This article has been written by Rutuparna Sahu from KIIT School of Law, Odisha. This article enlightens us about what kind of rights and liabilities a guardian holds and how a guardian can be removed from his guardianship.

Introduction

A flower blooms out of care and warmth into a fruit when nature takes it into its lap, similarly for every child born, the parents have an obligation to take proper care for the best interest of the child. This includes all the needs of the child including a nutritious diet, good quality education, medical assistance etc. All such needs and requirements in upbringing a child must be taken care of by the natural parents who are capable of handling the financial, mental and physical state of the child.

What is Guardianship?

Generally guardianship means to guide someone along with having full rights over that particular person. However, guardianship was never related to the Dharmashastra back then. It was the court which came up with the idea of initiation of guardianship during the British regime. And the rule was that a father is the natural guardian of a minor and in case of the father’s death then the mother automatically becomes the guardian to the child. And no other party is entitled to access the right of guardianship over any child but his own parents. Guardian is a person who is in charge of looking after the welfare and well being and even the property of the child if any. 

There are generally four types of guardians viz. natural guardian, guardian appointed by the will of a natural guardian which is also termed as testamentary guardian, a guardian appointed or declared by the Court, a person empowered to act as such by the order of the Court of Wards. 

Natural guardian

In Hindu law, the only people that can be considered as natural guardians are father, mother and husband. No doubt, father is the legitimate natural guardian of his children. A father cannot be deprived from the natural guardianship of his own child as mentioned in Section 19 of the Guardians and Wards Act, 1890. However, a mother is also a legitimate guardian of the child if in case the father of the child is dead or is unfit for taking the responsibility of the child. As per Section 6(a) of the Hindu Minority and Guardianship Act, a mother is entitled to the custody of a child below 5 years unless there is a further need for the welfare of the child because generally a child below 5 years needs proper care and attention which can be provided by a mother only. 

Who is a minor?

We all know minor denotes a person who has not yet attained the age of 18 years. The Hindu Minority and Guardianship Act, 1956 speaks under Section 4(a) that a minor is a person who has not completed the age of eighteen years of age. Basically it says that a person below eighteen year is still an immature child who needs attention and caring. As a guardian it is their duty to look after a minor child until he is able to look after himself and a person is considered to have reached upto that level of mental stability after crossing eighteen years of age.

Removal of Guardian 

Section 13 of the Hindu Minorities and Guardianship Act, 1956 talks 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.

The situations where a person fails to nurture the child with his legal guardianship is when the guardian has witnessed some unfortunate circumstances or when the guardianship was not for the welfare of the child under Section 13 of the Hindu Minorities and Guardianship Act, 1956. 

The factors which the judge considers before taking guardianship from a parent are

1. When the guardian of a child causes strain or any kind of harm to the child then terminating the guardianship is in the best interest of the child;
2. When the guardian is not able to keep the child in a stable place ensuring mental growth;
3. When the guardian doesn’t have a fixed source of income to support the education or provide sufficient means for the growth of the child;
4. Section 19(b) of the Guardians and Wards Act, 1890 includes the phrase “unfit” for the guardians who are found not capable of being a guardian in the eyes of the court, or 
5. Once the child is of the age of 12 years, the decision of the child to stay with either of the parents is taken into consideration by the Court.

The factors through which the guardianship of a child terminates are

1. When the child attains the age of 18 years and can maintain himself, he is free to maintain himself however he wants.
2. On adoption of a child the adoptive parents are handed over the guardianship rights rather than the biological parents.
3. When the child dies before attaining the age of 18 years. 
4. On a child attaining 12 years of age, if the child requires no attention then he can give his consents to end the guardianship.
5. If the minor decides to get married, the husband of the girl child becomes her guardian and her parent’s guardianship gets terminated. 
6. When the guardian decides to resign from the guardianship of a child, he may produce a notice to other relatives and should go through a Court hearing in order to enable the Court to provide a suitable alternative guardian to the child.

Grounds for disqualification of guardianship

There are certain grounds which are to be looked after before disqualification of guardianship and they are as follows:

• When the guardian renounces the world to give his belief in the world and lead a holy life, this order of life is known as ‘Sanyas’. It removes a person from his position of guardianship.
• When a person who is a guardian ceases to be a Hindu and gets converted into another religion, he loses his guardianship rights.
• In guardianship, the interest of the child is taken into utmost consideration and any act which may harm the interest or may cause injury to the property of the child will lead to a disqualification.
• The guardian is bound by the duties of upholding the priority of safeguarding the interest of the child.

