A

STUDY REPORT

ON

“Guardianship Law in India and Rights Of Guardian”

IN PARTIAL FULFILLMENT OF THE REQUIREMENT

PRESCRIBED FOR

B.A. LLB (HONS.) SEMESTER-V

Submitted To: Submitted By;

Dr. Maryam Ishrat Beg Name: Shubham Agarwal

Associate Professor Registration No. : 161401099

MANIPAL UNIVERSITY, JAIPUR

(Dehmi Kalan, Jaipur-Ajmer Highway, Jaipur-303007)

2018

1
 ACKNOWLEDGEMENT

I hereby acknowledge the help and support of the teachers, who helped me in compiling this
project. I thank the faculty and management of Manipal University Jaipur, School of Law, as
the resources that were necessary to complete the project were provided by them.
I am highly indebted to my teacher “Dr. Maryam Ishrat Beg” for her guidance and constant
supervision as well as for providing necessary knowledge regarding the subject at hand and
also for his support in completing the project.
I would like to express my gratitude towards my parents and friends for their kind cooperation
and encouragement which help me in completion of this project.

_______________
Shubham Agarwal

CERTIFICATE

2
This is to certify that Mr. Shubham Agarwal, student of B.A. LL.B. (hons.) semester V, School
of Law Manipal University Jaipur has completed his project work entitled “Guardianship

Law in India and Rights Of Guardian” under my supervision and guidance.

It is further certified that the candidate has made sincere efforts for the completion of this pro-
ject.

_______________
Dr. Maryam Ishrat Beg

INTRODUCTION ....................................................................................................................................... 5
Best Interest of the Child/Welfare of the Child Standard....................................................................... 5
Shared Parentage vs. Sole Custody Arrangements ................................................................................ 6

3
Legal Framework Governing Custody and Guardianship in India ........................................................... 7
i. Guardians and Wards Act (GWA), 1890 ............................................................................................ 7
ii. Hindu Minority and Guardianship Act, 1956 ...................................................................................... 8
iii. Hindu Marriage Act, 1955 ................................................................................................................. 9
Duties, rights and liabilities of a guardian under hindu law .................................................................10
Guardian of the Person .........................................................................................................................11
Guardian of Property ............................................................................................................................11
Conclusion .............................................................................................................................................14
Webliography ........................................................................................................................................16

4
 INTRODUCTION

“The law is dynamic and is expected to diligently keep pace with time and the legal conun-
drums and enigmas it presents.”1

The law governing custody of children is closely linked with that of guardianship. Guardian-
ship refers to a bundle of rights and powers that an adult has in relation to the person and
property of a minor, while custody is a narrower concept relating to the upbringing and day-
to-day care and control of the minor. The term ‗custody‘ is not defined in any Indian family
law, whether secular or religious. The term ‗guardian‘ is defined by the Guardians and Wards
Act, 1890 (hereinafter, GWA) as a ―”person having the care of the person of a minor or of his
property or of both his person and property.”2 Another term used by the law is ‗natural
guardian,‘ who is the person legally presumed to be the guardian of a minor and who is pre-
sumed to be authorized to take all decisions on behalf of the minor. The legal difference be-
tween custody and guardianship (or natural guardianship) can be illustrated by the following
example: under some religious personal laws, for very young children, the mother is preferred
to be the custodian, but the father always remains the natural guardian. The face of child cus-
tody arrangements is changing. Numerous countries across the globe have adopted a preference
for shared parentage systems over sole custody arrangements for child custody disputes post-
divorce.3 This trend has arisen largely in a response to changing familial roles (male care takers
taking on more child rearing responsibilities) as well psychological studies revealing that the
involvement of both parents in child rearing is preferable to sole custody arrangements.4 How-
ever, such preferences for shared custody are often balanced with the “best interest of the child
standard”.

