This article is written by Adv. Dilpreet Kaur Kharbanda. It is an effort to delve into all the aspects of the guardianship of a minor in India. Moreover, secular Acts and provisions have been discussed regarding guardianship among Hindus, Muslims, Christians, and Parsis. A lesser-discussed Act, the National Trust Act, 1999, and how guardians are appointed and removed under the Act are also examined. So, there is an overview of different types of guardians and their rights and duties that are laid down by the statutes and interpreted by the courts.

Introduction 

The Black’s Law Dictionary defines ‘Guardian’ as a person lawfully invested with the power and charged with the duty of taking care of the person and managing the property and rights of another person who, for some peculiarity of status, defect of age, understanding, or self-control, is considered incapable of administering his own affairs. And ‘Guardianship’ is the relationship that exists between the guardian and the ward.

The extent of guardianship differs with different religions in India. There are separate secular laws governing the appointments, eligibility, powers, duties, rights, and removal of the guardians. There is no uniform law governing all of them, but the principle Act is the Guardians and Wards Act, 1890, from which all the other Acts draw their basis. The laws of guardianship of Hindus, Muslims, Christians, and Parsis have been discussed one by one; the law governing people with disabilities is also discussed in detail. 

The courts have complete discretion to appoint a guardian of a minor, but the paramount consideration is the welfare of the child, and what falls within the scope of the welfare of the minor is a topic of discussion. Questions like whether a single mother can be appointed as guardian and whether there can be two or more joint guardians of a minor have been answered further in the article. 

Guardianship of a minor under Hindu Law

Under ancient Hindu law, guardianship as a concept didn’t exist at all. Karta, the senior member of the family, was considered to be the caretaker in the Hindu joint family setting. The first enactment that codified the concept of guardianship came in the form of the Guardians and Wards Act, 1890. This Act is the principal enactment on guardianship. In the present time, guardianship under Hindu law is governed by the Hindu Minority and Guardianship Act, 1956, which is supplementary to the Wards Act as mentioned in Section 2 of the Act. Moreover, as per Section 5 of the Act, at the time of inconsistency, the 1956 Act will prevail over the Wards Act. 

A guardian has been defined under Section 4(b) of the Hindu Minority and Guardianship Act, 1956. An inclusive definition has been provided, wherein a guardian has been explained to be a person taking care of the person of the minor, his property, or both. But the rider here is that the property that the guardians are appointed for or have powers over does not include the undivided interest in the property. Section 4(b) itself bifurcates the guardians into:

As we see, there is no express mention of de facto guardians under clause (b). But the honourable Bombay High Court in the case of Ratan and anr. vs. Bisan Ramchandra Pardeshi (1977), regarding the definition of the term guardian in the Act, categorically mentioned that the definition is inclusive in nature and a de facto guardian can be said to be a guardian under the Act as well. The reference regarding a de facto guardian can also be drawn from Order 32 of the Code of Civil Procedure, which provides that a minor can file a suit through a next friend. Moreover, Patna High Court in the case of Narain Singh vs. Sapurna Kuer (1967) discussed the de facto guardian and the fact that a next friend of the minor is somewhat like a guardian only, though limited only to the particular legal proceedings for which he has been appointed. The different types of guardians as per the Hindu Minority and Guardianship Act, 1956, are elucidated under.

Natural guardian of a minor

As per Section 6 of the Hindu Minority and Guardianship Act, 1956, natural guardians are basically those who are in a natural relationship (either blood relations or relatives out of marriage) with the minor, his property, or both, like a mother, father, or husband. Step father and step mother are not considered to be natural guardians of a minor.

Let us see who are the natural guardians in different situations:

Boy/ unmarried girl

In the case of a boy or an unmarried girl, as mentioned under Section 6(a), the father is considered to be the natural guardian, and after the father, the mother is the natural guardian of the minor. The proviso to Section 6(a) clearly provides that for a child below the age of 5 years, the mother would be the natural guardian.

The word ‘after’ used above has been interpreted time and again by the courts. The Supreme Court in the case of Jijabhai Vithalrao Gajre vs. Pathankhan (1969) considered the facts of the case that father and mother had lived separately for around 10 years, and the care and protection of the child was with the mother. The father didn’t take any interest in the life of the minor. Irrespective of the fact that the father was still alive, taking into consideration the circumstances of the case, the court considered the father to be non-existent. Thus, the court held the mother to be the natural guardian and not the father. 

Further, in the case of Githa Hariharan vs. Reserve Bank of India (1999), the honourable Supreme Court interpreted the word ‘after’ and held that after does not necessarily mean after the lifetime of the father. The absence, forsakenness, indifferentness to the matters of the minor, physically incapable of taking care of the minor, or mental incapacity, all can be considered to be part of the word ‘after’. Therefore, in the above-mentioned circumstances, even if the father is alive, the mother would be considered a natural guardian of the minor.

Now, let us take another circumstance into consideration. What if an unmarried woman gives birth to a child? Can she be the natural guardian of that child? 

The same situation came up before the honourable Supreme Court in the case of ABC vs. State (NCT of Delhi) (2015), where the court decided in affirmative that a single unwed mother can be the natural guardian of her child. Furthermore, there is no need for a mandatory notice to be given to the father of the child, as he has already left the woman alone, and hence there is nothing left. So, the mother was said to be the natural guardian in such a case.

Illegitimate boy/ illegitimate unmarried girl

Section 6(b) of the Act enunciates that the natural guardian of an illegitimate boy/unmarried girl is firstly the mother and after her, the father. The Latin term specifically used is filius matris, i.e., a mother’s child. The Bombay High Court, in the case of Dharmesh Vasantrai Shah vs. Renuka Prakash Tiwari (2020), held that, as provided under Section 6(b) of the Hindu Minority and Guardianship Act, the mother is the natural guardian of an illegitimate boy or an illegitimate unmarried girl, and the father’s claim of such guardianship comes only after hers. The court, at the same time, put forth two exceptions to the priority rule of the mother:

• Natural guardianship cannot be claimed if the person claiming guardianship has ceased to be a Hindu. 
• If the person has completely and finally renounced the world, becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). 

