Guardian Taking from Orphan’s Wealth (Hadith No. 1909)

Bismillah.

Volume 3, Book 34, Number 414 :
Narrated by Hisham bin ‘Urwa from his father
Who heard Aisha (radiallaahu `anhaa) saying, “The Holy Verse; ‘Whoever amongst the guardians is rich, he should take no wages (from the property of the orphans) but if he is poor, let him have for himself what is just and reasonable (according to his labors)’ (4.6), was revealed concerning the guardian of the orphans who looks after them and manages favorably their financial affairs; if the guardian is poor, he could have from it what is just and reasonable, (according to his labors).”

Islam regards taking an orphan’s wealth unlawfully as one of the seven sins that doom one to Hell – as it was narrated by al-Bukhaari (2615) and Muslim (89) from the Prophet (peace and blessings of Allaah be upon him), because it is a great trust which many are unable to fulfil. The Prophet (peace and blessings of Allaah be upon him) said to Abu Dharr, when advising him: “And do not take care of the property of an orphan.” Narrated by Muslim (1826).

Islam commands the one who has orphans under his care to look after them properly and raise them well, and if they have wealth he is to guard it and invest it, and pay zakaah on it. If he is rich then it is better for him to refrain from touching their wealth at all, and if he is poor he may consume some on a reasonable basis; if he invests their money he may take payment equal to that of anyone else doing a similar job. These are the rulings of sharee’ah, and they are most wise and just.

Allaah says (interpretation of the meaning):

“And give not unto the foolish your property which Allaah has made a means of support for you, but feed and clothe them therewith, and speak to them words of kindness and justice. And try orphans (as regards their intelligence) until they reach the age of marriage; if then you find sound judgement in them, release their property to them, but consume it not wastefully and hastily fearing that they should grow up, and whoever (amongst guardians) is rich, he should take no wages, but if he is poor, let him have for himself what is just and reasonable (according to his labour). And when you release their property to them, take witness in their presence; and Allaah is All‑Sufficient in taking account.” [al-Nisa’ 4:5, 6]

Ibn Katheer said:

In the words, “consume it not wastefully and hastily fearing that they should grow up”, Allaah forbids consuming orphans’ wealth unnecessarily. “wastefully and hastily” means hastening before they reach puberty. Then Allaah says: “and whoever (amongst guardians) is rich, he should take no wages” meaning, he should not consume anything from it. Al-Sha’bi said: For him it is like dead meat and blood [i.e., forbidden]. “but if he is poor, let him have for himself what is just and reasonable (according to his labour)”. This was revealed concerning the guardian of an orphan who looks after him and takes care of him, if he needs to take from it. It was narrated that ‘Aa’ishah said: This verse was revealed concerning the guardian of an orphan: “and whoever (amongst guardians) is rich, he should take no wages, but if he is poor, let him have for himself what is just and reasonable (according to his labour)”.

The fuqaha’ said: He may take whichever is the lesser amount – the equivalent wages for his work or as much as he needs. They differed as to whether he should repay it if he becomes well off. There are two views, one of which is that he should not, because he took it in return for his work when he was poor. This is the correct view according to the companions of al-Shaafa’i, because the verse allows taking without replacing it later on.

The other view is that yes, he should repay it, because the orphan’s wealth is forbidden, and it was only permitted because of need, so he should repay it just as if he took wealth from someone else when he was in need.

“and whoever (amongst guardians) is rich, he should take no wages” means, whoever among guardians. “but if he is poor” also refers to guardians. “let him have for himself what is just and reasonable” means, in the way that is better, just as it says in another verse, “And come not near to the orphan’s property, except to improve it, until he (or she) attains the age of full strength” [al-An’aam 6:152], i.e., do not come near it except with the intention of disposing of it in the best way, and if you need it then use it in a way that is just and reasonable.

Tafseer Ibn Katheer (1/454, 455).

More on it here.

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