Overturning Islamic Law: Right of Guardianship of a Minor

This is part 4 of a six-part series of posts that will examine Anglo-Muhammadan law in the courts of British India.

In the last two blog entries I explored how the phrase “justice, equity and good conscience” could result in both the application and non-application of Islamic law. In the case of the non-application of Islamic law, justices on the Allahabad High Court upheld the financial transactions done in the name of minor children by a non-legal guardian on the basis of “justice, equity and good conscience.” In that case, the judges disregarded the clear Islamic legal rulings regarding the wealth of minors on the basis of this phrase. But invoking “justice, equity and good conscience” was not the only way that judges avoided the application of Islamic law. Indeed, English judges often blatantly set aside the clear application of Islamic law based on their assessment of any number of different factors. This was especially so in cases involving minors. The case analyzed in this blog entry features a minor Muslim girl who was given to a Christian orphanage instead of to her elder sister. The justices in this case disregarded the legal right the elder sister had on the basis that the child’s welfare is best preserved in the orphanage.

Source: Indian Law Reports: Allahabad Series, Volume I

Case: Abbasi (Plaintiff) v. Dunne (Defendant), February 15, 1878

Classification: Custody of Minor—Guardian—Muhammadan Law

Summary: “Held, where the plaintiff sued for the custody of her minor sister, as her legal guardian under Muhammadan law, that the fact of the plaintiff being a prostitute was, although she was legally entitled to the custody of a minor, a sufficient reason for dismissing the suit in the interests of such a minor.”[1]

Presiding: Justice Sir Robert Stuart (Chief Justice) and Justice Pearson

Brief Summary of the Case: This case, being heard on appeal in 1878, began seven years earlier in 1871 when the plaintiff, Abbasi, sued for custody of her minor sister, Chittan. She was suing another prostitute who she alleged had unlawfully taken Chittan for the purpose of prostitution. In the original case the defendant was acquitted and an injunction was given by the judge to make arrangements for the welfare of the minor. Given that Abbasi herself was a prostitute and her negative influence on Chittan was feared, Chittan was admitted to Ghuttia Orphanage in Cawnpore. Abassi appealed to the lower courts against the superintendent of the orphanage and the original Magistrate for custody of Chittan. The case was dismissed in the lower courts on the grounds that Abbasi was not a suitable guardian, given her work. Abbasi then appealed to the High Court, invoking Anglo-Muhammadan law, arguing that she was the rightful guardian.

Ruling of the Case: Justice Pearson’s ruling states, “the fact that the plaintiff is a prostitute, and therefore an unfit person to have the charge of the girl, seems to be a sufficient reason for dismissing the claim in the interest of the minor. It may be admitted that the plaintiff would, under Muhammadan law, be prima facie entitled to the guardianship of her younger sister, were her fitness for the charge accepted.”[2] The appeal of Abbasi was dismissed and Chittan remained in Ghuttia Orphanage.

Anglo-Muhammadan Law and Analysis: Despite being a relatively short case, it is an interesting one to analyze from the vantage point of the application of Anglo-Muhammadan law. Though we see the invocation of Anglo-Muhammadan law by the litigants in both the lower court and in the High Court, nowhere in the ruling is any reference made to specific laws or precedents. The absence of any explicit mention of law aside from Abbasi’s legal guardianship of Chittan is surprising as the laws of guardianship are present in the Hedaya and constitute Chapter Four of the book. In the Hedaya it states that there are three forms of guardianship: (1) Guardianship for contracting marriage; (2) Guardianship of minor persons for custody and education; and (3) Guardianship of the property of minors. In the case of Chittan and Abbasi, the form of guardianship involved is the second. In the Hedaya it says that guardianship of marriage is solely the remit of Muhammadan law, but the other two forms of guardianship “depend partly on Muhammadan Law, and partly on the general law of India, as now embodied chiefly in the Guardians and Wards Act, 1890.”[3] When reading the justification for the Guardians and Wards Act of 1890, the drafters stated that they did not wish to abolish Muhammadan law on the matter; instead, their goal was to provide more clarity as to who is “entitled to act as a guardian in different circumstances and for different purposes.”[4] They found Muhammadan law on this matter to be thin and therefore sought to give the court more jurisdiction. More specifically, in the Hedaya it states, “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; the character and capacity of the proposed guardian and his nearness of kin to the deceased minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.”[5] In the passage above, drafters of the Hedaya acknowledged that while the laws of guardianship according to Muhammadan law are clear, the final decision regarding guardianship of a minor is on the basis of the judgment of the court. In the case of Abbasi and Chittan, the case revolves around the court’s interpretation of ‘welfare,’ or the broad interest of the minor. While not denying the legal rights of Abbasi from an Islamic vantage point, the court believed that it was not in the best interest of Chittan to be under the custody of a prostitute. And despite a passage in the Hedaya stating that the religion of the minor will be accounted for, Chittan was enrolled in a Christian orphanage.

Aside from the absence of Anglo-Muhammadan law in the decision of the High Court, the most remarkable element of this case is the restriction of Muhammadan law as applied to the rules of guardianship. This is striking as guardianship was prima facie touted as an area of law in which Anglo-Muhammadan law would apply according to the 1772 Judicial Plan. According to the rules of guardianship in the Hedaya, the only area that Muhammadan law applies without qualification is the guardianship of marriage. As for the guardianship of minors or property, judicial discretion is allowed under the banner of ‘welfare’ or ‘interest,’ but in this case the relationship of Chittan to Abbasi, Chittan’s religion, and her stability is not taken into consideration. Moreover, it is especially curious that Chittan is sent to a Christian orphanage, overlooking the missionizing nature of many such institutions in India. It is not entirely clear how this upholds the ‘welfare’ of Chittan. Similar to the previous case of guardianship of wealth, despite the presence of Anglo-Muhammadan law, its scope was restricted both by judicial interpretation and by laws qualifying the scope of Anglo-Muhammadan laws in the areas in which it is explicitly to be upheld.


[1] The Indian Law Reports: Allahabad Series, Volume I (Superintendent Government Press), 598.

[2] Ibid., 599.

[3] Sir Roland Knyvet Wilson, A Digest of Anglo-Muhammadan Law (London: W. Thacker & Co., 1895), 91.

[4] Ibid., 100.

[5] Ibid., 103.

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