GUARDIANSHIP

This article is written by Taranjot Kaur of Panjab University, Chandigarh, an intern under Legal Vidhiya  

ABSTRACT  

Hindu law is a body of principles called dharma which according to Hindu jurisprudence means duty in various contexts. It is the religious and moral law governing individual conduct. Hindu law is believed to be of divine origin and it is based on ancient texts such as Vedas. It is the most ancient pedigree of all the known laws and is estimated to be 6,000 years old. The study of sources of Hindu law is the study of various phases of its development, enabling it to conform to the changing needs. If we talk about Muslim Law, it was founded upon the Al-Quran which is believed by Muslims to have existed from eternity. Prophet Mohammad himself declared that it was revealed to him by the angel Gabriel at different times. In the religious sense, Islam means ‘Submission to the will of God.’ In Islam, all humanity is one vast brotherhood with one God as their creator who looks at them all as equal. In this article, we will be reading about guardianship from the point of Hindu law as well as Muslim Law. In this article, we will learn about the concept of guardianship and its certain other provisions in Hindu Law as well as Muslim Law.

Keywords: Guardianship, Natural guardian, Hindu law, Muslim Law, Testamentary guardians

INTRODUCTION

HINDU LAW

Guardianship is a legal process through which a legal guardian is established when a person is no longer able to take care of or communicate the soundness of their child. A guardian is a person who is appointed to take care of the minor and the minor’s property. A guardian is expected to nurture the minor child in the same way as a man of ordinary prudence would take care of his own child. The inability to take care of one’s own child can also include any physical or mental incapacities. The minor child is expected to be considered unfit for taking his own decisions. The British period marked the start of guardianship. The father is considered to be the natural guardian and after his death, the mother will be considered as the guardian of the child. The provisions related to guardianship for Hindus are given under the Hindu Minority and Guardianship Act, of 1956. As per Section 4 (a) of the Hindu Minority and Guardianship Act 1956 a minor has been defined as a person who has not yet attained the age of eighteen years and as per Section 4 (b) of the Hindu Minority and Guardianship Act 1956, guardian is defined as a person who has completed the age of eighteen years and can take proper care of the minor as well as his own.

SPECIAL SITUATIONS

There are also some special situations where a person with autism, mental retardation, or any other mental or multiple disabilities are not able to look after themselves even after attaining the age of eighteen years. In the majority of cases they cannot take proper legal decisions for their own betterment and in such cases, they may require somebody to represent them for which they may require a guardian to help them with some legal formalities and decisions.[1]

TYPES OF GUARDIANS

There are three types of guardians –

• Natural guardians
• Testamentary guardians
• Guardians appointed or declared by the court

NATURAL GUARDIANS

 As per Hindu Law Section 4 (c) father and mother are recognized as natural guardians and the husband is recognized as a natural guardian for a minor wife. The mother is the natural guardian of the child only till 5 years of age and the father is considered to be the first guardian of his son and unmarried daughter. The position of adopted children is the same as that of natural-born children. The mother is considered to be the guardian of a minor illegitimate child even if the father is alive at that moment. In the case, that the child has ceased to be a Hindu or has renounced the world and has become an ascetic or sanyasi, neither the father nor the mother will be considered a natural guardian.

POWERS OF NATURAL GUARDIAN

As per section 8, there are certain powers of a natural guardian:

• The natural guardian has the right to do anything which is compulsory and beneficial in the interest of the minor child.
• The natural guardian requires the permission of the court for any type of gifts or mortgage or any valuable item of the minor.
• The court’s prior permission is necessary in case the lease of any part of the minor’s property exceeds five years or extends up to one year.
• If the natural guardian violates any immovable property of the child, then it will be voidable at the option of the minor or any other person claiming it.
• No permission will be granted to the natural guardian for anything that is not in the interest of the minor.[2]

TESTAMENTARY GUARDIANS

As per Section 9 of the Hindu Minority and Guardianship Act, 1956, any person authorized by will or testament is the testamentary guardian. It deals with the testamentary guardians and their powers. As per Section 9 (1) father who is the natural guardian of the child is entitled to appoint any testamentary guardian by will. The same power is entitled to the mother in Section 9 (4). The guardian who will be appointed as the testamentary guardian has the power to act as the natural guardian after the death of the minor’s father or mother or as per the provisions. Any right conferred to the testamentary guardian where the minor is a girl will cease after her marriage. The testamentary guardian has to accept the guardianship and is entitled to accept or reject it but once accepted cannot be refuted unless by the permission of the court.

