This article on ‘Termination of Guardianship under Hindu Minorities and Guardianship Act, 1956’ has been written by Nishant Vimal, a 3rd-year student from Symbiosis Law School, Hyderabad.
Every natural guardian has an obligation to act for the best interest of his child and he is required to take care of his child and property. This includes taking care of the interests of the child, fulfilling his needs such as educational, medical and etc. It also involves proper upbringing of the child and making decisions for the benefit of the child and his property.
Section 13 of the Hindu Minorities and Guardianship Act, 1956 states about the welfare of the child and hence gives a right to the court to terminate the guardianship of any person if the appointment is not made for the welfare of the child which is of paramount consideration.
End of Guardianship
Guardianship can be ended in a situation when either the guardian has witnessed some unforeseeable circumstance or the court feels that the guardianship was not in the welfare of the child, which is prohibited under Section 13 of the Hindu Minorities and Guardianship Act, 1956.
Factors to consider before ending the guardianship
Any guardianship can be ended but the judges are required to consider the following before coming to any conclusion and pronouncing the decision:
- The child’s best interests
The person asking to end the guardianship must be able to prove to the court that ending the guardianship is in the child’s best interest.
In a landmark case in which the court had to decide the custody of a girl child Thirty Hoshie Dolikuka v. H.S. Dolikuka (1), an eleven-year-old girl lived with her father. The mother alleged that the father fragmented the thinking of the child in a way that caused the daughter a lot of psychological strain and a nervous breakdown. The father was firm on the idea of having the guardianship and custody of the child, and on the contrary, the mother wanted to remove the child from the custody of the father.
The mother wanted to continue sending the child back in the boarding school. As the mother was working, she had the means to earn and stated that she will be able to meet the required expenses of the boarding school.
The Hon’ble High Court gave an unpopular judgement where they gave custody to the father as the mother was working and she will not be able to devote a lot of time for the child’s interests and admitting her into a boarding school can affect her mentality. Although the father was also working, the court observed this and pronounced the judgement.
However, the Hon’ble Supreme Court intervened and overruled this judgement of the High Court stating that whether a woman is working or not is an irrelevant aspect to consider while giving guardianship and custody to anyone. The court cannot judge her ability to take care of the child based on this. The Court held that the mother should have custody of the daughter until the time she attains the age of 16 years. The working status of the mother does not affect and should not affect any court’s decision by giving guardianship and custody of a child to her and hence, this became an established principle that this aspect is not to be considered in deciding the question of guardianship and custody.
- Parent’s wishes
If the parent of the child wants the custody of the child back and wants to live with the child again, the court and judge shall make sure that the parent has:
- Proper Residence
It is important to make sure that the parents can keep the child in a stable place to ensure mental peace for the child.
- Sufficient means to earn
Court has to ensure that the parents have a reliable source of earning a livelihood and income to support the child so that he gets all the educational facilities in order for his growth.
The welfare of the child is always the paramount consideration, but in some situations, the court has to consider the aspect of the economic well-being of any of the parties.
In the case of Bhagyalakshmi v. K Narayana Rao (2), the court prioritized on the economic well-being of the fathers and gave custody and guardianship rights to them. There were 3 children who were taken away by the mother who left the husband. 3 years later, the father filed in for the custody of all the children.
The learned judge observed that the mother was dependent on her aged father and did not have sufficient means to earn. This resulted in a fear of the children being helpless after the death of the mother’s father and then they will be devoid of all facilities that are needed for the welfare of the children. They also observed that the elder son would receive the best advice from the father and the daughters would get the best care from him. The court came to the conclusion that the father could provide them with physical comfort and all necessary educational facilities.
A similar feat was repeated in the case of Jaswant Kaur v. Manjit Singh (3), wherein, the father was given the custody of the child based on his economic well-being. In this case, the mother gave birth to the child at her parent’s house and the child remained in their custody. The father sued the maternal grandparents for custody when the boy was ten. The court granted custody to the father, viewing the minor’s welfare as including the child’s material as well as his spiritual well-being. The father was better off financially, whereas the mother’s father was in debt.
- Is “fit” or has been sufficiently rehabilitated
Court has to ensure that the parents are fit to take the child under their guardianship and custody. Under Section 19 (a) & (b) of the Guardians and Wards Act, 1890, it is important to ensure that the husband and the father of the child are fit to be a guardian. They shall make sure of that fact that the parents have recovered from their earlier decision of giving the child into the guardianship of another.
In the case of Jijabhai Vithalrao Gajre v. Pathankhan and others (4), it was held that a father may be declared unfit, because he may not be well in economic aspect not, or he could be a person with an unsound mind, or might not ensure physical comfort to the child, or is separated with the mother of that child and has been living separately for a brief period of time without taking any interest in the custody or guardianship of the minor, or if he has remarried.
- Provide all the necessary facilities
The welfare of the child is of paramount consideration and the court has to ensure that the parents will provide with all the educational facilities, physical comfort and etc.
