Wilaya over the person (fiqh)

ولاية على النفس

Authority over the person is the power to supervise matters that concern the ward's own person. Its kinds are three: custody (hadana), guardianship proper (kafala), and marriage guardianship. ¹

Custody is keeping the child in his sleeping and in his going and coming, and caring for his food, clothing, bodily cleanliness and place. It is obligatory, since the child may perish or be harmed without it. When the child no longer needs the custodian, custody passes to a stage the jurists call kafala. Some say custody ends at discernment, and others that it continues to puberty under the name of custody. ¹

On when custody changes hands: the Shafi'is and Hanbalis let a sane boy of seven choose between his two eligible parents. The Hanafis have the father take him after seven, with a distinction between boy and girl. The Malikis keep custody with women until a boy's puberty and a girl's marriage. ²

The Hanafis require for men's custody: agnation, so the nearest agnate precedes (the father, then the paternal grandfather, then the full and consanguine brothers and their sons, then the paternal uncles and their sons, in order); for a girl the cousin may not have her, since he is not her mahram; trustworthiness, so that if the agnates are not trustworthy the judge places her with a trustworthy woman; and unity of religion, so that an agnate of another religion has no right, though when the brothers differ in religion the Jewish brother prevails over the Muslim one, as they reported. ²³

Guardianship over a khuntha (a person of doubtful sex). The Shafi'is and Hanbalis treat the doubtful hermaphrodite after puberty like a virgin girl. The Hanafis hold that such a person is like a female in all rulings except specified matters, and custody is not among them. The Malikis hold that the mother's custody does not end while the child remains of doubtful sex. ³

Guardianship of custody ends when the boy or girl reaches puberty, because they are then self-sufficient; the time differs when the ward is insane or non-discerning. ³

Cases in which an adult boy remains under guardianship: for the Hanafis, if he is not trustworthy for himself, his father may take him to prevent sedition or disgrace; for the Malikis, a father may take in his adult son if he fears his squandering; for the Shafi'is and Hanbalis, an adult boy who is beardless or feared to live alone may be kept from leaving his parents. ⁴

Marriage guardianship is in principle a guardianship of supervision (nazar). The capable supervising the incapable is reasonable and lawful, as a help in righteousness, a kindness and a relief to the weak. Its kinds are set out elsewhere. ⁴