LECTURE XVI.

ON MINORITY AND GUARDIANSHIP.

DXLII. A person becomes an adult on the expi- Principle. ration of the fifteenth year of his or her age; but if any of the symptoms of puberty appear at an earlier age majority commences therewith (a).

(a.) The puberty of a boy is established by his becoming subject to nocturnal emission, his impregnating a woman, or emitting in the act of coition; and if none of these be known to exist his puberty is not established, until he have completed his eighteenth year. Puberty of a girl is established by menstruation, nocturnal emission, or pregnancy; and if none of these has taken place, her puberty is established on the completion of her seventeenth year. What is here advanced is according to Abú Hanífah. The two disciples (Abú Yusuf and Muhammad) maintain that upon a boy's as well as a girl's completing the fifteenth year, they are to be declared adult. There is also one report of Abú Hanífah to the same effect.- Vide Hidayah, vol. iii, pages 482 & 483.

The opinion of the two disciples corroborated by the latter report from their master, as well as by the opinion of Shafií and others is taken to be the law as respects the, second point; and there is no difference of opinion with respect to the first.

It is expressly laid down in the Durr-ul-Mukhtar that 'the puberty of a boy is (established) by his (becoming subject to) nocturnal emission, his impregnating a woman, or emitting in the act of coition; and that of a girl, by nocturnal emission, menstruation, or pregnancy. But if none of these be'known to exist in them, then until they complete the fifteenth year; and according to this decision is given.-Durr-ul-Mukhtár, pages 685 & 686.

LECTURE
XVI.

Principle.

So also in the Jámi-ur-Ramúz:-" The majority of a boy is established upon (his being subject to) nocturnal emission, or his impregnating a woman, or emitting, in the act of coition; and that of a girl, upon nocturnal emission, menstruation or pregnancy; but if none of these is found in them, then upon their completing the fifteenth year. According to this decision is given*.-Jámi-ur-Ramúz, vol. iv, page 721.

It is to be observed that the earliest age (for the appearance of the symptoms) of puberty with respect to a boy is twelve years, and with respect to a girl is nine years.tHidayah, vol. iii, page 483.

DXLIII. When a boy or girl approaches the age of puberty, and they declare themselves adult, and

ANNOTATIONS.

dxliii. When a boy or girl approaches the age of puberty, and they declare themselves adult, their declaration must be credited, and they become subject to all the rules affecting adults, because the attainment of puberty is a matter which can only be ascertained by their testimony; and consequently when they notify it, their notification must be credited in the same manner as the declaration of a woman with respect to her courses.-Hidayah, vol. iii, page 483.

* The author of the Hidayah also is of this opinion, as it is manifest from his citing, as above, the opinion of the two disciples after that of their master, Abú Hanifah. See the Introductory Discourse, page 42. Annotations.

Sir William Macnaghten, however, says: "All persons, whether male or female, are considered minors, until after the expiration of the sixteenth year, unless symptoms of puberty appear at an earlier period." (Macn. M. L., Chap. viii, Princ. 1.) But as he does not show upon what authority he was warranted in fixing minority until after the expiration of the sixteenth year, and as there seems to be no authority to support his dictum, it must be taken to be erroneous, and could not be adopted in the face of the paramount authorities above cited; more especially when the precedent quoted by the learned writer himself in the second part of his work fixes minority to the end of the fifteenth, and not the sixteenth, year. The essential part of the precedent just alluded to is as follows:-" If a girl exhibit certain signs of womanhood at 'the age of nine, ten, eleven, or up to fourteen years old, she is, in the language of the law, denominated bálighah bil alámat' or adult by (symptoms of) puberty. Should she exhibit none of these signs up to her fourteenth year yet on her attaining the age of fifteen years, she will be deemed an adult, and in the language of the law, she will be termed 'baligah ba-sin' or adult by (the year of) majority."-Macn. Prec., M. L., Chap. vi, Case 17.

†The earliest age of puberty with respect to a boy is twelve years, and with respect to a girl nine years.-Durr-ul-Mukhtar, page 686.

XVI.

their outward appearance indicates nothing to the LECTURE contrary their declaration must be credited, and thence they will become subject to all laws affecting adults.

Held, on the opinion of the Kází-ul-Kuzát, that when a Precedent. Muhammadan girl approaches the age of puberty, and publicly declares herself to be adult, and her outward appearance indicates nothing to the contrary, her declaration must be credited, for then she then becomes subject to all the laws affecting adults.-Shamsoon-nissa Begum versus Ashrufoon-nessa and others. The 21st of May 1840.-2 Sev. Cases, 299. Vide Morl. Dig., vol. i, page 303.

