This article is written by Anushka Singhal, a student of Symbiosis Law School, Noida. In this article, she discusses the laws related to conservatorship in India.
‘Conservatorship’ is defined as the legal status of a person appointed by a court to protect the interests of a person who is not able to take care of himself. This person can be a minor and also a disabled person. In India, the laws regarding conservatorship are governed by the personal laws of various religions as well as by a secular law called the Guardians and Wards Act, 1890. The guardianship of mentally disabled persons is governed by the National Trusts Act, 1999 and also the Personal Disabilities Act, 2016. ‘Conservatorship’ is used in US law and India we call it ‘guardianship’.
The Guardians and Wards Act, 1890
Under Section 4(2) of the Guardians and Wards Act, a guardian is defined as a person who is appointed to take care of the minor or his property or both. In Navin Singh v. Jyoti Parashar (2004), the Court held that the word minor is quite comprehensive and includes all kinds of minors. Section 7 of the Act gives the power to the court to appoint a guardian. A guardian can be appointed when the court feels that there is a need to appoint a minor in the interest of his person or his property. The court can also remove the guardian appointed when it deems fit to the court in the interest of the minor. There have been several cases wherein the court provided guardianship keeping in mind a plethora of factors
Jitendra Kumar Sharma v. State
Facts- In this case, Jitendra Sharma and Poonam Sharma eloped together. The whole family was against their love. The family of Poonam alleged that Jitendra had kidnapped their daughter. Questions were raised on the validity of marriage as Jitendra was 18 years old and Poonam was 16 years old. Also, there were questions regarding Jitendra kidnapping Poonam.
Judgment- In this case, the court held that combining the provisions of the 1890 Act and the Hindu Minority and Guardianship Act, 1956 the natural guardian of a married girl is her husband.
Gaurav Nagpal v. Sumedha
Facts- This was a custody case. The mother and father were at odds with each other and there was a question regarding who should be given the custody of the child.
Judgment– The court held that the right of a father as a natural guardian can be rejected in the welfare of the child. The court also held that human angles along with legal angles should be considered in such situations. The welfare of the child is of paramount importance.
Keshav R Thakur v. Succhibai
It was an interesting case in the sense that the court said that the custody can be given to the parents, and instead, awarded it to a person who was taking care of the child for a longer period. However, in this particular case, the court held that the custody was to be given to the mother for the overall benefit of the child.
Guardianship under Hindu laws
The Hindu law lays down the rules for guardianship in the case of a Hindu, Sikh, Jain, or Buddhist minor. According to Section 4 (b) of the Hindu Minority and Guardianship Act 1956, a minor is defined as a person who has not completed the age of 18 years and is intellectually imperfect to look after himself. It states that guardians can be of three types-
- Natural guardians,
- Testamentary Guardians,
- Guardians appointed by the courts.
Three persons i.e. the father, mother, and husband are considered to be the natural guardians under Hindu law. There is no concept of joint guardianship and either of the three as per the situation can be declared as guardians. The proviso to Section 6(a) says that the natural guardian of a child below the age of 5 years is the mother. Also for an illegitimate child, the mother is the guardian even if the father is alive.
This provision is different from the basic rule, that a father is the natural guardian of a minor. Section 9(1) of the Act gives the power to the parents to appoint a guardian i.e. a testamentary guardian after the death of either of them. It is interesting to note here that a mother can appoint a guardian after her death and Such a person will be the testamentary guardian even if the father is alive.
However, if a father dies and the mother is alive, she will automatically become the natural guardian and the guardian named by the father cannot become the testamentary guardian. A testamentary guardian may accept or disown the rights of a guardian conferred upon. A de-facto guardian is the one who without any authority of law takes a deep interest in the care of the minor as well as his property.
The de-facto guardianship is neither listed in any Hindu text nor it is denied. Also, the Hindu Minority and Guardianship Act is supplementary to and not in derogation to the Guardians and Wards Act. Also, this law lays down via Section 13 that the welfare of a minor child should be of paramount importance and the court can even deny any natural guardianship and testamentary guardianship if it thinks that the guardianship is not in the welfare of the child.
Powers of a guardian
A guardian is endowed with numerous powers to ensure that the interest of the minor is ensured. The Hindu Guardianship and Adoption Act lay down the powers of a statutory guardian and a testamentary guardian. According to Section 8 of the Act, a natural guardian has the power to do all the necessary acts of the minor but he is prohibited from doing certain acts i.e.
- He cannot mortgage, sale or do any alteration with any immovable property of the minor.
- He cannot mortgage the property of the minor beyond a term of five years or beyond a term of one year when he is about to become a major.
- He cannot dispose of any immovable property of the minor. If there is a dire necessity then the guardian can, with the prior permission of the court, dispose of the minor’s property.
Section 9 of the same Act deals with the powers of a testamentary guardian. A testamentary guardian has the same powers as the natural guardian after the death of the father or mother i.e the natural guardian as the case may be. It is also laid down under Section 11, a de-facto guardian cannot deal with a minor’s property.