- Child’s wishes
Once the child has attained the age of 12 years, he or she can require the court to consider his wish of living in a particular place which may not necessarily be with the guardian.
How can the guardianship be ended?
There are many ways in which the guardianship can be ended:
- If the child attains the age of 18 years
Upon attaining the age of 18, if the child can maintain himself, the court may allow the removal of a guardian who was appointed to take his care or his property.
- The child decides to marry
In a given situation, if a girl child decides to marry, the husband will be her rightful guardian. If the husband is a minor, his guardians will be the guardian of the girl child as well. If a male child marries while in his minority, the guardians of the girl child will become his guardians as well.
- The child is adopted by adoptive parents
In a given situation, if the child is adopted by any couple other than the biological parents, his guardians will be the adoptive parents from the date the adoption is in effect.
- If the child dies before attaining the age of 18 years
Guardianship over a child is ended if he dies before attaining the age of 18 years.
- The court ends the guardianship
This can happen in any case where the child who is over the age of 12 years asks the court to end the guardianship. Also, of the parents of the guardian decide to take the custody of the child back, they can approach the court stating valid reasons in order for the removal of the guardian.
- If the Guardian decides to resign.
A guardian can end his guardianship over a child by resigning. For this, a notice is to be served to the people who should be notified about the end of guardianship like any near relatives of the child. Or to simplify this step, the notice can be given to all those who were notified about the guardianship of that person over the child. The person resigning needs to go through a court hearing wherein he is required to prove that it was for the benefit of the child that he shall resign.
If the judge and the court feel that there is a better alternative available at that time, then he or she will be replaced by another guardian which also will be appointed by the court itself. If the court finds no alternative available, the court has the discretion to make the child a dependant in a juvenile court.
Grounds for Disqualification
Court has the power to end the guardianship of any person as prescribed in Section 13 of the Hindu Minorities and Guardianship Act, 1956. There certain grounds that are necessary to be considered before the removal of the guardian which are stated below. If the guardian:
Ceases to be a Hindu/ Apostasy
If a person who is appointed as a guardian discontinues to carry on as a Hindu and decides to convert to any other religion or just stops following the Hindu religion and becomes an atheist, he will be stripped of his guardianship rights and the child will be sent to another person who the court may deem to be fit for the guardianship.
This is done because as per the essentials of guardianship under Hindu Minorities and Guardianship Act, 1956, it is said that the guardian of any Hindu child should be a Hindu, and any person of any other religion is not entitled to get the guardianship of the Hindu child.
The term ‘apostasy’ means the changing of one’s beliefs from one religion to another which is different from his previous beliefs.
In the case of Vijaylakshmi v. Police Inspector, 1991, it was held that when the father converts to be non-Hindu then mother shall be the natural guardian.
However in some cases, the judiciary in India focuses on the principle that India is a secular country, side-lined the aspect of religion in the case of Raj Kumar Gupta v. Barbara Gupta (5).
In this case, there was a child of a Hindu male and a Christian female. After their separation, the wife left the home along with the 3-year-old child and father later filed for the custody of the child.
The court answered in the favour of the Christian wife and allowed to give the custody to her as any child with a tender age and in this case, the child had been living with the mother for a brief period. The court opined that the phrase ‘if he ceases to be a Hindu’ does not mean non-Hindu, and stated that when a parent has never been a Hindu as was the situation, in this case, Section 6 of the Hindu Minorities and Guardianship Act cannot be invoked.
Renounces the world/ Civil Death (Sanyasi)
If a person who is appointed as a guardian decides to renounce the world and step out of all his duties, rights, obligations by giving up his belief in the world and wants to lead a holy life. It is when the person decides to disconnect from others in the world. The renounced order of life is known as sannyasi. If a guardian decides to part ways from all desires, liabilities, he is removed from his position as a guardian and his guardianship rights come to an end thereof.
The term ‘Civil Death’ stands for the end or termination of all civil rights of a person. In the context of guardianship, it stands when the guardian decides to give up all his civil rights and wishes to live a holy life.
Adverse interest for the child
The welfare of the child is of paramount consideration while giving guardianship and custody of a child to any person. In order to maintain this, the best interests of the child are to be taken into consideration.
If there is any motive on part of the guardian, which showcases any such interests which may harm the child or harm the property of the child. If the guardian takes any decision that may cause any injury to the property of the child, this will be called as a violation of the clauses of the guardianship agreement.
Every guardian needs to act in a way that enhances the growth of the child or his property. Such an interest which is contrary to the interests of the child will result in the removal of the guardian.
On the assumption that the guardian is an officer of the court because he is appointed by the court for the welfare of the child, the court can impose a duty upon the guardians to ensure that the interests of the child are never placed second fiddle to anything, and if there is any violation of this thing, they can call upon the guardians to protect the purpose of guardianship.
