Minor is physically and mentally immature and needs proper care. Legislation in India provides that a minor cannot act independently. In India, guardianship and ward are various general and personal laws. The legislations are:
- Hindu Minority and Guardianship Act, 1956;
- Guardianship and Wards Act, 1890;
- Islamic laws and Parsi and Christian Laws.
The Guardians and Wards Act 1890 got enacted to protect the minor’s interest and secure his property. The act applies to the whole of India and came into force on 1st July 1890. The Act consolidates and amends the law related to the Guardian and Ward.
Along with operating the rules of personal laws related to guardianship and wards, the act regulates laws pertaining to guardianship and custody for all children within the territory of India. Still, it does not override personal laws related to guardianship and wards.
Let’s dive deeper to understand what’s all incorporated in the Guardian and Ward Act, 1890.
Meaning of guardian and minority
Whether a person is minor or not is a matter of age. Section 4(1) of the Guardians and Wards Act, 1890, defines Minor. Accordingly, a minor is a person who has not completed 18 years of age. Thus, such a person requires a legal guardian. This section is taken from the Indian Majority Act, 1875.
Guardian gets defined under section 4(2) of the Guardians and Wards Act, 1890. According to this section, a Guardian is a person who takes care of the minor or his property or both.
Guardianship plays a vital role in the development of a child, and thus, the parents are vested with the power to decide who would be their guardian when they die. But, in some cases, the court appoints the guardian for the child’s welfare.
Features of Guardians and Wards Act, 1890
Features of the Guardians and Wards Act, 1890 are as follows:
- The act authorises the District Court or any other court of the ward to appoint a guardian for a minor. The guardian takes care of the minor, minor’s property or both
- The Guardian and Wards Act, 1890 is umbrella legislation as it supplements personal laws under every religion related to guardianship
- The act is substantive law, but in some instances, the Act provides procedural law that applies to personal laws
Sections under Guardian and Wards Act, 1890
Appointment of Guardian
Section 7 of the Guardians and Wards Act, 1890 provides the power of the Court to pass an order for guardianship. This section states that the court can appoint a guardian for the welfare of minors. The guardian can take care of the minor and his property. The court also has the power to remove any guardian. The court can remove the guardian when appointed by the court.
Who can apply for guardianship under Guardian and Wards Act, 1890
Section 8 of the Guardians and Wards Act, 1890 provides the person entitled to apply for an order. According to this section following person can make an application:
- The person who is deciduous of being or claiming to be the guardian of the minor
- A relative or friend of minor
- The collector of a district or area where a minor resides or has property
- The collector who has the authority
Jurisdiction of Courts
Section 9 of the Guardians and Wards Act, 1890 provides the jurisdiction of the court to entertain an application.
- If the application is related to the guardianship of minors, then the jurisdiction of the court lies where guardians of minors live or where guardians reside
- When the application is related to the minor’s property, then the jurisdiction of the District Court may lie either at the place where the minor resides or where the property exists.
Section 10 of the Guardians and Wards Act, 1890 provides a form of application. The application is not made by the collector but by a petition. The petition filed under this section should be signed and verified in the manner prescribed by the Code of Civil Procedure,1908. Such a petition should ascertain all details provided under section 10(1) of the Guardians and Wards Act, 1890.
This section provides an application made by the collector shall be in the form of a letter. The letter must address to the court, which is forwarded by the post or in any other convenient manner. The letter shall state details mentioned in subsection (1) of section 10 of the Guardians and Wards Act. 1890.
The application must have a declaration made by the proposed guardian, signed by him and attested by at least two witnesses.
Hearing of application
Section 11 of the Guardian and Wards Act, 1890 provides a procedure on the admission of application. According to this section, after being satisfied with the ground of proceeding, the court will fix a date for hearing. The notice served in the manner directed by the Code of Civil Procedure, 1908.
Section 12 of the Guardian and Wards Act, 1890 includes the Power to make interlocutory order. An Interlocutory order is made to produce minor and interim protection of person and property. The court under this section is empowered to direct a person having custody of the child to present the child in the court. And in the case of a female child, customs and manners of the country are to be followed as they cannot get compelled to appear in public.