Guardianship under Muslim Laws
In Muslim law, guardianship is of three types-
- Guardianship of the person.
- Guardianship of the property.
- Guardianship of Marriage.
For guardianship of a person, a father has a dominant right over the minor even if the mother is alive. There are different provisions under the Hanafi Law and the Shia law. Under Shia law, the mother is deemed to be a guardian or hizanat for up to the age of 2 years in the case of a boy child, and up to the age of 7 years in the case of a girl child.
The Hanafi law extends this timeline. Under this law, the guardianship of a mother extends up to 7 years for a male child, and for a female child, it extends up to her age of puberty. It is also laid down even if the parents are divorced, then the mother continues to be the guardian until she remarries.
And it is also laid down that whenever there is a conflict between the personal law and the Guardianship and Wards Act, the latter would prevail. Under the guardianship of property, three types of guardians are recognized-
- Legal guardians,
- Guardians appointed by court and,
- De-facto guardians.
The contention that only the father is a natural guardian under the Muslim law has been negatived by the case of Md. Khalid v. Zeenat Pravin,(1988) and Abdul Kalam v. Akhtari Bibi(1987). It was held that a father can be denied custody if it is not in the favour of the child. There is also the provision of testamentary guardianship in the Muslim Law and a father may appoint a testamentary guardian in the case of Sunni Muslims.
Among the Shias, the testamentary guardianship is valid only if the grandfather of the minor is not alive. Also, there is a difference in the opinion between the Shia and Sunni Muslims when it comes to a non-Muslim mother being appointed as a testamentary guardian.
Guardianship under Christian and Parsi Laws
The guardianship under the Christian law is laid down by the Guardianship and Wards Act 1890 and there is no separate provision laid down for conservatorship for the followers of Christianity and Zoroastrianism. Thus both these religions have to go by the procedure as laid down by the secular act.
National Trust Act
The National Trust Act 1999 or to be precise the ‘National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities’ looks after the guardianship of people with cerebral palsy, autism, and other mental incapabilities. Section 14 of the National Trust Act says that the parent, relative, or an organization can voluntarily apply for guardianship with the local committee established under the national trust act. The guardian appointed under this provision has to take care of the mentally retarded person as well as his property.
The Rights of Person with Disabilities Act 2016 lays down the provisions for involuntary guardianship. Under Section 13 of the said Act, if the district collector feels that a mentally disabled person is not able to take care of himself, then he can appoint a legal guardian for that person. The guardian appointed under this Section may be given plenary guardianship i.e. full authority over the decisions of such person or he may be given limited guardianship i.e. both the guardian and the mentally ill person would take all the decisions with mutual consent.
Duties of a guardian
Guardianship and Wards Act
When a person is given guardianship of a minor, he is endowed with certain responsibilities. The Guardianship and Wards Act lays down some of the duties of a guardian. According to Section 24, if a guardian is appointed for the care of the minor, he has to look after the health, education, and other necessities of the minor. If a guardian is appointed for a property, then under Section 25, he must look after the minor’s property in the same manner as he would have taken care of his property.
The Hindu Guardianship and Adoption act
It does not explicitly lay down the duties of a guardian but Section 13 says that the welfare of the minor is of paramount interest and if a guardian is not working for the same, he can be removed.
Termination of guardianship
Hindu Guardianship and Adoption Act
Under Hindu law, a guardian can be removed if the court feels that he is not dealing in the welfare of the minor and this can be done through section 13 of the Hindu Guardianship and Adoption Act.
Under Section 39 of the Guardianship and Wards act 1860, a guardian can be removed by the court by taking suo-moto cognizance or on application by any other person, if the court feels there is –
- Persistent failure to perform his duties
- Ill-treatment or neglect of the minor
- The conviction of the guardian,
- Disregard of the provisions laid down by the Guardians and Wards Act,
- Entertainment of conflictual interest against the interest of the minor,
- Shifting of the guardian from the jurisdiction under which he is appointed as a guardian.
- Bankruptcy or insolvency of a guardian.
The same provisions apply to the Muslim law as well as to the Parsi and Christian law when it comes to the removal of a guardian.
Under this Act, the provisions of cessation of guardianship are also provided. Under Section 41, the authority of a guardian of a person ceases to exist upon-
- The death, removal, or discharge
- Court of ward taking the responsibility
- The minor attaining majority
- In the case of a female, by marriage.
The power of a guardian of the property also ceases in the same manner.
Conservatorship is a very sensitive subject and thus while appointing a guardian, the interests of the minor should be of paramount interest. A guardian plays an important role in bringing up the minor and therefore steps regarding guardianship should be followed properly. Different laws have different provisions but the motive is the same i.e. the welfare of the minor.
- Muslim law, Syed Khalid Rashid, 6th edition, Eastern Book Company (EBC)
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