Simmi, MM(DU), Mullana
Ramya, Alliance University, Bengaluru
Co-Authored and Edited By: Tanya Kanchan Soni, HNLU Raipur
When a person is unable to take care of themselves, a person by will or by the court will be appointed to look after this person or their property, provided this person who is going to be taken care of must not have the ability to take care of themselves or their property, such person may be a lunatic, a minor, a disabled or aged. The person who looks after these people or their property is called a guardian. Guardianship is the relationship established between these both parties. In India, there are a number of religions so this will be governed under different personal laws.
There are two different acts that govern guardianship they are,
• The Hindu Minority and Guardianship Act, 1956
• The Guardians and Wards Act, 1890
The Hindu Minority and Guardianship Act was established in 1956 as a part of the Hindu Code Bills. This act was meant to enhance the Guardians and Wards Act of 1890, not serve as its replacement. This act specifically defines the guardianship relationships between adults and minors, as well as between people of all ages and their respective property.
Guardians are of different categories, they are,
• Natural guardians, these are the family members like father, mother, grandfather, grandmother, major brother or sister, uncle, aunt.
• Testamentary guardians, these are the guardians mentioned in the will.
• Court appointed guardian, these are the people who will be appointed by court if neither natural guardians nor testamentary guardians are not available.
Liabilities of guardians
Generally, A guardian acts as guardian of both the person and the person’s property, but in some circumstances these duties are divided. When acting as guardian of the person, a guardian has the right to custody and control of the neighbourhood. A guardian has a duty to provide religious support, education, and training to the child. Courts allow a guardian to use the income and interest earned on the child's assets to pay for the child's needs, but are reluctant to allow the guardian to spend the principal. A parent is primarily responsible for the support of a child, so when a parent lives, their money must be used before the child's resources are spent. A general guardian or guardian of property is considered a trustee: a person who holds a position of trust and is legally bound to protect the ward’s interests in the same way as her own interests. A guardian cannot invest the ward’s money in speculative ventures, agrees not to sue someone who owes the ward’s money, or to neglect the legal proceedings, tax bills, or maintenance of land, crops, or buildings that are part of the estate of the ward. You must take inventory and collect all the assets in the room. Where permitted by law, the title is taken in the name of the ward. Otherwise, the guardian owns the property "as guardian" of the ward, indicating that the guardian has the legal right to own or sell the property, but should not use it for personal gain. The guardian must determine the value of the property and submit a list of assets and their estimated value to the court. The guardian must collect the assets promptly and is responsible to the person’s estate for any losses incurred due to a lack of immediate action. If the child is a party to a lawsuit, a guardian cannot consent to a settlement without first presenting the terms to the court for approval. A guardian must deposit all the money withheld for the person’s in an interest bearing bank account separate from the guardian's money. At the end of the guardianship period, a guardian must account for all transactions involving the ward’s property.
The guardian is generally required to file interim reports periodically with the court, but a final report must be filed and all property returned to the conservatee when the conservatee has reached the age of majority. Finally, each time a guardian participates in a lawsuit for the ward, he or she claims or is sued only "as guardian," and not personally.
Termination of Guardianship
Removal of Guardian: Section 13 of Hindu Minorities and Guardianship Act, 1956 takes into account the welfare factor of the child and gives the court the right to terminate the guardianship of any person if the appointment is not made for the welfare of the child. Section 26, 39, 40 and 41 of The Guardians and Wards Act, 1890 also give insights to the provisions of such removal and termination.
Factors consider before taking away guardianship:
1. In case if the guardian causes strain or harm to the child.
2. In cases where it affects the mental peace and growth of the child.
3. In cases where a guardian does not have a fixed source of income.
4. In cases falling under Section 9 (b) of the Guardians and Wards Acts, 1890 where the guardian is “unfit” in the eyes of the court.
5. In cases of a child’s discretion, who is above the age of 12 years to live with any of his parents.
Factors terminating the guardianship:
1. In cases where the child has attained the age of 18 years and is capable to maintain himself.
2. In cases of adoption of the child. The guardianship rights transfer to the adoptive parents.
3. In cases where the child dies before attaining the age of 18 years.
4. In cases of child’s discretion, who is above the age of 12 years, to give away the guardianship upon him.
5. In cases where the girl minor gets married. The rights of guardianship transfers automatically to her husband.
6. In cases of the resignation of the guardian.
Grounds for disqualification:
1. When the guardian renounces the world to become “Sanyasi”.
2. When he/she ceases to be Hindu.
3. In cases, if he/she acts in a way to injure the child.
GUARDIANSHIP UNDER DIFFERENT PERSONAL LAWS
Guardianship is a process where the ward’s responsibility is given to his/her respectful guardian as the ward isn’t capable of managing personal affairs. Guardianship is different under different Laws.
Guardianship under Hindu Law -
It is obvious that the father is the natural guardian of their children and in case of father’s death mother is the next guardian as they protect their children to every extent. The Hindu law of guardianship (minor) was further systematized and enhanced by the Hindu Minority and Guardianship Act, 1956.
