THE GUARDIANSHIP AND WARDS ACT,1890

AUTHORS:

Ipsa, IMS Unison Dehradhun

Khushi Malhotra, JEMTECH Noida

Priyanshu Bhayana, NLU Orissa

Co- Authored and Edited By: Tanya Kanchan Soni, HNLU Raipur



SCOPE OF THE ACT

The Guardianship and Wards Act enabled the minor to have a guardian till he becomes a major and also it provided many privileges to the guardian too to keep the minor in a good state. The court appoints the guardian as per taking consideration the interest of the minor also, and the guardian must not have any monetary interest in the property of the minor.

The Guardianship and Wards Act, 1890 was enacted to provide the rights and the duties of the guardian of a ward and protect the interests of a minor ward[1].

STATEMENT OF OBJECTS AND REASONS BEHIND THE ACT[2]

The Act came in 1890 during British India. The Bill before constituted as an act was based on opinions with reference to the Local governments and High Courts with relation to faults in the guardianship of minors. And the following were some of the objects which tend to have an enormous scope in the upcoming time-

The main purpose of the legislation was to have applicability of Guardian and Ward to all possible classes in British India.

The Bill's object was to apply to all district courts and High Courts and minors of all creeds and races.

The main power which was possessed with the High Court at that time was to select guardians and other matters as per the minor's law to he/she belongs.

Through this Bill, suits by and against the minors will be regulated by the chapter XXXI of Code of Civil Procedure (now CPC, 1908, ORDER XXXII). Also, the Bill grants other provisions that are provided to the guardians under the law and also a preferential right is also given under this Bill who can be appointed a next friend or guardian for the suit.

SECTIONS REPEALED UNDER THE ACT[3]

Section 2 Repealed by the Repealing Act, 1938 (1 of 1938), sec 2 and schedule.

Section 52 Amendment of Indian Majority Act, (Rep. by the repealing Act, 1938, (1 of 1938) Section 2 & Schedule)

Section 53 Amendment of Chapter XXXI of the Code of Civil Procedure. (Rep. by the Code of Civil Procedure, 1908 (5 of 1908) Section 156 and Schedule VI).

Schedule 1(Repealed by the Repealing Act, 1938 (1 of 1938) Section 2 & Schedule).

These were some of the changes done overtime to make the Act more reliable and useful for both the guardian and the ward.

MAJOR DEFINITIONS

The Act under Section 4 gives definition of terms “Minor”, “Guardian”, “Ward” and the term “District Court”. The definitions are to be considered while interpreting the meaning of the terms where the Act applies.

POSITION OF PERSONAL LAWS UNDER THE ACT

As established earlier in this article, the law relating to guardianship of Indian children has been enacted in the Guardianship and Wards Act, 1890[4]. The Act, having done away with other scantily provisional legislation, combined and brought together a comprehensive albeit inexhaustive legislation. It has been bright to govern the laws pertaining to children, supplementing the various existing personal laws.


HINDU PERSONAL LAW

The ambit of the Hindu Minority and Guardianship Act 1956 has envisioned a plethora of communities, under section 3 of the Act, this reads as under;

3. Application of Act.—(1) This Act applies,— (a)to any person who is Hindu by religion in any of its forms or developments, including Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or AryaSamaj;

(b) to any person who is Buddhist, Jain or Sikh by religion, and,

(c) to any other person domiciled in the territories to which this Act extends who is not Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.[5]

Governing sections under the Act have been enacted in addendum to the already existing Act of 1890 and have solidified the position of personal laws in tandem with the central legislation.

CHRISTIAN LAW

The Christians and Parsis of Indian descent do not have separate legislation in place for governing their laws. Thus the Christian Marriage Act, 1872 takes charge for the regulation of marriages and determination of age for the children and adults being termed as ‘minors’ or ‘majors’ under section 2;

1*["India" means the 2*[territories] to which this Act extends;]

"minor" means a person who has not completed age of twenty-one years and who is not a widower or a widow[6]

Similarly, the Parsi Marriage and Divorce Act, 1936 has taken charge for determination of age bounds and laws pertaining to Parsi marriages and divorces under section 3;

3. Requisites to the validity of Parsi Marriages. –

(1) No marriage shall be valid if- (a) the contracting parties are related to each other in any degrees of consanguinity or affinity set forth in Schedule one; or

(b) such marriage is not solemnised according to the Parsi form of the ceremony called 'Ashirvad' by priest in the presence of two Parsi witnesses other than such as that of a priest; or

(c) in case of any Parsi (whether such a Parsi has changed his/ her religion or domicile or not) who, if male, has not completed twenty-one years of age, and if female, has not completed eighteen years of age.][7]

2. Notwithstanding that a marriage is invalid under any of the provisions of sub-section (1), any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate


MUSLIM LAW

Muslim law, under the Indian umbrella, has been supported by the judicial advancements of late. Solidified adjudication in terms of abrogation of Triple Talaq[8] and the determination of maintenance payable[9] to separated wife have been the most notable of judgements in the years of late.

The Muslim Marriage Act, 1957 contains provisions pertaining to the determination of majority age, rites/covenants of marriage amid Muslims, etc., under section 6[10] Furthermore, it contains explicit provisions regarding a Muslim marriage as a contract and a covenant of nuptials.