GUARDIANS APPOINTED BY THE COURT

As per the Guardians and Wards Act, of 1890 the courts have the power to appoint guardians. The district court may appoint any person as the guardian for the welfare of the child. The court takes into consideration various factors such as the age of the child, the wish of the parents, sex as well as personal law of the child.

MUSLIM LAW

The Quran is the first source of Muslim Law and is the paramount and universal authority of Muslim Law. It consists of all the revelation of God to Prophet Mohammad given by the angel Gabriel. The chapters of the Quran are arranged as commanded by the Prophet and not in chronological order. The chapters of this holy book are called Sura and its verses are called Ayat. The portion disclosed to Prophet Mohammad at Madina is considered to be concerned with certain legal principles and the portion at Mecca is considered to deal with life philosophies and Islamic religion. The Quran is considered to be the basis of law relating to guardianship. The term Guardianship i.e. Wilayat is the guardianship of a minor. As per Muslim Law puberty and majority are the same and puberty is considered to be attained at the completion of fifteen years but now Muslims are governed by the Indian Majority Act of 1875 except in case of marriage, dower, and divorce. As per Section 2 of the Child Marriage Restraint Act, of 1929 the minimum age is considered to be twenty-one years for marriage for males and eighteen years for females. In general, the age of majority is taken as eighteen years. Hence, in cases related to wills, and waqfs the minority will end at the completion of eighteen years. The age of majority is 21 if the minor is under the Court of Wards or a guardian is appointed for him by the orders of the court.[3]

APPOINTING THE GUARDIAN

The court for the child’s welfare may order the guardian’s appointment. Section 15 (1) of the Guardians and Wards Act 1890 permits the appointment of a joint guardian and on the death of the one guardian, the other continues being a guardian. Section 20 of the Guardians and Wards 1890 imposes a duty on the guardian to be honest and careful regarding the minor’s property and if he does not perform his duties well, the court can remove him. As per sections 24,25 and 26 of the Guardians and Wards Act, the custody of the child is with the one who is appointed as the guardian of the person and then it is the duty of that person to look after the minor’s health and education. The guardian appointed is presumed to deal with the minor’s property as a man of ordinary prudence would deal with his own property.

SECTION 41 – As per this section the guardian appointed by the court or by will i.e. testamentary guardian shall cease to be the guardian if there will be the case of death, removal, or discharge of the guardian, when the minor will attain the age of majority, when the female minor will get married or the revival of the other person in whose absence the other guardian acted as the guardian. The court takes into the preference of the minor in cases where he is intelligent enough to form a preference for the guardian otherwise the court always takes into consideration the welfare of the child and other factors such as age, sex, religion, wish of any deceased parent, the character of the proposed guardian, etc.

TYPES OF GUARDIANS UNDER MUSLIM LAW

• Natural or legal guardian
• Testamentary Guardian
• Guardian appointed by courts
• De-facto guardians

NATURAL GUARDIAN

A natural guardian is the first legal guardian who is entitled to the right to regulate and supervise the activities of the minor. In both Sunnis and Shias, the father is considered to be the natural guardian of the minor and in the absence of the father, the grandfather is considered to be the natural guardian and not the mother. A minor cannot be represented by the grandfather if the father is still alive. The father has this right only to his legitimate children and not to his illegitimate children. In the case of Imambandi v. Mutsaddi[4], it was held that the father is the sole and supreme guardian of his minor legitimate children until he is alive. As per Sunnis the father is the only natural guardian and after his death, the guardianship passes to the executor but as per Shias, the guardianship is passed to the grandfather after the death of the father.

TESTAMENTARY GUARDIAN

As per both Shia and Sunni, the testamentary guardian can be appointed by the father. It can be defined as a guardian who is appointed by the will. In both the schools i.e. Sunni and Shia, the mother has no right to appoint testamentary guardians. In the case of Atika Begum v. Mohammad Ibrahim[5], it was held that the father has no right to appoint a guardian for the minor in the presence of the grandfather. A mother can be made a testamentary guardian by the will of a father or grandfather. In Sunnis, a non-Muslim mother can be made a testamentary guardian of the child but in Shias, a non-Muslim mother cannot be made a testamentary guardian.[6]

GUARDIAN APPOINTED BY THE COURT

In the absence of a natural, legal, or testamentary guardian the court taking into consideration the welfare of the child may appoint a guardian. The Guardians and Wards Act of 1890 is responsible for the guardians appointed in any community. The power of appointing a guardian for the welfare of a child is vested in the district court. The guardians appointed by the court are called statutory guardians.

