INTRODUCTION
The leader of the joint family formerly looked after the child without parents, hence no such law was written. However, in contemporary society, the idea of a child’s guardianship has been replaced by that of protection. The courts have the authority to name a guardian for a minor child according to the Guardian and Wards Act, which was passed in 1890. The Hindu Minority and Guardianship Act, 1956 regulated and amended the Hindu Law regarding the guardianship of minor children. The laws pertaining to minorities and guardianship with regard to the welfare of the child are stated in the Hindu Majority and Guardianship Act of 1956. The act’s goal is to demonstrate that the minor is incapable of managing himself.
DEFINITION OF MINOR AND GUARDIAN
A person who practises the religions of Hinduism, Jainism, Buddhism, or Sikhism is subject to the provisions of Section 3 of the Hindu Minority and Guardianship Act of 1956. According to Section 4(a), a person who is younger than 18 years old and is unable to care for himself or his daily affairs is referred to as a minor. In this case, the person who has been designated to care for the child is referred to as a guardian.
DIFFERENT KINDS OF GUARDIANSHIP
There are 3 types which are following:
- Natural Guardian
The father is first named as the minor’s natural guardian under Section 6 of the Hindu Minority and Guardianship Act, followed by the mother. The mother and then the father will be the child’s natural guardians in the case of an illegitimate boy or female. The minor wife’s spouse is also her guardian.
According to Section 7 of this law, the adopted father is first given natural guardianship of the adopted son who was a minor at the time of adoption, followed by the adoptive mother.
- Testamentary Guardian
The powers of testamentary guardians are covered under Section 9 of the Hindu Minority and Guardianship Act. In accordance with Section 9 of this Act, testamentary guardians are those who were appointed as guardians by an express or implicit will. Hindu fathers who are qualified to serve as a child’s natural guardian may name a guardian in the child’s will.
A Hindu widow or Hindu mother who is qualified to serve as the minor’s legal guardian may name a guardian in their will.
The guardian thus designated will remain the child’s guardian after the death of the minor’s father or mother. When a girl is a minor, the guardianship ends when she marries.
- A Guardian appointed by the Court:
In accordance with the Guardian and Wards Act of 1890, the courts have the authority to name guardians. Guardians may also be appointed by the High Courts. Guardian and Wards Act is supplemented by the Hindu Minority and Guardianship Act. whenever they determine that it is required for the minor, the Guardian. The District Courts have the authority to name or declare a guardian for a minor’s person, property, or both. A certificated guardian is a person chosen by the court to serve as the guardian.
Additional grounds where a guardian is appointed
- Guardianship of Minor’s property ( De Facto Guardian)
A self-designated guardian is a de facto guardian. Without any legal power, the guardian may care for the minor or handle the minor’s belongings. The de facto guardian has no power to manage the minor’s property or incur debt, and they have no ability to dispose of it.
- Guardianship of a minor widow (guardianship by Affinity)
When a young lady loses her spouse, she shouldn’t feel threatened; therefore, the widow’s family members are responsible for looking after and protecting her. If no one from the husband’s family is available, the widow’s father assumes this duty.
CUSTODY OF A MINOR
The well-being of the kid is declared to be of the utmost importance in section 13, which also places a lower priority on the custody of a minor. When it comes to a youngster who is of legal age, his wishes must also be taken into account, however, they could be ignored if doing so is in his best interest.
It is wrong to give custody preference to a mother over a father. It is thought to be in the father’s favour that he be in a better financial situation than the maternal grandfather. The Supreme Court ruled in Kumar v. Chethana AIR 2004 that a mother’s second marriage is not a good enough reason in and of itself to lose custody of a child. The convenience of the parents was further ruled to be unimportant. Custody may even be granted to a third party to ensure the child’s wellbeing, as was the case when the SC granted custody to the mother and grandfather in the Poonam v. Krishanlal case (1989).
In the matter of Re Madhab Chandra Saha, AIR 1997 Cal 123, the father eventually demanded guardianship despite never acting in the child’s best interests. His assertion was denied. Additionally, a mother who claims she will continue living with friends and may have children from other men was not deemed suitable for custody in the case of Chakkiv.Ayyapan(AIR1989Ker89).
LIABILITIES OF A GUARDIAN
Since the legal role of a guardian requires trust, any breach of trust entails personal liability for the guardian.
He must cautiously handle his responsibilities.
- Obligation to provide all accounts.
- A guardian cannot seize a minor’s belongings for an unnecessary reason.
- Minor is not responsible for paying any out-of-pocket expenses.
RIGHTS OF A GUARDIAN
A guardian has the right to:
- Speak on behalf of the minor in court.
- Use the property of the minor to pay the costs of your legal defence.
- To recoup your costs, sue the youngster after he turns 18 years old.
- Refer cases to possible alternatives to litigation for the benefit of the minor.
CONCLUSION
Any guardian who adopts a child enters into a relationship with the child and has a responsibility to care for and protect him from harm as well as to look after his property. We should be grateful to our legislators for introducing regulations of this nature that protect children and their property. As a result, a minor needs a guardian to keep him safe from harm and to provide for his bodily and emotional well-being.
Author(s) Name: Yash Jha (Dharmashastra National Law University, Jabalpur)
