Rights of a Muslim Mother for Taking the Guardianship of Her Child after Divorce

Article 974 of the Mejelle prescribes a combined series of legal guardians and appointed guardians. The status of legal guardian is given only to the father and the agnatic ancestors in ascending order (grandfather, great-grandfather, and so forth).

A woman is also discriminated against as to the power to deal with property under her guardianship.

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Guardianship terminates when the minor reaches puberty. According to the Mejelle (Section 986), pubescence begins at the age of 12 in the case of a boy and nine in the case of a girl, and is completed in both cases by the age of 15.’

The Women’s Equal Rights Law 5711-1951, enabled a woman to be a natural guardian of her children and abolished the discrimination against her embodied in Article 974 of the Mejelle and in other provisions of religious law.

Section 3(a) of the Women’s Equal Rights Law provides: “Both parents are the natural guardians of their children; where one parent dies, the survivor shall be the natural guardian.” At the same time, the court is competent to deal with matters of guardianship, both over the person and the property, “with the interest of the children as the sole consideration” (Section 3(b)).

Section 1 of the law, which prescribes equal status for a man and a woman with regard to any legal act, abolished the restrictions imposed by religious law on a woman’s capacity to deal with the property of minors under her guardianship.

Apart from the new rules expressly laid down in the law, matters of guardianship are still to be dealt with in accordance with religious precepts. The religious court is to follow the new rules unless all the parties are 18 years of age or over and have agreed before the court, of their own free will, to litigate in accordance with the law of their community (Section 7).

The Capacity and Guardianship Law 5722-1962, supplements and develops the principles established by the Women’s Equal Rights Law. It distinguishes between natural guardians and guardians appointed by the religious court.

Natural guardianship is based on complete equality of the parents as to their duties and rights with regard to their children they are the natural guardians of the children (Section 14); they are to act in agreement and co-operation (Section 8); on the death of one of them, the guardianship of the minor is vested in the other (Section 28).

The principle of equality finds expression also in the status of the children: the same age (18 years) is fixed for daughters and sons for the termination of guardianship (Section 3).

The law does not distinguish between the person and the property of the minor; both come within the scope of the duties of parents toward their children (Section 15), which implies the mother’s equal entitlement with the father to deal with the property of the minor children. Under certain circumstances, the court may appoint a guardian for the minor alongside one or both of the parents (Sections 17-29 and 33).

There is nothing to prevent the appointment of a woman as guardian of a child not her own. The court acts at its discretion in this matter, with the interest of the ward as its sole consideration (Section 35); it is not tied to the rigid order of agnates or their testamentary appointees, and even if the appointment of a testamentary guardian is confirmed, this does not affect the natural guardianship of the surviving parent (Section 64).

The Capacity and Guardianship Law gives civil authorities standing in matters of minors. The Attorney-General and the welfare officer are authorized to intervene in certain ways (including the institution of legal proceedings) if, in their opinion, it is appropriate to do so in order to protect the minor (Sections 68-70).

There is some doubt as to the applicability of this law in shari’a courts. Some think that the provisions relating to guardianship are intended also for religious courts and supersede the religious law.

Others say that since this law does not contain an express provision in the matter, as is customary in some other laws, the religious law continues to apply.

Women were guardians in about half the approximately 500 cases in which guardianship orders were issued by shari’a courts.

In most instances, they were guardians of their own children. Usually the woman was the sole guardian, but in several dozen cases a nazir or additional guardian, was appointed, who was either the father, or an agnatic relative of the minor, or a stranger.

The nazir’s task is to supervise the guardian’s activities, lest the children or their property suffer damage.

In some cases, a divorced woman became the guardian of her children after some time; in others the spouses agreed to this at the time of the divorce.

In dozens of cases, women were appointed guardians over children not their own; such women were either blood-relations of various degrees or strangers.

A woman is not disqualified from guardianship under these circumstances even according to the shari’a, and Israeli legislation is of no significance in this context.

In most cases, the woman was an agnatic relative a germane sister (shaqlqa),” a paternal aunt (‘ammo) and especially the paternal grandmother, but in some instances the maternal grandmother was appointed or even a non-blood-relation, as when a woman became guardian of her husband’s children by another wife or of a girl of unknown parentage.

The common feature of most of these latter appointments is that the mother and the agnatic relatives had died or were found ineligible for one reason or another.

The majority of guardianship orders deal with the property accrued to minors by way of inheritance.