The “best interest of the child” standard is increasingly utilized as the tool to evaluate child
custody arrangements in many nations, particularly those who are signatories to the Convention
on the Rights of the Child.5 It requires family courts to consider the well-being of the child as
paramount.6 Over the years, the nonnegotiable principle on the basis of which cases of custody
of children are decided is that of the ‘best interest and welfare of the child’ which attempts to
enable each child to survive and reach his or her full potential.7

BEST INTEREST OF THE CHILD/WELFARE OF THE CHILD

STANDARD
The best interest of the child standard is utilized in a number of countries across the globe.
According to the Convention on the Rights of the Child, “in all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of law, administra-

1
ABC v. The State (NCT of Delhi) [Arising out of SLP (Civil) No. 28367 of 2011], Para.19
2
Guardian and Wards Act, No. 8 of 1890] S. 4(2),
3
Australia, Family Law Amendment (Shared Parental Responsibility) Act, Section 61 DA (2005); Netherlands,
Civil Code, Article 247 (2009)
4
Glover, R. & Steel, C., Comparing the Effects on the Child of Post-Divorce Parenting Arrangements, Journal of
Divorce, Vol. 12 No. 2-3 (1989)
5
Convention on the Rights of the Child, Art. 3, (1989)
6
Ibid
7
Principle 4, Rule 3, Juvenile Justice (Care and Protection of Children) Rules, 2007.

5
tive authorities or legislative bodies, the best interests of the child shall be a primary consider-
ation‖.”8 The Convention goes on to state that a child should be separated from his or her par-
ents if there is “abuse or neglect of the child by the parents”.9 According to the United Nations
Human Rights Commission, the ―best interests of the child‖ is a proxy for the ―well-being
of a child‖ based on a variety of circumstances laid out by the Convention.10 Welfare, as a
decision criterion, is generally flexible, adaptable and reflective of contemporary attitudes re-
garding family within society.11 However, there are two main criticisms of the best interest of
the child standard. First, it is unpredictable and information intensive. Parents who are divorc-
ing are thus left guessing in regard to how the court will handle their child custody dispute; this
can lead to unnecessary pre-court bargaining that may indeed be harmful to both child and
parents.12 This could be resolved by a more predictable rule based standard. However, a rule
based standard is likely to be rigid and not consider the individual circumstances of each case.13
Second, the best interest of the child standard primarily focuses on the predicaments of the
child rather than including the feelings and intentions of the parents. The parents are also actors
within the family.14

Shared Parentage vs. Sole Custody Arrangements

The literature on shared parentage appears to indicate that shared parentage arrangements
fare better for the child concerned than sole custody arrangements (assuming no harmful ef-
fects from one or both of the parents as well as in keeping with the best interests of the child
standard). In a 1989 study of “intact families”, shared parentage agreements and sole custody
arrangements, children in shared parentage families fared better in regard to family relation-
ships and self-understanding.15 Similarly, a study in 1991 found that children in shared/joint
custody families had lower incidents of misbehaviour than children in single maternal cus-
tody families.16 In a 1996 study, researchers found that children in shared parenting arrange-
ments had higher grades, more school efforts and decreased prevalence of depression in com-
parison to sole custody families.17 More recently, a study on the adjustment of children in
joint-custody versus sole-custody arrangements found that children in joint physical or legal
custody were better adjusted than children in sole custody arrangements.18
On the other hand, several studies have shown competing information with regard to
whether children (and families) fare better in sole or joint custody homes.19 First, the concept
of a presumption for either sole or joint custody is inimical to the best interests of the child
standard. Such presumptions ignore the fact that the best interest standard is conceived of as a

8
Convention on the Rights of the Child, Art. 3, (1989)
9
Ibid at Art. 9
10
UNHCR, UNHCR Guidelines on Determining the Best Interests of the Child, (2008).
11
Gilmore, Stephen, Great Debates: Family Law, Palgrave Macmillian, (2014) pp. 76-83
12
Ibid
13
Ibid
14
Ibid
15
Glover, R. & Steel, C., Comparing the Effects on the Child of Post-Divorce Parenting Arrangements, Journal
of Divorce, Vol. 12 No. 2-3 (1989)
16
Rockwell-Evans and Kim Evonne, Parental and Children‘s Experiences and Adjustment in Maternal Versus
Joint Custody Families, Doctoral Dissertation, North Texas State University (1991)
17
Buchannan, M. & Dornbusch, Adolescents After Divorce, Harvard University Press (1996)
18
Bauserman, R., Child Adjustment in Joint-Custody Versus Sole-Custody Arrangements: A Meta-Analytic Re-
view, Journal of Family Psychology, Vol. 16, No. 1, (2002), pp. 91-102
19
Julie Poehlmann, ―Representations of Attachment Relationships in Children of Incarcerated Mothers,‖ Child
Development 76, no. 3 (May/June 2005): 679-696

