A guardian is a person appointed to take care of another person or their property. He assumes the care and protection of the person for whom he is appointed guardian. Say no to plagiarism. Get a tailor-made essay on “Why Violent Video Games Should Not Be Banned”? Get an Original Essay The guardian makes all legal decisions on behalf of the ward's person and property. The opportunity to care for another person may be his minority, that is, a person who has not reached the age of 18. It can also refer to the guardianship of a person who, due to physical and mental impairments, is unable to care for themselves or their property. Since ancient times, the condition of minority has been the reason for appointing guardians in all societies. This is due to the fact that a minor is considered incapable of making decisions for themselves which may commit them towards others. Therefore, a minor is considered by law to be incapable of entering into a contract with an adult. This is why, in all areas, a minor is also considered incapable of representing himself, except through his guardian. A guardian makes the decision on behalf of the minor to protect the minor's interests and property. Due to the concept of joint family where a child without parents is taken care of by the head of the joint family, no specific laws were required regarding guardianship but in modern times the concept of guardianship has shifted from paternal power to the idea of ​​protection. It was under the British rule that the Guardianship Act was finally framed and the Hindu Minority and Guardianship Act, 1956 codified the laws relating to minority and guardianship with the welfare of the child at the center . The Hindu Minority and Guardianship Act was created in 1956 as part of the Hindu Code Bills. The other three important laws which were also created during this time are the Hindu Marriage Act (1955), the Hindu Succession Act (1956) and the Hindu Guardianship Act. Adoption and Maintenance Act (1956). All these acts were proposed under the leadership of Jawaharlal Nehru, who wanted to modernize the then prevailing Hindu legal tradition. The Hindu Minority and Guardianship Act of 1956 was intended to strengthen the Guardians and Wards Act of 1890, not to replace it. This law specifically serves to define guardianship relationships between adults and minors, as well as between people of all ages and their respective property. The Hindu Minority and Guardianship Act lays down policies regarding minorities in accordance with Indian Hindu Personal Law. It was later established that the father of a child is the natural guardian of the child and after his death, the mother becomes the natural guardian of the minor child(ren). It was also at this time that testamentary guardianship was first introduced into Hindu law. It has been so accepted and exercised by the courts that the supreme guardianship of minor children rests with the State as parens patriae. Latin, Parent of the Country.] Doctrine which grants inherent power and authority to the State to protect persons who are legally incapable of acting on their own behalf.Guardianship under Hindu LawThe Hindu Law on Guardianship of Minor Children was codified and reformed by the Hindu Minority and Guardianship Act, 1956. The Act is an extension of the Guardians and Wards Act, 1890 but not a substitution. The main objective of the central legislation is to define the relationship between the guardian and the minor and to standardize the law of guardianship as per Hindu law. This law extends toall of India except the State of Jammu and Kashmir. Any previous law incompatible with this law is declared void. This law supersedes all other relevant laws. This law applies to all Hindus, that is to say to those who belong to the Hindu religion or one of its forms of development. Legitimate and illegitimate minors of whom at least one parent meets the stipulations described above fall within the jurisdiction of this law. By law, anyone who has not reached the age of eighteen is a “minor.” Classical Hindu law did not contain principles relating to guardianship and custody of children. In the joint Hindu family, the Karta was responsible for the overall control of all dependents and the management of their property, and therefore specific legal rules dealing with guardianship and custody were not considered necessary. However, in modern Hindu law, the Hindu Minority and Guardianship Act, 1956 provides that the father is the natural guardian of a minor, and after him, it is the mother. Section 6(a) of the HMGA provides that: In the case of an unmarried minor boy or girl, the natural guardian is the father, and after him, the mother; and that the custody of a minor who has not reached the age of five generally rests with the mother. The Guardians and Wards Act, 1890 is a secular law regulating matters of guardianship and custody for all children in India, while the Hindu Minority and Guardianship Act, 1956 codifies the Hindu Custody and Wards Act, 1956. guardianship. The HMGA and Personal Law act to complement the GWA by setting out the substantive law regarding guardianship and custody, while the GWA sets out the procedure for applying to the courts to appoint a guardian for a minor. The subject may be discussed under the following headings: (i) Guardianship of the person of minors, (ii) Guardianship of the property of minors, and (iii) De facto guardians, and (iv) guardians by affinity: Minor children – Under of Sec. 4(b), a minor is a person who has not yet reached or attained the age of 18 or a person who is in need of protection, for example. a child who is not physically and intellectually perfect nor does he have an understanding of how the world works on a daily basis. In the concept of the current law, the welfare of the child encompasses both the physical and moral well-being of the child and guardians therefore exist primarily to satisfy these needs of the child. The guardian is the one who takes care of either the person, their property, or both. In modern law, guardians are primarily responsible for protecting and caring for the child and ensuring their physical and moral well-being. that is, the welfare of the child is a primary