- 1 Introduction
- 2 Types Of Guardians
- 3 Guardianship Under Christian Law
- 4 Guardianship Under Islamic Law
- 5 Guardianship Under Parsi Law
- 6 Legal Framework Of The Guardianship In India
- 7 Landmark Cases
- 8 Recent Case Laws
- 9 Comparative Study With Other Nations
- 10 Conclusion
- 11 Frequently Asked Questions (FAQs)
- 11.1 Is it mandatory and necessary that a legal guardian be appointed for each person with a disability?
- 11.2 Can a minor act as a guardian?
- 11.3 Can a foreigner apply for guardianship?
- 11.4 When can the father claim the child’s custody?
- 11.5 What is it to be done when neither parent of the child is ready to take up child custody in India after divorce?
- 11.6 Can maintenance be decided in a child custody case?
The concept of guardianship in India is a very old concept. The objective of guardianship may vary according to the different personal laws but its existence was always mentioned in Shastras as well as Quran. Under Hindu law, the concept of guardianship is covered under the legal framework of the Hindu Marriage Act, 1955, (hereinafter HMA), the Hindu Minority and Guardianship Act, 1956 (hereinafter, the Act of 1956), the Guardianship and Wards Act, 1890 (hereinafter, GWA) . The concept of Guardian is different under Islamic Law, Parsi Law, and Christian Law. In this article, we will be covering guardianship under Hindu law, its legal framework, and the judicial interpretations that contributed to the concept of guardianship.
The ancient Hindu system never developed any law on Guardianship because, during ancient times, the minor children used to live in joint families and were under the protection of Karta. In the Hindu joint family, the Karta is obliged to look after the minors and protect them, even after the death of their father. Therefore, there was no mention of Guardianship during the ancient era. The Modern Law of Guardianship was developed by the courts during the British regime. In Mohori Bibi v. Dharmodash, the court held that “Since a minor, due to want of understanding capacity in him, is incapable of taking care of his persons and property, every legal system has to enact provisions for his Guardianship.” Under this type of situation, a guardian has to be appointed for the care of a minor.
Guardian means a person who is taking care of a minor person or his property or both of minor and his property. Under Section 3 of the Indian Majority Act, 1875 a person becomes a major when he is eighteen years old, but under the following two exceptions he becomes a major on the completion of twenty-one years:
- A guardian of his person or property or both had been appointed by the Court, or
- The superintendence of his property had been taken over by a court of wards before he completed his 18 years.
Section 4 (b) of the Act of 1956 defines “Guardian” (major) means a person having the care of the person of a minor or of his property or of both his person and property and includes-
- a natural guardian,
- a guardian appointed by the will of the minor’s father or mother,
- a guardian appointed or declared by a court, and
- a person empowered to act as such by or under any enactment relating to any court of wards.
Types Of Guardians
A natural guardian is a person who becomes a guardian by having a natural relationship with the minor. Section 6 of the Act of 1956 deals with the natural guardians of the minor. Father is the natural guardian of the minor boy and minor unmarried girl and on the death of the father, the mother becomes the natural guardian. Section 7 deals with the adoption of the minor, on the adoption of a minor, the natural guardianship passes to the adoptive parents (to the adoptive father and after him to the adoptive mother). And section 8 deals with the power of a natural guardian.
Section 9 of the Act of 1956 deals with the testamentary guardians and their powers. Under the Act of 1956, the testamentary power of appointing a guardian has now been conferred on both parents. The powers of natural guardians are higher than the testamentary guardian. Testamentary guardian has the right to act as a guardian after the death of the minor’s father or mother and they can exercise all the rights of the natural guardian.
Guardian appointed or declared by a court
The appointment of guardians by the court and their powers are dealt with under the GWA. Under the Guardians and Wards Act, the court can decide on whom to appoint as a guardian for the welfare of the minor, they are known as certified guardians. While appointing a guardian, the court shall take into consideration various factors like age of child, sex, wish of parents, and personal law of child but the welfare of the minor should be their primary focus.
A person empowered by any Statute relating to the court of wards
This is dealt with under Acts relating to court of wards. Under order 32 of the Civil Procedure Code, the court appoints a proper person to be a guardian for a minor. Under this, there is a scope to include other types of guardians as well.
De Facto Guardian
De Facto Guardian is a self-appointed guardian; he’s not appointed by any court or by any authorization. The term de facto guardian is not mentioned in any of the texts, but his existence has never been denied in Hindu Law. A person can be a guardian even if he does not fall within any of the four classes of inclusive definition. Section 11 of the Act of 1956 deals with De Facto Guardian. After the Commencement of Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the Minor.
Guardianship by Affinity
The guardian by affinity is the guardian of a minor widow. After the marriage of a minor girl, the husband becomes her guardian and after his death, his family or relatives are supposed to take care of the minor girl. If there is no one in the husband’s family, then the father of the minor girl is supposed to take care of her. Though no provision is given under the Act of 1956 for the guardianship of a minor widow. However, there has always been a guardian for a minor widow.