A mere infant is called a " Sabí," while the young person who has nearly attained majority is distinguished by the appellation of Muráhik."* Minors have not, however, different privileges at different ages of their minority, as in the English law and Hindú law.

do

DXLIV. A minor is not competent sui juris to Principle. any civil act which is unlawful if done without authority from his guardian, but valid if assented to by him (b).

(b.) The acts† of an infant are not lawful unless authorized by his guardian. The acts of an infant are unlawful,

ANNOTATIONS.

dxliv. No contract entered into, nor acknowledgment made, by an infant or lunatic is valid, for the reasons before assigned; and in the same manner divorce or manumission pronounced by them does not take place.-Hidayah, vol. iii, page 469.

*There is a subdivision of the state of minority though not so minute as in the civil law. The term 'minor' being used indiscriminately to signify all persons under the age of puberty, but the term ' Sabí' is applied to persons in a state of infancy, and the term 'Muráhik' to those who have nearly attained puberty.-Macn. M. L., Chap. viii, Princ. 2.

A person after attaining the age of majority is termed Shaab' till the age of 34 years; he is dermed Kohal' until the age of fifty-one, and Shaikh' for the remainder of his life.-Ibid. Note.

† Arabic "Tasarrufát," meaning transactions, such as purchase, sale, and so forth.

XVI.

LECTURE because of the defect in his understanding; but the licence or authority of his guardian is a mark of his capacity; whence it is that in virtue thereof an infant is accounted the same as an adult.-Hidáyah, vol. iii, page 469.

Principle.

Principle.

DXLV. If a slave, an infant, or lunatic should sell or purchase any article knowing at the time the nature of purchase and sale, and intending one or other of those, the guardian or other immediate superior has it at his option either to give his assent if he see it advisable, or to annul the bargain.-Ibid., pages 469 & 470.

DXLVI. Minors, however, are not incompetent to do such acts as are manifestly for their benefit: thus a minor can receive gifts and become the proprietor of the property bestowed in gift, though the right to take possession for him of the property belongs to his guardian (c). See the Lecture on Gifts.

(c.) The donee, when competent to take possession, has the right to take it. When he is a minor, or insane, the right to take possession for him belongs to his guardian, who is, first his father, then his executor, then his grandfather, then his executor, next the judge and the person appointed by him. It is alike whether the minor be in the family of any of these persons or not. - Fatáwá Alamgírí.-B. Dig., page 503.

ANNOTATIONS.

dxliv-dxlvi. A minor is not competent sui juris to contract marriage, to pass a divorce, to manumit a slave, to make a loan, or contract a debt, or to engage in any other transaction of a nature not manifestly for his benefit, without the consent of his guardian.-Macn. M. L., Chap. viii, Prine. 12.

dxlvi. A bequest to or for a child in the womb, if born within six months from the date of the bequest, is valid.-Fatáwá Alamgírí, vol. vi, page 142.-B. Dig., page 617.

But he (the minor) may receive a gift, or do any other act which is manifestly for his benefit.-Macn. M. L., Chap. viii, Princ. 13.

XVI.

DXLVII. If an infant or lunatic destroy any thing LECTURE he is liable to make a recompense, in order that the right of the owner may be preserved.-Hidayah, Principle. vol. iii, page 471.

DXLVIII. Debts contracted by a guardian for Principle. the use of his ward must be discharged by him on his coming of age.-Ibid., vol. iv, page, 215.

kinds of

guardians.

Guardians are natural, testamentary and appointed. And Different guardianship over a minor is for the purpose of matrimony, care of his person, and management of his property. Guardianship in marriage has been already treated of,* and that for the care of the minor's person will be hereafter inculcated.†

DXLIX. The guardianship of a minor for the Principle. management and preservation of his property devolves

ANNOTATIONS.

dxlvii. Minors are civilly responsible for any intentional damage or injury done by them to the property or interests of others; though they are not liable in criminal matters to retaliation or to the ultimum supplicium, but they are liable to discretionary chastisement and correction.— Macn. M. L., Chap. viii, Princ. 16.

'dxlviii. The necessary debts contracted by any guardian for the support and education of his ward must be discharged by him on his coming of age.-Ibid., Princ. 11.

dxlviii, dxlix. They (the guardians) are also near and remote. Of the former description are fathers and paternal grandfathers, and their executors and the executors of such executors. Of the latter description are the more distant paternal kindred; and their guardianship extends only to matters connected with the education and marriage of their wards.-Macn. M. L., Chap. viii, Princ. 5.

The former description of guardians answers to the term of Curator in the civil law, and of Manager in the Bengal code of Regulations;, having power over the property of the minor for purposes beneficial to him; and in their default this power does not vest in the remote guardians, but devolves on the ruling authority.-Ibid., Princ. 6.

*See ante, pages 320-325.

† See post, pages 485 et seq.