Until and unless the exceptional circumstances mentioned above exist in the case, the mother of the minor has an indefeasible claim to guardianship of her illegitimate child. The father cannot claim the right to guardianship or custody of the minor over that of the mother.

Married girl

As provided under Section 6(c), the husband is considered to be the natural guardian of the married girl. Section 12 of the Wards Act also has a reference to the guardianship of a married girl being with the husband, but there is a rider imposed wherein the consent of the parents of the minor girl must have been taken at the time of marriage.

The Hon’ble Gujarat High Court had a similar situation before them in the case of Patel Verabhai Kalidas vs. State of Gujarat (1999). There was a custody tussle between the parents of the minor and the husband of the minor. The court held that in such circumstances, the main consideration should be the welfare of the minor girl. The court exclaimed that simply because the husband is said to be a natural guardian under clause (c) of Section 6 of the Hindu Minority and Guardianship Act, 1956, he cannot be ipso-facto said to be entitled to the custody of a married minor girl. The matter has to be looked into as per the facts and circumstances of the case. 

Besides, the marriage of a minor girl cannot be said to be a legally valid marriage. And at the very same time, the marriage between the parties might also not be void or voidable. But the deeper aspects of public policy, public health, and public morality flowing from the provisions of the law have to be borne in mind while dealing with problems similar to the case at hand. The court, deciding for the welfare of the minor girl, concluded that as the girl didn’t want to go back to her parents and staying with her husband was not a viable option, the honourable court decided to give her custody to the Women’s Welfare Centre.

Adopted son/daughter

Section 7 of the Act provides that the natural guardianship of an adopted son passes onto the adoptive father and, after him, to the adoptive mother. There is no reference to the adoptive daughter under the Section. The same was pointed out by the Law Commission in their Report No. 257 on “Reforms in Guardianship and Custody Laws in India”. The Law Commission said, “The language of this Section is incongruous in nature as it refers only to the natural guardianship of an adopted son and does not refer to an adopted daughter. The Hindu Minority and Guardianship Act, 1956, came into force at a time when the general Hindu law did not recognise the adoption of a daughter. Thus, at the time of the passing of the Act, the adoption of daughters was only allowed under custom and not under codified law. This explains the reason why the drafters of the Act included the guardianship of only adopted sons and ignored the adoption of daughters. It was also enacted before the Hindu Adoptions and Maintenance Act, 1956, which corrected the legal position of adoption of a daughter statutorily”.

Thus, Section 7 should be liberally interpreted to include adoptive daughters in the provision.

Powers of natural guardians 

The powers of a natural guardian are provided under Section 8 of the Hindu Minority and Guardianship Act.

• A natural guardian can do all the necessary, reasonable, and proper acts that are for the benefit of the minor. That act may relate to the benefit of the person of the minor or the minor’s property. There is no way that the guardian can bind the minor in his covenant.
• A natural guardian cannot mortgage, charge, or transfer by sale, gift, or by any other means any immovable property of the minor or a part of it. If a natural guardian has to do so, he has to get the consent of the court. In the case of a lease, the guardian has the limitation that a lease for a maximum period of five years can be given. Furthermore, it cannot extend more than one year after the minor attains majority. For example, today A is 16 years old. So, A’s guardian can lease out his property for a maximum of three years. Though A will attain majority in two years, one year is given to the guardian after the minor attains majority.

Another situation that needs to be looked into is where the guardian disposes of the minor’s property in contravention of Section 8(2). Such a disposal of the property by the guardian would not be considered to be void, and the same can be referred to through the judgement of Narayan Laxman vs. Uday Kumar (1994). Such a disposal by the guardian would be voidable at the instance of the minor and not void ab initio. A minor can challenge such a disposal or alienation of the property by the guardian after he attains majority in cases where the court’s permission was not taken. Furthermore, with regards to the consent of the court, Section 8(3) clearly provides that no court shall grant such permission to the guardian, except in two circumstances:

1. The necessity of minors, 
2. Evident benefit or advantage to the minor. 

However, the minor also has the responsibility to make sure that he/she challenges such a disposal within the limitation period provided by the law. The Supreme Court clearly pointed out the same in the case of Vishwambhar vs. Laxminarayan (2001), where when the challenge was made by the minor after the limitation period had elapsed, the suit was said to be not maintainable. Article 60 of the Limitation Act, 1963, prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward by the ward who has attained majority, and the period is to be computed from the date when the ward attains majority. The same has been reiterated by the Supreme Court in the case of Murugan vs. Kesava Gounder (2019).

Furthermore, all the powers of the natural guardians go away, if:

• He ceases to be a Hindu. 
• He completely and finally renounces the world. 

Testamentary guardian 

Section 9 of the Hindu Minority and Guardianship Act defines the testamentary guardian of a minor. The guardian who is appointed by the natural guardian through a will is a testamentary guardian. Earlier, only the father of the minor could appoint a guardian through his will and set aside the mother as a guardian, but that is not the case in the present law.

Appointment by father

As per Section 9(1), a Hindu father can appoint a testamentary guardian for his legitimate child for:

• Person of the minor or
• Minor’s property or
• Both property and the person of the minor. 

Appointment by mother

The mothers are also given the power by the Act to appoint a testamentary guardian. Under Section 9(2), the mother of the minor can, by way of a will, appoint a guardian, provided the father dies before her. 

Let us take an example to simplify this situation. ‘A’, the father, appoints ‘X’ as a guardian through his will. If the father ‘A’ predeceases ‘B’ the mother, then ‘X’ won’t be the guardian; ‘B’ the mother would be. The reason behind this is that she is the natural guardian, and that will prevail over the testamentary guardian. Now, as per clause 2, ‘B’ can also make a will to appoint a testamentary guardian of her own, let’s say ‘Y’. So, ‘Y’ will be the guardian in such a case. But if ‘B’ dies without any will, then the will made by ‘A’ will revive, and ‘X’ will be the testamentary guardian of the minor. 

Furthermore, a mother of the minor can also appoint a testamentary guardian in case the father is unable to act as a guardian due to any physical or mental disability as provided under Section 9(3). A Hindu widow can also appoint a testamentary guardian under Section 9(3). Over and above that, a mother can also appoint a testamentary guardian for her illegitimate child through a will, as per Section 9(4). 

