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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

By Christy Alex 3rd Year, B.A., LLB (Hons) Faculty of Law, Ja ia !illia "sla ia.

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

CONTENTS
#. "$%&'()C%"'$ .......................................................................................................................... 3 #.# &ole of Fa ily Law ................................................................................................................ 3 #.* '+,ect and -ur-ose of writin. of the -ro,ect .......................................................................... 3 #.3 &esearch !ethodolo.y ........................................................................................................... 3 #./ 0i.nificance of the study underta1en for the -ro,ect .............................................................. 3 #.2 Cha-teri3ation 0che e ........................................................................................................... 4 #.4 Conce-t of 5uardianshi........................................................................................................ 4 #.6 7owers 'f A 5uardian ............................................................................................................ 5 *. 5)A&("A$0H"7 )$(8& H"$() LA9 .................................................................................... 7 *.# $atural 5uardians ................................................................................................................... 7 2.1.1 Rights of guardian of person ........................................................................................... 8 *.* %esta entary 5uardians ......................................................................................................... 8 *.3 5uardians A--ointed By %he Court ....................................................................................... 9 2.3.1 Powers of Certificated Guardians ................................................................................ 10 *./ 5uardianshi- By Affinity...................................................................................................... 10 *.2 De facto 5uardian ................................................................................................................. 11 3. 5)A&("A$0H"7 )$(8& !)0L"! LA9 ............................................................................... 12 3.# $atural 5uardians ................................................................................................................. 12 3.* %esta entary 5uardian ......................................................................................................... 13 3.3 5uardian A--ointed By %he Court ....................................................................................... 14 /. 5)A&("A$0H"7 )$(8& '%H8& LA90 ............................................................................... 15 /.# 5uardianshi- )nder Christian Law ...................................................................................... 15 /.* 5uardianshi- )nder 7arsi Law
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............................................................................................. 16 2. C'$CL)0"'$ ................................................................................................................................. 18 &8F8&8$C80 ............................................................................................................................. ........ 21

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

1. 1.1 Role of Family La

INTRODUCTION

Fa ily law is the area of the law that deals with one of the

ost central and -ersonal as-ects

of society::the fa ily. "t deals with fa ily related issues and do estic relations includin.; the nature of arria.e, ci<il unions, and do estic -artnershi-s= arria.e, atters includin. di<orce, annul ent,

issues arisin. throu.hout

the ter ination of the relationshi- and ancillary

-ro-erty settle ents, ali ony, and -arental res-onsi+ility orders Fa ily law deals with what are hi.hly e otional issues o+,ecti<ely and le.ally. (es-ite the stren.th of e otion in<ol<ed in any fa ily law cases, ,ustice a1e life ust still +e ser<ed to each -arty. Fa ily laws .uide you in all sense and they of fa ily law is .reat as it hel-s in +onda.e ti.ht and unfailin.. 1.! O"#e$% a&' ()*(o+e of *i%i&, of %-e (*o#e$% inds of the -ro,ect tea . %he o+,ect uch si -ler. %he i -ortance

aintainin. the sanctity of relationshi- and 1ee-s the

%he -ur-ose of this -ro,ect is to clarify the to-ic in the

of writin. this -ro,ect is to .i<e a clear -icture of the 5uardianshi- under Hindu, !usli , Christian and 7arsi Laws. %his -ro,ect also see1s to -ro<ide their co -arati<e analysis. 1.. Re+ea*$- Me%-o'olo,y

"t is not a field +ased or e -irical research. %he secondary sources of data collection such as the +oo1s and <arious ,ournals ha<e +een used with the hel- of the access to the li+rary and the software. %he data+ase which is used in this -articular -ro,ect is fro +oo1s and articles fro the internet. the li+rary, 5oo.le

%he only li itation that we found out was that there could not +e done any e -irical study as the su+,ects were not fully aware of the -ro<isions and also it was difficult to -rocure data in such a way. 1./ Si,&ifi$a&$e of %-e +%)'y )&'e*%a0e& fo* %-e (*o#e$% inor. 9e ha<e also learnt

%he study has hel-ed us .row our 1nowled.e a+out <arious as-ects of Fa ily Law. "t ena+les us in understandin. the real necessity of .uardianshi- in case of a

a lot a+out 5uardianshi- under Hindu, !usli , Christian and 7arsi Laws, its o+,ecti<es and

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

-ro<isions under Fa ily Law. %heir co -arati<e analysis has also +een deri<ed durin. the co -letion of the -ro,ect. 1.1 C-a(%e*i2a%io& S$-eme ethodolo.y used, the si.nificance of the

Cha-ter one deals with introduction of the to-ic ex-lainin. role of Fa ily Law, o+,ect and -ur-ose of writin. of the -ro,ect, the research study underta1en for the -ro,ect, the cha-teri3ation sche e, conce-t of .uardianshi- and the -owers of a .uardian. Cha-ter two deals with 5uardianshi- under Hindu Law, cha-ter three deals with 5uardianshi- under !usli -ro,ect. 1.3 Co&$e(% of G)a*'ia&+-i( the natural inca-acities of infants and ana.e their own ind and so eti es other cate.ory of -ersons to Law and cha-ter four with .uardianshi- under other laws, i.e, under Christian Law and under 7arsi Law. Last cha-ter deals with conclusion of the

