A guardian is someone who has been designated to take care of another person or his belongings. He or she takes on the responsibility of looking after and defending the person for whom they have been named guardians. The guardian makes all legal decisions regarding the ward’s person and property.
Need for Guardian:
- The reason for caring for someone else can be that they are still a minor, or under the age of 18.
- It can also be used to describe the guardianship of a person who is unable to care for himself or his property due to physical or mental impairments.
- Minority status has always been a prerequisite for guardianship appointments in all societies. This is because a youngster is deemed unsuitable to make decisions for them that could have consequences for him and others.
- As a result, a minor is regarded by the law as being incapable of making a contract with an adult. Therefore, a minor has always been viewed as being unable to represent himself without the help of his guardian.
- A guardian makes decisions on the minor’s behalf to safeguard the minor’s interests and his possessions.
The colonial state of India passed the Guardians and Wards Act in 1890, continuing the Common Law tradition of the primacy of the paternal right in guardianship and custody of children. While Sections 7 and 17 of the work mandated the courts work to promote the welfare of minors, Sections 19 and 25 of the original Act placed that welfare under the father’s sovereignty. Only the Hindu Minority and Guardianship Act, 1956, passed by the newly formed Indian state, specifies that the welfare of the minor shall take precedence over all other considerations. Chapter 2 of this paper goes into great detail about this legal system.
Depending on the jurisdiction, custody of an adult with a mental handicap differs in India and elsewhere. Custody laws differ in Portugal, Italy, Estonia, Sweden, Japan, and Germany. In Portugal, a person under interdiço has the same legal status as a juvenile, and adults are subject to the same guardianship laws as minors. In Italy, a person under interdiço has the same legal status as a juvenile, and adults are subject to the same guardianship laws as minors. In Estonia, a person under interdiço has the same legal status as a juvenile, and adults are subject to the same guardianship laws as minors.
A family member, an association member, or an official representing the state may be appointed as a caretaker as a last resort. International conventions and treaties, such as the UN Convention on the Rights of Persons with Disabilities (CRPD) and the Hague Convention of 2000 on the Protection of Adults, provide that a state party must take appropriate steps to provide adequate guardianship to the persons with disabilities. The National Trust Act, the Right of Persons with Disabilities Act, and the Mental Health Care Act of 2017 are all laws that apply to India.
In a number of cases, including PT Chathu Chettiar vs. VKK Kanaran, Rajalakshmi v. Ramachandran, Essakkayal Nadder v. Sreedharan Babu, and Gita Hariharan v. Reserve Bank of India, it has been possible to observe the growth of guardianship legislation. The Supreme Court addressed the patriarchal idea that the father is the natural guardian and the mother only succeeds him in this role in Gita Hariharan v. Reserve Bank of India. The father’s role as a natural guardian and the situation of single mothers are both highlighted by this case. The Supreme Court ruled that the child’s welfare must always come first in custody disputes, and that the father’s identity must never be revealed. As all administrative work is done in the father’s name, this case represented a turning point.
This pattern persisted in Bakshi Ram v. Shila Devi and Jajabhai v. Pathankhan. The mother’s rights as a natural guardian cannot be questioned or limited, according to the Rajasthan High Court. While the Guardian and Wards 1890 governs the process for asking courts to appoint a guardian, the Hindu Guardianship and Minorities Act of 1965 exclusively applies to Hindus and subsets of Hindus.
The Hindu Guardianship and Minorities Act, which specifies that the father and mother are the natural guardians of an unmarried boy or girl, has been urged for revision in the law commission report. It also suggests amendments to Section 7 of the statute, which specifies that a minor adopted child’s natural guardianship first transfers to the adoptive father and then to the adoptive mother. Along with its suggestions to Section 6 clause (a), the Commission also suggests that the natural guardians of an adopted child should comprise both adoptive parents.
Conclusion
A guardian is someone who has been designated to take care of another person or their belongings. They make all legal decisions regarding the ward’s person and property. Minority status is a prerequisite for guardianship appointments in all societies, as a minor is deemed unsuitable to make decisions that could have consequences for him and others. The Hindu Minority and Guardianship Act, 1956, specifies that the welfare of the minor shall take precedence over all other considerations. Custody laws vary in India and elsewhere, with Portugal, Italy, Estonia, Sweden, Japan, and Germany having the same legal status as minors.
A family member, association member, or official may be appointed as a caretaker as a last resort. International conventions and treaties require states to take appropriate steps to provide adequate guardianship to persons with disabilities. The Supreme Court ruled that the child’s welfare must come first in custody disputes, and that the father’s identity must never be revealed. This pattern persisted in Bakshi Ram v. Shila Devi and Jajabhai v. Pathankhan. The Hindu Guardianship and Minorities Act of 1965 has been urged for revision, with amendments to Section 7 and Section 6 clause (a). The natural guardians of an adopted child should comprise both adoptive parents.
Name: Sarah Garima Tigga, Semester: VI,College: Symbiosis Law School (Pune)
