Jurisprudence

Q1473. A father bought some property for his minor children. Having satisfied the legal requirements for the sale, can the sale be deemed concluded by the father’s taking possession of the property, as the guardian of the children?
A: After legally concluding the deal by the father on behalf of his children, taking possession of the property by the father, as the children’s guardian, is sufficient for applying the consequences of the sale.

Q1474: While I was a child, my legal guardian sold a piece of land which belonged to me and received a down payment. I’m not quite sure if the final sale was concluded. However, the land is at the disposal of the so-called buyer. Is this sale binding on me, or am I justified in claiming the land back?
A: If it is proved that your legal guardian sold your land at that time on the basis of his guardianship over you, the sale is valid. You have no right to the land unless the revocation of the sale is proved.

Q1475: The legal guardian of orphaned minors withheld the cash amount remaining from the estate of their deceased parent. He did not invest it with the banks, or in any other avenue, whereby he could have got a handsome return on the money. Should he indemnify the children? And what is the view if the guardian invested the money in some sort of business and made some unspecified amount of profit?
A: The guardian is not responsible for indemnifying hypothetical profits of the minor orphans’ money. However, if he had invested the money in business, all the profits made thereof belong to the children. The guardian, though, can receive only the standard wages for his work and that is if he was legally authorized to trade in the money of the children.

Q1476: Is it permissible for children, or sons-in-laws, of a person who is not a ward to sell his property while they have neither power of attorney nor his permission?
A: Selling the property of other people without their permission is fuḍūlī and requires the owner’s permission. Even if the person who concluded this sale is the son-in-law of the owner, or one of his offspring, the sale is unsound without the permission of the owner.

Q1477: A person is incapacitated with mental disability after suffering a stroke. How should his children behave vis-à-vis his property? And what is the ruling in the matter of one of the children making use of his father’s property without the permission of the authorized religious authority, nor that of the rest of the children?
A: Should the incapacity, in the eyes of the common people, be regarded as insanity, the guardianship over his property belongs to the authorized religious authority. No one is authorized to make use of his property without the permission of the authorized religious authority. However, if this has happened, i.e. without such permission, it will amount to usurpation which would eventually entail compensation. Furthermore, the transactions are fuḍūlī and should be contingent upon obtaining such permission.

Q1478: A person married a martyr’s widow. By virtue of this marriage, the husband took overall charge of the affairs of the family. Is it permissible for the husband, his wife, and her children to make use of the pension provided by the Foundation of Martyrs to the children? How could the pension or the in kind monetary aid, this foundation gives them, be spent? Should such income be spent on the needs of the children only?
A: The income of the martyr’s minor children should be handled, be it spending it on their provisions or using it for other purposes, with the permission of their shar‘ī guardian.

Q1479. How should the presents given to the family of a martyr by his friends be treated?  In other words, should they be regarded as part of his children’s property?
A: Once the shar‘ī guardian of the children has accepted the presents given to them, they become part of their property. Handling such property by others is dependent on the permission of the guardian.

Q1480: After the death of my father, my uncles began to run his shop, opting to pay us a monthly rent. After a while, my mother, who was then our legal guardian, borrowed an amount of money from one of my uncles. My uncles withheld the payment of rent to recover the amount of the debt. Later on, they bought the shop from my mother contrary to the provisions of the law that had been designed to preserve the rights of minors in their property until they attain ritual maturity. The transaction was concluded at the time of the previous regime with the mediation of one of the regime’s men. What is our duty now? Can the previous actions and transactions be regarded as valid? Are we justified in revoking the transaction? And should the right of the children be overlooked because of time lag?
A: Renting the shop and deducting money from the rent in settlement of the debt are both valid, so is the eventual sale of the shop. That is unless it is legally and Islamically proved that the sale transaction was not in the best interests of the children, or the legal guardian of the children was not authorized to conclude the sale and the children did not sanction the deal after they attained ritual maturity. Assuming that the transaction was proved void, the time lag factor is of no consequence on overlooking the children’s rights.