DE-FACTO GUARDIANS

Any guardian who himself has considered the custody of the child and is neither a legal guardian nor a testamentary or statutory guardian is called de-facto guardian. It can be a person who has taken up custody due to various circumstances and does not have any authority for guardianship. They have the responsibility for the minor’s welfare and property but do not have any right against the minor or his property.

REMOVAL OF GUARDIAN

A guardian can be removed by the order of the court considering the welfare of the child if he does –

• Abuse of his trust
• Is incapable of performing his required duties
• Do not take proper care or neglect the minor
• Disregard provisions of the Guardians and Wards Act
• For bankruptcy or insolvency
• Having any interest adverse to the faithful performance of his duties

RIGHTS AND DUTIES OF THE GUARDIAN

The guardian has the duty to support his ward and take proper care of his education, health, and all other important matters. It is also the duty of the guardian to take all the required necessary steps to protect the infant child and he can also file a suit on behalf of the minor. He also possesses the right to control the conduct of the ward and not to use the ward’s property. He is also expected not to make any profits from the minor’s property for his own benefit and shall always consider the benefit of the minor.

LANDMARK CASES

Gaurav Nagpal v. Sumedha Nagpal[7]

Facts – The appellant father married the respondent mother on 14.10.1996 and a child was born on 15.11.1997. By appeal of the father, the high court ordered the custody of the child to the father and visitation rights to the mother but the visitation rights were not complied with so the district court allowed a contempt position of the mother and also transferred the custody to her.

Held – It was held by the Supreme Court that the paramount consideration while giving custody of the child is the welfare of the child. The purpose of the act is not only physical custody but also due protection to the ward’s health, education is also taken into consideration.

K. Vidyasagar v. Shobha[8]

In this case, it was held that it is the District Court in whose jurisdiction the minor ordinarily resides, and which has the jurisdiction to entertain, try, and dispose of the issue as well.[9]

Chandrakala Menon v. Vipin Menon (Capt.)[10]

This case was related to the custody of the minor girl child where it was decided that even if the father is the natural guardian of the child but still the preference would be given to the welfare of the child. In this case, the divorce between the parents was done by mutual consent and the father was residing in India and the mother was residing in the U.S.A.

Held- Taking into consideration the welfare and the interest of the child the custody of the minor girl child was provided to the mother and the father was given liberty to meet her anytime in the U.S.A.

CONCLUSION

Every child deserves to be taken proper care of and be brought up in a good and beneficial environment. The concept of guardianship provides the child with all the necessities and benefits. The major consideration while appointing the guardian is acknowledging the welfare of the child and in some cases, the minor’s preference is also acknowledged. The provisions for guardianship may differ in Hindu and Muslim law but the main aim is considering the welfare and betterment of the child.

[1] https://thenationaltrust.gov.in/content/innerpage/guardianship.php#:~:text=The%20guardian%20takes%20all%20legal,completed%2018%20years%20of%20age. Last visited on 19.09.2023

[2] https://blog.ipleaders.in/overview-of-the-hindu-minority-and-guardianship-act-1956/ last visited on 12.09.2023

[3] Aqil Ahmed, Mohammedan Law (Central Law Agency, Allahabad,23^rd Ed,2009)

[4] (1918) 45 Cal 887

[5] 1916 UKPC 70

[6] https://legalserviceindia.com/legal/article-8416-guardianship-under-muslim-law.html  last visited on 13.09.2023

[7] (2009) 1 SCC 42: (2009) 1 SCC (Civ) 1

[8] 2012 SCC OnLine Bom 612: (2012) 5 Mah LJ 805: (2013) 4 AIR Bom R (NOC 83) 23: (2013) 7 Bom CR 928

[9] https://www.lawinsider.in/columns/landmark-judgements-on-guardians-and-wards-act#post-12961-footnote-ref-6 last visited on 19.09.2023

[10] (1993) 2 SCC 6: 1993 SCC (Cri) 485