The article is written by Robin Kumar Thakur from Chanakya National Law University.
Guardianship in law means acquiring the legal authority to take decisions for someone else who is incapable of taking care of themselves due to infancy, insanity or disability. The legal guardians are vested with the authority of looking after the personal as well as financial aspects of the ward.
GUARDIANSHIP UNDER HINDU LAW
The Hindu minor and Guardianship act of 1956 defines a minor as a person who has not completed the age of 18 years. Here it is understood that the minor is physically as well as mentally not fit to take his own decisions.
Section 6 of the Hindu Minority and Guardianship Act 1956, deals with natural guardians of a minor Hindu child. Only three people are considered to be the natural guardian of a minor: husband, father and mother. Section 6(a) states that the guardianship of a minor until 5 years will be vested in the hands of the mother. Section 6(b) says that the mother is the sole natural guardian in case of an illegitimate minor, even if the father is still alive. In the case of a legitimate child, the mother can only become guardian after the death of the husband, or his inability to become a guardian.
Testamentary Guardians: As the word, ‘testamentary’ itself suggests, these guardians are appointed in a will or testament of the natural guardians. In Section 9(1) it is mentioned that the father has the right to appoint the testamentary guardians for his children. Section 9(2) says that after the father’s death the mother will be the guardian of the minor and the will of the father will only be entertained if the mother dies without appointing her testamentary guardian.
In the case of Sundaramurthy v. Shanmuganadar,it was held that no one else has the power to appoint the testamentary guardian of a minor except the parents. The guardian can choose to accept the guardianship, but once acknowledged it can not be revoked unless the court decides otherwise.
Guardians Appointed By Courts: In section 13 of the Hindu minority and guardianship act of 1956, it is in the hands of the court to appoint or revoke any person as the guardian of the minor citing the welfare of the child.
Defacto Guardian: Defacto guardian has not been described in any statute but the courts have always recognised it. Defacto guardian is a person who has consistently shown interest in the welfare of the minor in person as well as his property. There is no legal authority vested in the hands of the defacto guardian but he has assumed the responsibility for the welfare of the minor by himself.
Guardian By Affinity: Usually, the guardianship by affinity is for the minor widow. The guardianship is given to someone within the degree of sapinda. Here it is to be noted that the minor’s welfare comes first, so the guardian must meet all the needs and provide safety to the minor to be a guardian.
GUARDIANSHIP UNDER MUSLIM LAW
The roots of guardianship in Muslim law can be traced back to the Quran and various hadidts. Under Muslim law there exist three types of guardians:
Natural guardian: The Muslim law regards the father as the only natural guardian . The muslim law gives him the right to preside over all the matters related to the ward even if the custody of the ward is being enjoyed by someone else. In the case of Imambandi v. Mutsaddi the privy council had held that the father is the sole and supreme guardian of the minor in his lifetime.
Testamentary guardian: Muslim law provides the right to appoint a testamentary guardian only to the father. In Shias, after the death of the father, the grandfather becomes the guardian and if he appoints another testamentary it supersedes the testamentary guardian appointed by the father. Whereas in Sunnis, after the father’s death the executor of the testament becomes the guardian of the ward.
In both the sects of the Muslim law mother does not enjoy much rights. They can only appoint the testamentary guardian for their children only if they have been chosen as an executor in their fathers will or has some property to her name, which will be inherited by the minor.
Guardian appointed by the court: The guardians and wards act of 1890 governs the appointment of the guardian of the child for any group or religion by considering the child’s best interests.
GUARDIANSHIP UNDER CHRISTIAN LAW
The law of guardianship in Christian law is governed by The Guardians and Wards Act of 1890 which is more or less secular in nature. According to section 17, the guardian must look after the health of the minor. It also notes that sex, age, faith and desire of the parents, the minors wish if he is old enough must be taken in to consideration while giving guardianship to anyone. Section 19 mentions that the court has no power to appoint any other guardian if the husband or the father is fit to be the guardian.
The children being the future of the nation need to be nurtured and well treated. Their mind as well as their character is in the preliminary stage of development and is subject to the mentoring and the environment provided to it by the Guardian. They also need someone to satisfy their basic needs, so the law must take utmost precaution before deciding the guardian. The well being of the child should be of the utmost importance.
Patrick Olivelle (). Dharmasutras: The Law Codes of Ancient India, 110, Oxford University Press. ISBN 978-0-19-283882-7.
THE GUARDIANS AND WARDS ACT, 1890 (8 of 1890)
The HINDU MINORITY AND GUARDIANSHIP ACT , 1956 (32 of 1956)
Ms. Githa Hariharan and Anr. v. Reserve Bank of India and Anr., J. T. 1999 (1) S. C. 524
Sundaramurthy v. Shanmuganadar, AIR 1980 Mad 207
Mohini v. Virendra, AIR 1977 SC 1359: 1977(3) SCC 513
Imambandi v. Mutsaddi, AIR 1918 PC 11
Curated by Shivanshika Samaddar of National Law University, Delhi.