confined to the father and may shift where circumstances require, with the child's welfare as the controlling principle.

[26]Smt. Geeta Hariharan v. Reserve Bank of India, (1999) 2 SCC 228: the Supreme Court held that "after" the father in s. 6 of the Hindu Minority and Guardianship Act, 1956 does not mean "after his death"; a mother may act as natural guardian during the father's lifetime where he is absent, indifferent, or otherwise unable to discharge his duties. The ruling affirmed gender equality in guardianship and the child's welfare as the controlling principle.