Removal/ disqualification of testamentary guardians

The 1956 Act does not clearly specify the grounds on which guardians can be disqualified. But Section 39 of the Guardians and Wards Act, 1890, clearly lays down such grounds. The grounds are as follows:

• abuse of trust;
• continued failure to perform his duties;
• incapacity to perform the duties of his trust;
• ill-treatment or neglect to take proper care of the minor;
• continuous disregard of any provision of the Wards Act or of any order of the court;
• conviction of an offence implying a defect of character which unfits him to be the guardian of his ward, and the same is the opinion of the court;
• having an interest adverse to the faithful performance of his duties;
• ceasing to reside within the local limits of the jurisdiction of the court;
• bankruptcy or insolvency (guardian of property);
• guardianship of the guardian ceasing, or is liable to cease, under the law to which the minor is subject.

So, if a testamentary guardian falls under any of the grounds, that guardian can be removed or disqualified by the courts on the application of any interested person, or the court can also do so on its own motion.

Powers of testamentary guardians

Section 9(5) puts forth the powers of the testamentary guardian as bestowed by the Hindu Minority and Guardianship Act, 1956. It provides that the powers of the Testamentary Guardian are exactly the same as those of the natural guardians. But these powers are restricted by the Act as well as by the will that the natural guardians frame. They can alienate the property of the minor, but it has to be with the consent of the court and also for the benefit of the minor. But these powers and the testamentary guardianship cease to prevail in the case of a minor girl after she gets married (Section 9(6)).

Certified guardian 

There is no specific section under the Hindu Minority and Guardianship Act, 1956, that talks about certified guardians. Certified guardians are basically the guardians appointed by the court of law. Section 7 of the Wards Act clearly gives the court the power to appoint a guardian for the minor’s person, property, or both. The basis of such an appointment is the satisfaction of the court that the appointment would be for the welfare of the minor. Moreover, Section 15 provides for cases where there are separate guardians for separate properties of the minor.

Section 19 of the Act even lays down the circumstances under which the courts should not appoint guardians, and these are as follows: 

• In cases where the husband is unfit to be a guardian, he should not be appointed as a guardian for a minor married female.
• In a case where a father and mother who are both living but are unfit to be guardians should not be appointed as guardians for a minor female.
• Guardian for a minor whose property is under the superintendency of the court of wards.

De facto guardian

A specific definition of de facto guardian is not provided under the Hindu Minority and Guardianship Act, 1956. But in general terms, the person who takes care of the minor out of their love and affection for a long period of time is a de facto guardian.

Before the 1956 Act, de facto guardians had the same rights to alienate property as a natural guardian. The same can be concluded from the stand taken by the court in the case of Hunoomanpersuad Pandey vs. Mussumat Babooee Munraj Koonweree (1856) 6 MIA 393, that there is no difference between a de facto and a de jure guardian.

A question that pops up is: would it be correct to say that a de facto guardian has been de-recognised by the 1956 Act? The answer is no. Section 11 of the 1956 Act does not de-recognise de facto guardians. Instead, Section 11 has taken away the property rights. Consequently, a de facto guardian can no longer manage the property of a minor.

The Kerala High Court, in the case of Essakkyal Nadar Michayel Nadar vs. Sreedharan Babu and Ors. (1991), held that if a de facto guardian alienates the property of the minor, such a transaction would be absolutely void. Alienee would be equivalent to a trespasser or interloper.

Guardian of the undivided interest of a minor in joint family property

As per Section 12 of the 1956 Act, Karta is said to take care of such a property. But if the minor is the sole surviving coparcener, then a guardian can be appointed. The same can be referred to from the judgement of Rakhmabai Kachu vs. Sitabai Kachu (1951), where the Bombay High Court held that in the case of a sole surviving coparcener of an undivided joint family property, a guardian can be appointed. Furthermore, the High Court has been given the unbridled power to appoint a guardian under Section 12.

Paramount considerations for appointing a guardian 

The basic yet paramount consideration for appointing a guardian is the well-being and welfare of the minor. The same has been provided under Section 13 of the 1956 Act. Welfare is a broad term that encompasses money, care, and the mental and emotional support of a minor. 

Guardianship is not a sacrosanct right. Guardianship of the minor, whether that is with regards to the parents of the minor or with regards to the husband of the married minor, the welfare of the minor is of utmost importance.

The Supreme Court, in the case of Rosy Jacob vs. Jacob Chakramakkal (1973), held that the controlling consideration is the well-being of the minor and not the rights of the parents. Furthermore, the Allahabad High Court held in the case of Amit Beri vs. Sheetal Beri (2002) that money is not the only concern or the only consideration. The larger picture has to be looked into. If the mother is a drunkard and has a routine of going to nightclubs. This should also be taken into consideration before the guardianship of the minor is decided.

The Supreme Court in the case of Nil Ratan Kundu vs. Abhijit Kundu (2008) held that,“In deciding a difficult and complex question as to custody of minors, a court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A court, while dealing with custody cases, is neither bound by statutes, nor by strict rules of evidence or procedure, nor by precedents. In selecting the proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, not bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development, and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential, and indispensable considerations. If the minor is old enough to form an intelligent preference or judgement, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor”. 

The same has been reiterated by the honourable Supreme Court in the cases of Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka (1982), Mausami Moitra Ganguli vs. Jayant Ganguli (2008), and many more, that the paramount consideration is the welfare of the minor and nothing else.

Moreover, Section 17 of the Wards Act underlines certain considerations to be kept in mind before appointing a guardian. In appointing or declaring a guardian of a minor, the courts should be guided by or take into consideration the following factors to see if that will amount to the welfare of the minor:

• age, sex, and religion of the minor,
• the character and capacity of the proposed guardian and his nearness of kin to the minor,
• wishes of a deceased parent,
• existing or previous relationships of the proposed guardian with the minor or his property,
• preference of the minor if he is old enough to form an intelligent preference,
• the willingness of the guardian to act as a guardian.

