October 28, 2021

Uniform Parameters of Guardianship

Family Law

Introduction

Guardianship means the position of being legally responsible for the care of someone who is unable to manage their own affairs .And the minor children used to live with their joint family members, and they are under protection and supervision of family members. The act specially serves to define Guardianship relationship between Adults and Minors, as well as between people of all ages and their respective property. When these minor children go for study outside house it was their Guru who takes care of such children. It was head of the family Karta who was responsible for due care, protection & up brining of minor child. The Dharma shastra did not deal with the law of Guardianship. During the British regime the law of Guardianship was developed by the courts.

Law of Guardianship

Guardianship means the position of being legally responsible for the care of someone who is unable to manage their own affairs .And the minor children used to live with their joint family members, and they are under protection and supervision of family members. The act specially serves to define Guardianship relationship between Adults and Minors, as well as between people of all ages and their respective property. When these minor children go for study outside house it was their Guru who takes care of such children. It was head of the family karta who was responsible for due care, protection & up brining of minor child. The Dharmashastra did not deal with the law of Guardianship. During the British regime the law of Guardianship was developed by the courts Minority and Guardianship in Hinduism are dealt under the Hindu Minority and Guardianship Act of 1956. It is codified; the act and provisions shall apply in addition to the Guardians and wards Act of 1890.

Minor and Guardian

According to the ‘Hindu Minority and Guardianship Act of 1956’ a minor is the one who has not completed the age of eighteen years. When the guardian of a Hindu minor is appointed by Court or where he is a ward of the Court of Wards, then minority will continue up to 21 years. Guardian is a person having the care of the minor and his property.

Delegation of Custody and Guardianship

Guardianship is the nature of a dedication towards the welfare of the minor. Therefore he cannot substitute another person as a guardian during his life, but he can delegate the custody of a minor to another and he can also revoke himself to be a guardian of the minor. Thus custody can be delegated but guardianship cannot.

In the case Anne Besant v. Narayaniah, The father handed the custody of his 2 minor sons to Mrs. Besant in agreement that she alone ought to be the guardian of their sons throughout their minority. The boys were taken over and they had a course of tuition in Britain. So the father demanded the restoration of the custody of the boys to him.Mrs. Besant refused to return the custody of the boys, so she was sued. The Court ordered the restoration of boys and made observations that Custody can be delegated and also the delegation can be revoked. But delegation cannot be revoked if a revocation isn’t for the welfare of the children.

Kinds of Guardians

a.            Natural Guardian

b.            Testamentary Guardian

c.             Guardian appointed by Court

Natural Guardian:

Section 6 of Hindu Minority and Guardianship Act, 1956, deals with the Natural Guardian. As per Hindu law only three persons are acknowledged as natural guardians’ father, mother and husband. A natural guardian in legal terms may be a child’s biological and adopted mother and father. During a divorce, either or both parents could be granted legal custody with guardian rights. While a natural guardian has the legal right to make many decisions for a minor child, the guardian also has responsibilities. Someone else may be appointed as guardian via a parent’s will or by a court. If a parent, the natural guardian is deceased or deemed unable to care for a child.

Qualifications for a Natural Guardian

  1. He should not be a minor.
  1. He should not convert himself to another religion.
  2. He should not renounce the worldly life and become an ascetic. 

Testamentary Guardian

Under prior law, A Testamentary Guardian is one who is appointed by the will of the natural guardians of the minor. The testamentary guardian will act as the guardian of the minor if the natural guardian is deceased. He will exercise all the powers and rights of a natural guardian to such extent and subject to such restrictions as are laid out in the Act and in the will. It’s necessary for the testamentary guardian to accept the guardianship. Acceptance could also be express or implied. A testamentary guardian can deny accepting the appointment or can disclaim it, but once he accepts, he cannot refuse to act or resign except with the permission of the court.

