Guardians and Wards Act
1. We all know that children are physically and mentally immature so they need special safeguards and care. Our laws itself say that minors cannot act independently but can act only through the guardian. Most country's laws specify that parents are the legal guardian of the child and that the parents can designate who shall become their child's guardian in the event of their death. Sometimes the court will appoint guardians for the welfare of the child.
 |
| Guardians and Wards Act |
2. In India, there are two important legislation regarding guardianship and custody. The first one is the Hindu minority and guardianship act 1956, and the second one is the guardians and wards act 1890.
3. A minor refers to a person who has not completed the age of 18 years; Therefore, children less than 18 years of age are supposed to have a legal guardian.
The guardians and wards act defines a guardian as a person having the care of the person of a minor or his property or both his person and property. Hindu Minority and guardianship act explains this definition elaborately, which includes;
1. A natural guardian
2. A guardian appointed by the will of the minor’s father or mother
3. A guardian appointed or declared by a court
4. A person empowered to act under any enactment relating to any court of wards.
4. Guardians and wards act 1890 is a secular law that regulates guardianship and custody of all children within India. This act lays down the right and obligation of guardians, procedures for their removal or replacement, and remedies for their misconduct.
5. Section 7 of this act allows the court to appoint a guardian for the person or property or both of a minor if it is necessary for the welfare of the minor.
Section 8 deals with whom may apply for the guardianship order of a minor and those include;
1. A person claiming to be the guardian of a minor
2. Any relative or friend of the minor
3. The collector of the district or the local area within which the minor lived or has property
4. The collector having authority regarding the class to which the minor belongs.
6. Section 9 sees the court has jurisdiction to entertain the application. If the application is regarding the guardianship of the minor, it shall be made to the district court, having jurisdiction in the place where the minor ordinarily lives and if the application is regarded to the guardianship of the property of the minor, it could be made either to the district court having jurisdiction in the place where the minor lives, or a place where he has property.
7. Section 10–Section 16 of the guardians and wards act 1890 deals with some relevant provisions of guardianship which includes procedure and appointment of several guardians among others
8. Section 17 lays down the factors to be considered by the court while appointing guardians. While considering this, the court gives more importance to the welfare of the child. So, the court should examine the age, sex, and religion of the minor and the character & the capacity of the proposed guardian and relation between the proposed guardian and minor or his deceased parents.
9. Sometimes the court may consider the opinion of the minor while appointing a guardian but the court shall not appoint or declare any person to be a guardian against the will of the minor.
10. Section 19 deals with cases where the court may not appoint a guardian. The court shall not appoint a guardian where the parents of the minor are alive and are physically & mentally fit to look after the interest of their minor. This section excludes a minor who is a married female whose husband is not unfit to be the guardian of her.
11. The Guardian must have a fiduciary relationship with his ward as the main element of the guardian-ward relationship is trust.
12. According to section 21, a minor cannot act as a guardian to another minor except for certain circumstances.
13. If the court deems fit, then the guardian is entitled to allowances under section 22.
14. Section 24 says about the duties of the guardian of a person; a guardian is charged with custody of the ward and must support the ward and take care of his health and educational needs.
15. Section 25 deals with the authority of the guardian over the custody of the ward. Section 25(1) says that if your ward leaves or is removed from the custody of the guardian, then the court can issue an order for the wards return if it thinks it is for the welfare of the ward to be returned to the custody of the guardian. To enforce the order, the ward could be arrested and delivered into the custody of the guardian. Section 25(3) specifies that the residence of the ward against the will of his guardian with another person does not end the guardianship.
16. Sections 27 and 28 lays down the duties of a guardian of property. It binds a guardian of a property of a minor to deal with the property as carefully as a man of ordinary prudence would deal with. When a guardian has been appointed by will or other instruments, then he should deal with the property upon the restrictions imposed by that instrument.
17. Section 29 states the limitation of the powers of a guardian of property appointed or declared by the court. A person appointed a guardian of the property by the court needs the previous permission of the court to mortgage, sale, gift, exchange or lease this immovable property of the ward.
Section 38-42 deals with termination of the guardianship. Section 38 says about the right of survivorship among joint guardians. Section 39 speaks about the following circumstances under which the court can remove a guardian;
1. For abuse of minors trust
2. For continuous failure or incapacity to perform his duties
3. For ill-treatment or neglect to take proper care of minor
4. For disregard of any provisions of this act or of any court order
5. For conviction of offense implying a defect of character
6. For ceasing to live within the local limits of the court’s jurisdiction
7. Bankruptcy or insolvency in case of guardian of property
18. Section 40 says that if a guardian appointed by the court discharges his duties, he may apply to the court for it. Section 41 deals with various grounds for the cessation of guardianship of a person or property.
Power of a guardian of a person or property cease;
1. By his death, removal or discharge
2. By the ward ceasing to be a minor
3. By the court of ward assuming superintendence
4. With a female, by her marriage to a fit husband
19. If the guardian is removed or is dead, then the court can appoint another guardian for the person or the property under section 42.