AMENDMENTS TO THE ACT

With time, everything changes mostly the society, it is people, and with these changes, the law has to be amended, if it needs to fulfil the purpose. Especially the personal laws which are of great importance to an individual and when it comes to guardians and wards relation, it becomes more intimate and sensitive. Thus, it has to be according to society. The following some of the changes have been introduced while deciding the guardian and wards relation.

Section-19 of the Guardians and WardsAct, 1890 (unamended) was read as;

"19. Guardian not to be appointed by a court in certain cases.—Nothing in this Chapter shall authorise the court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person—

(b) of a minor, other than married female, whose father is living and is not, in the opinion of the court, unfit to be the guardian of the person of the minor, or"

India has always been the patriarchal society, thus, oppressing the woman in every aspect either being related to the opportunities in the field of work or for being the garden of their children. As above mentioned, Section 19 of the Guardians And Wards Act, 1890 provides that the father is the guardian of his ward until declared unfit by the court. There exist no room for the mother to be the guardian of her ward.

This caused chaos and distress among the single mothers, facing harassment by the authorities, asking for the father signature granting the guardianship rights to them. Although under article 15 of the Indian Constitution, there exists a provision related to non-discrimination based on caste, creed, race, religion or gender yet, this Act provides for discrimination solely based on the sex of an individual.

Similarly, under Section 6 of the Hindu Minority And Guardianship Act, 1956, it is given that the primary guardianship of his minor child rests with his father and after him with the mother. It has been contended that why a mother has not been given equal rights as a father concerning the guardianship of a child.[11]

S- 6 of Hindu Minority and Guardianship Act, 1956

"6. Natural guardians of a Hindu Minor. The natural guardians of a Hindu minor, in respect of the minor' s person as well as in respect of the minor' s property (excluding his or her undivided interest in the joint family property), are-

(a) in the case of a boy or unmarried girl- the father. and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl- the mother, and after her, the father."

Therefore, section 19 and section 6 of the respective above mentioned acts were challenged in Supreme Court under article 32 as violative of articles 14 and 15 of the Indian constitution in GeetaHariharan v. Reserve bank of India[12]. The parents of the ward applied for the relief fund in which mother was signed as the guardian. The authorities asked the mother to provide them with the document signed by the father, making her the guardian and to submit the guardianship certificate from the concerned authorities.

The court rather than striking down both the sections as unconstitutional, provided with harmonious interpretation. The court stated that "after" used in section 6 of the impugned Act does not mean after the death of father but, the mother can be the guardian of his child in the absence of his/her father. The absence can be either physical, mental, due to geographical differences or his unavailability due to any other reason.

Section 19 of the Guardians And Wards Act, 1890 was amended by the Personal Laws (Amendment) Act, 2010. However, no changes were made under section 6 of the Hindu minority and guardianship Act.

The changes were proposed by The Hindu Minority And Guardianship (Amendment) Bill, 2016which substitutes the words “the father, and after him, the mother” with the words “the father and the mother” under section 6(a). These proposed amendments show that now the father and mother are to be treated as equals concerning the guardianship of their minor children.

The criticism lies in the fact that although it was introduced in 2016, yet it remains the Bill and has not taken the form of an act. A similar kind of Bill proposed in 2008 also, which seeks to remove the disparities caused between men and women in the Hindu minority and guardianship act 1956 but, that also remained a bill and was never converted into an act.

The welfare of the child has always been the priority of the court while deciding the case in dispute for custody. Unlike western countries, in India, the concept of shared custody is alien because of the ugly process of divorce. To consider this matter, the law COMMISSION REPORT on “REFORM IN GUARDIANSHIP AND CUSTODY LAWS IN INDIA" was established. In 2016, the committee recommended various guidelines for joint custody, so that both mother and father can be with their children. This is for the welfare of the child as the love of both mother and father is essential.[13]

[1]The Guardians and Wards (Amendment) Bill, 2016B, http://164.100.47.4/billstexts/lsbilltexts/asintroduced/2647.pdf [2]Guardians and Wards Act, 1890 http://www.ijtr.nic.in/family%20matters/Guardians%20and%20Wards%20Act,%201890.pdf [3] Guardians and Wards Act, 1890, Bare Acts, Law Library, AdvocateKhoj https://www.advocatekhoj.com/library/bareacts/guardiansandwards/index.php?Title=Guardians%20and%20Wards%20Act,%201890 [4]THE GUARDIANS AND WARDS ACT, 1890, No.08, Acts of Parliament, 1890. [5] THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956, No. 32, Acts of Parliament, 1956. [6] THE INDIAN CHRISTIAN MARRIAGE ACT 1872, No.15, Acts of Parliament, 1872. [7]THE PARSI MARRIAGE AND DIVORCE ACT, 1936, No.03, Acts of Parliament, 1936. [8]The Muslim Women (Protection of Rights on Marriage) Act, 2019, No.20, Acts of Parliament,2019 [9]Mohd. Ahmed Khan vs Shah Bano Begum And Ors., 1985 SCR (3) 844. [10]THE MUSLIM MARRIAGE ACT, No.53, Acts of Parliament, 19 [11] Professor Kusum, Family Law Lectures FAMILY LAW I, 332 (4th ed. LexisNexis, 2015) [12] AIR 1999 SC 1149 [13] Law commission report, report number 257 on “reforms in Guardianship and custody law in India”, http://Indiankanoon.org/doc/116184888


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