Q1481: My husband was killed in a traffic accident. The driver of the car involved in the accident was my husband’s friend. As a result, I have become the shar‘ī guardian of my children:
1. Should I demand blood money from the driver of the car, or ask him to follow the claim up with the insurance company?
2. Is it permissible for me to have a free hand in the property of the children for holding a memorial service for their dead father?
3. Have I the right to forgo the children’s right to the blood money?
4. Suppose I have forgone their right, yet they do not agree with the decision once they become ritually mature, could I be obliged to compensate them with the blood money?
A: 1. Should the driver be liable in shar‘ to pay the blood money, it is incumbent on you, as the guardian of your children, to preserve their shar‘ī rights by demanding it from those who should pay such money. The same goes for their right insofar as the insurance claim is concerned if the children are entitled to compensation.
2. It is not permissible to spend the money bequeathed to the children by their father on holding a memorial service.
3. You have no right to forgo the children’s right to the blood money which is against their interest.
4. After they have become ritually mature, they have every right to claim the blood money.

Q1482: My husband died, leaving me with minor children. According to the court’s injunction the paternal grandfather became their legal guardian. Should one of the children grow up to the age of ritual maturity, can he become the shar‘ī guardian of his minor brothers and sisters? If he cannot, can I be the guardian over the children? Also, in accordance with the court’s injunction, their grandfather would take a share of one sixth in the estate. What is your opinion?
A: The guardianship of, and the supervision over, the orphaned children are the right of the paternal grandfather until such a time comes when they reach ritual maturity. This, however, does not require an injunction from the court. That said, the best interests of the children should govern his right of disposal over their property. Should he behave against that, they have the right of recourse to the court. Any child attaining ritual maturity comes out from the remit of guardianship of his grandfather to manage his own affairs.
However, neither the child who has reached ritual maturity nor his mother has the right of guardianship over the other minor children. Since the grandfather has the right to acquire one sixth of the deceased’s estate, there is no objection that he got his share.

Q1483: A woman was killed. She left her father, mother, husband, and three minor children behind. Her brother-in-law was convicted of her murder and ordered to pay blood money to the woman’s inheritors. However, the killed woman’s husband, who is the shar‘ī guardian of the children, is convinced that his brother is not the killer. Thus, he refused to receive the blood money:
1. Is he justified in so doing?
2. With the existence of the father and the paternal grandfather of the children, has anyone else the right to intervene and insist on having blood money for the children from their convicted uncle?
A: 1. If the children’s father was absolutely certain that his brother was not the killer of his wife, it is not permissible for him to demand, and receive, the blood money in the name of restoring the rights of his minor children.
2. Since the father and the paternal grandfather, who have the right of guardianship over the children, are alive, no one else has the right to meddle in their affairs.

Q1484: A person was killed. He left behind only a number of minor children. Someone was appointed to be their guardian who is not among the inheritors. Is the guardian allowed to pardon the killer or change the penalty of retaliatory punishment for blood money?
A: If the authorities of the shar‘ī guardian are transferred to the appointed one, he can pardon the killer through changing the retaliatory punishment for blood money provided that children’s interest and welfare are taken into consideration.

Q1485: A minor child has some money in the bank. Can his guardian withdraw some of that money with a view to investing it in business and making some profit for the benefit of the child and covering child’s expenses?
A: The minor child’s guardian has the right to invest the child’s money for the child himself in silent partnership or giving it to somebody to make business with it provided that the middleman is trustworthy. Otherwise, any loss should be indemnified by the guardian.

Q1486: The heirs of a killed person or some of them are minor children and the guardianship over them in claiming their rights is with the authorized religious authority. Then, if it is proved for the authorized religious authority that the perpetrator is insolvent, has he the right to change the retaliatory punishment for blood money?
A: Should the authorized religious authority see that children’s interest and welfare is in changing, he is allowed to do so.

Q1487: Can the authorized religious authority withhold the right of guardianship over a minor child from his natural guardian after concluding that he is doing harm to the property of the child?
A: Should the authorized religious authority be satisfied by way of evidence that the continuance of the guardian having the right of disposal over the child’s property would be detrimental to the child’s welfare, he is obliged to dismiss him.