Thus, the welfare of the minor is of paramount importance while deciding as to the appointment of a guardian by the courts.

Guardianship of a minor under Muslim Law

The concept of guardianship under Muslim law is not codified, like in Hindu law. It draws references from the Quran. Certain verses and Hadiths of the Prophet have the mention of guardianship. Let us understand the concept of guardianship under Muslim law by bifurcating it into two headings.

Guardian of the property of the minor

The right of guardianship over the property of the minor primarily belongs to the father. But there can be different circumstances where other guardians can either be appointed by the natural guardian himself or are appointed by the courts for the benefit of the minor. 

Guardians with regard to the property of the minor can be divided into four headings. 

Natural guardian

As the term natural defines itself, it means the guardians that are created out of blood relations. Both Shias and Sunnis recognise ‘Fathers’ and not mothers as natural guardians for the property of a minor. Therefore, mothers cannot alienate the minor’s property. The question of a mother being a guardian is never there, at least when a father is alive. The father is considered to be the supreme guardian. However, the father’s rights extend only to legitimate children. As per ancient Islamic law, fathers are not entitled to guardianship of illegitimate children, even in cases where the mother dies prior to the father.

In Sunnis, fathers are the only natural guardians. After the father’s death, guardianship passes on to the executor appointed by him. Whereas, in Shias, after the father, guardianship passes on to the grandfather and then to the executor appointed.

Testamentary guardian

Guardians that are appointed through wills are termed as testamentary guardians. 

Appointment by father

In Sunnis, the father has the full power to appoint a testamentary guardian. If a father dies without appointing a guardian, then the grandfather has the right to make such an appointment. There is no right for the executors.

Whereas in Shias, if the father appoints a testamentary guardian and dies, leaving behind the grandfather, then, in such a situation, such an appointment would have no value until the grandfather is living. Grandfather is also bestowed with the power to make such an appointment.

Appointment by mother

In both Sunnis and Shias, a mother has no power to appoint a testamentary guardian for her children. However, there are exceptions to this. Exceptions are:

• Where the mother herself is appointed as the testamentary guardian (executrix) and 
• Where mother has her property, then in that case, she can appoint an executor for her personal property.
• These are the two circumstances where a mother can appoint a testamentary guardian or be one.

In Shias, Non-Muslim mothers cannot appoint a testamentary guardian in any case. Whereas in Sunnis, a Non-Muslim mother can make an appointment for a testamentary guardian in exceptional circumstances, as mentioned above.

Who cannot be appointed as a testamentary guardian?

Chapter IV of Fatawa-i-Alamgiri provides that:

• Minor (person who has not attained majority), 
• Insane person. 

cannot be appointed as a testamentary guardian. If they are appointed, any act done by them would be deemed to be void in nature. Apart from that, it is accepted by the jurists that any person who is notorious (bad character) cannot be appointed as a guardian. The same applies to the testator as well. The testator should be in full possession of his senses while executing the will.

How is a testamentary guardian appointed?

The testamentary guardian can be appointed orally or by written will. The underlying element is that there must be an unequivocal intention to appoint that particular person. 

Chapter VI of the Fatawa-i-Alamgiri clearly provides that the acceptance must be there from the side of the testamentary guardian. The acceptance could be expressly or impliedly made. Once the acceptance is delivered, it cannot be renounced without the court’s permission. 

Certified guardian

The guardians that are appointed by the courts are called certified guardians. If both the natural and testamentary guardians do not exist, the Kaazi used to appoint an appropriate guardian for the minor. In modern day, Kaazis are replaced by courts. The guardians are appointed under the Guardians and Wards Act, 1890. The major considerations for appointing a guardian under the Act that are looked into by the courts are:

• Sex of the child,
• Religion of the child,
• Wishes of the parents and children,
• Situation of the father and mother.

District courts decide regarding the appointment of the certified guardian. Apart from these considerations, paramount importance is given to the welfare of the child.

De-facto guardian (Fizuli)

A de-facto guardian is a recognised type of guardian under Muslim law. People who are close friends or distant relatives or have had a connection for a long period of time are appointed as guardians of the minors.

The Privy Council, in the case of Mata Din vs. Sheikh Ahmed Ali (1912), held that a de-facto guardian is nothing but an unauthorised guardian. A de-facto guardian has all the duties to care for and be responsible for the minor, but they have no legal powers to alienate the property of the minor. The same has been reiterated in the case of Imambandi vs. Sheikh Haji Mutsaddi (1918), wherein it was pointed out that under the Muslim law, a de- facto guardian has no power of alienating a minor’s property, and if alienation is made, that would be void. The Supreme Court, in the case of Mohd. Amin vs. Vakil Ahmed (1952),  categorically held that the de facto guardian has no power to convey any right or interest in the immovable property. Moreover, the right cannot be enforced against the minor, and such an alienation would be void in nature.

Powers of the natural and testamentary guardians 

The powers of natural and testamentary guardians are as follows:

Power of alienation

Guardians have different powers over movable and immovable property. In the case of movable property, the powers of alienation are much wider in comparison to immovable property. The basic reason for the difference in the extent of powers can be understood from the logic that the majority of movable properties can decay over a period of time, and by selling such commodities, they can be preserved in the form of money.

Movable property

The sale of movable property by a guardian can be justified only when:

• The guardian receives adequate consideration in return.
• That money received is invested in a lucrative place.
• The risk attached to the movable property that is being sold should be reasonable and justifiable.

The question that arises here is whether a minor can avoid the sale of movable property after attaining majority. The answer to the question is that a minor can set aside the sale of movable property after attaining the age of majority in the following cases:

• Where the sale was done fraudulently, 
• Where there is a blatant inadequacy of consideration,
• Where there is a clear loss to the minor or the sale is detrimental to the interest of the child.

Therefore, the sale by the guardian is voidable at the option of the child after attaining majority. However, if the guardian proves in the court of law that the alienation was bona fide in nature and made with due care, then the alienation can be protected from being termed invalid.

