Law of Guardianship in India as per different religions

Author:-Nimitt Porecha

Introduction

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.  

Summarizing the Article

  •  Guardianship under the Hindu law

The Hindu Minority and Guardianship Act, 1956, regulates 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, o  both. The various forms of guardianship in India include:

  • Natural guardian: – Article 6 of the Hindu Guardianship and Ethnic Minorities Act of 1956 recognized three persons as natural guardians: father, mother and husband. Article (a)-In the case of an unmarried boy or girl-the father, followed by the mother: provided that for children under 5 years of age, custody belongs to the mother.
  •  Before 1956, the father could have tried to restrict the mother\u2019s guardianship by appointing a probate guardian before the mother\u2019s death, but after the 1956 Act, if the child\u2019s mother was still alive, the appointment of the probate guardian became invalid. Although the law stipulates that the father is the child’s natural guardian before his death, and the mother becomes the child’s natural guardian only after the father’s death, there are some exceptions.
  • The Supreme Court has clarified that the term “after” mentioned in this section not only means “after the death of…” but also means “in the absence of…”. If the father does not oppose any behaviour of the mother due to the mother\u2019s indifference, or the minor is taken care of by the mother alone, and the father does not personally take over the minor\u2019s property or himself due to mental or physical disability, this section is applicable.
  • [1] In terms of it, it will be regarded as non-existent. The fact that the mother remarried does not harm her rights, and her application will not be disqualified [2]. In terms of the guardianship, under normal circumstances, the court will not deprive the parent of the guardianship of the minor, but in all such cases, the court always regards the welfare of the child as the main interest and factor in issuing the statement. When the interests of the minor were harmed, the guardianship of the minor was not transferred to his father. Article (b)-The legal guardian mother of her illegitimate child: Even if the minor’s father is alive, the mother is regarded as the natural guardian of the child born out of wedlock. The father has no priority.
  • Testamentary guardian: – A testamentary guardian is a guardian appointed by the will of the minor’s parents. Article 9 of the Hindu Guardianship and Minority Nationality Act deals with the provision of probate guardians. Sections 1 and 2 deal with the rights of the father and stipulate that the Hindu father has the right to appoint a guardian. If he dies before the mother’s death, the appointment will fail. It will only be resurrected if no one is appointed as a guardian when the mother dies. The mother\u2019s rights include appointing a guardian for her illegitimate child. In this case, even if she precedes the father, the father does not have the right to appoint a guardian, although the natural guardian of the child will be considered. Testamentary rights also belong to widows and mothers, who have the right to act as natural guardians because their parents have no rights. If it is a minor girl, once married, the guardian’s right to the will is eliminated. The probate guardian has the same rights and restrictions as the natural guardian.
    • Guardian appointed by the court: – A legal guardian is a person who has been appointed by a court or otherwise has the legal authority to care for the personal and property interests of another person, called a ward. A parent of a child is normally not considered a guardian, though the responsibilities may be similar.
    • De facto guardian: – De facto guardianship is found where a grandparent has provided for the safety, shelter, and security of the children. The de facto custodian must be the primary caregiver and financial supporter, but must also. do so to a greater degree than the natural parents.

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:

  • Natural guardian: – According to Section 6 of the Hindu Minority and Guardianship Act, 1956, only three persons are considered as natural guardians, that is, mother, father, and husband. Section 19 of the Guardians and Wards Act, 1890 states that a father or a husband of a minor child or a minor wife respectively cannot be deprived of their natural guardianship unless the court finds them unfit to take care of the minor child or wife.
  • Section 13 of the Hindu Minority and Guardianship Act, 1956 states that the welfare of a minor child is the most essential and if the court is of opinion that the guardianship of any person will not be for the welfare of the child then the court can remove him from being the guardian of that child.
  • According to Section 6(b) of the Hindu Minority and Guardianship Act, 1956, the natural guardian of the minor illegitimate children is the mother even though the father is alive. In the case of the adopted son under Section 7, the natural guardianship is passed on to the adoptive father and after his death, to the adoptive mother. In the case of a legitimate child, a mother can become a guardian only after the death of the father or upon his incapability to become a guardian.
  • In Section 6(a), the custody of a child below 5 years should be with the mother unless it is in the opinion of the court that the custody of the child to the mother would not be in the welfare of the child.  
  • Testamentary guardian: – A testamentary guardian is a guardian appointed by the natural guardian through a will. Under Section 9 (1), a father has the testamentary power of appointing a guardian for his legitimate children or his property, or both but Section 9(2) states that if the mother is alive after the death of the father then she will be the guardian of the children and the will made by the father would remain ineffective and it will be revived only if the mother dies without appointing a guardian by will
  • Section 9(4) empowers the mother of the illegitimate children to appoint a guardian for the children, property, or both. In the case of a minor girl, the guardianship shall terminate at her marriage and that would not revive even if she becomes a widow while being a minor. The person appointed as a testamentary guardian shall accept the guardianship expressly or impliedly. He can refuse to be the guardian, but once he has accepted to be the guardian then he cannot refuse or resign from being the guardian except with the permission of the court.

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 other needs.

Guardianship under Parsi law

The Guardianship and Wards Act of 1890 governs a child’s guardianship. The Parsis do not have their own personal 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.

Critique and the final conclusion

 Children are a country’s future, so it’s important that they 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 guardians.