5uardianshi- is a conce-t or relationshi- arisin. fro -ersons of unsound

affairs.# A .uardian is a -erson who has the authority and the corres-ondin. duty to care for the -ersonal and -ro-erty interests of another -erson, called a ward. )sually, a -erson has the status of .uardian +ecause the ward is inca-a+le of carin. for his or her own interests due to infancy, inca-acity, or disa+ility. !ost countries and states ha<e laws that -ro<ide that the -arents of a inor child are the le.al .uardians of that child, and that the -arents can desi.nate who shall +eco e the child>s le.al .uardian in the e<ent of death. ?5uardian@ eans a -erson ha<in. the care of the -erson of a inor or of his -ro-erty, or of atri onial dis-utes, the issue ay +e a father ay not

+oth his -erson and -ro-erty.* A .uardian is usually a -erson who also has custody of the inor or a disa+led -erson. "n conflict situations such as in still +e .ranted custody +ut a .uardianshi- treats the other relatin. to custody co es to the fore when a natural .uardian who other to +e AentitledB to custody of a law .i<es the

ay +e allowed to retain the custody. %he Hindu law of ale child u- to the a.e of 2 inor other a ri.ht to custody of

and for a .irl child u- to 6 years. !usli +oy u- to the a.e of 6 and of a and the welfare consideration of the custody, irres-ecti<e of the a.e of the with the
# *

inor .irl u- to the a.e of -u+erty. %his rule is not inflexi+le inor ay allow the court to -ass orders relatin. to inor or the relationshi- of the -erson to +e a--ointed

inor. A

otherBs ri.ht to custody is in<aria+ly -ara ount. %he ri.ht to custody

Law Relating To Guardians And Wards R. Cha1ra+orty, 'rient 7u+lishin. Co., Allaha+ad, *CC6, --.2 %he 5uardians And 9ards Act, #DEC 0ec / (*)

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

could +e secured +y orders of court +efore a co -etent district court where the nor ally resides or in -endin. ,urisdiction.

inor

atri onial -roceedin.s +efore any other court of co -etent

Courts .enerally ha<e the -ower to a--oint a .uardian for an indi<idual in need of s-ecial -rotection. A .uardian with res-onsi+ility for +oth the -ersonal well:+ein. and the financial interests of the ward is a .eneral .uardian. A -erson ay also +e a--ointed as a s-ecial ay, for .uardian, ha<in. li ited -owers o<er the interests of the ward. A s-ecial .uardian

exa -le, +e .i<en the le.al ri.ht to deter ine the dis-osition of the ward>s -ro-erty without +ein. .i<en any authority o<er the ward>s -erson. A .uardian a--ointed to re-resent the interests of a -erson with res-ect to a sin.le action in liti.ation is a .uardian ad lite!. 0o e ,urisdictions allow a -arent of a child to exercise the authority of a le.al .uardian without a for al court a--oint ent. "n such circu stances the -arent actin. in that ca-acity is called the natural .uardian of that -arent>s child. %he -rinci-al enact ent that deals with a--oint ent, care, custody and ad inistration of -ro-erty of a ward who is a inor is 5uardian and 9ards Act. %he Hindu !inority and inor and law of inor. %he !usli 5uardianshi- Act deals with ri.hts of natural .uardians relatin. to custody of a also details the -owers of dealin. with the -ro-erty of a Hindu .uardianshi- is .o<erned +y custo . 1.4 Po e*+ Of A G)a*'ia& ay +e a--ointed for all or s-ecific -ur-oses. 3 5uardian su+stitutes the decision atters of residence, education and inorBs -ro-erty cannot +e sold, .ifted or encu +ered without the

A .uardian

a1in. of a child for its welfare. %he ri.ht is crucial in .eneral u-+rin.in.. A

-er ission of the court. "f it is done +y a natural .uardian, it will +e <oida+leF in<alid, +ut <oid if it is done +y a -erson other than a natural .uardian. %he difference is that in the latter situation the assertion +y challen.e to the alienation shall +e exercised throu.h a -ositi<e act +y resort to court or otherwise, within a certain -eriod fro while in the for er, the e +er includin. a the date of attainin. a,ority, inor could si -ly i.nore the transaction as not +indin.. A Garta in

a Hindu )ndi<ided Fa ily nor ally en,oys a lar.er ri.ht to deal with the -ro-erty of a ,unior inor, +ut the test of <alidity shall +e dri<en +y considerations of le.al

necessity or fa ily +enefit. Both situations will ha<e to +e esta+lished +y the -erson who
3

"ide Blac1sB Law (ictionary, 8i.hth 8dition, --. 6*2

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

wants to defend the transaction affectin. the

inorBs -ro-erty ri.hts. %he care and custody of

entally challen.ed -erson and -rotection of -ro-erty address si ilar considerations and the .uardian shall wield all -owers to effecti<ely ta1e all decisions relatin. to such a -erson re.ardin. residence, ty-e of edical treat ent, ana.in. -ro-erty, etc.

"n all ty-es of situations of conflict, the court is the ulti ate ar+iter relatin. to the affairs of the inor or a disa+led -erson due to ental illness or retardation. %he court will always +e inor, if in the o-inion of the court shall +e ay o<er run the latterBs .uided +y AwelfareB of the -erson and it is a flexi+le conce-t that the court will exa ine on a case to case +asis. %he +est interests of the different fro the su+stituted decision of the .uardian, the court

decision and declare and .uide what shall +e done. 8<en a co -ro ise in res-ect of a inorBs -ro-erty will +e <alid only after a sanction is .i<en +y the court. %he courtBs decisions relatin. to sanction to sell inorBs -ro-erty are crucial and so too, are the courtBs inor .irl who is -re.nant.

decision to retain or a+ort the foetus of a

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

!.