Guardianship Under Christian Law
The guardianship of minors for Christians is governed by the GWA. Section 17 of this act states that the guardian appointed for the child shall be made by considering the welfare of the child. Section 19 states that if the father or husband is deemed fit to take care of minor or wife respectively, then the court has no power to appoint a guardian. Section 24 states that the guardian must take care of the child’s health, education, and other matters as the child needs.
Guardianship Under Islamic Law
In Islamic Law, the father is considered as the guardian of the minor but the mother is entitled to the custody of the minor till, he attains 7 years of age in case of a boy minor and the case of a girl minor, till she attains puberty. The personal law is taken into consideration before giving a judgment but the welfare of the child is the paramount consideration and the judgment is given based on the same. There are many cases where custody is given to the mother based on the welfare of the child.
Guardianship Under Parsi Law
The guardianship of minors for Parsi’s is dealt with the GWA. There is no separate personal law for Parsi’s. Under Parsi Law, A child can be taken only for foster care and once the child becomes major, he has all the right to take all his decisions by himself. Courts are authorized to issue interim orders under section 49 of the Parsi Marriage and Divorce Act, 1936 for custody, education, and maintenance of minors.
Legal Framework Of The Guardianship In India
The Guardians and Wards Act, 1890
The Guardians and Wards act regulate guardianship and custody for all children within the territory of India, irrespective of their religion. Under this, the District Court has the jurisdiction to entertain an application or to pass an order appointing or declaring a person to be a guardian. This act was enacted by the parliament in1890 to protect the interests and welfare of the minor. Some important sections of the Guardians and Wards Act, 1890 are discussed as follows:
- Section 9 – Courts having jurisdiction to entertain application: –
- Concerning the guardianship of the minor: The District Court has jurisdiction in the place where the minor ordinarily resides.
- Concerning the guardianship of the property: It may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in the place where he has property. If an application concerning the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly on conveniently by any other District Court having jurisdiction
- Section 17 – Matter to be considered by the court in appointing guardian: Section 17 clarifies what should be considered in determining what is for the child’s welfare.
- The courts shall consider the age, sex, and religion of the minor;
- The character and capacity of the proposed guardian and how closely related the proposed guardian is to the minor;
- The wishes, if any, of the deceased parents; and
- If the minor is old enough to form an intelligent opinion, the court may consider his/her preference.
- Section 19 – Guardian not to be appointed by the Court in certain cases: Under following circumstances, the court is not authorized to appoint a guardian to the minor
- of a minor who is a married female and whose husband is not, in the opinion of Court, unfit to be the guardian of her person,
- of a minor whose father is living and is not in the opinion of the Court, unfit to be the guardian of the person of the minor,
- of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.
Hindu Minority and Guardianship Act, 1956
The Hindu Minority and Guardianship Act was established in 1956. In a Hindu joint family, the Karta is supposed to look after everyone and to provide them protection and care as required. Therefore, in ancient times, there was no law dealing with Guardianship but during the British regime, there were laws on guardianship declared by the courts. In modern law, we have the Act of 1956 to deal with minors and to look after the welfare of the child. Some important sections of the Act of 1956 are discussed below:
- Section 6 – Natural Guardians of a Hindu Minor: Section 6 clarifies that the father is the natural guardian of the minor son and minor unmarried daughter, and after him, the mother is considered as a natural guardian for the same person. Section 6 also provides four disqualifications, which would prevent a person from acting as a natural guardian of a Hindu minor.
- If such a person has ceased to be a Hindu.
- If he has completely and finally renounced that world by becoming a hermit (vanaprastha) or an ascetic (Yati or Sanyasi).
- If such person is the step-father.
- Section 13 – Welfare of a minor to be paramount consideration: In the appointment of any person as a guardian to the minor, the paramount consideration should be the welfare of the child. The term ‘welfare’ is used in a wider aspect. It includes –
- Physical well-being
- Moral and religious welfare,
- The upbringing of the minor.
Hindu Marriage Act, 1955
Section 26 of The Hindu Marriage Act, deals with the custody of children. The court may pass interim orders concerning custody, maintenance, and education of minor children and make provisions that may deem just and proper. The court may also from time to time revoke, suspend or vary any such orders and provisions previously made, provided that the application for the maintenance and education of the minor children, shall, as far as possible, be disposed of within 60 days from the date of service of notice on the respondent.
Githa Hariharan v. RBI, 1999
In this case, it was held that both father and mother are natural guardians of a minor child. Before this case, the mother was said to be a natural guardian only after the death of the father. The constitutional validity of SEC.6(a) of the Act of 1956 and SEC. 19(b) of Guardians and Wards Act, 1890, was challenged. Earlier the provision stated that the father is the natural guardian of a Hindu minor child and the mother is the guardian “after” the father. The word ‘after’ is used in this section as meaning “in the absence of”. The Supreme Court, relying on gender equality principles enshrined in the Indian Constitution, interpreted the word “after” in the provision and upheld the constitutional validity of Section 6(a) the Act of 1956.
