Whether natural guardian (father) is required court permission to sell minor’s property?

Rajib Kumar Deb : The Muslim Personal Law and the domestic law on guardianship have been very particular in stipulating that the latter lacks a specific provision exempting the natural guardian father from obtaining prior permission to sell a minor’s property.

In light of the circumstances, the precedent established in Mirza Abdul Mazid vs. Rajshahi Krishi Unnayan Bank (2019) 71 DLR (AD), Md. Nurul Islam vs. The State (2020) 72 DLR (AD), and Md. Selim vs. Bangladesh Bank and others (2021) 73 DLR (AD) reaffirm the principle that the natural guardian of a minor child in Bangladesh cannot sell or mortgage the property belonging to the minor without prior permission from the court. Furthermore, such permission should only be granted if it is determined to be in the best interests of the minor.

The enactment of legislation in India regarding the requirement of prior permission by the father to sell a minor’s property (Section 8 of the Indian Guardianship and Wards Act 1956) mirrors the judicial enforcement in the legal system of Bangladesh.

The legal context and precedent surrounding the issue give rise to an important question as to whether the Family Court will proceed with the trial of a guardianship petition initiated by a father who, according to Muslim Personal Law, is considered the natural guardian of the minor.

However, a judicial interpretation may play a significant role in providing a proper answer to the question regarding the issue at hand.

Under various schools of Muslim Personal law, the father’s authority as a guardian is considered an absolute right bestowed upon him by the substantive law of Islam. According to personal law, a father, as the natural guardian, has the ability to dispose of a minor’s property even without seeking permission from the court.

The current cluster of laws pertaining to guardianship provides accessibility to personal law with modifications that have been implemented over time.

However, there are few laws in place which regulate the matter of guardianship for specific group of people. For example, if the parties to any proceeding are Muslims, all questions regarding guardianship shall be determined by the Muslim personal law (Shariat), notwithstanding any custom or usage to the contrary, as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937.

The procedural laws governing guardianship, such as the Family Court Ordinance 1985 and the Guardianship and Wards Act 1985, do not contain specific provisions that provide for the application of Muslim Personal Law in the resolution of guardianship issues.

But the Muslim Personal Law is a set of laws that govern personal matters, including guardianship etc. among others, for Muslims in Bangladesh and it applies to persons of all religions, including Muslims.
On the other hand, the Guardians and Wards Act, 1890 is a secular law that deals with the appointment and regulation of guardians for the custody and care of minor children and determines the rights, duties, and responsibilities of guardians.

Under Muslim Personal Law, certain aspects of guardianship are governed by Islamic principles. For example, the appointment of a guardian for a minor child’s person and property may be subject to the principles of Muslim Personal Law, such as considering the child’s welfare and the preferences of the child’s relatives, as per Islamic law.

However, it’s important to note that the specific application and interaction of Muslim Personal Law with the Guardians and Wards Act may vary depending on the facts and circumstances of each case. The courts may interpret and apply the relevant laws based on the principles of justice, equity, and the best interests of the child.

For example, section 17 of Guardianship and Wards Act 1890 days that In appointing or declaring the guardian of a minor, the Court shall be guided by what, consistently with the law to which the minor is subject and in considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor.

In Bangladesh, the issue of whether a natural guardian is required to obtain permission from the court to sell a minor’s property depends on the applicable laws and legal provisions. As previously mentioned, under various schools of Muslim Personal Law, the father, as the natural guardian, may have the authority to alienate a minor’s property without seeking permission from the court. However, it is important to note that the specific requirements and procedures may vary based on the circumstances, applicable laws, and any relevant court decisions or precedents.

The precedent established by the apex court in Bangladesh may indeed prescribe specific obligations that require court permission for the sale of a minor’s property. However, it should be noted that such obligations may not include situations where the court itself is obligated to dispose of a petition brought by the father. In other words, if the court is already involved in the guardianship proceedings initiated by the father, it may not be necessary for the father to seek separate court permission for the sale of the minor’s property.

However, in the context of domestic law and Muslim Personal Law, it may not be incorrect to note that the disposal of immovable property by a natural guardian in contravention of the situations described in Section 29 of the Guardians and Wards Act 1890, such as the sale of a minor’s property without the permission of the court, may be declared voidable according to the provisions of Section 20 of the same Act, at the instance of any other person affected by it.

In summary, Bangladeshi law does not provide any specific provisions regarding the appointment and regulation of a natural guardian, nor does it define their rights, duties, and responsibilities. However, this does not mean that the concept of a natural guardian is legally nonexistent or inapplicable. The principle of a natural guardian still holds validity based on previous judgments of the highest court.

Given the prevailing precedent set by the apex court judgment, it is expected that the family court should take a more proactive approach in assisting the litigants with the resolution of guardianship petitions. The court should aim to facilitate and expedite the process of handling such petitions to ensure the best interests of the parties involved.

The Author is Senior Assistant Judge, Cumilla.