Immovable property 

The power of the guardian to alienate the immovable property of a minor is somewhat limited in nature. Chapter VI, Aayat 222-240 of Fatawa-i-Alamgiri, provides the cases where the sale of a minor’s immovable property is valid. These cases are:

• When the alienation can fetch double the value of the property,
• When the sale is clearly in the benefit/favour of a minor,
• When income from the property is less than the expenses to maintain it 
• Where there is an imminent danger to the property of the minor, that is, the danger of being decayed or destroyed,
• Where the property has been usurped by a trespasser 
• Where the testater’s debt is left unpaid
• Where there are general provisions mentioned in the will, like payment of legacies 
• Where the minor has no other source of maintenance

The Supreme Court in the case of Meethiyan Sidhiqu vs. Mohd. Kunju (1996), while dealing with the issue of whether the father has a right to alienate the minor’s property, the court affirmed the father’s right to alienate the property. But at the same time, she pointed out that a mother has no such right unless she is appointed as an executor.

Power to grant lease

Muslim law does not favour leasing out a minor’s property by the guardian. A lease can only be granted when:

• It is advantageous to the minor and
• It should not be for a long time. 

Madras High Court, in the case of Zeebunnissa Begum vs. Mrs. H.B. Danagher (1935), held that the guardian can lease a minor’s property only if it is for the benefit of the minor, and the lease should only be for a short period of time and, in no case, should be beyond the minority of the child.

Power to carry on business

Guardians have a right to carry on the business on behalf of the minors. But the important point is that he should run the business on his own with reasonable prudence. Provided that the business should not be of a speculative or hazardous nature.

Fatwa-i-Alamgiri provides that the executors have a right to invest the minor’s property in a partnership, provided such a partnership is in the favour of the minor and should not be speculative or hazardous in nature. 

The Bombay High Court, in the case of Jafferali Bhaloo Lakha vs. The Standard Bank of South Africa (1927), held that though the guardian has a right to enter into a partnership on behalf of a minor, the minor’s liability would only be to the extent of his share in the partnership, and in no case can a minor be made personally liable. If a minor and a guardian together run a business, both of their accounts should be separate. 

Power to incur debts

A guardian cannot incur debts in the name of a minor. Only in special circumstances, when a minor’s life is being affected, can a debt be contracted. If there is no necessity for the minor, any debt taken by the guardian would not be binding on the minor.

Power to enter into contracts 

A guardian can enter into a contract on behalf of the minor. The same has been held by the Bombay High Court in the case of Shri Kakulam Subrahmanyam vs. K.Subba Rao (1948). The honourable court held that a contract entered into by a guardian on behalf of the minor is enforceable specifically against the minor, provided that the guardian has entered into the contract with a view to the benefit of the minor. The minor can be sued and sue with regard to the contract when he attains majority.

Power to make partition 

The natural and testamentary guardians do not have the power to make a partition. If the guardian does so, then such a partition would be absolutely void. If the heirs to a property are both adults and minors, then the adults will be given their share, and the rest (the share of the minor) will be kept by the guardian himself.

Powers of the certified guardians

The Guardians and Wards Act, 1890, provides the general powers and obligations of the guardians appointed by the courts. Section 27 of the Act gives a thumb rule that the guardian must deal with the property as if he were dealing with his own property with reasonable prudence. The certified guardians have the power to alienate the minor’s property, but there are certain restrictions and limitations provided under Section 29 and Section 31 of the Act. Under Section 29, the guardian is not given the power to transfer the minor’s property by:

• Sale, lease, mortgage, charge, or gift,
• Leases cannot be made for a period longer than 5 years and more than 1 year after the child has attained majority.

Section 31 imposes a strict restriction regarding the alienation of the property, wherein the consent of the court is a must to do so. Moreover, the benefit of the minor will be looked into as the utmost priority. 

Guardian of person of the minor (Hizanat)

The Hizanat (custody) of a minor belongs to the mother. This is a thumb rule on which the guardianship of the person of the minor stands. If a Sunni man marries a Kitabiya woman and a child is born out of wedlock, the Kitabiya woman will have all the rights of Hizanat. Even if any woman is separated from her husband, she still has the right to Hizanat.

Under ancient Islamic law, apostasy led to the taking away of the right of Hizanat from the mothers. However, with the advent of the Caste Disabilities Removal Act, 1850, the concept of apostasy affecting the right of Hizanat of the mother was removed.

Hizanat is not an absolute right of the mother. However, at the same time, the mother cannot be deprived of her right to Hizanat unless she is guilty of some grave misconduct viz-a-viz the child. An example of such a situation could be when the mother is completely ignorant of a child and does not take care of him or her.

The question that comes up here is whether the right of Hizanat of the mother is equal in the case of a son and a daughter. The answer to this question is no. Mother’s right of Hizanat on a daughter is much bigger than that of a son and also in comparison to that of a father and husband.

Sons

As per the Sunnis, the Hanafis, and the Shafis, a mother is entitled to custody of a son until he is seven years old.

As per Malikis, the right of the mother extends until the son does not attain puberty.

Whereas in Shias, this right extends only until the time the son is having mother’s milk or is weaned.

Daughters 

As per Sunnis, the right of the mother extends until she attains puberty.

In Malikis, Shafis, and Hanbalis, the right of the mother of Hizanat exists until the daughter gets married.

Whereas in Shias, especially the Ithna Asharis, the right of Hizanat of the mother on the daughter is until she is seven years old.

Another question that arises here is whether the rights of the mother of Hizanat are the same for both legitimate and illegitimate children. The answer to this question is yes; the right of Hizanat of the mother is the same for both legitimate and illegitimate children. Moreover, the right of Hizanat is a non-transferable right; it can only be withdrawn in certain cases.

If the mother is dead or is insane, on whom would the right of Hizanat devolve?

As per Mulla, there are different people on whom the right of Hizanat devolves if the mother of the minor dies or is mentally unfit to take care of the child.

In Hanafis, after the mother: Mother’s Mother→Father’s Mother→Full Sister→Uterine Sister→Consanguine Sister→Full Sister’s daughter→Uterine Sister’s daughter→Consanguine Sister’s daughter →Maternal Aunts {All females}

In Shias, after the mother: Father→Grandfather 

But, as per Amir Ali, the grandfather does not have the right of Hizanat; rather, after the father, it is the grandmother and her ascendants and collaterals that have the right of Hizanat of the minor.

