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Thread: Who are the entitled to guardianship of the person of a minor?

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    Word Icon 35px Jpg.ashx Who are the entitled to guardianship of the person of a minor?

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    Q. When is the right of female for custody loss under Islamic law. (2000)
    1. Introduction:

    The right of guardianship of the minor belongs to the father and in his absence to his nominate. where no one has been nominated then to the grandfather. if he dies the right of guardianship vests in the court.
    2. Guardian:
    According to guardians and wards act 1890 guardian means a person having the care of the person of a minor or of his property or of his person and property.
    3. Ward:
    Every minor who has a guardian, no matter what type of guardians he has, i.e the one appointed by the court under guardians and wards act or one who ia self appointed de facto gurarian.
    4. Kinds of guardian:
    (i) Guardian of person.
    (ii) Guardian of property.
    (iii) Guardian for the marriage.
    5. Who can be guardian of person:
    Under hanfie law:
    Under hanife law in the case of a son below seven fears of age and of a daughter below the age of puberty following are the entitle for the custody.
    (i) Mother
    (ii) Mother, s mother how high-so-ever.
    (iii) Father, s mother how high-so-ever.
    (iv) Full sister.
    (v) Uterine mother.
    (vi) Consanguine sister
    (vii) Full sister daughter.
    (viii) Uterine sister daughters
    (ix) Mother father.
    (x) Maternal aunts
    (xi) Paternal aunts
    (xii) Paternal aunts of mother and father.
    In the absence of them following female paternal relation shall have entitlement.
    (i) Father
    (ii) Paternal grand father
    (iii) Full brother
    (iv) Consanguine brother.
    (v) Full brother son
    (vi) Consanguine brother,s son
    (vii) Full paternal uncle
    (viii) Consanguine paternal.
    (ix) Full paternal uncle, s son
    (x) Consanguine paternal,s son.
    In the absence of then following relative shall have entitlement:
    (i) Uterine brother
    (ii) Uterine brother,s son
    (iii) Father, s uterine brother
    (iv) Maternal uncle
    (v) Mother,s uterine brother
    Shire law:
    The custody of son below two years of age or of a daughter below seven years of age to the mother and after the mother the custody of the minor belongs to the father and of being not qualified then to the grands father how high so ever. the custody of son about two years of age and a daughter above. 7 years of age belong to the father and in his absence to the true grand father how high so ever.
    6. Who can be guardian of property:
    (i) Natural or legal guardian can be appinoted guardian of property.
    (ii) Testamentary guardian.
    (iii) Court can appoint appoint any person guardian of property in case of absence of natural and testamentary guardian.
    (iv) A person can voluntarily take the charge of the property. he is in other words self appointed guardian.
    7. Female when disqualified for custody:
    A female including the mother, who is otherwise entitled to the custody of a child loses the right of custody.
    (i) If she marries a person not elated to the child within the prohibited degree e. g, to a stranger.
    (ii) If she goes and resides, during the subsistence of marriage at a distance from the father's place of residence, or
    (iii) If she is leading an immoral life where she is a prostitute.
    (iv) If she neglects to take proper care of the child.
    Case law
    Juma Khan Vs Gul Ferosho P. L. D 1972 Pesh
    It was held that father is the natural guardian and is the natural guardian and is perfectly competent to get custody of the minor children from the mother after ceases to be their guardian.
    8. Conclusion:
    To conclude I can say that the guardian has right to the movement and action of person. guardianship extends to the custody of the person and power to deal with the property of the ward. a guardian can be removed from his office under the guardians and wards act. although mother has legal right of guardianship of her minor children but she can loss her right. in circumstanced mentioned in guardian and wards act.

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