Q1488: Someone presents or gives a minor child by way of ṣulḥ for free which is in consistence with the child’s interest, but the guardian refuses to accept it. Does it amount to harming the minor or neglecting its interest?
A: The mere refusal by the guardian of the grant or ṣulḥ for free given to the minor child does not amount to damaging or neglecting the child’s interest. Accordingly, there is no objection to it in itself, in that it is not incumbent on the guardian to get the money for the child. Rather, non-compliance, in some cases may be considered in the best interest of the child in the sight of the guardian.

Q1489: The state granted the orphans of a martyr a plot of land or some property and sanctioned it to be registered in their names. The legal guardian of the minor children refused to sign the official documents. Can the authorized religious authority do so in his capacity as guardian?
A: Should the obtaining of funds for the children be dependent on the signature of the guardian, it is not obligatory on him to comply. In the presence of their legal guardian, the authorized religious authority has no authority to act as the children’s guardian. However, if the preservation of a minors’ property is dependent on the signature of the guardian, he has no right to withhold it. If this happens, the authorized religious authority has the right to force him to sign the documentation or to do it himself as the children’s guardian.

Q1490: Has the guardian to be a just person? And if the guardian of the child is corrupt so much so that it is feared that the child would be corrupted or his property would be damaged, what should the authorized religious authority do?
A: Justice is not a condition when it comes to the guardianship of the father or the paternal grandfather over the child. However, if the authorized religious authority is convinced even through circumstantial evidence that the child’s father or paternal grandfather would introduce harm to the child’s interest, he should dismiss the guardian and ban him from meddling with their property.

Q1491: If all the heirs of a murdered person are minor children or mad, is it permissible for their father or grandfather, i.e. their natural guardians, or the guardian appointed by the court to demand retaliatory punishment or blood money?
A: From the proofs relating to the guardianship over minor children and the mad, it is concluded that the Divine Legislator had appointed the guardian for keeping the interests of those under guardianship. Accordingly, in the aforementioned case, the shar‘ī guardian should not make a decision unless he takes into consideration their interests. His choice among retaliatory punishment, blood money, or pardon in return for compensation or without it would, therefore, be effective. Of course, to determine their interests, he should take into account all aspects including the period left for their attaining the age of ritual maturity.

Q1492: An adult is injured. Has the man’s father or paternal grandfather the right to demand or take blood money for the victim without his permission, i.e. is the criminal obligated to pay blood money to the victim upon their demand?
A: They have no right of guardianship over a sane, adult person. Accordingly, it is not permissible for them to demand his right without his permission.

Q1493: Is it permissible for the guardian of minor children to permit the disposal of the amount in excess of the share of one-third which has been bequeathed by the father?
A: The shar‘ī guardian has the right of giving such a permission after taking into consideration minor children’s interest.

Q1494: Who is the final arbiter as regards the affairs of the offspring? Is it the father or the mother? If the father or the paternal grandfather has no overall preference, and parents have a say in it, is it the father, or the mother, who should have the final say in the event of a dispute?
A: The ruling varies in accordance with the rights. The wilāyah over the child is for the father and the paternal grandfather. The right of ḥiḍānah of the boy for the first two years and the girl for the first seven years is the mother’s. After that it becomes the father’s. For children’s part, i.e. to be obedient and not be a source of nuisance and harm to their parents, there is no difference between father and mother. However, the son/daughter should accord his/her mother a preferential treatment, pursuant to the tradition, "Paradise is under the feet of mothers".

Q1495: My husband was martyred, leaving me with two children. Both my brother-in-law and mother-in-law snatched the children with all their possessions and refused to return them to me. It is noteworthy that I shunned the idea of remarrying because I wanted to dedicate my life to their upbringing. Who has the right of supervision over the children and their property?
A: The mother has the right to keep the orphans until their age of ritual maturity. However, the guardianship over the property is the right of the shar‘ī guardian. If there is no guardian, the authorized religious authority has the right of guardianship. Thus, neither the children’s uncle nor their grandmother has the right of custody or guardianship over them and their property.