But the court is not authorised to a female minor in the temporary custody of a person who claims to be the child’s guardian unless she is already in the person’s custody by her parents’ consent.
Recording of evidence
Section 13 of the Guardians and Wards Act, 1890 provides for a hearing of evidence before making an order. On a fixed date of hearing of the application or any other date, the court shall hear evidence supporting or against the application.
Stay of proceedings
Section 14 of the act for Simultaneous proceedings in different courts. According to this section, if the court finds the case for appointment or declaration of the guardian gets filed in more than one court. The court, in this case, shall stay such proceedings before itself. When the courts are subordinate to the same high court, they shall report the issue in the High Court. The High Court will determine which court will hear the proceeding.
Section 15 of the act provides for the appointment or declaration of several guardians. According to this section, if the law admits having two or more joint guardians of his person, property, or both. The court feels that it is appropriate to declare to appoint more than one guardian the court may appoint guardians.
A separate guardian can be appointed or declared of the person or property of the minor.
And when the minor has more than one property, the court may appoint or declare a separate guardian for one or more properties.
Section 16 of the Guardians and Wards Act, 1890 provides for appointment or declaration of guardian for property beyond the jurisdiction of the court. According to this section, when a court appoints a guardian for the property of a minor situated outside the local jurisdiction.
Points of consideration
Section 17 of the act provides matters to consider while appointing a guardian. The court shall make decisions for the welfare of the minor, the minor’s rights and the circumstances of the case.
The court should consider the following matters:
- The age, sex and religion of minors should be seen.
- The capacity and character of the guardian. Also, the relation of the guardian with the minor is to be.
- Wish of the deceased parent.
- Any existing or previous relationship of the guardian with the minor or his property.
According to section 17(5) of the act, the court should not declare any person as a guardian against the will of the minor.
Collector as guardian
Section 18 of the act provides for the appointment of a collector as guardian in virtue of office. When the collector is appointed as a guardian of a minor, the order appointing him as a guardian requires the person holding office for time being to act as a guardian of the minor.
Cases when guardian cannot be appointed
Section 19 of the act provides where a Guardian cannot be appointed by the court in certain cases. The court shall not assign a guardian if the property is under the guidance of the courts of wards or to declare a guardian of the person who:
- In the case of the minor who is a married female and whose husband is fit to be a guardian.
- In the case of the minor female who is not married and her father or mother living, she is fit to be the person’s guardian.
Section 20 of the act provides fiduciary relation of guardian ward. A guardian must be in a fiduciary relationship with the ward. It is because trust is an essential element in the relationship between guardian and minor. Thus, the guardian should not make any profit out of the office of the minor.
Section 21 of the act provides the capacity of minors to act as guardians. A minor cannot act as a guardian for another minor. There is an exception to this, where a minor can be a guardian to his wife, child or in case he is managing a Hindu undivided family, wife or child of another member of the family who is minor.
Section 22 of the act provides remuneration of guardians. When the court appoints the guardian, the guardian can receive allowances as the court may think fit.
If a government officer is appointed, fees shall be paid to the government out of the ward’s property as the State Government.
Duties of guardian of a person
Section 24 of the act provides duties of a guardian of the person. A guardian of the minor is required to look to his support, health and education and all other matters.
Custody of ward
Section 25 of the Guardians and Wards Act, 1890 provides the title of guardian to the custody of minors. According to this section, if the minor leaves the guardian’s custody, the court can pass an order for his return. And to make such a return, the minor can be arrested. This power to arrest the minor gets vested under section 100 of the Code of Criminal Procedure, 1882 upon the magistrate of First Class.
Removal of guardian
Section 26 of the act deals with removing the ward from jurisdiction. If a minor leaves the custody of a guardian or is removed from the custody of a guardian appointed by the court, the court may make an order for his return or arrest and deliver him to the custody of a guardian.
Duties of guardian of property
Section 27 of the Guardians and Wards Act, 1890 deals with duties of a guardian of property.
According to this section, the guardian must take care of the minor’s property in how an ordinary prudence man will deal with his property. Accordingly, he can also act as a good and proper realisation, protection and benefit of the property.
