A guardian is a person appointed to look after another person or his property in
India, as per the personal laws of the religion into which the minor was born.
He or she takes on the responsibility of caring for and protecting the person
for whom he or she has been appointed guardian. On behalf of the ward's person
and property, the guardian makes all legal decisions.
A guardian is someone who is in charge of a child's welfare, needs, education,
and other basic requirements. In most instances, a father is the child's natural
guardian, and in his absence or death, the mother becomes the child's guardian.
Other than the mother and father, no one else can be the child's natural
guardian. When a person other than the child's father and mother has legal
custody of the child, it is an established guardianship. A guardian has
jurisdiction over a child and has the authority to make all decisions about the
child. The guardian is thus legally responsible for the child.
Since a minor is physically and mentally imperfect and inexperienced and
therefore requires the care, attention, and security of another person,
guardianship is necessary for a minor child under the age of eighteen.
- Guardianship under the Hindu law
The Hindu Minority and Guardianship Act, 1956, regulate guardianship of minor
children in Hindu law (covers Hindus, Sikhs, Jains, and Buddhists in India). A
minor is described as anyone under the age of eighteen, according to Section
4(a) of the Act. A guardian, according to Section 4(b) of the Act, is an
individual who is responsible for the child's care, property, or both.
various forms of guardianship in India include:
- Natural Guardian
- Testamentary guardian
- Guardian appointed by the court
- De facto guardian
- Guardians by affinity
Only three people are considered natural guardians, according to Section 6 of
the Hindu Minority and Guardianship Act, 1956: the mother, father, and husband.
A father or husband of a minor child or minor wife cannot be stripped of their
natural guardianship unless the court considers them incompetent to care for the
minor child or wife, according to Section 19 of the Guardians and Wards Act,
According to Section 13 of the Hindu Minority and Guardianship Act, 1956, the
welfare of a minor child is paramount, and if the court decides that the
guardianship of any person is not in the best interests of the child, the court
may remove that person as the child's guardian.
Even if the father is alive, the mother is the natural guardian of minor
illegitimate children under Section 6(b) of the Hindu Minority and Guardianship
Act, 1956. The natural guardianship of the adopted son under Section 7 is passed
on to the adoptive father and, after his death, to the adoptive mother. In the
case of a legitimate child, a mother may only become a guardian after the
father's death or inability to become a guardian. Section 6(a) states that
custody of a child under the age of five should be with the mother unless the
court finds that doing so will be harmful to the child's welfare.
In the case of Ms.Githa Hariharan and anrs. v. Reserve Bank of India and anrs.,
the question of whether a minor child's custody may be granted to the
mother in the absence of the father was raised. It was decided that the word
"after" in Section 6(a) should be interpreted broadly to include in the absence of
rather than after the lifetime.
A testamentary guardian is a guardian appointed in a will by the natural
guardian. A father has the testamentary right to appoint a guardian for his
legitimate children or property, or both, under Section 9(1), but Section 9(2)
states that if the mother is alive after the father's death, she will be the
guardian of the children, and the father will be restored only if the mother
dies without appointing a guardian.
The mother of illegitimate children has the authority to appoint a guardian for
the children, property, or both under Section 9(4). The guardianship of a minor
girl ends when she marries, and it does not come back even though she becomes a
widow while still a minor. The person named as a testamentary guardian must
explicitly or implicitly acknowledge the guardianship. He has the right to
refuse to be the guardian, but once he has agreed to be the guardian, he cannot
refuse or resign unless the court permits him.
Guardians appointed by the court
The court can appoint a guardian to a child under the Guardians and Wards Act,
1890 which would be called a certified guardian. The powers of the certified
guardian are also stated in the Act. The Act confers power to district courts. A
district court can choose to select any person as the guardian of a child if it
thinks necessary for the welfare of the child.
The Act specifies that while
appointing the guardian of a child the court must consider the child's sex, age,
parent wish, and the personal law of the child. The Act considers that the
welfare of the child is of paramount consideration and any decision taken by the
court should be for the welfare of the child. High Courts have an inherent power
to appoint a guardian to a child, undivided interest in a coparcener, or his
separate property but this power is rarely used by the High Court.
Guardianship by affinity
The guardianship of a minor widow by a relative within the degree of sapinda is
known as affinity guardianship. A father-in-law may be a guardian by affinity,
but Section 13 of the Hindu Minority and Guardianship Act states that the
child's welfare must come first, so it's important to make sure the minor widow
is safe and that her needs are met by the guardian by affinity.
