The article is written by Shreya Pandey, from Banasthali University, Jaipur. The article analyzes the various provisions of guardianship of a child under different personal laws like Hindu law, Muslim law, etc.
A guardian is a person who is primarily responsible for a child’s health, needs, education, and other essential needs. Usually, a father is a natural guardian and in his absence or at his death, the mother becomes the guardian of the child. No other person except mother and father can be the natural guardian of the child. Guardianship is established when a person other than the child’s father and mother has legal custody of the child. A guardian has control over the child and he has the right to take all decisions related to the child. The guardian is legally responsible for the child.
The term guardianship is used when the legal custody of the child is with someone other than the child’s mother and father. Guardianship is applicable for a minor child who has not attained eighteen years of age because a minor is physically and intellectually imperfect and immature and therefore he needs the care, attention, and protection of any other person.
Guardianship under the Hindu law
The Hindu law relating to guardianship of a minor child is the Hindu Minority and Guardianship Act, 1956. According to Section 4(a) of the Act, a minor is a person who has not attained the age of eighteen. According to Section 4(b) of the Act, a guardian is a person who is responsible for the care of the child or the child’s property or both. The section further states the different types of guardians:
- Natural guardian
- Testamentary guardian
- Guardian appointed by the court
Other than the three above-mentioned guardians, there are two other types:
- De facto guardian
- Guardians by affinity
According to Section 6 of the Hindu Minority and Guardianship Act, 1956, only three persons are considered as natural guardians, that is, mother, father, and husband. Section 19 of the Guardians and Wards Act, 1890 states that a father or a husband of a minor child or a minor wife respectively cannot be deprived of their natural guardianship unless the court finds them unfit to take care of the minor child or wife.
Section 13 of the Hindu Minority and Guardianship Act, 1956 states that the welfare of a minor child is the most essential and if the court is of opinion that the guardianship of any person will not be for the welfare of the child then the court can remove him from being the guardian of that child.
According to Section 6(b) of the Hindu Minority and Guardianship Act, 1956, the natural guardian of the minor illegitimate children is the mother even though the father is alive. In the case of the adopted son under Section 7, the natural guardianship is passed on to the adoptive father and after his death, to the adoptive mother. In the case of a legitimate child, a mother can become a guardian only after the death of the father or upon his incapability to become a guardian.
In Section 6(a), the custody of a child below 5 years should be with the mother unless it is in the opinion of the court that the custody of the child to the mother would not be in the welfare of the child.
In Ms. Githa Hariharan and another v. Reserve Bank of India and another, (AIR 19992 SCC 228), a question was raised whether the custody of a minor child can be given to the mother in the absence of the father. It was held that the term “after” in Section 6(a) should be read in a wider sense that would include “in the absence of” instead of “after the lifetime”.
A testamentary guardian is a guardian appointed by the natural guardian through a will. Under Section 9 (1), a father has the testamentary power of appointing a guardian for his legitimate children or his property, or both but Section 9(2) states that if the mother is alive after the death of the father then she will be the guardian of the children and the will made by the father would remain ineffective and it will be revived only if the mother dies without appointing a guardian by will.
Section 9(4) empowers the mother of the illegitimate children to appoint a guardian for the children, property, or both. In the case of a minor girl, the guardianship shall terminate at her marriage and that would not revive even if she becomes a widow while being a minor. The person appointed as a testamentary guardian shall accept the guardianship expressly or impliedly. He can refuse to be the guardian, but once he has accepted to be the guardian then he cannot refuse or resign from being the guardian except with the permission of the court.
Guardians appointed by the court
The court can appoint a guardian to a child under the Guardians and Wards Act, 1890 which would be called a “certified guardian”. The powers of the certified guardian are also stated in the Act. The Act confers power to district courts. A district court can appoint any person as the guardian of a child if it thinks necessary for the welfare of the child. The Act states that while appointing the guardian of a child the court must consider the child’s sex, age, parent’s wish, and the personal law of the child. The Act considers that the welfare of the child is of paramount consideration and any decision taken by the court should be for the welfare of the child. High Courts have an inherent power to appoint a guardian to a child, undivided interest in a coparcener, or his separate property but this power is rarely used by the High Court.
Guardianship by affinity
Guardianship by affinity is the guardianship of a minor widow by a person in relation to the husband within the degree of sapinda. Father-in-law can be a guardian by affinity but Section 13 of the Hindu Minority and Guardianship Act states that the welfare of the child must be of paramount consideration, therefore, it is necessary to check whether the minor widow would be safe and her needs would be fulfilled by the guardian by affinity.
