A child in need proper support and guidance at the premature age when he or she is incapable to understand the right and wrong for themselves. The age in which they can’t help themselves for any need such as food shelter, financial etc.
In our society there are some laws and rules which help these lives to survive with comfort and support them in every single aspect. These laws are established for the betterment of the minor person with the support of our legal systems. To ensure the proper up bringing.
The Hindu Minority and Guardianship Act was established in 1956 as part of the Hindu code bill. The Guardianship and Ward Act 1890.
According to Section 4 (a) a minor is a person who have not completed the age of 18 years.
WHO IS A GUARDIAN?
According to Section 4(b) A Guardian is a person who take care of a person who is minor and also of his property.
If it take reference from modern law according to Hindu minority and guardianship at 1956 father and mother are the natural Guardian of a child first father an after the death of father the responsibility add took over by the mother.
The word Guardian include:
- Natural Guardian.
- Guardian appointed by the will of minors mother and father(Testamentary Guardian).
- A Guardian appointed or declared by the court.
- Guardianship of minor. proper(De facto Guardian).
- Guardian of a minor widow ( Guardianship by affinity).
According to section 6,
A natural Guardian of a minor and for his property is his father in the case of a boy and an unmarried girl and after father’s death mother will be in the position of a natural Guardian. But, for the minor up to age of five years the mother will be the natural Guardian (will not include his or her interest in the joint undivided family).
In the case of illegitimate minor the mother will be the first Guardian and after her death father has to take the responsibility.
For the married minor girl her husband will be the natural Guardian.
The person can’t act as a natural Guardian if he has ceased to be Hindu I if he has announced the world of becoming vanaprastha or sanyasi. In section 6, The term father and mother does not include stepfather and stepmother.
In the case of Manik Chandra v. Ram chandra[i] ,has held that the meaning of “necessity” and “advantage” of a minor are quite wide and the courts have the power to widen their scope as per the case facts before giving the permission. As per section 12, no guardian can be appointed for the undivided interest in the joint property of the minor. However, the court may appoint a guardian for the complete joint family if required.
Chandra v. Prem nath[ii], it was held that the guardian below the age of 5 years is mother.
In the case R. Venkat subaiya v. M. kamalamma[iii], it has been considered that if the father is unable and do not have sufficient fund then the natural guardian shall be mother.
Powers which natural Guardian hold
- Guardian always act for the support and benefit of the minor. So, natural Guardian has the powers to do all such act which R beneficial and for the protection of the minor and which are always in the favor of minors interest.
- The natural Guardian do not have power to transfer by seal or exchange or mortgage any part of the immovable property of the minor without the prior permission of the court.
- The natural Guardian cannot lease the any property for the term more than five years. Are the Tom extending more than one year beyond the date on which miners will attain the majority, they must need the permission of the court for doing the same.
- The disposal of immovable property by natural Guardian will be voidable at the instance of minor and the person claiming under him.
- No court shall grant permission for any act which is unfavorable for the minor.
For getting the permission of the quote the Guardian an award act 1890 shall apply to the applications. if the application is getting permission of the court under section 29 of the act in this aspect:
- The natural Guardian require permission from the District Court or the court which empowered by the guardians and ward act 1890.
- Should submit the application to the code within the local limit of whose jurisdiction, portion of the property of minor is placed.
Right of the natural Guardian
- Right to custody
- Right to education
- Right to determine the religion of the child
- Right to control movement
- Right to reasonable chastisement.
It is obvious that every patent want his child to be in better hands after than and that so in the legal manner. So, that the person appointed can work efficiently for the benefit of the child. For this they appoint a person who can take of their child as the original parents. This person is known as the testamentary guardian for the child who provides the child with every possible need and help him bringing up as a better person.
According to Hindu minority in guardianship act 1956, the power of appointing the Guardian was given to both, Mother and father.
If father appoints the Guardian and murder is still alive then she will become the natural Guardian and the testamentary Guardian appointed by father will be ineffective.
If mother choose the testament re Guardian that the father’s appointment will be considered void and if she does not choose any Guardian then the father’s appointment will be considered as a testament to Guardian of the minor child. The Hindu father has no right to appoint a Guardian for his minor illegitimate child
It is necessary for the testamentary Guardian to receive guardianship adoption, Maybe implied or expressed. he or she has right to decline the appointment, but if once he/she accept the guardianship, he or she cannot decline it, are resigned without permission of court.
In the case of Ram Chandra v. Sayarbhai[iv], where the husband died and in his will, he appointed his cousin as the testamentary guardian of his wife. The question before the court was for the guardianship of the wife of the deceased. Here, even though the Father in Law of the wife was living, the court gave the guardianship rights to the cousin of the deceased as the father in law used to ill-treat the wife and as any guardian is to be appointed keeping in mind the welfare of the party, he was given the guardianship rights. Welfare principle is to be given paramount consideration and hence cousin was given the rights.
DISQUALIFICATION OF TESTAMENTARY GUARDIAN:
There are certain grounds for the removal of the testamentary guardian under sec 39 of guardianship and ward act:
- If there is ill-treatment on part of the testamentary guardian towards the child.
- If he fails to perform his assigned duties.
- If he is incapable to perform his assigned duty.
- Abuse of his trust.
- If he acts in any way which is against any of the provisions of the Act.
- Conviction in any case for any offense.
- Having an adverse interest in the ward.
