Guardianship (Wilayat) under Muslim Law: Types and Powers

Introduction

Guardianship (Wilayat) under Muslim law refers to the legal authority vested in a person to take care of a minor and manage his or her property. It is an important institution in Islamic family law because minors, due to their age, lack the legal capacity to make decisions regarding their person or property. The concept of Wilayat is deeply rooted in the Quran, Hadith, and juristic interpretations of Islamic scholars.

The Quran directs believers to protect the rights of orphans and minors:

“And do not approach the orphan’s property except in a way that is best, until he reaches maturity.” (Surah Al-An’am 6:152)

Similarly, Hadith literature emphasizes the duty of guardians to protect and care for minors without exploiting their property. Prophet Muhammad (ﷺ) said:

“Whoever takes care of an orphan and myself will be like this in Paradise,” and he held his two fingers together. (Sahih al-Bukhari, Hadith 6005)

Guardianship in Muslim law is not merely a legal arrangement; it is also a moral and religious responsibility. In legal terms, guardianship applies to two aspects: (1) Guardianship of the person and (2) Guardianship of property.

This topic has practical importance because disputes often arise between relatives about who should be appointed as a guardian. Courts apply Muslim personal law along with statutory provisions such as the Guardians and Wards Act, 1890 to resolve such matters.

For a better understanding, it is essential to also read our detailed discussion on Custody of Children (Hizanat) under Muslim Law, which deals with physical care, whereas Wilayat covers broader legal authority.

Meaning and Scope of Wilayat

The Arabic term Wilayat literally means “authority” or “control.” In Muslim law, it refers to the legal power given to a person (the guardian) to take care of the person or property of a minor.

A minor is defined under most interpretations of Muslim law as a person who has not attained the age of puberty, which is presumed at 15 years, although statutory law in India sets the age of majority at 18 years under the Indian Majority Act, 1875.

The scope of Wilayat includes:

Guardianship of the person – decisions about the child’s education, marriage, medical care, and overall upbringing.
Guardianship of property – managing the child’s assets, protecting them from misuse, and ensuring they are used in the minor’s best interest.

Sources of Law on Guardianship

Guardianship in Muslim law is derived from multiple sources:

Quranic Injunctions – Commands regarding the protection of orphans and minors.
Hadith – Guidance on moral responsibility of guardians.
Ijma – Consensus of Islamic jurists on guardianship matters.
Qiyas – Analogical reasoning in cases not directly addressed in Quran or Hadith.
Statutory Law – In India, the Guardians and Wards Act, 1890 applies to all communities where personal law is silent.

For example, the Quran in Surah An-Nisa (4:6) says:

“Test the orphans until they reach marriageable age; then if you perceive in them sound judgment, release their property to them.”

Types of Guardianship in Muslim Law

Muslim law recognizes several types of guardianship depending on the nature of authority and the source of appointment. Broadly, there are three main categories:

1. Natural Guardian (Wilayat-e-Asli)

The natural guardian is the person who has the primary right and duty to act as the guardian by virtue of relationship. Under Sunni law, the father is the natural guardian of the person and property of the minor. After him, this right passes to:

Paternal grandfather.
Executor appointed by the father.
Executor appointed by the paternal grandfather.

Under Shia law, the father and paternal grandfather are natural guardians. The mother is not recognized as a natural guardian of property, though she may have custody rights (Hizanat).

Case Law:

Imambandi v. Mutsaddi (1918) – Privy Council held that the mother is not the natural guardian of a minor’s property in Muslim law.

2. Testamentary Guardian (Wilayat-e-Wasiyat)

A testamentary guardian is appointed through a will (Wasiyat) made by the father or paternal grandfather. This guardian takes over the duties upon the death of the natural guardian.

The testamentary guardian must act strictly according to the instructions given in the will and in the minor’s best interests.

For more on Wasiyat, refer to our upcoming topic Wills (Wasiyat) under Muslim Law: Essentials and Limitations which will explore this in detail.

3. Guardian Appointed by the Court (Wilayat-e-Qazi)

When no natural or testamentary guardian is available, the Qazi (or in modern India, the civil court) can appoint a guardian under the Guardians and Wards Act, 1890.

The court considers:

Welfare of the minor (paramount consideration).
Age, sex, and religion of the minor.
Character and capacity of the proposed guardian.
Wishes of the minor (if old enough to express a preference).

Case Law:

Gulam Husaini v. Faiyaz Husaini – Court held that the welfare of the minor is the most important factor in appointing a guardian.

Guardianship of the Person

Guardianship of the person means legal authority over the minor’s physical and personal affairs, including:

Education.
Medical treatment.
Marriage.
Religious upbringing.

While Hizanat focuses on custody, Wilayat includes decision-making authority. For example, the father may decide on the school the child attends, even if the mother has custody.

Guardianship of Property

Guardianship of property is a sensitive role because the guardian must ensure the minor’s assets are protected and not misused.

Powers of Property Guardian:

Management – collect rents, pay taxes, maintain property.
Investment – invest surplus funds in safe instruments.
Sale of property – only in case of necessity, such as to pay debts or for maintenance.
Leasing property – subject to legal restrictions.

The Quran strictly warns against misuse of an orphan’s property (Surah An-Nisa 4:10):

“Indeed, those who devour the property of orphans unjustly are only consuming into their bellies fire. And they will be burned in a Blaze.”

Powers and Limitations of Guardians

A guardian’s powers are not absolute. They are subject to:

Acting in the best interest of the minor.
Avoiding conflict of interest.
Seeking court permission for major transactions.
Following personal law principles.

For example, a property guardian cannot:

Sell immovable property except in urgent necessity.
Engage in speculative investments.
Gift away the minor’s assets.

Termination of Guardianship

Guardianship ends when:

Minor attains majority (18 years, or 21 if under court-appointed guardianship).
Death of the guardian.
Guardian is removed by the court for misconduct or incapacity.
Resignation accepted by the court.

Conclusion

Guardianship in Muslim law is a sacred trust governed by both legal and religious principles. It ensures that minors are protected, guided, and prepared for adult responsibilities. Courts and Islamic jurisprudence both emphasize the welfare of the minor as the ultimate aim.

For a complete understanding of related topics, you should also explore:

Custody of Children (Hizanat) under Muslim Law – to understand the difference between custody and guardianship.
General Principles of Inheritance under Muslim Law – to know how property passes when a guardian dies.
Disqualification from Inheritance in Muslim Law – for cases when a guardian may be excluded from inheriting.

Our next topic will be Gifts (Hiba) under Muslim Law: Essentials and Revocation, which will examine another important area of Muslim personal law.