De facto guardian
Although the word de facto guardian is not stated in any statute, the court
has always recognized it. A de facto guardian is someone who has consistently
shown an interest in caring for, handling, or managing the infant, his or her
property, or both. A de facto guardian is not a legal guardian and therefore has
no legal authority over the child or the child's property, but he has assumed
responsibility for the child and the property. A de facto guardian is not formed
by a single or few actions, but rather by a consistent pattern of behaviour
regarding the child's property.
- Guardianship under Muslim law
The law of guardianship in Muslims came from certain verses in the Quran and a
few hadids. Under Muslim law, there are only three types of guardians:
The only father is considered the natural guardian of a child under Muslim law,
and the mother is not considered natural or other guardians even after the
father's death. Even if the child's custody is not with him, the father is
considered the child's only natural guardian and has authority over all
decisions concerning the child. The court in Imambandi v. Mutsaddi held that the
father is the sole and supreme guardian of his minor children as long as he is
Only the father's legitimate children are under his guardianship. He is not
entitled to guardianship of the illegitimate children. A Muslim mother may have
custody of her children, but she is not allowed to be their guardian.
The parent is the natural guardian of a child in Sunnis, and the guardianship is
passed to the executor after the father's death. The father is the natural
guardian of Shias, but after his death, the guardianship is passed to the
grandfather, if he is still alive.
And even if the father has named an executor,
if the grandfather is alive, the guardianship will be vested in him. Only in the
absence or after the death of the grandfather will the executor become the
guardian. If the grandfather names an executor before his death, the executor
appointed by the grandfather becomes the guardian after the grandfather's death.
The term wali, guardian, amin, or kaim-mukam refers to a testamentary guardian.
The father can appoint a testamentary guardian in both Shia and Sunni
traditions. In the absence of the father and his appointed executor, the
grandfather has the power to appoint a testamentary guardian. The father's
guardian is only true in Shias if the grandfather is deceased; otherwise, the
grandfather has the power to appoint the testamentary guardian. In both Shias
and Sunnis, the mother has no right to name a guardian for her children except
in two cases:
- By her father's will, she has been named executrix.
- She owns a home that will pass to her children after she passes away.
By the father's or grandfather's will, a mother may be appointed as a
testamentary guardian or executrix of a kid. A non-Muslim mother may be named as
a testamentary guardian in the case of Sunnis, but not in the case of Shias. A
testamentary guardian must explicitly or implicitly recognize the guardianship.
If the guardianship is agreed upon, it can only be denied or renounced with the
Guardian appointed by the court
When natural and testamentary guardians fail, the court has the right to appoint
a guardian for the child. The Guardians and Wards Act of 1890 governs the
appointment of a guardian for a child from any group. The Act empowers the
district court to nominate a guardian after considering the child's best
interests. The High Court also has the authority to name a guardian for a minor,
which it only does on rare occasions.
- Guardianship under Christian law
The Guardianship and Wards Act of 1890, which is a secular Act, determines the
guardianship of Christians. The guardian appointed for the child for the
property must consider the child's health, according to Section 17 of the Act.
The section notes that when naming a guardian, the sex, age, faith, character,
and capability of the proposed guardian, desires of the child's parents, and if
the minor child is old enough, his choice must also be taken into account.
When the father or husband is fit to be the guardian of the child or wife,
Section 19 of the Act states that the court has no power to appoint a guardian
or when the property is under the control of the Court of Wards. Section 24
notes that the guardian should assume custody of the child and that it is the
guardian's responsibility to provide for the child's health, education, and
- Guardianship under Parsi law
The Guardianship and Wards Act of 1890 governs a child's guardianship. The
Parsis do not have their guardianship rules. It is predominantly governed by
Hindu customs and rules. In addition, Muslims, Christians, and Parsis have no
personal laws on adoption. The Guardianship and Wards Act of 1890 requires them
to go to court. A child should only be taken into foster care, and once he
reaches the age of majority, he has complete autonomy over his decisions.
Children are a country's future, so they must grow up in a positive atmosphere
where they are well treated and nurtured. A minor child is incapable of
self-care or making choices. There is a need for someone to look after the
child, to help, to love, and to provide all of the child's basic needs. As a
result, a child's guardian should be someone who takes good care of the child.
The wellbeing of a child thus should be the most important factor when naming