GUARDIANSHIP UNDER HINDU LAW

%he (har ashastras did not deal with the law of .uardianshi-. (urin. the British re.i e the law of .uardianshi- was de<elo-ed +y the courts. "t ca e to +e esta+lished that the father is the natural .uardian of the children and after his death, children and none else can +e the natural .uardian of other is the natural .uardian of the inor children. %esta entary .uardians

were also introduced in Hindu law; "t was also acce-ted that the su-re e .uardianshi- of the inor children <ested in the 0tate as -arens -atrie and was exercised +y the courts. / %he Hindu law of .uardianshi- of inor children has +een codified and refor ed +y the Hindu ay +e discussed under the followin. inors, and inors, (u) 5uardianshi- of the -ro-erty of !inority and 5uardianshi- Act, #E24. %he su+,ect heads ; (i) 5uardianshi- of -erson of (iii) De facto .uardians, and (i<) .uardians +y affinity. )nder the Hindu !inority and 5uardianshi- Act, #E24, 0. /(+), has not co -leted the a.e of ei.hteen years. A -hysically and intellectually i -erfect and i "n the odern law of inor eans a -erson who

inor is considered to +e a -erson who is ultifarious

ature and hence needs so eone>s -rotection. inor or of his -ro-erty or odern law .uardians exist

ost countries the childhood is accorded -rotection in ay +e e -hasi3ed that in the

ways. 5uardian is @a -erson ha<in. the care of the -erson of the +oth -erson and -ro-erty.@ "t

essentially for the -rotection and care of the child and to loo1 after its welfare. %his is ex-ressed +y sayin. that welfare of the child is -ara ount consideration. 9elfare includes +oth -hysical and oral well:+ein.. 5uardians ay +e of the followin. ty-es ; #. $atural .uardians, *. %esta entary .uardians, and 3. 5uardians a--ointed or declared +y the court. %here are two other ty-es of .uardians, existin. under Hindu law, De facto .uardians, and .uardians +y affinity. !.1 Na%)*al G)a*'ia&+ other and inor le.iti ate children, sons and

"n Hindu law only three -ersons are reco.ni3ed as natural .uardians father, hus+and, Father. ?Father is the natural .uardian of his +e de-ri<ed of the natural .uardianshi- of his

dau.hters.@ 0ection #E of the 5uardians and 9ards Act, #DEC, lays down that a father cannot inor children unless he has +een found unfit. %he effect of this -ro<ision has +een considera+ly whittled down +y ,udicial decisions and +y 0ection #3 of the Hindu !inority and 5uardianshi- Act which lays down that welfare of the inor is of -ara ount consideration and father>s ri.ht of .uardianshi- is su+ordinate to the
/

&etrie<ed fro htt-;FFwww.cris-:india.or.FlawsF46:.uardianshi-:under:hindu: usli :christian:and: -arsi: laws.ht l in ay *C##

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

welfare of the child. %he Act does not reco.ni3e the -rinci-le of ,oint .uardians. %he -osition of ado-ted children is at -ar with natural:+orn children. %he the of her other is the natural .uardian of inor ille.iti ate children e<en if the father is ali<e. Howe<er, she is the natural .uardian inor le.iti ate children only if the father is dead or otherwise is inca-a+le of actin. inor who has not co -leted the a.e of fi<e years shall ordinarily other is entitled to the custody of the child +elow fi<e years, inor reHuires otherwise.

as .uardian. 7ro<iso to clause (a) of 0ection 4, Hindu !inority and 5uardianshi- Act lays down that the custody of a +e with the other.2 %hus, unless the welfare of the

"n Gita #ariharan $. Reser$e %an& of 'ndia and "andana (hi$a $. )a*anta %andhopadha*a, the 0u-re e Court has held that under certain circu stances, e<en when the father is ali<e other can act as a natural .uardian. %he ter as >in a+sence of> instead >after the life:ti e>. : 2.1.1 Rights of guardian of person inor children; >after> used in 0ection 4(a) has +een inter-reted

%he natural .uardian has the followin. ri.hts in res-ect of (a) &i.ht to custody, . (+) &i.ht to deter ine the reli.ion of children, (c) &i.ht to education, (d) &i.ht to control o<e ent, and

(e) &i.ht to reasona+le chastise ent %hese ri.hts are conferred on the .uardians in the interest of the of each of these ri.hts is su+,ect to the welfare of the ha<e also the o+li.ation to !.! aintain their inor children. inor children and therefore

inor children. %he natural .uardians

Te+%ame&%a*y G)a*'ia&+

9hen durin. the British -eriod, testa entary -owers were conferred on Hindus, the testa entary .uardians also ca e into existence. "t was father>s -rero.ati<e to a--oint testa entary .uardians. By a--ointin. a testa entary .uardian the father could exclude the other fro
2

her natural .uardianshi- of the children after his death. )nder the Hindu

Law of Adoption +inorit* Guardianship , Custod* 7aras (iwan, )ni<ersal Law 7u+lishin. Co. 7<t Ltd., (elhi, *CCC, --.**2