6
case by case application, not a categorical assumption for either such arrangement.20 Second,
the child‘s interest may be further supplanted by laws requiring a presumption for joint cus-
tody.21 Parents may engage in bargaining and agreeing to a poor joint custody arrangement
for fear that they would lose in court against a single parent pushing for joint custody. This
may be particularly detrimental in the case of battered women who may feel pressured into
bargaining into a joint custody arrangement due to the mental repercussions of such violence
at the hands of the other parent.22

LEGAL FRAMEWORK GOVERNING CUSTODY AND

GUARDIANSHIP IN INDIA

i. Guardians and Wards Act (GWA), 1890

The GWA is a secular law regulating questions of guardianship and custody for all children
within the territory of India, irrespective of their religion. It authorizes District Courts to ap-
point guardians of the person or property of a minor, when the natural guardian as per the
minor‘s personal law or the testamentary guardian appointed under a Will fails to discharge
his/her duties towards the minor. The Act is a complete Code laying down the rights and obli-
gations of the guardians, procedure for their removal and replacement, and remedies for mis-
conduct by them. It is an umbrella legislation that supplements the personal laws governing
guardianship issues under every religion.23 Even if the substantive law applied to a certain case
is the personal law of the parties, the procedural law applicable is what is laid down in the
GWA.24 Section 7 of the GWA authorizes the court to appoint a guardian for the person or
property or both of a minor, if it is satisfied that it is necessary for the ‘welfare of the minor.’25
Section 17 lays down factors to be considered by the court when appointing guardians.26 Sec-
tion 17(1) states that courts shall be guided by what the personal law of the minor provides and
what, in the circumstances of the case, appears to be for the ‘welfare of the minor’.27 Section
17(2) clarifies that while determining what constitutes the welfare of the minor, courts shall
consider the age, sex and religion of the minor; the character and capacity of the proposed
guardian and how closely related the proposed guardian is to the minor; the wishes, if any, of
the deceased parents; and any existing or previous relation of the proposed guardian with the

20
―In the end, as in every child custody decision, it is the welfare of the children which governs and each case
will trun on tis individual facts and circumstances‖, Dodd vs. Dodd, 93 Misc. 2d 641, 403 N.Y.S. 2d 401, 402
(1978)
21
Schulman, J. & Pitt, V., Second Thoughts on Child Custody: Analysis of Legislation and Its Implications for
Women and Children, 12 Golden Gate U.L.Rev. 556 (1982)
22
Ibid
23
Section 2 of the HMGA states that its provisions are ‗supplemental‘ to and ‗not in derogation‘ of the GWA
24
Guardian and Wards Act, No. 8 of 1890, S.6 (“In the case of a minor, nothing in this Act shall be construed to
take away or derogate from any power to appoint a guardian of his person or property or both, which is valid by
the law to which the minor is subject.”).
25
Guardian and Wards Act, No. 8 of 1890, S. 7
26
Guardians and Wards Act, No. 8 of 1890, S.17
27
Guardian and Wards Act, No. 8 of 1890, S. 17(1)

7
person or property of the minor.28 Section 17(3) states that if the minor is old enough to form
an intelligent opinion, the court ‘may’ consider his/her preference.29 Section 19 of the GWA
deals with cases where the court may not appoint a guardian.30 Section 19(b) states that a court
is not authorized to appoint a guardian to the person of a minor whose father or mother is alive,
and who, in the opinion of the court, is not unfit to be a guardian.31 The earlier Section 19(b)
prevented the court from appointing a guardian in case the father of the minor was alive. This
clause was amended by the Personal Laws (Amendment) Act, 2010 and was made applicable
to cases where even the mother was alive, thus removing the preferential position of the fa-
ther.32 Section 25 of the GWA deals with the authority of the guardian over the custody of the
ward.33 Section 25(1) states that if a ward leaves or is removed from the custody of the guard-
ian, the court can issue an order for the ward‘s return, if it is of the opinion that it is for the
‘welfare of the ward’ to be returned to the custody of the guardian.34