Removal of the testamentary guardian

According to The Guardian and Wards Act lays down certain grounds on which a testamentary guardian can be removed. It may be noted here that the above section has not been abrogated by this Act of 1956 hence it stands a good law even today. Thus a testamentary guardian can be removed on the subsequent grounds as mentioned in Section 39 within the Guardian and Wards Act:

i.              Abuse of his trust.

ii.             Failed to perform his duties.

iii.            unable to perform the duty.

iv.           Ill-treatment or neglect to nurture his ward.

v.            Continuous ignorance of any of the provisions of the Act.

vi.           Conviction in any offence relating to lapses in the character.

vii.          Keeping bad interest, and

viii.           Bankruptcy or insolvency

In addition to the above, the Hindu Minority and Guardianship Act, 1956 mentions the subsequent grounds:

1. If he ceases to be Hindu, or

2. Has completely and eventually renounced the world by becoming a hermit or an ascetic.

Guardian appointed by Court

Under the Shastric Hindu law, the supreme jurisdiction in respect of children was unconditional in the King. The King, in exercise of this power, was enjoined to appoint nearest relations of the minor as guardian, preference being given to relations on paternal aspect over relations on maternal side. Currently, this power is exercised by courts under the Guardians and Wards Act, 1890. The High Courts even have inherent jurisdiction to appoint guardians however this power is exercised sparingly. The Hindu Minority and Guardianship Act is accessory to and not in derogation to the Guardians and Wards Act.    

The guardians of Hindu children are appointment by the Guardians and Wards Act, 1890. According to the Act, the jurisdiction is conferred under the District Court. The District Court might appoint or declare somebody as the guardian whenever it considers it necessary within the welfare of the child. In appointing a guardian the Court takes into consideration varied factors, including the age, sex, wishes of the child, the wishes of the parents, and the personal law of the child. However, before committing custody to mother, it’s not necessary to give a finding that father is unfit for the custody of the child. The welfare of kids is of paramount consideration. The guardian appointed by the court is understood as a documented guardian.

Right of Guardian

Guardianship in modern law exists for the protection of the minor and as the protector of the minor’s interest, the guardian is entitled to represent the minor in all litigation, and it is on his instructions that notices are issued, actions are commenced and applications are filed. Usually, he files the suit as the next friend of minor and if a suit is filed against the minor, normally it is that one who is appointed as the guardian for a lawsuit, however, the court is not bound to do so.

The guardian may refer a matter to arbitration. He may also compromise disputes or claims if it is for the welfare of the minor, such as to save a minor of avoidable expenses. A guardian may also settle a suit, but, to be binding on the minor, it should be in the minor’s welfare and it must also be approved by the court. A compromise has been held to be advantageous or beneficial to the minor if it secures some demonstrable advantage to the minor or avert some obvious mischief. Any settlement will be voidable at the instance of the minor by a guardian if it is entered fraudulently or in collusion with the adverse party.

The guardian has the legal right to be compensated out of the property of the minor for any expenses he incurs properly on behalf of the minor. Similarly, when a guardian is used as a representative of the minor, he is entitled to reimbursement of all expenses of litigation out of the minor’s estate. A guardian who advances money to the minor is also entitled to reimbursement out of the minor’s property. The guardian may sue the minor after the termination of guardianship for the recovery of expenses that he incurred or advances that he made. The guardian of the minor’s property has the right to the exclusive possession of the minor’s property.

Liabilities of Guardians

As the legal position of all guardians is fiduciary so all types of guardians are liable personally for breach of trust. No guardian is entitled for reward unless permitted under the will, or under the provisions of the Guardians and Wards Act.