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

!inority and 5uardianshi- Act, #E24, testa entary -ower of a--ointin. a .uardian has now +een conferred on +oth -arents.> %he father the natural .uardian. "f ay a--oint a testa entary .uardian +ut if other will +e other does other sur<i<es hi , his testa entary a--oint ent will +e ineffecti<e and the testa entary .uardian and father>s a--oint ent will continue to +e ineffecti<e. "f a--oint a .uardian. of his

other a--oints testa entary .uardian, her a--ointee will +eco e the

not a--oint, father>s a--ointee will +eco e the .uardian. "t see s that a Hindu father cannot inor ille.iti ate children e<en when he is entitled to act as their in res-ect of le.iti ate other natural .uardian, as 0. E(#) confers testa entary -ower on hi alone. )nder 0ection E, Hindu !inority and 5uardianshi- Act, testa entary .uardian can +e a--ointed only +y a will. %he .uardian of a -erson on her while a Acce-tance inor .irl will cease to +e the .uardian of her arria.e, and the .uardianshi- cannot re<i<e e<en if she +eco es a widow ay +e ex-ress or i -lied. A testa entary .uardian ay disclai ay refuse to acce-t the

children. "n res-ect of ille.iti ate children, 0ection E(/) confers such -ower on the

inor. "t is necessary for the testa entary .uardian to acce-t >the .uardianshi-. it, +ut once he acce-ts, he cannot refuse to act or resi.n exce-t

a--oint ent or

with the -er ission of the court. !.. G)a*'ia&+ A((oi&%e' 5y T-e Co)*%

%he courts are e -owered to a--oint .uardians under the 5uardians and 9ards Act, #DEC. %he Hi.h Courts also ha<e inherent ,urisdiction to a--oint .uardians +ut this -ower is exercised s-arin.ly. %he Hindu !inority and 5uardianshi- Act is su--le entary to and not in dero.ation to 5uardians and 9ards Act. )nder the 5uardians and 9ards Act, #DEC, the ,urisdiction is conferred on the (istrict Court; %he (istrict Court ay a--oint or declare any -erson as the .uardian whene<er it considers it necessary in the welfare of the child.> "n a--ointin. a .uardian, the court ta1es into consideration <arious factors, includin. the a.e, sex, wishes of the -arents and the -ersonal law of the child. %he welfare of the children is of -ara ount consideration. %he (istrict Court has the -ower to a--oint or declare a .uardian in res-ect of the -erson as well as se-arate -ro-erty of the inor. %he chartered Hi.h Courts ha<e inherent ,urisdiction inor children. %his -ower to a--oint .uardians of the: -erson as well as the -ro-erty of extends to the undi<ided interest of a co-arcener. %he .uardian a--ointed +y the court is 1nown as certificated .uardian.
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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

2.3.1

Powers of Certificated Guardians without the -rior -er ission of the court. "n the ay do

7owers of certificated .uardians are controlled +y the 5uardians and 9ards Act, #DEC. %here are a <ery few acts which he can -erfor ulti ate analysis his -owers are co:extensi<e with the -owers of the so<erei.n and he do. A certificated .uardian fro .uidance and control of the court. !./ G)a*'ia&+-i( 5y Affi&i%y inor widow. !ayne said that @the hus+and>s relation, if there inor widow in -reference to

all those thin.s (thou.h with the -er ission of the court) which the so<erei.n has -ower to the date of his a--oint ent is under the su-er<ision,

"n -re:#E24 Hindu law there existed a .uardian called .uardian +y affinity. %he .uardian +y affinity is the .uardian of a exists any, within the de.ree of sa-inda, are the .uardians of a

her father and his relations.@> %he ,udicial -ronounce ents ha<e also +een to the sa e effect. %he .uardianshi- +y affinity was ta1en to its lo.ical end +y the Hi.h Court in Paras Ra! $. (tate. "n this case the father:in:law of a other>s house and arried her for inor widow forci+ly too1 away the widow fro her oney to an unsuita+le -erson a.ainst her wishes. %he

Huestion +efore the court was whether the father:in:law was .uilty of re o<in. the .irl forci+ly. %he Allaha+ad Hi.h Court held that he was not, since he was the lawful .uardian of the widow. A Huestion has co e +efore our courts, whether the nearest sa-inda of the hus+and auto atically +eco es a .uardian of the whether he is inor widow on the death of her hus+and or see s to su+scri+e to the for er <iew, erely -referentially entitled to .uardianshi- and therefore he cannot act as

.uardian unless he is a--ointed as such. 7aras &a

and the !adras and the $a.-ur hi.h Courts to the latter <iew. )nder 0ection #3, Hindu !inority and 5uardianshi- Act, in the a--oint ent of >any -erson as .uardian, the welfare of the child is -ara ount consideration. %he fact that under Hindu law father:in:law has -referential ri.ht to +e a--ointed as .uardian is only a "t would +e a +etter law if the .uardianshi- of the atter of secondary consideration. inor wife, +oth of her -erson and uch of textual ay +e

-ro-erty, continues to <est in the -arents. 'ur fa ily law does not ha<e

.uidance or case law on the -owers of the .uardians +y affinity. 7ro+a+ly his -owers ta1en to +e at -ar with those of the natural .uardian.

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!.1

De facto G)a*'ia& inor>s ana.e ent and ad inistration of his -ro-erty without any authority of law.