The principle motive for seeking appointment as guardian was thus the property aspect. In many dozens of cases, the woman, very soon after the issue of the guardianship order, applied to the qadi for permission (idhn) to carry out various transactions in respect of property of the minor: to sell it, to exchange it for other property, to consolidate rights scattered over several properties in a single property, to receive compensation for expropriation, and so on.’

In dozens of cases, a woman applied for a succession order for the estate of her late husband on the very day she was appointed guardian over the property of her children.

A woman’s appointment as guardian is thus the clearest possible indication of her capacity to hold and dispose of property.

As a matter of fact, such an appointment was nothing new. A sample from the sijills of Jaffa and Nazareth of the Ottoman era reveals that women, of different degrees of relationship to the minor, were appointed in about one-quarter of the cases in which guardianship orders were issued by the courts.

Evidence of such appointments is found also in the sijills of Jaffa and Nazareth of the Mandate era, but it seems that they were less frequent then than in Israel.

The sijills contain evidence that Israeli Muslim women were alive to their status as natural guardians of their children and claimed their rights as such, sometimes with express reference to the relevant legislation.

In some cases, a distinction (unknown in secular law) was made between guardianship over the person of the minor, in respect of which the woman sought confirmation (tathbit) of her status, and guardianship over the property of the minor, in respect of which she sought appointment (nasb).

In one case, a woman asked that the uncle of a minor girl be removed from the office of guardian and that she be appointed in his stead, being her mother and the natural guardian of her person and property, as the general law required; in another case, a woman contended that the Knesset had empowered her to handle the affairs of her minor children and that there was no need for the appointment of a guardian by the court; and in yet another case, a woman applied to the High Court of Justice when it seemed to her that the sliarl’a court was about to deprive her of her status as a natural guardian of her children.

In several cases, both parents were appointed guardians of their children, sometimes with express reference to secular legislation or with the remark that “the parents are the natural guardians,” in open contradiction of the sliar’i concept.

It may thus safely be affirmed that Israeli legislation has materially affected the position of women as guardians.

But it seems that it is not the only or principle factor, for in most of the cases in which a woman was appointed guardian of her children the appointment was made not by virtue of her legal status but either because there was no natural guardian (in the shar’i sense) or person elected by such a guardian, or because the natural guardian was disqualified by old age, illness or the like, or the office had fallen vacant owing to dismissal, resignation or death of the agnatic guardian.

The madbata (petition) frequently notes the mother was worthy of the office because of her outstanding qualities, “that there is no-one in the land worthier of the wisdya than the mother,” that her appointment was in the best interest (maslaha) of the minor, or the like. But in all these cases, the mother’s appointment was made ex gratia and not as of right, or as a provisional measure pending the availability of a natural guardian.

Thus, in a case in which the mother had taken the place of the paternal grandfather owing to his inability to serve, the madbata stated that the grandfather had permitted (ajdza) the mother to be a legal guardian (was shar’i) of the minors, and in another case, in which the mother replaced the absent father for seven years, the madbata stated that “a guardian was required for the duration of the father’s absence.”

Where a woman was appointed guardian of her children on her own initiative, she was frequently careful to point out that there was no natural or elected guardian and that she was capable of carrying out the task.

The appointment was usually initiated by the signatories to the madbata, who were close to the family and could be relied on to know the situation, while the woman agreed to serve, sometimes without material reward.

In some cases, the father of the minor appointed the mother, his wife, to be wasi mukhtdr on his behalf after his death, and she accepted the appointment.

Urban women provided twice as many guardians as corresponded to the proportion of urban Muslims among the total Muslim population.

They enjoyed a better economic and social position than their sisters in other types of settlement, which was also reflected in their ability to handle property matters connected with the office of guardian. Isolated instances of women being appointed guardians occurred in Beduin society, mostly among the Galilean Beduin, who were at a more advanced stage of sedenterization than those of the Negev.

On the other hand, there seems to have been no causal connection between female guardianship and the type of marriage (endogamy or exogamy).

The orders are almost equally divided between the two types. It may thus be concluded that blood- relationship between the spouses was not a serious obstacle to the wife’s seeking to exercise her right.

Nor did education, at any rate at that time, affect the position of women as guardians. The Shari’a Courts of Tayyiba and of Nazareth had the guardian sign the order of appointment.

The sijills of these courts record only a few cases in which a woman actually signed the order with her name (as distinct from her finger mark (basma) in other cases).

There can be no doubt that education will leave its imprint when the generation of girls who grew up in Israel reaches the stage at which the question of guardianship becomes relevant to it.

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