Therefore, it is said that he is bound to these duties and if there is any violation, the court can opt for his removal and devoid him of his guardianship rights. These principles were laid down in the case of Re Mansfield Estate (6) and Crawford (7)
Welfare of the child is to be given paramount consideration and his wishes have to be given priority and in the case of P.Senthil Kumar vs R.Sunitha, the court found it unnecessary to take guardianship and custody of the child away from the mother, as the father had not shown any interest in the welfare of the child and court observed that the child will only become a victim of the conflict between the parents if the father was given the custody and guardianship of the child.
Uses the property of minor for his personal use
A guardian is required to act for the best interests of the child, and he is required to get approval for any expenditure.
If a guardian has dealt with the property of the child without his knowledge and which is not for the benefit of the estate of the child and which may be for his own use like repayment of loan or etc., this will be a violation of the terms agreed upon during the guardianship agreement and he is bound to make all the decisions for the benefit of the estate of the child.
Any decision on the property of the child which may be for his personal use will result in his removal as the guardian. Any alteration on the property without court permission is also under this ground unless the child authorizes it afterwards. Any unwarranted borrowing of property by the guardian will result in his removal as guardian.
For example, if a guardian has property A and B under his supervision which is owned by the child. If he gives that property on the mortgage to in order to generate funds for his repayment of a loan he took for his car. This will be a use of the property for personal use and hence, will be a ground for his disqualification as a guardian.
Procedure to end the guardianship of the person
There are certain forms that are to be filled
- Petition for Termination of Guardianship.
- Notice of Hearing on guardianship or custody.
- The order that terminates all the guardianship rights (Caption present at the box at the top is to be filled).
- Any other requirement of forms.
Note: Court clerk or Help centres in the court can be consulted to ensure that one has all the forms as per requirement.
Review of forms
There are help centres or the court facilitator which provides assistance to people involved in guardianship cases, they also can review all the forms to see if all formalities are done so that there are no problems for the parties because of unfilled forms which can cause them trouble.
Copies of the required forms are necessary
This is done to ensure that the parties have a surplus number of copies of their forms to provide to the court and to keep for themselves. The minimum requirement will be 3 as the court will ask for the original form and a copy of it and the opposing party is to get a copy of that form.
Filing of forms is necessary
All the required forms are to be filed. The court clerk is in charge of filing all the forms which will require payment of the filing fee which can at times be waived off. The clerk may keep the original and provide one with the other copies with the stamp “Filed”.
Notice is to be given to the persons interested at the end of guardianship
All the people who were notified of the appointment of a guardian shall be given a notice about the possible end of guardianship. The notice is to be given 15 days prior to the hearing of the end of guardianship.
If any relative who has expressly agreed to the removal of the guardian is required to sign the ‘Consent to Termination’ and ‘Waiver of Service’ and ‘Notice of Hearing’ on the back side of the petition filed for the hearing. After obtaining this, notice shall not be served to this person who has done the above-said formalities.
Presence in the court on the date of the hearing
Order Terminating Guardianship is to be filed and the court will begin the haring for the end of guardianship. If the court orders to terminate the guardianship, this form will be signed by the judge and it is to be filed thereafter.
Guardianship is a concept where a guardian is appointed to take care of a person who is a minor, which means that the person is below the age of eighteen years or any person who is incapable of taking care of himself or handling his own affairs and hence requires any assistance, support and supervision. Then, under such a situation a guardian is appointed to take care of his body and his property.
There are situations when the guardian does not perform his duty towards the child or his property or does not wish to do so, guardianship can be terminated in these situations. Court permission is needed before the end of guardianship to ensure that the child is not isolated. This article has laid emphasis on the different factors which are to be considered before ending the guardianship rights, various ways in which it can be ended and the grounds on which the guardianship is ended.
There are certain observations made by the author that the courts should consider while deciding on a question of guardianship and custody of the child:
- A child who is of tender age (below the age of 5 years) may require the mother’s company and would require her care.
- All the natural guardians have a natural right to have the custody and guardianship of the child but the mere presence of this right will not enable them to get the custody and guardianship.
- A wife who has committed any “matrimonial fault” like desertion, adultery will not be instantly disqualified from being a guardian of a child and she can be given the custody of the child because the aim of the court where the question is of guardianship and custody is not to punish the guilty but to ensure the welfare of the child and so that his interest is valued.
- Any parent cannot be granted custody only on the ground of economic superiority; although it is be given proper consideration.
- Courts must take into account the wishes of a child who is capable of expressing them.
- A mother cannot be denied custody solely on the ground that she is working.
- The child shall not be made to be a victim of the issues that are present between the parents.
There is no such prevailing principle that governs the end or termination of guardianship or which regulates the removal of guardian from his duty. These are certain observations made by the judiciary in India that is to be noted every time there is a question of ending the guardianship. The author has listed down various observations to the best of his knowledge made by the different courts in India which are binding on other courts, but as the society is dynamic, there can be new suggestions to this list and there can also be various alterations to this list.
- AIR 1982 SC 1276.
- AIR 1983 Mad 9.
- AIR 1985 Del 159.
- AIR 1971 All 248.
- AIR 1989 Cal 165.
- 206 Pa. St. 64.
- 91 Iowa 744.