A De facto .uardian is a -erson who ta1es continuous interest in the welfare of the -erson or in the

Hindu ,uris-rudence has all alon. reco.ni3ed the -rinci-le that if lia+ility is incurred +y one on +ehalf of another in a case where it is ,ustified, then the -erson, on whose +ehalf the lia+ility is incurred or, at least, his -ro-erty, is lia+le, notwithstandin. the fact that no authori3ation was %he ter ade for incurrin. the lia+ility.> entioned in any of the texts, +ut his existence

>De facto .uardian> as such is not

has ne<er +een denied in Hindu law. "n (rira!ulu, Ganta4 said that Hindu law tried to find a solution out of two difficult situations; one, when a Hindu child has no le.al .uardian, there would +e no one who would handle and ana.e his estate in law and thus without a .uardian the child would not recei<e any inco e for his -ro-erty and secondly, a -erson ha<in. no title could not +e -er itted to inter eddle with the child>s estate so as to cause loss to hi . %he Hindu law found a solution to this -ro+le .uardians. A ere inter eddler is not a De facto .uardian. An isolated or fu.iti<e act of a -erson in a1e hi a De facto .uardian. %o a1e a -erson a De +y accordin. le.al status to De facto

re.ard to child>s -ro-erty does not

facto .uardian so e continuous course of conduct is necessary on his -art. "n other words, a De facto .uardian is a -erson who is not a le.al .uardian, who has no authority in law to act as such +ut nonetheless he hi self has assu ed, the -resent status. %he ter literally eans >fro ana.e ent of the -ro-erty of the child as thou.h he were a .uardian. De facto .uardianshi- is a conce-t where -ast acts result in that which has +een done.>

%he De facto .uardian was reco.nised in Hindu law as early as #D24. %he 7ri<y Council in #anu!an Pd.6 said that >under Hindu law, the ri.ht of a +ona fide incu +rancer, who has ta1en a De facto .uardian a char.e of land, created honestly, for the -ur-ose of sa<in. the estate, or for the +enefit of the estate, is not affected +y the want of union of the De facto with the de ,ure title.

4 6

8thilulu < 7atha1al, A"& #E2C !ad 3EC= Gusic+ai : <. Chandra+tut.a, A"& #E#D $a. #CC (#D24) 4 !"A 3E3.

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..

GUARDIANSHIP UNDER MUSLIM LAW law e -hatically s-ea1 of ere

%he source of law of .uardianshi- and custody are certain <erses in the -oran and a few ahadis. %he -oran, the De facto and other authorities on !usli the .uardianshi- of the -ro-erty of the inor, the .uardianshi- of the -erson is a

inference. 9e would discuss the law of .uardianshi- of custody as under; (a) 5uardianshi-, (+) Custody, and (c) De facto .uardian. "n !usli law .uardians fall under the followin. three cate.ories ;

(i) $atural .uardians, (ii) %esta entary .uardians, and (iii) 5uardians a--ointed +y the court. ..1 ter Na%)*al G)a*'ia&+ in the context is eHui<alent to natural .uardian and the other in all schools of !usli other, or any other fe ale, is o<e ent. 0o lon. as the father is

"n all schools of +oth the 0unnis and the 0hias, the father is reco.ni3ed as .uardian which law is not reco.ni3ed as a .uardian, natural or otherwise, e<en after the death of the father. %he father>s ri.ht of .uardianshi- exists e<en when the entitled to the custody of the reli.ion of inor children, and their u-+rin.in. and their inor. %he father has the ri.ht to control the education and inor children.D inor le.iti ate children. He is not law, the

ali<e, he is the sole and su-re e .uardian of his

%he father>s ri.ht of .uardianshi- extends only o<er his entitled to .uardianshi- or to custody of his other is not a natural .uardian e<en of her their custody.#C

inor ille.iti ate children.E "n !usli

inor ille.iti ate children, +ut she is entitled to

A on. the 0unnis, the father is the only natural .uardian of the

inor children. After the

death of the father, the .uardianshi- -asses on to the executor. A on. the 0hias, after the

D E #C5ohar

" a +andi <. !utsaddi, (#E#D) /2 Cal DD6. Be.u < 0u..i, (#E4C) # 0C& 2E6 .a!il* Law Lectures .a!il* Law '' Gusu , Lexis$exis Butterworths 9adhwa, $a.-ur, *C#C, --. 3C2

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

father, the .uardianshi- +elon.s to the .randfather, e<en if the father has a--ointed an executor, the executor of the father +eco es the .uardian only in the a+sence of the .randfather. $o other -erson can +e natural .uardian, not e<en the +rother. "n the a+sence of the .randfather, the .uardianshi- +elon.s to the .randfather>s executor, if any.> ..! Te+%ame&%a*y G)a*'ia& a1in. a testa entary a--oint ent of

A on. the 0unnis, the father has full -ower of

.uardian. "n the a+sence of the father and his executor, the .randfather has the -ower of a--ointin. a testa entary .uardian. A on. the 0hias, the father>s a--oint ent of testa entary .uardian is <alid only if the .randfather is not ali<e. %he .randfather, too, has the -ower of a--ointin. a :testa entary .uardian. $o other -erson has any such -ower. A on. +oth the 0hias and the 0unnis, the other has no -ower of a--ointin. a testa entary other can a--oint a inor children ;.first, when she has +een .uardian of her children. "t is only in two cases in which the testa entary .uardian of her -ro-erty of her

a--ointed a .eneral executrix +y the will of the child>s father, she can a--oint an executor +y her will= and secondly, she can a--oint an executor in res-ect of her own -ro-erty. which will de<ol<e after her death on her children. %he other can +e a--ointed a testa entary .uardian or executrix +y the father, or +y the other as testa entary .uardian is <alid, +ut a on. the 0hias such an cannot +e a .uardian of the inor.## "t see s that the a--oint ent of non:!usli ay +e set aside +y the -a/i. Accordin. to the inor. %he 0hias also ta1e the sa e <iew. is disHualified,

