This article talks about legal guardian in India under Hindu, Muslim, Christian And Parsi Laws. Guardianship is a legal process that transfers decision-making authority over an individual (a ward). Individual deemed incapable of managing his or her personal or financial affairs to another person (the guardian). Legal guardians may appointed for both minors and adults.
Legal Guardian Under Hindu, Muslim, Christian And Parsi Laws
Guardianship Under Hindu Law
It came to the terms of establishing that the father is the natural guardian of the children and after his death. Mother is the natural guardian of the children and none else can be the natural guardian of minor children.
Testamentary guardians introduced in Hindu law:
It was also accepted that the supreme guardianship of the minor children vested in the State as parens patrie and was exercised by the courts. The Hindu law of guardianship of minor children has been codified and reformed by The Hindu Minority and Guardianship Act, 1956.
The subject discussed under the following heads :
(i) Guardianship of person of minors,
(ii) Guardianship of the property of minors,
(iii) De facto guardians, and
(iv) guardians by affinity.
Under The Hindu Minority and Guardianship Act, 1956, minor means a person who has not completed the age of eighteen years. A minor considered to be a person who is physically and intellectually imperfect and immature. Hence minor needs someone’s protection. However in the modern law of most countries the childhood granted protection in multifarious ways. Legal guardian is “a person having the care of the person of the minor or of his property or both person and property.”
However it may be emphasized that in the modern law guardians exist essentially for the protection. Guardians would take care of the child and to look after its welfare. This expressed by saying that welfare of the child is paramount consideration. Welfare includes both physical and moral well-being.
Legal guardian may be of the following types
1. Natural guardians,
2. Testamentary guardians, and
3. Guardians appointed or declared by the court.
There are two other types of legal guardians, existing under Hindu law, de facto guardians, and guardians by affinity.
In Hindu law only three persons can recognized as natural guardians father, mother and husband, Father. “Father is the natural guardian of his minor legitimate children, sons and daughters.”
The Guardians and Wards Act, 1890, lays down that a father cannot be deprived of the natural guardianship of his minor children unless he has been found unfit.
The Hindu Minority and Guardianship Act,1956 which lays down that welfare of the minor is of paramount consideration and father’s right of guardianship is subordinate to the welfare of the child. The Act does not recognize the principle of joint guardians. The position of adopted children is at par with natural-born children. The mother is the natural guardian of the minor illegitimate children even if the father is alive. However, she is the natural guardian of her minor legitimate children only if the father is dead. If the father is alive then the mother is incapable of acting as guardian. The Hindu Minority and Guardianship Act lays down that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Thus, mother entitled to the custody of the child below five years, unless the welfare of the minor requires otherwise.
Rights of guardian of person
The natural guardian has the following rights in respect of minor children:
(a) Right to custody,
(b) Right to determine the religion of children,
(c) Right to education,
(d) Right to control movement, and
(e) Right to reasonable chastisement
These rights conferred on the guardians in the interest of the minor children. Therefore of each- of these rights is subject to the welfare of the minor children. Hence, the natural guardians have also the obligation to maintain their minor children.
It was father’s prerogative to appoint testamentary guardians. By appointing a testamentary guardian the father could exclude the mother from her natural guardianship of the children after his death.
Under the Hindu Minority and Guardianship Act, 1956, testamentary power of appointing a guardian has now conferred on both parents. The father may appoint a testamentary guardian but if mother survives him, his testamentary appointment will be ineffective and the mother will be the natural guardian. If mother appoints testamentary guardian, her appointee will become the testamentary guardian and father’s appointment will continue to be ineffective. If mother does not appoint, father’s appointee will become the guardian. It seems that a Hindu father cannot appoint a guardian of his minor illegitimate children even when he is entitled to act as their natural guardian. This Act confers testamentary power on him in respect of legitimate children. In respect of illegitimate children, confers such power on the mother alone.
The Hindu Minority and Guardianship Act, testamentary guardian can be appointed only by a will. The guardian of a minor girl will cease to be the guardian of her person on her marriage, and the guardianship cannot revive even if she becomes a widow while a minor. It is necessary for the testamentary guardian to accept the guardianship. Acceptance may be express or implied. A testamentary guardian may refuse to accept the appointment or may disclaim it. If once the testamentary guardian accepts the appointment he cannot refuse to act or resign except with the permission of the court.
Guardians Appointed by the Court
The courts are empowered to appoint legal guardian under The Guardians and Wards Act, 1890. The High Courts also have inherent jurisdiction to appoint guardians but this power is exercised sparingly.