Q1496: After the widow remarries, some guardians of minor children resort to denying the children and their mother their shares in the estate of their father. Is there any legal way of forcing such people to hand over the shares of minor children to their mother who cares for them?
A: The minor children’s shar‘ī guardian should behave on the basis of children’s interest which is to be determined by him. Any time the guardian acts against their interest and it results in conflict, the case should be referred to the authorized religious authority.

Q1497: Is the minor children’s guardian allowed to make business with their property, taking into account their interests?
A: There is no objection to that provided that children’s interests are regarded.

Q1498: Who has priority in the guardianship of children and their bringing up the grandfather, the paternal uncle, the maternal uncle, or the wife?
A: The paternal grandfather has the right of shar‘ī guardianship of the minor orphans and their properties. The mother has the right of their custody. Neither the paternal uncle nor the maternal uncle should have any say in these matters.

Q1499: Has the court jurisdiction to give the right of disposal over the property of minor children to their mother in return for her agreeing to their bringing up in such a way that their paternal grandfather has a general supervisory part to play and not a direct role?
A: This is not permissible without the consent of the paternal grandfather, who is the shar‘ī guardian of the children. However, if placement of the children’s property under the control of their grandfather proved to be detrimental to their interests, the authorized religious authority can prevent it. In such a case, the judge can entrust the guardianship to whomever he deems as suitable, whether their mother or anyone else.

Q1500: Is it obligatory on the guardian of the minor child to receive its share of the blood money? And is it compulsory on him to invest the child’s share from the blood money for the benefit of the child in, say, a savings bank account?
A: It is obligatory on the guardian to demand and take blood money from the perpetrator, should the crime entail blood money. On receipt of such money, the guardian has to safeguard it until the child becomes ritually mature. However, it is not incumbent on him to invest the money. Yet, he may do so provided that the interest of the child is taken into account.

Q1501: One of the partners of a company died, leaving behind minor children as new partners. How should the other partners go about the business of the company?
A: The shar‘ī guardian of the children, or the authorized religious authority must be consulted as regards their share in the company.

Q1502: Is it obligatory to hand over children’s property, which they inherited, to the grandfather as their shar‘ī guardian? And suppose it is obligatory, where would the children and their mother live and who is going to feed them, especially when they are still attending school or are minors and their mother is just a housewife?
A: The guardianship over children does not mean handing their property over to the guardian and denying them having access to it until they have attained ritual maturity. It means that the guardian acts as the supervisor over the children and their property to keep their property and that any involvement in their property needs his permission. It is incumbent on him to spend their own money proportionate to their needs. Should he see it fit to put the property at their disposal and that of their mother, he has every right to do so.

Q1503: To what extent can a father have right of disposal over the property of his adult independent son? If he acts wrongfully, can he be asked to compensate his son?
A: He has no right of disposal over the property of his adult son unless it is done with the approval of his son. If he acts contrary to his son’s wish, he would have committed a ḥarām act. He should, therefore, compensate his son, excluding exceptional circumstances.

Q1504: In his capacity as his orphan brothers’ guardian, a man bought them a plot of land with their own money. However, he did not get an official document for the purchase of land in the hope that he would get it sometime in the future. He would have hoped to sell it at a higher price. He is now apprehensive that someone might claim the ownership of the land or that it might be confiscated. Furthermore, if he sells the land now, it might not fetch even the original price he paid for it. Should he stand to indemnify the children if the land is sold at a loss?
A: If he is really the shar‘ī guardian of the orphans and bought the land with their interest and welfare in mind, he is not liable to anything. Conversely, the purchase transaction is ruled to be fuḍūlī and its validity depends on the permission of their shar‘ī guardian or theirs after they have attained ritual maturity. He should compensate the children for any loss.

Q1505: Is it permissible for a father to borrow money for himself, or lend it to others, from the child’s money deposited in his trust?
A: There is no objection to that provided that child’s interests are taken into account.

Q1506: If the clothes or toys gifted to a child become redundant, is it permissible for his guardian to give them away in charity?
A: It is permissible for the guardian of a child to do with the items what he deems fit, taking into consideration the child’s interest and welfare.