Father’s right of Hizanat 

The father’s right of Hizanat arises only in two cases:

• Where the minor has attained the age only up to which, the mother has a right of Hizanat.
• Where there is no mother or female in the family. 

This right of Hizanat with the father is strictly limited to the time until the child attains puberty. 

In Hanafis, the father does not have the right of Hizanat for the minor. After mother, the right passes on to Paternal Grandfather→Full Brother→Consanguine Brother→Full Brother’s Son and so on. {All males}

Under what circumstances does the mother lose her right to Hizanat?

• Insanity 
• Minority 
• A woman (Hazina, or custodian) marries a complete stranger. All the schools are unanimous on this ground. But if a woman marries the child’s paternal uncle, the right of Hizanat remains.
• The misconduct of Hazina is another ground. If the woman is in an adulterous relationship, the child is continuously neglected, there is sexual misconduct on the part of the mother, or there is cruelty being done to the child.
• The removal of children by Hazina is another reason. A child has to be brought up in a marital home. If the child is removed from the marital home without any specific reason, then the Hizanat is lost. But if the mother is taking away the child for the following reasons, then these would act as an exception:
  • When the mother is working, and is impossible for her to stay in marital home
  • Where the mother has been separated from the father, and that too because of the mistake on behalf of the father.

Guardianship of a minor under Christian Law

Guardianship, from a Christian perspective, can be said to be stewardship over the lives of those who are unable to protect themselves. The Bible enunciates, “Defend the weak and the fatherless; uphold the cause of the poor and the oppressed.” This biblical mandate is considered foundational to the Christian approach to guardianship, guiding believers to act as protectors and advocates for those in need.

Unlike other religions, there is no specific personal law dealing with guardianship among Christians. They are governed by the Guardians and Wards Act, 1890 only. A landmark judgement with regards to Christian law is ABC vs. State (NCT of Delhi) (2015), where the guardianship of a Christian minor was decided and given to a single Christian mother without even disclosing the name of the father. All the appointments, rights, and duties of the guardians are derived from the Guardians and Wards Act.

Guardianship of a minor under Parsi Law

Similar to Christian law, there is no specific law that deals with the guardianship of Parsis. It is often said to be influenced by Hindu rules and customs. However, guardianship among Parsis is governed by the Guardians and Wards Act. The same can be inferred from the observations made by the courts.

The Calcutta High Court, in the case of Jahangir Manaji Mehta vs. Nina Jahangir Mehta (1970), pointed out that the Parsi Marriage and Divorce Act, 1936, and the Guardians and Wards Act, 1890, needed to be read together. The honourable court, while deciding who has the right of guardianship under Parsi law, defined the term ‘legal custody’ as custody under the orders of the court or under any personal law according to the facts of the case. The court exclaimed that no Parsi personal law provides, father or mother with the legal right to have custody of the children. On the other hand, Section 49 gives the court the sole power to pass orders with respect to the custody, maintenance, and education of the children. Section 49 is not just limited to the custody of the children but also engulfs in its ambit the powers of the courts to pass orders for maintenance and education. The court even put forth the possibility where the custody may be given by the court to the husband of the minor girl if he is financially strong enough to maintain the minor and pay for her education.

Parallelly, reading together Sections 7, 9, 10, 17, 24, and 25 of the Guardians and Wards Act, it was put forth that while appointing a guardian of a minor, the court must be satisfied that such an appointment is made for the welfare of the minor. The court observed that the members of the Parsi community are also governed by the Guardians and Wards Act, and the principles underlying the appointment of the guardian of the person of a minor should not be overlooked in deciding about the custody of the children under the Parsi Marriage and Divorce Act. When a person is appointed a guardian of the person of a minor, he naturally has the right of custody of the ward with respect to his upbringing, care and protection. The court held that “Section 49 of the Parsi Marriage and Divorce Act, 1936, gives the court wide discretion to pass orders with respect to custody, maintenance, and education, but in the exercise of such discretion, the paramount consideration of the court is the welfare of the children”.

Thus, the guardianship under Parsi law cannot be said to be a straight jacket formula that can be applied everywhere. The courts, depending on the circumstances, apply the Wards Act and the Parsi Marriage Act.

Guardianship under the National Trust Act, 1999

If we see the logic behind appointing a guardian for the minor, it is his incompetency to take care of himself and his property. Similar is the situation with people who are suffering from autism, cerebral palsy, mental retardation, and multiple disabilities. They are in a special situation as minors as well as, even after attaining 18 years of age. They are dependent on others to manage their lives and property. So, the major objective of the Act is to fill a legal vacuum that exists with regards to guardianship for people with disabilities below or above 18 years and help them make informed decisions for themselves with the help of their guardians.

Section 14(3) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act, 1999, can be said to be a need-based provision as it lays down two pointers that should be answered before a guardian is appointed:

• whether the person with the disability needs a guardian and 
• the purposes for which guardianship is required for a person with a disability.

How the guardians are appointed is provided under Section 14 of the National Trust Act. The procedure is explained below:

1. Receive an application for guardianship:

• From a parent or a relative (under Section 14(1)), 
• For the appointment of any person of their choice as a guardian. 

2. From a registered organisation (under Section 14(2)):

• Application in a prescribed form, 
• Must obtain the consent of the guardian of the disabled person. 

3. Consider the application (under Section 14(3)):

• Assess if the person with a disability needs a guardian. 
• Determine the purposes for which guardianship is required. 

4. Process and decide upon the applications (under Section 14(4)):

• Receive applications.
• Process the applications received.
• Decide on the applications.
• Recommend an appointment and specify the guardian’s obligations. 

5. Send particulars to the board (under Section 14(5)) at intervals to be determined by the regulations. 

The Local Level Committee, headed by the District Collector, is empowered to receive the applications in Form A under Rule 16(1) & appoint guardians in Form B under Rule 16(2) of the National Trust Rules, 2000, for persons with autism, cerebral palsy, mental retardation, & multiple disabilities. It also lays down a mechanism for keeping in check and protecting the interests of such people, including their properties.