.randfather, whene<er he can exercise this -ower. A on. the 0unnis, the a--oint ent of a non:!usli a--oint ent is not <alid, as they hold the <iew that a non:!usli -erson as well as of the -ro-erty of a fellow:su+,ect (iiin!i) is <alid, thou.h it -ro-erty of the

+ali&is and the (hafii law, a /i!!i can +e a <alidly a--ointed testa entary .uardian of the inor, +ut not of the -erson of :the "t a--ears that when two -ersons are a--ointed as .uardians, and one of the notoriously +ad character, cannot +e a--ointed as .uardian; Acce-tance of the a--oint ent of testa entary .uardianshi- is necessary, thou.h acce-tance ay +e ex-ress or i -lied. But once the .uardianshi- is acce-ted, it cannot +e renounced sa<e with the -er ission of the court.

the other can act as .uardian. A -rofli.ate, i.e., a -erson who +ears in -u+lic wal1 of life a

##

.a!il* Law 7aras (iwan, Allaha+ad Law A.ency, Farida+ad, *CC6, --. *E3

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

!usli

law does not lay down any s-ecific for alities for the a--oint ent of testa entary ay +e ade in writin. or orally. "n e<ery case the intention to ust +e clear and uneHui<ocal. A testa entary de-osition ay +e .eneral or a1e the will at the ti e when it was ind, i.e., at the ti e of

.uardians. A--oint ent ade +y a testator executed. %his

a--oint a testa entary .uardian -articular. %he testator

ay +e in<alid, +ut a--oint ent of the executor ust ha<e the ca-acity to a,or and of sound

eans that the testator should +e

execution of the will, he should +e in full -ossession of his senses. %he executor of the testa entary .uardian is desi.nated <ariously +y !usli indicatin. his -osition and -owers. He is co testator.#* ... G)a*'ia& A((oi&%e' 5y T-e Co)*% inor. $ow the atter is .o<erned law.i<ers,

only called wali or .uardian. He is also called

A!in, i.e., a trustee. He is also ter ed as 1ai : u1a , i.e., -ersonal re-resentati<e of the

'n the failure of the natural .uardians and testa entary .uardians, the -a/i was entrusted with the -ower of a--oint ent of .uardian of a !usli all inors +elon.in. to any co +y the 5uardians and 9ards Act, #DEC. %his Act a--lies to the a--oint ent of .uardians of unity. %he Hi.h Courts also ha<e inherent -owers of a--oint ent of .uardians, thou.h the -ower is exercised <ery s-arin.ly. )nder the 5uardians and 9ards Act, #DEC, the -ower of a--ointin., or declarin. any -erson as .uardian is conferred on the (istrict Court. %he (istrict Court -erson as .uardian of a necessary for the welfare of the ay a--oint or declare any inor child>s -erson as well as -ro-erty whene<er it considers it inor, ta1in. into consideration the a.e, sex, wishes of the inor.

child as well >as the wishes of the -arents and the -ersonal law of the

#*

&etrie<ed fro

www.e+oo1toyou.netFe+oo1Fhindu:la w:+y:-aras:diwan:-df.-h- in !ay *C##

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

/. /.1

GUARDIANSHIP UNDER OTHER LAWS

G)a*'ia&+-i( U&'e* C-*i+%ia& La also, ay +e resorted

%he 5uardians and 9ards Act, #DEC, which resides in the secular real to. %he rele<ant -ro<isions are re-roduced herein; : Accordin. to section #6 of the a+o<e:said Act, the .uardian of a

atters of the case should +e considered

+y the court in a--ointin. .uardian. %he section reads, ? (#) "n a--ointin. or declarin. the inor, the Court shall, su+,ect to the -ro<isions of this section, +e .uided +y inor is su+,ect, a--ears in the circu stances to inor. inor, the Court shall ha<e re.ard to the what, consistently with the law to which the +e for the welfare of the

(*) "n considerin. what will +e the welfare of the a.e, sex and reli.ion of the his nearness of 1in to the

inor, the character and ca-acity of the -ro-osed .uardian and inor, the wishes, if any, of the deceased -arent, and any existin. inor or his -ro-erty. ay consider that

or -re<ious relations of the -ro-osed .uardian with the (3) "f the inor is old enou.h to for

an intelli.ent -reference, the Court

-reference.I 0ection #E, which -rohi+its the Court fro a--ointin. .uardians in certain cases, reads;

0.#E. 5uardians not to +e a--ointed +y the Court in certain cases;:$othin. in this Cha-ter shall authori3e the Court to a--oint or declare a .uardian of the -ro-erty of a of the -erson: (a) 'f a inor who is a arried fe ale and whose hus+and is not, in the o-inion of the Court, inor, whose -ro-erty is under the su-erintendence of a Court of 9ards, or to a--oint or declare a .uardian

unfit to +e .uardian of her -erson. or (+) 'f a inor whose father is li<in. and is not, in the o-inion of the Court, unfit to +e inor, or

.uardian of the -erson of the (c) 'f a

inor whose -ro-erty is under the su-erintendence of a Court of 9ards co -etent to inor.@

a--oint a .uardian of the -erson of the

0.*/. (uties of .uardian of the -erson. :A .uardian of the -erson of a ward is char.ed with the custody of the ward and ust loo1 to his su--ort, health and education, and such other

atters as the law to which the ward is su+,ect reHuires.