- If he ceases to live within the local limits of the jurisdiction of the court, and
- If he is insolvent or bankrupt.
Step mother can never be a testamentary guardian-
In the case of smt. Vinod kumari v. smt draupadi devi[v], Hindu female approached the court for the guardianship of two of her sons. One was born out of her wedlock with the deceased husband and one was born to her husband in another wedlock. It was considered by the court that she is the step-mother of the one born out of the previous wedlock and hence court held that a step-mother can never be a testamentary guardian and in this case, the grandmother was made the testamentary guardian of the step-son.
GUARDIAN APPOINTED BY THE COURT
There are many situation where parents are not in the position to appoint the guardian for the child at this point the court has to take the steps for the interest of the child, at this stage court appoint the guardian for the minor, the court always act for the welfare of the child and give the responsibilities in better hands.
The District Court has power to appoint the Guardian for the minor whenever it is necessary. The Guardian are appointed by keeping in mind the age, sex and wishes of the parents. The welfare of the child is the basic requirement for that.
The guardians appointed by the court is known as certified guardians. The power of the certified guardian are controlled by the guardian and ward act, 1890.
And these certified guardians our after the appointment is under the supervision, guidance and control of the court.
In Mohini v. virendra[vi], the court held that in appointing or declaring a person as the guardian of the minor welfare of the minor shall the paramount consideration.
In Bimla v. Subhash[vii], court held that under the the guardian and ward act, 1890,the jurisdiction of appointing guardian is conferred on the District court. The court may appoint or declare any person as the guardian whenever it considers it necessary in the welfare of the child.
GUARDIANSHIP OF MINORS PROPERTY (DE FACTO GUARDIAN)
A minor in his premature age may have some property given by inheritance or gift which he cannot handle with care because of his tender age.
In modern law, the natural Guardian testamentary Guardian or certified Guardian will protect only those property for which they are appointed but not the excluded property of the minor.
The de facto Guardian are those who continuous take interest on the management and administration of minus property without any authority of law. But the isolated act of a person in respect of a child’s property does not make him a defective Guardian.
There is some continuous course of conduct is necessary from his side to make him a de facto Guardian. De facto guardian is the person who is not illegally or a Guardian appointed by the court, but he assumes himself to be the Guardian for the management of the property of the child.
According to section 11,
De facto Guardian is not allowed to dispose or deal with the Property of the minor and it is given that the Guardian does not have the rights to take any debt.
GUARDIAN OF A MINOR WIDOW (GUARDIAN BY AFFINITY)
In ancient times, the child marriage was very common and after marriage the husband would become the natural Guardian of the minor girl. In the case if the husband died the minor widow should not feel unsafe. In this situation, the husband’s relatives have the duty to protect and maintain her. And if there is no relative the widow’s father takes the responsibility to protect her.
But it was always preferred that the minor widow’s custody should remain with her mother or father rather than her in laws for better bringing up of the child. She will be more safe in the hands of her own parents.
The relatives of the husband act as the Guardian for the minor widow and known to be the Guardian by affinity.
In Paras Nath v. State[viii], held that the father-in-law is the rightful guardian of a minor widow. However, this view has not been adopted by Nagpur HC. Madras HC also did not hold this view and held that the welfare of the child is to be considered first before anything else.
CUSTODY OF THE MINOR
Custody of a minor is also subordinate to section 13, which declares the welfare of the child to be of paramount interest. Regarding a child, who is at the age of discretion, his wishes are also to be considered, though his wishes may be disregarded in his best interest. That a mother is preferred to father for custody is not right. Better economic condition of the father than maternal grandfather is considered to be in favour of the father.
In kumar v. chethna[ix], SC has held that mother’s remarriage is not a sufficient cause in itself to lose custody of a minor. It was further held that convenience of the parents is irrelevant.
Removal of a Guardian
Court has the power to remove any guardian in accordance to section 13.
- Ceases to be a Hindu.
- Becomes hermit or ascetic.
- Court can remove if it finds that it is not in the best interest of the child.
Welfare of the minor is of paramount importance (Sec 13)
- While appointing or declaring a guardian for a minor, the count shall take into account the welfare of the minor.
- No person shall have the right to guardianship by virtue of the provisions of this act or any law relating to the guardianship in marriage if the court believes that it is not in the interest of the minor.
- Thus, under this doctrine, any guardian may be removed depending on the circumstances on per case basis and the court may appoint a guardian as per the best interests of the minor.
The adoption of child by the guardian is the creating relationship between minor and the guardian. The protection of the minor child is very important in this modern era. For the protection of the minor person and his property can by legally appointed guardian. It is very necessary to have the guardian of a minor to support a minor physically and mentally and to save from any kind of danger. Our lawmakers has created such laws which give the legal powers to the guardian of the minor to work for his/her better interest, and these laws also help the minor to live their lives in proper manner with proper guidance, care and support.
- Hindu Minority and Guardianship Act 1956.
- The Guardian and Ward Act 1890.
Article by: Kaushiki Sharma [2nd year student at Amity University Rajasthan]
[i] AIR 1981 SC
[ii] AIR 1969 DELHI 283
[iii] AIR 1982 AP 369
[iv] AIR 1999 SC 1149
[v] 7 July 2010
[vi] AIR 1977 SC 1359
[vii] 1992 PAT 96 case
[viii][viii] Allahabad HC 960
[ix] AIR 2004