consideration. Guardians can be of the following types: Natural guardians Testamentary guardians Guardians appointed or declared by the court. There are two other types of guardians, existing under Hindu law, guardians in fact and guardians by affinity. only three types of natural guardians. They are father, mother and husband. The Father – Section 19 of the Guardians and Wards Act 1890 states that “the father is the natural guardian of his lawful minor children, sons and daughters”. It also specifies that the father cannot be deprived of this right until he is declared unfit to exercise it. Under Sec. 13 of the Hindu Minority and Guardianship Act, which provides that the welfare of the minor is of utmost importance, while the right of guardianship of the father is subordinate. It is thus stipulated in the law that the situation of adopted children is equal to that of the natural child, even if the father neglects to take care of the minor or fulfill his obligations towards him, or refuses to act as a natural guardian. , the mothercannot be the natural guardian of the minor as long as the father is alive, as stated in the cases of Sundara Murthy v. Shanmuga Nadar[1] and Ramachandra v. Annapoorni[2]. The mother – the mother is the natural guardian of the minor. guardian of her legitimate minor child(ren) only if the father is deceased or otherwise declared incapacitated, but she is the natural guardian of her illegitimate minor child even if the father is alive and perfectly capable. The mother's situation regarding guardianship of her adopted child is the same as that of her natural child(ren). The provision of Section 6(a) of the Hindu Minority and Guardianship Act provides that the custody of a minor who has not attained the age of five years shall generally rest with the mother. Thus, the mother has the right to custody of the child under five years of age, unless the well-being of the minor requires otherwise. In the cases of Gita Hariharan v. Reserve Bank of India[3] and Vandana Shiva v. Jayanta Bandhopadhaya[4], the Supreme Court of India has held that in certain circumstances, even during the period when the father is alive, the mother can act as the natural guardian of the child(ren). The term “after” used in Article 6(a) has been interpreted as “in the absence of” instead of “after life”. In the Gita Hariharan case, the constitutional validity of Article 6(a) was challenged as it violated the guarantees of gender equality under Article 14 of the Indian Constitution. The Supreme Court examined the meaning of the word after and considered whether, under the scheme of the law, the mother was not entitled to be a natural guardian during the father's lifetime. The Court observed that the term after “must be interpreted in light of the principle that the welfare of the minor is the paramount consideration and the constitutional mandate of equality between men and women.” The Court held that the term after in Section 6(a) should not be interpreted to mean after the life of the father, but rather to mean in the absence of the father. The Court further clarified that absence could be understood as temporary or other or total apathy of the father towards the child or even incapacity of the father due to illness or otherwise. Therefore, in the above specific situations, the mother could be the natural guardian even while the father is alive. Section 13 of the HMGA states that when deciding on the guardianship of a Hindu minor, the welfare of the minor shall be the paramount consideration and that no person shall be appointed as guardian of a Hindu minor if the court is of the opinion that it will do so. is not for the well-being of the minor. The following can be concluded regarding guardianship under the HMGA. First, the father continues to enjoy a preferential position in matters of natural guardianship and the mother only becomes natural guardian in exceptional circumstances, as explained by the Supreme Court in the Gita Hariharan judgment. Thus, even if the mother has had custody of the minor since birth and is solely responsible for the care of the minor, the father can, at any time, claim custody based on his superior guardianship rights. Gita Hariharan therefore does not adequately address the initial problem of section 6(a) of the HMGA. Secondly, all legal provisions relating to guardianship are ultimately subject to the principle set out in Article 13 that the welfare of the minor is the paramount consideration. In response to the father's stronger guardianship rights, this is the only provision a mother can use to assert for custody/guardianship in a dispute.[5]In a case where the mother and father were estranged and living separately and where the minor daughter was under the care and protection of her mother, the Supreme Court held that the mother should be considered as the natural guardian of the minor daughter - Jijabhai Vitharao Gajre v.Pathankhan[6]. No person has the right to act as the natural guardian of the minor provided that she has changed her religion or completely renounced the world. . Stepparents are not entitled to guardianship unless otherwise directed by the court. The law does not recognize the principles of joint guardians. The husband – the husband is the natural guardian of his minor wife. The courts, in interpreting this provision have made it subject to the welfare of a minor wife and it has been held that it is generally not in the best interests of the child for the immature minor wife to live in the custody of her husband, we talked about it in the case of Arumgo v. Viraraghava [7] & Navneet v. Purshotam [8]. The power of the natural guardian can be kept under two heads: Right regarding the body of the minor - Considering the importance of the above lines, the body of the minor under Section 8 (i) that the natural guardian can perform all the functions concerning the custody of the minor which relate to his advantages. The power of the natural guardian of the minor's property – Section 8 of the HMGA 1956 describes the powers of a natural guardian as follows:A guardian may do any act, subject to the provisions of this section, which is necessary or reasonable and appropriate for the benefit of the minor or for the