Guardianship

Who is a guardian?

A guardian is someone who is responsible for a child’s welfare, education, basic needs and requirement. He/she is the person appointed to look after another person or their property. Since a minor is someone who is inexperienced and immature mentally and physically, a guardian is given the responsibility to take care of them and make all legal decisions on their behalf. Mostly the child’s father is the natural guardian and in the absence of father, a mother becomes guardian.

What are the laws of guardianship for various religions?

Hindus

For Hindus i.e. Hindus, Buddhists, Jains and Sikhs the laws regarding guardianship are governed by The Hindu Minority and Guardianship Act, 1956. According to section 4(a) of the Act minor is defined as someone under the age of 18. Section 4(b) defines guardian as a person having the care of the person of a minor or of his property or of both his person and property.
The types of guardians in India are
-Natural guardian
-Testamentary guardian
-Guardian appointed by the court
-De facto guardian
-Guardians by affinity


Natural guardian

Section 6 of The Hindu Minority and Guardianship Act, 1956 states that only three persons can be regarded as Natural guardians. The father, mother and husband cannot be removed of their guardianship unless the court deems them unfit to take care of the child or wife on reasonable grounds of incompetence under section 19 of The Guardians and Wards Act, 1890.
As per Section 13 of Hindu Minority and Guardianship Act, 1956 the welfare of the child is of paramount importance and any guardian the court decides unfit considering the best interest of the child, can be can be deprived of guardianship.


Testamentary guardianship

The natural guardian can appoint a testamentary guardian in a will. Under Section 9(1) of The Hindu Minority and Guardianship Act, 1956 ,a father has the right to appoint a guardian for his legitimate children or property, or both, but Section 9(2) states that if the mother is alive after the father’s death, she becomes the guardian of the children, and the father’s will can be enforced only if the mother dies without appointing a guardian.
The mother of illegitimate children can appoint a guardian for the children, property, or both under Section 9(4).
The person appointed as guardian has the right to accept or decline the guardianship but once he/she accepts it, he/she cannot refuse it unless ordered by court.


Guardians appointed by the court

Under The Guardians and Wards Act, 1890, the court can appoint a guardian it deems fit. They are called certified guardian. Section 17 states the matters to be considered by court before appointing such guardian.

Guardianship by affinity

Guardianship by affinity is the guardianship of a minor widow by a relative within the degree of sapinda. A father-in-law may be a guardian by affinity

Muslims

Muslim law recognizes the following kind of guardians:
-Natural guardians
-Testamentary guardians
-Guardian appointed by court


Natural guardians

Under Muslim law the father is the sole natural guardian as long as he is alive (Imambandi v. Mutsaddi ). In the absence of the Father, the natural guardianship goes to Father’s executor. In Muslim law the order of natural guardianship goes like Father> Father’s executor> Paternal Grandfather > Paternal Grandfather’s executor.
In Shia law in the absence of the father, the paternal grandfather is recognised as the natural guardian, not the executor of father.

Testamentary guardian

In both Shia and Sunni law, the father has the right to appoint testamentary guardian. In the absence of father, his executor or the paternal grandfather can appoint a testamentary guardian. The mother cannot appoint a testamentary guardian unless

  • She is the executrix by her father’s will
  • She makes a will of the home she owns to her children

Guardian appointed by court

In the absence of Natural and Testamentary guardian, the court can appoint a guardian for the child. The Guardians and Wards Act’ 1890 deals with the appointment of a guardian.

Christians and Parsis

Christians and Parsis do not have specific personal laws for guardianship. They are governed by The Guardians and Wards Act of 1890 only.

Who is a De Facto guardian?

A De Facto guardian is one who has continuous interest in the welfare of the minor. This guardianship is not formed by a single act but a pattern of actions that establishes the interest. It is not a legal guardianship therefore there will be no legal authority over the minor child or its property. (Mohd. Amin And Others vs Vakil Ahmed And Others)