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

0.*2. %itle of .uardian to custody of ward; (#) "f a ward lea<es or is re o<ed fro .uardian, ay the custody of a .uardian of his -erson, the Court, if ay

it is of o-inion that it will +e for the welfare of the ward to return to the custody of his a1e an order for his return, and for the -ur-ose of enforcin. the order cause the ward to +e arrested and to +e deli<ered into the custody of the .uardian. (*) For the -ur-ose of arrestin. the ward, the Court ay exercise the -ower conferred on a

!a.istrate of the first class +y 0ection #CC of the Code of Cri inal 7rocedure, #DD*. (3) %he residence of a ward a.ainst the will of his .uardian with a -erson who is not his .uardian does not of itself ter inate the .uardianshi-.@ "n %hrity Hoshie (oli1u1a <. Hoshia of law in relation to the custody of a any atter concernin. a of the welfare and interest of the inor and to -rotect the 0ha<a1sha (oli1u1a#3, the Court held the -rinci-les inor a--ear to +e well esta+lished. "t is well settled that the -oint of <iew inor, the inor, inor, "n dealin. with a atter concernin. a

inor, has to +e considered and decided only fro

Court has a s-ecial res-onsi+ility and it is the duty of the Court to consider the welfare of the inor>s interest. "n considerin. the Huestion of custody of a inor.#/ the Court has to +e .uided +y the only consideration of the welfare of the

"t is, howe<er, noteworthy that under "ndian (i<orce Act the sons of "ndian fathers cease to +e inors on attainin. the a.e of #4 years and their dau.hters cease to +e inors on attainin. the a.e of #3 years; 0. 3 (2). %he Court under the (i<orce Act would thus +e inco -etent now to a1e any order under 0s. /# and /* with res-ect to the elder son and the dau.hter in the -resent case. Accordin. to the res-ondent:hus+and under these circu stances he cannot a--roach the Court unless, the (i<orce Act for relief with res-ect to the custody of these children and now that these children ha<e ceased to +e ri.ht to in<o1e 0. *2 of the 5uardians and 9ards Act.I /.! G)a*'ia&+-i( )&'e* Pa*+i La a on.st a few nu erically insi.nificant cate.ories of -ersons. 0ince atter of -ersonal law. !usli s, inors under that Act, the orders ade +y that Court ha<e also lost their <itality. 'n this reasonin. the hus+and clai ed the

Althou.h there is no .eneral law of .uardianshi-, yet it is -er itted +y a statute a on.st Hindus and +y custo ado-tion is le.al affiliation of a child, it for s the su+,ect
#3 #/

A"& #ED* 0)7&8!8 C')&% #*64 &etrie<ed fro htt-;FFen.wi1i-edia.or.Fwi1iFChristianJLawJofJ5uardianshi-JinJ"ndia in !ay *C##

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

Christians and 7arsis ha<e no ado-tion laws and ha<e to a--roach court under the 5uardians and 9ards Act, #DEC. !usli s, Christians and 7arsis can ta1e a child under the said Act only under foster care. 'nce a child under foster care +eco es a,or, he is free to +rea1 away all his connections. Besides, such a child does not ha<e le.al ri.ht of inheritance. Forei.ners, who want to ado-t "ndian children ha<e to a--roach the court under the aforesaid Act #2. "n case the court has .i<en -er ission for the child to +e ta1en out of the country, ado-tion accordin. to a forei.n law, i.e., law a--lica+le to .uardian ta1es -lace outside the country.

#2

&etrie<ed fro

htt-;FFwww.le.alser<iceindia.co Fhel-lineFhel-lineJH'!8.ht

in !ay *C##

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

1. CONCLUSION 5uardian eans the -erson, who is ha<in. the care of the -erson of a inor or his -ro-erty or +oth -erson and -ro-erty. A father is the Anatural .uardianB of the and in the a+sence of the father, the +eco es the natural .uardian of a inor .irl on arria.e and the inor or an un arried .irl other alone shall act as

other shall +e the natural .uardian. %he hus+and other is not a natural .uardian. A inor or

such if the child is ille.iti ate. A ste- father or ste-

.uardian could +e so na ed throu.h a will, who will +e called the testa entary .uardian. "n situations when a court a--oints a -erson to ta1e care of -erson or -ro-erty of a conduct liti.ation on +ehalf of the the -rotection of .uardian. A-art fro who due to inor a inor, he or she will +e a court .uardian. A court reHuirin. .uardian ay +e a--ointed, in conditions of -ersons ay +e a--ointed +y inor or a entally challen.ed -erson or

ay a--oint or declare e<en a -erson other than a -arent as a inor to who

ental illness cannot ta1e care of the sel<es, .uardians

courts. A welfare institution which has custody of a

an a+andoned child could also +e a .uardian or +e a--ointed as .uardian. "n inter:country ado-tion cases, e<en a forei.n national see1in. ado-tion ay +elon.. %he -eo-le of "ndia +elon. to different reli.ions and faiths. %hey are .o<erned +y different sets of -ersonal laws in res-ect of atters relatin. to fa ily affairs, i.e., arria.e, di<orce, inor child, as Law and the succession, .uardianshi- etc. "n dealin. with the Huestion of .uardianshi- of a in other s-heres of fa ily law, there is no unifor .uardian law. Hindu Law, !usli ay +e a--ointed as a .uardian initially with directions to ado-t as -er the law of the country to which the forei.n national