Baby Sarojam v. Vijaya Nair, 1992
In this case, the concept of “welfare of the minor” was given a broader aspect. It does not only cover the material and physical well-being but also the education, health, happiness, and moral welfare of the child. What constitutes the welfare of the child differs from case to case, the circumstances of the case should be carefully considered in every case. Generally, in most cases, custody is given to either of the parents but considering the welfare of the minor, custody can be given to the third party as well. In this specific case, the guardianship of two minor children was given to the maternal grandfather. The court expressed that regardless of whether the father was not discovered unfit, custody may be given for the welfare of the child to the third person.
Ethilulu v. Pathakal, 1950
The term de facto is not mentioned as such anywhere but the existence of the term has always been there. In this case, two solutions were provided by the court. Firstly, a minor without any legal guardian can’t manage his estate, in law, and without a guardian. The minor cannot receive any profits arising out of his estates. Secondly, a person having no title cannot be allowed to interfere with the minor’s estate to cause loss to him.
Jijabai v. Pathan Khan, 1970
In this case, the couple had fallen out and were living separately for over 20 years. The mother, in this case, was handling all the expenditure of her daughter and taking care of her. In this case, the father was alive but was non-existent to the minor. So, the supreme court held that as he was not taking any interest in the welfare of the minor as if he was non-existent to the minor. Therefore, the mother can be considered as the natural guardian of the minor and would also be considered as the natural guardian of the minor’s property.
Budhi Jena v. Dhobai Naik, 1957
Under section 21 of The Guardianship and Ward Act, 1890, a minor can be considered as a guardian of his minor wife and children. But under section 10 of the Act of 1956, a minor cannot act as a guardian for the property of the property. In this case, it was held that there is no conflict between section 21 of the GWA and section 10 of the Act of 1956 as section 21 of GWA, deals with the Guardianship of a person and section 10 of HMA, deals with the guardianship in respect of the property.
Recent Case Laws
ABC v. The State of NCT of Delhi, 2015
In this case, the Supreme Court passed a breaking judgment on gender equality and ruled that even an unmarried mother can be recognized as a natural guardian without disclosing the name of the biological father. This judgment is a reflection of open-minded thinking with the changing time.
BIMALA AND ORS v. ANITA, 2007
In this case, it was held that on the matter of the custody of the minor, the best interest doctrine will apply and the welfare of the minor child should be paramount consideration before passing any judgment.
Roman Sharma v. Arun Sharma, 2014
In this case, it was held that moral principles were given more importance than legal principles. The Court transferred the custody to the mother from the father because the father left the city with the child without any notice and made it difficult for the mother to meet the child.
Comparative Study With Other Nations
While applying any new concepts from western law, the Judiciary and the Legislation make sure it does not destroy the already existing laws or provisions. In most cases, western laws are considered a developmental source of law. We, from time to time, do rely on foreign laws and interpret them accordingly as the need of the case. It should be noted that western laws are followed to a certain extent only as the case may require.
In western law, there are usually two methods followed for the guardianship of the minor. Either by the mutual consent of the parents or by the decision of the court. In western law, there are arrangements for the welfare of the child, and the welfare of the child is considered the most important thing to discuss before making the decision. The court does consider the wishes of the parents as well as the wish of the minor child before passing any judgment. In cases where the father does not fulfill his responsibilities about parenting, mothers have the right to ask the courts to terminate the custody rights of the father. In other Countries, both the mother and the father have equal rights in determining the guardianship of the minor child.
Minor children need recognition more than anyone as childhood is when they learn new skills and there is no responsibility when they explore new opportunities. The Welfare of the minor children should be given paramount consideration not only in the aspect of physical and mental well-being but it should also cover their education, basic amenities, happiness, and health. They are too young to make any decisions for themselves, engage in the paperwork of their property, and know what works best for them. Therefore, it is very important to create nourishing and developing environments for them, where they can learn the importance of their well-being. Their stories are our strength and the judiciary should always safeguard and protect the interest of children. A guardian is very necessary for a minor to protect himself physically or mentally and secure from any danger.
Frequently Asked Questions (FAQs)
Is it mandatory and necessary that a legal guardian be appointed for each person with a disability?
It is not mandatory to apply for legal guardianship of a person with a disability. Since the National Trust Act, 1999 has made provision for such appointment, it is always advantageous to apply for legal guardianship under the provision of the said act.
Can a minor act as a guardian?
A minor cannot act as a guardian as a “minor” is a person who has not completed 18 years of age.
Can a foreigner apply for guardianship?
No, a person who is not a citizen of India cannot apply for guardianship.
When can the father claim the child’s custody?
The father can seek custody as soon as the child is born but generally, it is not given till the age of 5 years.
What is it to be done when neither parent of the child is ready to take up child custody in India after divorce?
Interested persons can file a petition before the court to give custody under Guardian and Wards Act, who can be the grandparents, relatives, or appointed by the court.
Can maintenance be decided in a child custody case?
Only if the parent is willing to pay the maintenance. There is no provision as such under the Act of 1956