Powers and limitations of a testamentary guardian
Section 28 of the act deals with the power of testamentary guardians. According to this section, when a guardian is appointed by will or any other instrument, he should deal with the property as per conditions of the will.
Section 29 of the act limits the power of guardians of property appointed or declared by the court.
According to this section, a guardian cannot do certain activities without the court’s permission. The activities are as follows:
- A guardian cannot mortgage, sell, transfer by gift or exchange a part of the minor’s immovable property.
- A guardian cannot lease any part of the property for more than five years. The property cannot get mortgaged if the ward will cease to be minor for more than one year.
Section 30 of the act deals with the voidability of transfers made in contravention of sections 28 and 29. According to this section, a transfer of immovable property is voidable if it is in contravention of sections 28 and 29.
Variation of powers
Section 32 provides a variety of powers of guardian of property appointed or declared by the court. When the court appoints a guardian other than the collector, the court can extend or restrict the guardian’s powers from time to time.
Right of opinion
Section 33 deals with the Right of the appointed guardian to know about the court’s opinion on the management of the ward’s property. According to this section, the guardian can apply to the court to seek advice for managing the ward’s property.
Right of survivorship
Section 38 of the act provides the right of survivorship to the joint guardian. According to this right, if one of the joint guardians dies, the survivors remain the guardian till the court makes further appointments.
Removal and discharge of the guardian
Section 39 of the Guardians and Wards Act, 1890 provides conditions for Removal of Guardian. The causes for removal of a guardian by the court are as follows:
- When the guardian abuses trust.
- When a guardian fails to perform duties of trust.
- When the guardian is incapable of performing the duties of trust.
- When the guardian ill-treats, neglect to take proper care of the minor.
- For disregarding any provision of the guardian and wards act, 1890 or order of the court.
- For a conviction of an offence that implies a defect in the character of the guardian, such character makes a person unfit to be a guardian.
- When the guardian ceases to reside within the jurisdiction of the court
- When the guardian of the property for bankruptcy or insolvency.
Section 40 of the act discharge of guardian. According to this section, when the guardian desires to resign from his duty, he can apply to the court. If the court finds sufficient reason, the court will discharge him.
When the guardian is a collector, after the approval of the application by the state government, the court can discharge him.
Cessation of authority
Section 41 provides cessation of the guardian’s authority. According to this section, the power of guardian of a person ceases:
- By death, removal or discharge
- When a minor attains the age of majority.
- In the case of the female ward after her marriage, her husband is fit to be her guardian.
The power of the guardian of property ceases when:
- By death or removal or discharge of the guardian
- The Court of wards assumes superintendence of the property of the minor
- When minor attains the age of majority
Appointment of successor
Section 42 of the Guardians and Wards Act, 1890 provides the appointment of the successor. The court under this section can appoint any other person as guardian for the person or property when a guardian is dead, discharged or removed.
The court can enforce penalties by providing the Guardians and Wards Act, 1890.
- The penalty for removal of the ward from jurisdiction (Section 44)
- The penalty for contumacy (Section 45)
Guardians and Wards Act, 1890 was required for guardianship of the child. The child’s guardianship is concerned as minors need physical and mental care. The enforcement of the Guardians and Wards Act, 1890 brought a consistent procedure for guardianship.
The act is umbrella legislation covering every aspect related to Guardian and Wards. This Act is secular legislation that applies to every religion and covers the procedural aspects for personal law related to guardian and ward.
What are the facts considered for the removal of the guardian?
Following factors considered for removal of the guardian:
- Abuse of trust
- Continue failure to perform duties
- Ill-treatment or neglect
- Disregard of the court order
- Conviction in offence
- Neglect of ward
When can the court not appoint a guardian?
The Court cannot appoint a guardian when the father or mother of the minor is alive and is not unfit to be a guardian. The court can not appoint a guardian when the minor female is married, and her husband is fit to be her guardian.
What is the relationship between guardian and minor?
The relationship between the guardian and minor is a fiduciary relationship based on trust.
Who is ward according to the Guardian and Wards Act, 1890?
According to Section 4(3) of the Guardian and Wards Act, 1890, a ward means a minor. And for taking care of the person or property or both.