Under the guardianship of minor children, a minor who is below 18 years of age and is immature requires a guardian to protect the child as well as child’s property. In case where it is difficult to select an appropriate guardian, it can be exercised by the court. The court interferes and grants protection by a legal guardian. In modern law, the guardian was specifically considered for the protection of the child as they would look after them for their welfare.
Three types of guardians are natural guardians, Testamentary guardians, and Guardians appointed or declared by the court:
Natural guardian - In Hindu law only three persons can be called as natural guardians father, mother, and husband. Father is a natural guardian unless he is unfit under the guardianship act 1950. The Hindu Minority and Guardianship Act,1956 Act says that joint guardianship is not under consideration. Mother cannot act as a guardian until father is alive. Mother gets the custody of the child below five years unless the welfare of the minor isn’t questioned by this.
Testamentary Guardians- Testamentary Guardian is a guardian who is appointed to ensure that the child will have a guardian even after the death of the natural guardian.
Guardians Appointed by the Court- The courts are empowered to appoint a legal guardian under The Guardians and Wards Act, 1890 in order to ensure the protection of the ward.
Guardianship Under Muslim Law-
Origin of Guardianship is from Quran and in a few ahadis.
In Muslim Law, guardianship is of 3 types natural, testamentary and appointed by the court.
Natural Guardian - In schools of the Sunnis and the Shia father is the natural guardian and mother is not a guardian even after father’s death. Even of the custody with the mother or any other woman, a father is the sole guardianship of the ward.
In Sunnis, grandfather is the guardian after the death of the father, or in case of no grandfather appointed executor is the guardian.
Testamentary Guardian(Sunni & Shia)- Only the father and grandfather have the right to appoint a testamentary guardian.
Testamentary Guardian(Maliki & Shafii)- A zimmi can validly appoint a testamentary guardian of the property of the minor, but not of the minor.
In the absence of a natural and testamentary guardian, the Kasi endow with the power of appointment under the Guardians and wards Act,1890.
Guardianship Under Christian Law-
In Christian Law if the minor is old enough to form an intelligent preference, the Court may consider that preference.
Guardianship Under Parsi Law-
Parsis have no adoption laws so, preferences are to be decided by the court under the Guardians and Wards Act, 1890. Muslims, Christians, and Parsis can take a child under the said Act only under promoting care. Once a child becomes major, he is free to break away all his connections.
RELATED CASE LAWS
Roxann Sharma vs Arun Sharma
Court Name: Supreme Court of India
Judgment Date: 17 February 2015
Relevant citation: 2015 8 SCC 318
The issue before the court: Case of custody
In this landmark judgment case of custody, the court held that According to section 6(a) Hindu Minority and Guardianship Act,1956 child is under 5 years of age so, the mother will get the custody of the child as considering the welfare of the child. Court says that the father will be treated as a natural guardian but for the custody mother only mother can fulfill the needs and required care. Court after careful of the entire case given his decision. Court further adds that the father can get the child’s custody only in case when the child is major or if the mother is unfit for that. Since in this case father has proved that mother is unfit for the child the apex court quashed the judgment and custody was given to the father.
Surya Vadanan Vs State of Tamil Nadu
Court Name: Supreme Court of India
Judgment Date: February 27, 2015
Relevant citation: 2015 (2) SCC (Civil) 183 (SC)
The issue before the court: Welfare of the Child
Facts of the case were an Indian couple married in Chennai settled in a foreign country after marriage and employed acquiring the citizenship of that country. After that two daughters was born as a British citizen, whose custody becomes a complex and difficult problem to decide when the parties have deep irreconcilable differences when one of the party comes back to India with the kids. One of the parties makes a constant effort to get back the children to the foreign country by filing cases for their custody, while the other files in an Indian court seeking a divorce. The casualty in such cases is that the innocent children whose future would be ruined if a judicious decision isn't taken about their custody. Hon’ble Supreme Court of India after discussing the cases Observed and held that the best interests and welfare of the child are of paramount importance. The Court is empowered to give custody of children even in a petition where the prayer of habeas corpus has been made
Vikram Vir Vohra Vs Shalini Bhalla
Court Name: Supreme Court of India
Judgment Date: February 27, 2015
Relevant citation: AIR 2010 SC 1675
The issue before the court: Custodial Rights & Visitation Rights of Minor Child
Facts of the case are Vikram and Shalini were husband-wife but due to some differences, they had agreed for a divorce by mutual consent. They agreed that the custody of the minor so
shall remain with the mother and father would be allowed to visit on Saturday After that mother filed an application under Section 26 of the HMA seeking modification of those terms and conditions about the custody of the child. She wanted to take the child to Australia whereas the husband wanted to keep him in India. The trial court allowed this modification with a provision to come back to India twice in a year for father visitation rights. The high court dismissed the Trial Court order stating that it was part of the petition seeking divorce by mutual consent and the child himself wants to stay with his mother and grandmother. The welfare of the child is of paramount importance in matters relating to child custody and this Court has held that the welfare of the child may have a primacy even over statutory provisions. Court refuses to interfere in the order of High court.