Guardianship for Marriage and apostasy of marriage – guardian

By | March 4, 2017

Marriage of a boy or girl under the age of puberty, is not valid unless it is contracted by a marriage-guardian. A ‘marriage-guardian’ is a person who, under Muslim law, is authorized to contract the marriage for a minor. This authority is termed as Guardianship for Marriage. (wilayat–e-nikah).Guardianship for marriage is different type of guardianship and must be distinguished from the guardianship of the person or property. The provisions of the Guardians & wards act does not apply to the guardianship of marriage .So, the guardianship for marriage is purely governed by Muslim laws. Fyzee observed that: the court cannot appoint a ‘Wali’ although in some cases ‘kazi’ himself could act as marriage guardian[1].

Who Are Marriage Guardian?

The following person in order of priority, are entitled to act as guardian for the marriage of a minor:

  1. Father
  2. Paternal grandfather, how high so ever
  3. Brother or other male member of the father’s family, one after the other in the line of agnatic heir
  4. Mother
  5. Maternal relation such as uncle or maternal aunt.
  6. The kazi or the court

Shia law: According to shia laws, the only guardian for marriage are (i) & (ii).

In Abdul Ahmad v. Shah Begum [2] a person contracted the marriage of a minor girl by declaring himself as her guardian. He was not a ‘marriage-guardian’. It could also not be established that he had ever been given the authority by a competent guardian. The Jammu & Kashmir high court held that this marriage was void ab anitio.

Apostasy of Marriage – Guardian

It is not clear whether a Muslim father may lawfully act as a marriage- guardian after renouncing Islam. Under Muslim law if the marriage-guardian renounces Islam, he has no right to contract the marriage of the minor. But the Caste Disability Removal Act, 1850 repeals all legal provisions imposing loss of rights of the apostates or the converts. In all old case, in the matter of Mohin Bibi[3], the Bombay high court has held that a non-Muslim father has no right to act as a marriage-guardian. Marriage-guardianship or the right of jobar comes to an end as soon as the child whether male or female, attains the age of puberty. But the Shafie and the Maliki schools, the right of jobar in the case of a female child continues till she is married.

[1] Fyzee: outline of muhammadan law, Ed. VI, p.209

[2] AIR (1997) J & K 22

[3] (1874) 13 BLR 160

Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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