Section 17 of the Act sets forth the process of removal of the guardians and the grounds on which it can be done. The procedure is as under:

1. Receive an application for the removal of a guardian:

• From a parent or relative, 
• From a registered organisation. 

2. Appointment of an investigation team comprising of:

• Representative of the parent organisation,
• Representatives of the association for disabled and
• Government official (assistant director rank or above).

3. Investigate the complaint as to under what grounds of removal the complaint falls:

• Solitary confinement of a person with a disability, 
• Chaining a person with a disability, 
• Sexual abuse, 
• Long deprivation of basic needs (food, water, clothing), 
• Non-compliance with rehabilitation or training programs, 
• Misappropriation/misutilization of a person’s property, 
• Lack of adequate facilities or trained staff, 
• Beating or causing bruises or skin/tissue damage (excluding self-inflicted injuries). 

4. Submit the report within 10 days.
5. The local-level committee receives the report.
6. The local-level committee makes a decision within 10 days.

• Assessing the proposed guardian based on the following parameters:
  • Citizen of India,
  • Not of an unsound mind/not undergoing mental illness treatment,
  • No history of criminal conviction,
  • Not a destitute or dependent,
  • Not declared insolvent or bankrupt.
• Assessing the Institution/Organization (if applicable):
  • Recognized by the State/Central Government, 
  • Minimum 2 years’ experience in disability rehabilitation services, 
  • Meets standards for a residential facility/hostel (space, staff, furniture, rehab, medical facilities), 
  • Complies with board-specified guidelines. 
• The guardian is given an opportunity to be heard.
• Then the local-level committee gives its decision:
  • Approve the removal of the guardian and record reasons in writing or
  • Reject the application and record the reasons in writing.

So, this Act of 1999 is a great step towards making the lives of people with disabilities a bit easier and focusing on their need to have a guardian in their lives too, even if they are above 18 years of age. If we compare the Guardians and Wards Act, 1890, and the National Trust Act, 1999, the restrictions regarding the appointment of guardians in the latter Act are comparatively stringent. But the major difference between the two is that under the National Trust Act, the guardians are appointed for a limited time, so that the people with special needs have help for a specific purpose or a specific time frame.

Landmark cases on guardianship of a minor

Githa Hariharan vs. Reserve Bank of India (1999)

Facts of the case

The mother of the minor filed an application with the Reserve Bank of India to buy relief bonds in the name of her minor child. But the bank refused to do so under the signature of the mother and asked for the father to be the signatory or asked the petitioner to bring proof of guardianship from a competent authority. These facts reached the Supreme Court in the form of a writ petition.

Issues of the case

The issue was whether Section 6(a) of the Hindu Minority and Guardianship Act, 1956, and Section 19(b) of the Guardians and Wards Act, 1890, are violative of Articles 14 and 15 of the Indian Constitution. 

Judgement of the case

The court, while deciding the issue, delved into the definition of the word ‘guardian’ and opined that it includes both the parents of the child. The same meaning needs to be attributed to the word appearing in Section 6(a); otherwise, that would tantamount to a violent departure from the legislative intent. Further, the court took note of the fact that gender equality is one of the basic principles of our Constitution, and in the event the word ‘after’ is to be read to mean a disqualification of a mother to act as a guardian during the lifetime of the father, the same would definitely run counter to the basic requirements of the constitutional mandate and would lead to a differentiation between male and female. The court opined that the word ‘after’ shall have to be given a meaning that serves the major consideration of the Act, that is, the welfare of the minor. The word ‘after’ does not necessarily mean after the death of the father; rather, it should be read as ‘in the absence of’ the father.

ABC vs. State (NCT of Delhi) (2015)

Facts of the case

The appellant mother was desirous that her son should be appointed her nominee for all her savings and other insurance policies. So, the appellant took all the necessary steps in the very same direction. However, she was asked that she must declare the name of the father of her child or get a guardianship or an adoption certificate from the court. Therefore, the appellant filed an application under Section 7 of the Guardians and Wards Act, 1890, for declaring that the appellant is the sole guardian of the son.

Issues of the case

Whether a Christian unwed mother be appointed as a guardian of her child? 

Judgement of the case

The honourable court gave some really important answers. Firstly, the court held that an unwed mother can be appointed as guardian of her child under Section 6(b) of the 1956 Act, and there is no requirement of sending a notice to the putative father. 

Secondly, the court held that it is no longer necessary to state the name of the father in an application for getting the child admitted to school as well as for obtaining a passport for the minor child. However, the court put forth that in both of these cases, it may still be necessary to furnish a birth certificate. And with regards to the issuance of the birth certificate, it can be issued to the mother, provided there is no contrary direction issued by the court.

Thirdly, like many times before in earlier judgements, the court pressed that the welfare of the minor is of utmost importance and the rights of parents can never prevail over the rights of the minor.

Madhegowda by Lrs. vs. Ankegowda by Lrs. (2001)

Facts of the case

When the respondent, Smt. Sakamma, was a minor, her sister, Smt. Madamma, acted as her de facto guardian. To collect the money for the marriage of the respondent, Smt. Madamma sold the respondent’s share of the property to the appellant, Mr. Madhegowda, by a registered sale deed dated 24.4.1961. The appellant was put in possession of the property, and he continued to be in possession. Smt. Sakamma, after attaining majority, sold her share of the property to Ankegowda. Now, the conflict arose as to who had the right to the possession of the property of the respondent.

Issues of the case

Whether or not a de facto guardian can alienate the property of the minor.

Judgement of the case

The Supreme Court in the case of Madhegowda by Lrs. vs. Ankegowda by Lrs. (2001), while dealing with Section 11 and Section 12 of the Hindu Minority and Guardianship Act, 1956, held that a de facto guardian does not have the power to alienate the property of the minor. The court held that Section 11 bars every person from dealing with a minor’s property merely on the ground of him or her being a de facto guardian. A transferee of such alienation does not acquire any interest in the property. And that is the reason why there is no need for such a transaction to be set aside. Furthermore, the honourable court observed that the minor, on attaining majority, can repudiate the transfer in any manner, as and when occasion for it arises. After attaining majority, if the minor transfers his interest in the property in a lawful manner to anybody avowing that he has complete title to the property, that means that the minor has repudiated the transfer made by the de facto guardian.

