The reason for the scantiness of the rules of guardianship of a minor’s person is the notion to which the Muslim law-givers it is submitted, rightly subscribed that the guardianship of a minor’s person is more a matter of custody than of guardianship. And we find that the Muslim law-givers have laid down detailed rules relating to the custody of minor children. In this lies their far-sightedness that in an essentially partriarchal society, they could lay down that the custody of children of tender years belonged to the mother. Thus, a clear distinction is maintained between guardianship and custody a distinction which could be established in English law only after a protracted struggle extending over almost two centuries, and then too, by legislation. It is unfortunate that in the early days of administration of Muslim law during the British Raj, some text book writers and judges could not decipher the distinction between guardianship and custody.
On the one side, undue prominence was given to the paternal right, on the other the mother was dubbed as guardian of her children of tender age. The sources of law of guardianship and custody are certain verses in the Koran and a few ahadis. The Koran, the ahadis and other authorities on Muslim law emphatically speak of the guardianship of the property of the minor; the guardianship of the person is a mere inference.
According to the Radd-ul-Muhtar, the right of guardianship of the property of a minor belongs preferentially to the father, in his absence, to his executor. If the father has died without appointing an executor, the grandfather is the guardian. After the death of grandfather, the guardianship belongs to the grandfather’s executor. If the grandfather had died without appointing an executor, then guardianship is vested in the kazi who may himself act as such, or may nominate someone else to act on his behalf.
The Fatwai Alamgiri states the law thus: The executor of a father is in the place of the father, so also, the executor of the grandfather is in the place of the grandfather, and the executor of the grandfather’s executor is in the place of the grandfather’s executor; and the executor of the judge is in the place of the judge, when his appointment is in general.