De facto guardian
The term “de facto guardian” is not mentioned anywhere in any law but it has always been recognized by the court. A de facto guardian is a person who has taken a continuous interest in taking care of, managing the child, his/her property, or both. A de facto guardian is not a legal guardian and therefore, legally he has no power over the child or the property of the child, but he has assumed and takes care of the child and the property. A de facto guardian is not made by a single or few acts but there must be a continuous course of conduct over the child’s property. In Hanuman Pd. (1856) 6 MIA 393, the Privy Council held that a de facto guardian is the one who has taken the charge of the land honestly for the purpose of saving the estate.
Guardianship under Muslim law
The law of guardianship in Muslims came from certain verses in the Quran and a few hadis. Under Muslim law, there are only three types of guardians:
The natural guardian of a child under Muslim law is considered to be the only father and the mother is not considered as a natural or other guardian even after the death of the father. The father is considered to be the only natural guardian of the child even if the custody of the child is not with him even then he has control over all the decisions relating to the child.
In Imambandi v. Mutsaddi (1918) 45 Cal 887, the court held that till the father is alive he is the sole and supreme guardian of his minor children.
The guardianship of the father is only upon his legitimate children. He has no guardianship entitlement upon the illegitimate children. A Muslim mother can have custody of the children but she can not be the guardian of the children.
In Sunnis, the father is the natural guardian of a child and after the death of the father, the guardianship is passed to the executor. In Shias, the natural guardian is the father but after the death of the father, the guardianship is passed to the grandfather, if alive. If the grandfather is alive then the guardianship will be vested upon him even though the father has appointed an executor.
The executor would become the guardian only in the absence or after the death of the grandfather. If the grandfather before his death appoints an executor then after the death of the grandfather, the executor appointed by the grandfather would become the guardian.
A testamentary guardian is also known as wali, guardian, amin, or kaim-mukam. In both Shia and Sunni, the testamentary guardian can be appointed by the father. In Sunnis, in the absence of the father and his appointed executor, the grandfather is empowered to appoint a testamentary guardian. In Shias, the guardian appointed by the father would only be valid if the grandfather is not alive otherwise the grandfather is empowered to appoint the testamentary guardian. In both Shias and Sunnis, the mother has no power to appoint a guardian for her children except in two cases:
- She has been appointed as executrix by the father’s will.
- She is the owner of a property that will devolve to her children after her death.
A mother can be appointed as a testamentary guardian or executrix of a child by the will of the father or grandfather. In Sunnis, a non-Muslim mother can be made a testamentary guardian but in Shias, a non-muslim mother cannot be appointed as a guardian. A profligate person cannot be appointed as a guardian because that will not be good for the welfare of the child. A testamentary guardian shall accept the guardianship either expressly or impliedly. If once the guardianship is accepted then it cannot be refused or renounced except by the permission of the court.
Guardian appointed by the court
The court is empowered to appoint a guardian of a child upon the failure of natural and testamentary guardians. The Guardians and Wards Act, 1890 is applicable for the appointment of a child’s guardian belonging to any community. The district court is empowered under the Act to appoint a guardian after considering the welfare of the child. The High Court also has inherent power to appoint a guardian for a minor which the court sparingly exercises.
Guardianship under Christian law
The guardianship of Christians is decided by the Guardianship and Wards Act, 1890 which is a secular Act. Section 17 of the Act states that the guardian appointed for the child for the property shall be made considering the welfare of the child. The section states that the person who is appointed to be the guardian must be appointed by considering the sex, age, religion of the child, character, and capacity of the proposed guardian, wishes of the parents of the child, and if the minor child is old enough then his preference shall also be considered while appointing a guardian.
Section 19 of the Act provides that when the father or husband is fit enough to be the guardian of the child or wife respectively then the court has no power to appoint a guardian or when the property is under the authority of the Court of Wards. Section 24 states that the guardian should take custody of the child and it is the duty of the guardian to take care of the child’s health, education, and such other matters as the child needs.
Guardianship under Parsi law
The guardianship of a child is dealt with by the Guardianship and Wards Act, 1890. There is no separate personal guardianship law for the Parsis. It is mainly governed by Hindu laws or customs. There are also no personal laws relating to adoption in Muslims, Christians, and Parsis. They have to approach the court under the Guardianship and Wards Act, 1890. A child can be taken only for foster care and once the child becomes major, he has all the right to take all his decisions by himself.
A child is the future of the country and therefore it is very important that the child should be in a good environment where he is treated and nurtured properly. A minor child is incapable to take care of himself or take decisions. There is a need to have a person to take care of the child, support, love, and provide all the basic requirements to the child. Therefore, the guardian of a child should be such a person who takes proper care of the child. The main consideration while appointing guardians should be that there should be the welfare of the child.
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