Athar Hussain vs. Syed Siraj Ahmed (2010)

Facts of the case

The appellant, Athar, married Umme Asma, daughter of respondent no.1, as per Islamic rites and customs, on 31st March, 1993. Two children were born out of wedlock: Athiya Ali and Aayan Ali. The mother, Umme Asma, died, leaving behind a 13-year-old and a 5-year-old. The appellant married again to Jawahar Sultana on 25th March, 2007. The maternal grandfather filed a petition that, for the welfare of the children, custody of the children should be given to him.

Issues of the case

Whether interim custody of a minor will be given to a person other than a father during the pendency of the proceedings for the appointment of a guardian.

Judgement of the case

The honourable Supreme Court, in the case of Athar Hussain vs. Syed Siraj Ahmed (2010), delved into the subtle difference between ‘custody’ and ‘guardianship’. Though the question in the case was regarding the appointment of a guardian of a child under the Guardians and Wards Act, the honourable court opined that a court has no jurisdiction to appoint a guardian other than a father, but interim custody can be given to another person for the time being where the proceedings for the appointment of a guardian are pending. In the case at hand, interim custody was given to the maternal grandfather.

The court put forth that the question of custody is different from the question of guardianship. There can be two situations at the same time. The father can continue to be the natural guardian of the children. However, the considerations pertaining to the welfare of the child may indicate that the lawful custody of the minor should be with another friend or relative, as it would be better and in his best interest. Moreover, the courts are not barred by Section 19 of the Guardians and Wards Act in the case of deciding on the question of custody of the minor.

Conclusion 

Herbert Hoover has rightly said, “Children are the most wholesome part of the race, the sweetest, for they are the freshest from the hand of God”. In very few words, the true essence of a child has been penned. For the welfare of the children and to make sure all their needs are met, a guardian or a caregiver is a must. 

Throughout the article, we have seen different laws regarding guardianship that prevail in India. In some places, mothers are given the right to be the minor’s guardian, and in some places, the rights are limited to the fathers or the males in the family. The interpretation of the laws has been simplified and broadened by the Honourable courts by setting precedents. But still, there is scope for improvement and amendments in the secular laws to make them more balanced and give equality to mothers and the females in the family to be guardians themselves or have the right to appoint a guardian for the minor. 

The Law Commission of India observed in its 133rd report that, “the provisions contained in Section 6(a) of the Hindu Minority and Guardianship Act are extremely unfair and unjust and have become irrelevant and obsolete with the changing times.” 

There is a need to put the observations made by the courts in cases like Gita Hariharan vs. Reserve Bank of India to practical use. The court clearly pointed out that giving preference to the fathers over the mothers is a clear discrimination on the basis of sex under Article 14 of the Indian Constitution. 

Another space for amendment could be having a uniform code for the religions dealing with guardianship. A PIL, Ashwini Kumar Upadhyay vs. Union of India (2020), is pending before the honourable Supreme Court, where the court will decide whether the laws on adoption and guardianship should be uniform in nature (whether a uniform civil code should be applied), disregarding the religion or gender of the persons involved.

Bringing uniformity may seem like a task, but there is a dire need to fill the legislative gap in the laws governing Christians and Parsis. By filling this gap, a lot of judicial confusion and technical barriers can be met.

Frequently Asked Questions (FAQs)

What is the objective of guardianship?

The main objective of guardianship is the welfare of the child. Welfare is not just limited to physical well-being but also emotional and intellectual well-being. A guardian is appointed so that the property of the minor can be taken care of. 

Is there a uniform law governing guardianship in India?

No, there is no uniform law governing guardianship in India. There are separate laws for different religions. Hindus are governed by the Hindu Minority and Guardianship Act, 1956, whereas Muslims don’t have a codified law of guardianship, but it draws references from the Quran. There are no specific statutes that govern guardianship, particularly for Christians and Parsis, but they are dealt with under the Guardians and Wards Act, 1890.

Can a minor be appointed as a guardian?

Minors cannot be appointed as guardians under any secular law. Reference can be drawn from Section 10 of the Hindu Minority and Guardianship Act, 1956. However, Section 21 of the Guardians and Wards Act provides that a minor can act as guardian for his minor wife or child, or in cases where he is the managing member of a Hindu undivided family. The two provisions may seem to be conflicting, but the court in the case of Bhudi Jainar vs. Dhobai Naik (1957) held that there is no conflict between the two provisions because Section 21 deals with the guardianship of the person, whereas Section 10 is concerned with the guardianship of the property of the minor. Thus, they are not conflicting in nature and therefore can coexist.

Is it mandatory that a legal guardian be appointed for every person with a disability?

It is not mandatory that a legal guardian be appointed for every person with a disability, but as per the National Trust Act, 1999, it is advantageous to do so for the well-being of the people who are incompetent to take care of themselves and their property. It gives a wider perspective and gives an opportunity for the person, even above 18 years to have someone to take care of them.

Are guardianship and custody the same thing, or are they different?

Guardianship and custody are two different concepts. Custody is a much narrower concept than guardianship. Guardianship is related to the rights and duties that an adult or guardian has towards the person or property of a minor. Whereas custody is limited only to the day to day care, protection, and upbringing of the child. The Honourable Bombay High Court, in the case of Tukaram Gadhwe vs. Sumanbai Wamanrao Gondkar (2007), held that the concept of custody is related to physical control, whereas guardianship is about trusteeship. A guardian acts as a trustee for the minor.

References

• https://blog.ipleaders.in/guardianship-child-different-personal-laws/
• https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3579286
• https://blog.ipleaders.in/overview-of-the-hindu-minority-and-guardianship-act-1956/
• https://thenationaltrust.gov.in/content/innerpage/guardianship.php#:~:text=A%20guardian%20is%20a%20person,the%20property%20of%20the%20world.
• https://www.scobserver.in/cases/ashwini-kumar-upadhyay-union-of-india-uniform-adoption-and-guardianship-case-background/
• https://www.scconline.com/blog/post/2019/11/25/custody-of-children/#_ftnref1