Procedure for ending of guardianship

• Certain forms which are required to initiate the process are as follows:

1. Petition for termination of the guardianship
2. Notice of hearing on custody of the child
3. The court order of termination of all guardianship rights

• Court facilitators review all the forms and confirm the completion of all the formalities to ensure a hassle free procedure.
• The required forms should be served to the courts along with three copies and the payment of the court fee or filing fee.
• A notice is to be given 15 days prior to the hearing of end of guardianship to all the relatives and the people who were notified about the appointment of the guardian. 

With the authorization of guardianship there are certain rights and liabilities attached to the same.

Rights of a guardian

• Under Section 33 of the Hindu Minority and Guardianship Act the guardian of the ward in charge shall be entitled to such allowances for the care and pains in the execution of his duties.
• Under Section 13 of the Hindu Minority and Guardianship Act, a guardian must look after the health and education of the ward.
• Under Section 33A, the execution of the will by the guardian to his ward shall not take place without the guardian.
• Under Section 13, the property of the ward is to be handled carefully as a man of ordinary prudence would deal with.

Liabilities of a guardian

With reasonable care and caution on the making of decisions and doing the things on behalf of the ward, the guardian is personally liable under certain circumstances:

1. The guardian may be liable for the damage caused to the property of the ward owned by the ward if any, by the guardian’s actions.
2. The guardian is not liable on behalf of his or her ward’s actions in a representative capacity.
3. The guardian is responsible for the ward’s debt where there is negligence on the part of the guardian which is the reason for the debt.
4. The guardian may be held liable if they have failed in taking reasonable steps for proper care and protection of the ward’s property or finances.

When a guardian is given partial rights over the property of his minor ward, but is not entitled to act as a collector, he has certain liabilities that are to be complied with :

1. If the court requires any kind of mortgage then the guardian has to provide him such an amount as nearly as maybe in a prescribed form which would benefit the judge for the time being, if at all the guardian is found accountable with respect to the property of the ward.
2. If the court so requires any detail about the property then the guardian who is in a partial relation with his ward’s property has to furnish all the property related details such as the statement of any immovable property, money and other movable property of the ward which the guardian has received on behalf of his ward along with the debts due on that date toor from the ward. And all this statement is to be furnished within 6 months of the court’s declaration or the date as prescribed.
3. A guardian is liable to comply with all the court orders until he is in charge of his ward’s property. So if at all court requires, the guardian has to exhibit all the accounts with respect to the ward’s property and in such forms time to time as prescribed by the court.
4. The guardian has to pay all the due balances from the accounts of the property that are ought to be paid if at all the court requires. The payment must be done to the court within the time period prescribed by the court.
5. A guardian not only has to take the responsibility of the ward but of such persons who are dependent on him as well. The guardian has to deal with all the basics of a minor such as his maintenance, education and advancement, etc. The guardian has to make sure that the ward and the persons related are not deprived of any ceremonial celebrations.
6. Guardian can apply for a portion of the income from the property of his ward as the court may direct from time to time. Besides that the court can ask for part of the property or the whole of it. 

These above mentioned criterias need to be fulfilled on the court’s order. 

Thirty Hoshie Dolikuka Vs. Hoshima Shavaksha Dolikuka B, 1982  

According to the facts of the case, the minor was an 11 year old girl and both of the parents were working. The girl used to live with her father but the mother alleged that her father was manipulating their daughter which is why she was having a bad state of mind. The High Court held that the daughter’s custody should stay with her father as she already was with her father and her mother would not be able to give her more attention. But the Supreme Court intervened in the matter and upheld that, no matter what, even if a woman is working, that is not a matter of concern because a mother can always handle a child better until he or she turns into a major. The Court also held that the custody of the daughter should stay with the mother. 

Conclusion 

After a complete study on the Hindu Minority and Guardianship Act, 1956 we can say that, the Act believes in safeguarding the minors from being abandoned by their parents and also makes sure that no minor is deprived of a guardian or guidance unless the minor is capable of maintaining himself or herself. A mere guidance would make a lot of difference because most of the time minors are into trouble because of lack of guidance by a guardian. 

References

http://www.ijtr.nic.in/family%20matters/Guardians%20and%20Wards%20Act,%201890.pdf

http://legislative.gov.in/sites/default/files/A1956-32_0.pdf

https://indiankanoon.org/doc/1304490/