5uardians and 9ards Act, #DEC are three distinct le.al syste s which are -re<alent. A ay +e a natural .uardian, testa entary .uardian or a .uardian a--ointed +y the inor and his -ro-erty. 'ften the sa e -erson is not entrusted with court. "n decidin. the Huestion of .uardianshi- two distinct thin.s ha<e to +e ta1en into account:-erson of the +oth. %he Hindu !inority and 5uardianshi- Act, #E24 has codified laws of Hindus relatin. to inority and .uardianshi-. As in the case of uncodified law, it has u-held the su-erior ri.ht of father. "t lays down that a child is a inor till the a.e of #D years. $atural .uardian for other. 7rior ri.ht of other is +oth +oys and un arried .irls is first the father and then the other has a +etter clai -erson of the than the -utati<e father. %he act

reco.nised only for the custody of children +elow fi<e. "n case of ille.iti ate children, the a1es no distinction +etween the

inor and his -ro-erty and therefore .uardianshi- i -lies control o<er +oth.
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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

)nder Hindu !inority and 5uardianshi- Act, #E24 the first natural .uardian of a Hindu inor +oy and un arried inor .irl is their father. After father the other is the natural other. .uardian. But 0.C. has now held that father and other +oth are natural .uardians of a Hindu

inor. "t is not necessary that first father should +e natural .uardian and then )nder the !usli Law, the father en,oys a do inant -osition. "t also

a1es a distinction

+etween .uardianshi- and custody. For .uardianshi-, which has usually reference to .uardianshi- of -ro-erty, accordin. to 0unnis, the father is -referred and in his a+sence his executor. "f not executor has +een a--ointed +y the father, the .uardianshi- -asses on to the -aternal .randfather to ta1e o<er res-onsi+ility and not that of the executor. Both schools, howe<er, a.ree that father while ali<e is the sole .uardian. !other is not reco.nised as a natural .uardian e<en after the death of the father. As re.ards ri.hts of a natural .uardian, there is no dou+t that father>s ri.ht extends +oth to -ro-erty and -erson. 8<en when .uardian. %hus, thou.h other other has the custody of inor child, father>s .eneral ri.ht other as a testa entary of su-er<ision and control re ains. Father can, howe<er, a--oint o+,ection to her +ein. a--ointed under the father>s will. )nder !usli Law a other has a ri.ht o<er the custody of children and .uardianshi- u- to inor. Beyond that a.e she has no ri.ht o<er the custody and inor. "t reco.nises that other>s ri.ht to custody of inor children

ay not +e reco.nised as natural .uardian, there is no

a certain a.e of the .uardianshi- of the

(Hi3anat) is an a+solute ri.ht. 8<en the father cannot de-ri<e her of it. !isconduct is the only condition which can de-ri<e the other of this ri.ht. As re.ards the a.e at which the ri.ht of other>s ri.ht to the Hi3anat is only other to custody ter inates, the 0hia school holds that Hanafi school extends the -eriod till the .irls, 0hia law u-holds till she attains -u+erty. %he -ersonal laws of the Christians and 7arsis do not ha<e any -ro<isions on father acts as a natural .uardian of the inority and

durin. the -eriod of rearin. which ends when the child co -letes the a.e of two, whereas inor son has reached the a.e of se<en. "n case of other>s ri.ht till the .irl reaches the a.e of se<en and Hanafi school

.uardianshi-. %here is no se-arate enact ent on the su+,ect either. "t is -resu ed that the inor children and their -ro-erty. After hi , the other is -resu ed to act as a natural .uardian. 0ection 4C of the "ndian 0uccession Act #E*2, which is a--lica+le to Christians and 7arsis -ro<ides for the a--oint ent of
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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

testa entary .uardian of

inor children +y the father. "t does not say anythin. a+out the other.

a--oint ent of testa entary .uardian +y the

%he .eneral law relatin. to .uardians and wards is contained in the 5uardians and 9ards Act, #DEC. "t clearly lays down that father>s ri.ht is -ri ary and no other -erson can +e a--ointed unless the father is found unfit. %his Act also -ro<ides that the court consideration the welfare of the child while a--ointin. a .uardian under the Act. ust ta1e into

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COMPARATIVE ANALYSIS OF GUARDIANSHIP LAWS IN INDIA

REFERENCES 5oo0 *efe*e&$e+6 Cha1ra+orty &., Law Relating To Guardians And Wards, 'rient 7u+lishin. Co., Allaha+ad, *CC6 (iwan 7aras, Law of Adoption +inorit* Guardianship , Custod*, )ni<ersal Law 7u+lishin. Co. 7<t Ltd., (elhi, *CCC (iwan 7aras, .a!il* Law Allaha+ad Law A.ency, Farida+ad, *CC6 Gusu , .a!il* Law Lectures .a!il* Law '', Lexis$exis Butterworths 9adhwa, $a.-ur, *C#C I&%e*&e% So)*$e+6 htt-;FFwww.e+oo1toyou.net htt-;FFen.wi1i-edia.or. htt-;FFwww.le.alser<iceindia.co htt-;FFwww.cris-:india.or. O%-e* So)*$e+6 %he 5uardians And 9ards Act, #DEC "ide Blac1sB Law (ictionary, 8i.hth 8dition Ca+e+6 Thrit* #oshie Doli&u&a $. #oshia! (ha$a&sha Doli&u&a A"& #ED* 0)7&8!8 C')&% #*64 0thilulu <. Patha&al, A"& #E2C !ad 3EC= -usic1ai 2 <. Chandra1tutga, A"& #E#D $a. #CC '!a!1andi <. +utsaddi, (#E#D) /2 Cal DD6. Gohar %egu! <. (uggi, (#E4C) # 0C& 2E6

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