The Hindu Minority and Guardianship Act is supplementary to and not in derogation to The Guardians and Wards Act.
Under The Guardians and Wards Act, 1890, the jurisdiction has conferred on the District Court. The District Court may appoint or declare any person as the legal guardian whenever it considers it necessary in the welfare of the child. In appointing a legal guardian, the court takes into consideration various factors, including the age, sex, wishes of the parents and the personal law of the child. The welfare of the children is of paramount consideration. The District Court has the power to appoint or declare a legal guardian in respect of the person as well as separate property of the minor. The chartered High Courts have inherent jurisdiction to appoint legal guardian of the person as well as the property of minor children. This power extends to the undivided interest of a co-parcener.
The guardian appointed by the court deemed as certificated guardian. Powers of Certificated guardians. Powers of certificated guardians controlled by the Guardians and Wards Act, 1890. There are a very few acts which he can perform without the prior permission of the court. In the ultimate analysis his powers are co-extensive with the powers of the sovereign and he may do all those things (though with the permission of the court) which the sovereign has power to do. A certificated guardian from the date of his appointment is under the supervision, guidance and control of the court.
Guardianship by affinity
In pre 1956 Hindu law there existed a guardian called guardian by affinity. The guardian by affinity is the guardian of a minor widow. Mayne said that “the husband’s relation, if there exists any, within the degree of sapinda, are the guardians of a minor widow in preference to her father and his relations.”‘ The judicial. pronouncements have also been to the same effect.
De Facto Guardian
A de facto guardian is a person who takes continuous interest in the welfare of the minor’s person or in the management and administration of his property without any authority of law. Hindu jurisprudence has all along recognized the principle that if liability is incurred by one on behalf of another in a case where it is justified, then the person, on whose behalf the liability is incurred or, at least, his property, is liable, notwithstanding the fact that no authorization was made for incurring the liability.’
A mere inter-meddler is not a de facto guardian. An isolated or fugitive act of a person in regard to child’s property does not make him a de facto guardian. To make a person a de facto guardian some continuous course of conduct is necessary on his part. In other words, a de facto guardian is a person who is not a legal guardian, who has no authority in law to act as such but nonetheless he himself has assumed, the management of the property of the child as though he were a guardian. De facto guardianship is a concept where past acts result in present status. The term literally means ‘from that which has been done.
Guardianship Under Muslim Law
The source of law of guardianship and custody are certain verses in the Koran and a few ahadis. The Koran, the ahadis and other authorities on Muslim law emphatically speak of the guardianship of the property of the minor, the guardianship of the person is a mere inference. The law of guardianship of custody as under Muslim Law :
(b) Custody, and
(c) De facto guardian.
Classification of Guardianship
In Muslim law guardians fall under the following three categories :
(i) Natural guardians,
(ii) Testamentary guardians, and
(iii) Guardians appointed by the court.
In all schools of both the Sunnis and the Shias, the father is recognized as guardian which term in the context is equivalent to natural guardian and the mother in all schools of Muslim law is not recognized as a guardian, natural or otherwise, even after the death of the father. The father’s right of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The father has the right to control the education and religion of minor children, and their upbringing and their movement. So long as the father is alive, he is the sole and supreme guardian of his minor children.
The father’s right of guardianship extends only over his minor legitimate children. He is not entitled to guardianship or to custody of his minor illegitimate children.
In Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody.
Among the Sunnis, the father is the only natural guardian of the minor children. After the death of the father, the guardianship passes on to the executor. Among the Shias, after the father, the guardianship belongs to the grandfather, even if the father has appointed an executor, the executor of the father becomes the guardian only in the absence of the grandfather. No other person can be natural guardian, not even the brother. In the absence of the grandfather, the guardianship belongs to the grandfather’s executor, if any.
Testamentary Guardian in Sunni & Shia Law
Among the Sunnis, the father has full power of making a testamentary appointment of guardian. In the absence of the father and his executor, the grandfather has the power of appointing a testamentary guardian. Among the Shias, the father’s appointment of testamentary guardian is valid only if the grandfather is not alive. The grandfather, too, has the power of appointing a testamentary guardian. No other person has any such power.
Among both the Shias and the Sunnis, the mother has no power of appointing a testamentary guardian of her children. It is only in two cases in which the mother can appoint a testamentary guardian of her property of her minor children first, when she has been appointed a general executrix by the will of the child’s father, she can appoint an executor by her will; and secondly, she can appoint an executor in respect of her own property. which will devolve after her death on her children.