The guardian’s legal position is fiduciary so he cannot take possession of the minor’s property adversely to the minor, does not matter how long he may be in its possession. The law lays down and requires from a guardian that he will manage prudently the properties, business, and affairs of the minor. Wise management does not mean that he is bound to contest every claim which is possible against the minor or to litigate in the place of the minor, irrespective of the chance of success. Whatsoever pecuniary advantages are received out of minor’s estate, the guardian’ is bound to hold them for the minor’s welfare. This will include not solely the actual benefits received out of the use of the minor’s property but also all those profits which would have been received but for the gross and wilful neglect. However, if the minor, attained majority, he discharges the guardian after full knowledge of facts, guardian’s liability for his acts or omissions comes to an end.

Guardian’s fiduciary position also makes the liable to render all accounts. However, once the minor, on attaining majority, reaches a settlement of accounts with the guardian, he can get them re-opened only if he establishes fraud against the guardian.

How can the Guardianship be ended?

There are many ways through the guardianship can be ended:

If the child completes the age of 18 years

Upon attaining the age of eighteen, if the child can maintain himself, the court might permit the removal of a guardian who was appointed to take his care or his property.

The child decides to marry

In a given condition, if a girl child decides to marry, the husband is going to be her rightful guardian. If the husband is a minor, his guardians are going to be the guardian of the girl child as well. If a male child marries whereas, in his minority, the guardians of the girl child will become his guardians as well.

The child is adopted by adoptive parents

In a given condition, if the child is adopted by any couple aside from the biological parents, his guardians are going to be the adoptive parents from the date the adoption is in the result.

If the child dies before attaining the age of eighteen years

Guardianship over a child is over if he dies before attaining the age of eighteen years.

The court ends the guardianship

This can happen in any case wherever the child who is over the age of twelve years asks the court to finish the guardianship. Also, if the parents of the guardian plan to take custody of the child back, they could approach the court stating valid reasons in order for the removal of the guardian.

If the Guardian decides to resign

A guardianship of a child can be ended through resigning. For this, a notice is to be served to those who ought to be notified concerning the end of guardianship like several close relatives of the child. Or to simplify this step, the notice can be given to any or all those who were notified concerning the guardianship of that person over the child. The person resigning must go through a court hearing wherein he’s needed to prove that it absolutely was for the benefit of the child that he shall resign. If the judge and the court feel that there’s a far better alternative available at that time, then he or she will be replaced by another guardian which that also appointed by the court itself. If the court finds no alternative out there, the court has the discretion to make the child a dependant in a juvenile court.

Guardianship under Parsi Law

Although there’s no common law of guardianship, yet it’s permitted by a statute among Hindus and by custom amongst some numerically insignificant categories of persons. Since adoption is a lawful affiliation of a child, it creates the subject matter of personal law. Christians, Muslims, and Parsis do not have any adoption laws; therefore they need to approach the court under the Guardians and Wards Act, 1890. Christians, Muslims, and Parsis can take a child under the said Act only under foster care. When a child under foster care becomes major, he is free to break away all his connections wilfully. Besides, such a child doesn’t have the right to inheritance. Foreigners, who want to adopt Indian children, need to approach the court under the aforesaid Act. In case the court has given permission for the child to be taken out of the country, adoption according to foreign law, i.e., the law applicable to guardian takes place outside the country.

Conclusion

A child is the future of the country and so, it is important that the child should be in a good environment where he is treated and nurtured properly. A minor child is not capable to take care of himself or take decisions. so, there is a need for a person to take care of the child, support, love, and provide all the basic requirements to the child. Therefore, the guardian of a child should be a person who takes proper care of the child. The main consideration while appointing guardians should be that there should be the welfare of the child. The complete study on the Hindu Minority and Guardianship Act, 1956 concludes that the Act believes in sheltering the minors from being forsaken by his/her parents. Furthermore the Act ensures that no minor is bereaved of a guardian or supervision unless the minor is proficient in maintaining themselves. A small amount of guidance could make a huge difference because often minors found themselves in trouble due to the absence of supervision by a guardian.

Authors- Sweety Kumari (Jemtec School of Law, Gr. Noida) & Sujeet Kumar (IMS Law College, Noida)

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