benefit of his estate. But the guardian, under no circumstances, will be able to bind the minor through a personal commitment. The guardian cannot, without prior authorization from the court: Hypothecate, encumber or transfer the minor's real estate by way of sale, donation, exchange, or otherwise. Rent the real estate for a period exceeding 5 years or when the lease ends one year after the minor's majority. Any sale of real estate in violation of the two points above, is voidable at the insistence of the minor. The court will not authorize the sale of real estate unless it is necessary or clearly in the interest of the minor. These powers also include the following: Right of custodyRight to determine the religion of childrenRight to educationRight to control movementsRight to reasonable punishmentA Hindu mother has the right to act as the natural guardian of her illegitimate minor children may, by will, appoint a guardian for one of them with regard to the person of the minor or with regard to his property or with regard to both. The guardian thus appointed by will has the right to act as guardian of the minor after the death of the father or mother of the minor, as the case may be, and to exercise all the rights of a natural guardian under the this Act to that extent and subject to restrictions. , where applicable, as set out in this Act and in the will. The right of the guardian thus appointed by will will cease, when the minor is a girl, upon her marriage. In the case of Manik Chandra v. Ram Chandra[9], it was held that the meaning of 'necessity' and 'benefit' of a minor are quite broad and the courts have the power to widen their scope depending on the facts of the case before giving permission. Pursuant to Section 12, no guardian may be appointed for the minor's undivided interest in the common property. However, the court can appoint a guardian for the entire joint family, if necessary. A minor cannot be the guardian of another minor: – As described in section 10 of the law, no minor can be the guardian of another minor. In the case of Ibrahim v. Ibrahim, 1916, it was held that the minor can be the guardian of his wife but cannot be the guardian of her property. These rights are conferred on guardians in the interest of the minor children and therefore each of these rights is subject to the welfare of the minor children. Natural guardians also have the obligation to support their minor children. Testamentary Guardians: This form of guardianship also came into existence during the time of the British. In this typeparticular guardianship, it is important and necessary that the testamentary guardian accepts “guardianship”. Acceptance may be express or implied. A testamentary guardian may refuse to accept the appointment or challenge it, but once he accepts it, he cannot refuse to act or resign except with the permission of the court. Under Section 9 of the Hindu Minority and Guardianship Act, the testamentary guardian can only be appointed by will. The guardian of a minor girl will cease to be the guardian of her person from the date of her marriage, and guardianship cannot resume even if she becomes widowed while he was a minor. It was the father's decision to appoint one or more testamentary guardians. By designating a testamentary guardian, the father could exclude the mother from her natural guardianship over the children after her death. Under the Hindu Minority and Guardianship Act, 1956, the testamentary power to appoint a guardian is now vested in both parents. The father can appoint a testamentary guardian but if the mother survives him, his testamentary appointment will have no effect and the mother will be the natural guardian. If the mother appoints a testamentary guardian, the person she appoints will become the testamentary guardian and the father's appointment will remain ineffective. If the mother does not appoint, the person named by the father will become the guardian. It seems that a Hindu father cannot appoint a guardian. of his illegitimate minor children, even if he has the right to act as natural guardian, in accordance with article 10. 9(1) confers on him testamentary power in respect of the legitimate children. Regarding illegitimate children, Sec. 9(4) confers such power on the mother alone. The powers conferred on testamentary guardians: According to Sec. 9(5) of the Hindu Minority and Guardianship Act, the testamentary guardian has the power to exercise all the rights of the natural guardian, subject to the restrictions, if any, laid down by the will or by law. A testamentary guardian cannot sell the property of a minor without prior permission of the court.Court Appointed Guardians: The court appointed guardian is called a certified guardian. The appointment of a guardian by the court is governed by 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 supplements and does not derogate from the Guardians and Wards Act. Under the Guardians and Wards Act 1890, jurisdiction is vested in the District Court. The district court has the power to appoint or declare a guardian over the person or property separated from the minor. In appointing "a guardian", the court takes into consideration various factors, including the child's age, gender, wishes of the parents and the personal rights of the child. Approved High Courts have inherent jurisdiction to appoint guardians of the person as well as the property of minor children. This power extends to the undivided interest of a co-owner. A Hindu father or other senior co-owner of a family has no power to appoint, by will or otherwise, testamentary guardians for the co-owned property of the minor[10]. Power of that of the Guardians appointed by the Courts / Certified Guardians: their Powers are controlled by the Guardians and Wards Act 1890. There are very few acts he can do without the prior permission of the court. Ultimately his powers are co-extensive with those of the Sovereign and he can do all things for which he requires the permission of the honorable Court, which the Sovereign has the power to do. A certified guardian from the date of appointment is under the supervision, direction and control of the court. Guardianship by affinity: this is one of these laws, 393