The mother can be appointed a testamentary guardian or executrix by the father, or by the grandfather, whenever he can exercise this power. Among the Sunnis, the appointment of a non-Muslim mother as testamentary guardian is valid, but among the Shias such an appointment is not valid, as they hold the view that a non-Muslim cannot be a guardian of the person as well as of the property of a minor. It seems that the appointment of non-Muslim fellow-subject (iiinmi) deem valid, though it may set aside by the kazi.
Testamentary Guardian in Maliki & Shafii law
According to the Malikis and the Shafii law, a zimmi can validly appointed testamentary guardian of the property of the minor, but not of the person of -the minor. The Shias also take the same view. It appears that when two persons are appointed as guardians, and one of them is disqualified, the other can act as guardian. A profligate, i.e., a person who bears in public walk of life a notoriously bad,character, cannot be appointed as guardian:
Acceptance of the appointment of testamentary guardianship is necessary, though acceptance may be express or implied but once the guardianship is accepted, it cannot be renounced save with the permission of the court.
Muslim law does not lay down any specific formalities for the appointment of testamentary guardians. Appointment may made in writing or orally. In every case the intention to appoint a testamentary guardian must be clear and unequivocal. A testamentary deposition made by a testator may be invalid, but appointment of the executor may be general or particular. The testator must have the capacity to make the will at the time of execution. This means that the testator should be major and of sound-mind, i.e., at the time of execution of the will, he should be in full possession of his senses.
The executor of the testamentary guardian designated variously by Muslim lawgivers, indicating his position and powers. Testamentary guardian commonly called, wali or guardian or amin, i.e., a trustee. He is also termed as kaim-mukam, i.e., personal representative of the testator.
Guardian appointed by the Court
On the failure of the natural guardians and testamentary guardians, the kazi entrusted with the power of appointment of guardian of a Muslim minor. Now the matter governed by The Guardians and Wards Act, 1890. This Act applies to the appointment of guardians of all minors belonging to any community. The High Courts also have inherent powers of appointment of guardians, though the power exercised very sparingly.
Under The Guardians and Wards Act, 1890, the power of appointing, or declaring any person as legal guardian conferred on the District Court. The District Court may appoint or declare any person as legal guardian of a minor child’s person as well as property whenever it considers it necessary for the welfare of the minor, taking into consideration the age, sex, wishes of the child as well as the wishes of the parents and the personal law of the minor.
Guardianship Under Christian Law
The Guardians and Wards Act, 1890, which resides in the secular realm also, may resorted to the relevant provisions reproduced herein that the matters of the case should considered by the court in appointing guardian. However in appointing or declaring the legal guardian of a minor, the Court shall, subject to the provisions guided by what, consistently with the law to which the minor also subject, appears in the circumstances for the welfare of the minor.
In considering what will be the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed legal guardian and his nearness of kin to the minor, the wishes, if any, of the deceased parent, and any existing or previous relations of the proposed legal guardian with the minor or his property.
If the minor is old enough to form an intelligent preference, the Court may consider that preference.
Guardians not appointed by the Court
Guardians not appointed by the Court in certain cases:-
Nothing in this Chapter shall authorize the Court to appoint or declare a guardian of the property of a minor, whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person-
(a) Of a minor, a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person.
(b) Of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor,
(c) Of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.
Duties of guardian of the person-
A guardian of the person of a ward charged with the custody of the ward and must look to his support, health and education, and such other matters however as the law to which the ward subject requires.
Title of guardian to custody of ward:
(1) If a ward leaves or removed from the custody of a guardian of his person, the Court, if it of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward arrested and delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class of the Code of Criminal Procedure, 1882.
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.
Guardianship Under Parsi Law
Although there no general law of guardianship, yet permitted by a statute among Hindus and by custom among a few numerically insignificant categories of persons. Since adoption is legal affiliation of a child, it forms the subject matter of personal law. Muslims, Christians and Parsis have no adoption laws and have to approach court under the Guardians and Wards Act, 1890.
Muslims, Christians and Parsis can take a child under the said Act only under foster care. Once a child under foster care becomes major, he is free to break away all his connections. Besides, such a child does not have legal right of inheritance.
Foreigners, who want to adopt Indian children have to approach the court under the aforesaid Act. In case the court has given permission for the child to be taken out of the country, adoption according to a foreign law, i.e., law applicable to guardian takes place outside the country.