Reading the above provisions together, it can be concluded that, in appointing a guardian to
the person or property of a minor under the GWA, courts are to be guided by concern for the
welfare of the minor/ward. This is evident from the language of Sections 7 and 17. At the same
time, the implication of Section 19(b) is that unless the court finds the father or mother to be
particularly unfit to be a guardian, it cannot exercise its authority to appoint anyone else as the
guardian. Thus, power of the court to act in furtherance of the welfare of the minor must defer
to the authority of the parent to act as the guardian.

ii. Hindu Minority and Guardianship Act, 1956

Classical Hindu law did not contain principles dealing with guardianship and custody of chil-
dren. In the Joint Hindu Family, the Karta was responsible for the overall control of all depend-
ents and management of their property, and therefore specific legal rules dealing with guardi-
anship and custody were not thought to be necessary.35 However, in modern statutory Hindu
law, the Hindu Minority and Guardianship Act, 1956 (hereinafter, HMGA) provides that the
father is the natural guardian of a minor, and after him, it is the mother. Section 6(a) of the
HMGA provides that:
1) In case of a minor boy or unmarried minor girl, the natural guardian is the father,
and ‘after’ him, the mother; and
2) the custody of a minor who has not completed the age of five years shall ‘ordinarily’
be with the mother (emphasis added).

28
Guardian and Wards Act, No. 8 of 1890, S. 17(2)
29
Guardian and Wards Act, No. 8 of 1890, S.17(3)
30
Guardian and Wards Act, No. 8 of 1890, S.19
31
Guardian and Wards Act, No. 8 of 1890, S.19(b)
32
Personal Laws (Amendment) Act, No. 30 of 2010, S. 2
33
Guardian and Wards Act, No. 8 of 1890, S. 25
34
Guardian and Wards Act, No. 8 of 1890, S. 25(1)
35
Paras Diwan, LAW OF ADOPTION, MINORITY, GUARDIANSHIP & CUSTODY (2012), Universal Law
Publishing Co.: New Delhi, P. xv.

8
In Gita Hariharan v. Reserve Bank of India,36 the constitutional validity of Section 6(a) was
challenged as violating the guarantee of equality of sexes under Article 14 of the Constitution
of India. The Supreme Court considered the import of the word ‘after' and examined whether,
as per the scheme of the statute, the mother was disentitled from being a natural guardian during
the lifetime of the father. The Court observed that the term ‘after’ must be interpreted in the
light of the principle that the welfare of the minor is the paramount consideration and the con-
stitutional mandate of equality between men and women. The Court held the term ‘after’ in
Section 6(a) should not be interpreted to mean ‘after the lifetime of the father,’ but rather that
it should be taken to mean ‘in the absence of the father.’ The Court further specified that ‘ab-
sence’ could be understood as temporary or otherwise or total apathy of the father towards the
child or even inability of the father by reason of ailment or otherwise.37
Therefore, in the above specific situations, the mother could be the natural guardian
even during the lifetime of the father.
Section 13 of the HMGA declares that, in deciding the guardianship of a Hindu mi-
nor, the welfare of the minor shall be the 'paramount consideration’ and that no person can be
appointed as guardian of a Hindu minor if the court is of the opinion that it will not be for the
‘welfare’ of the minor.38
The following can be concluded with respect to guardianship under the HMGA. First,
the father continues to have a preferential position when it comes to natural guardianship and
the mother becomes a natural guardian only in exceptional circumstances, as the Supreme
Court explained in Gita Hariharan. Thus, even if a mother has custody of the minor since
birth and has been exclusively responsible for the care of the minor, the father can, at any
time, claim custody on the basis of his superior guardianship rights. Gita Hariharan, there-
fore, does not adequately address the original problem in Section 6(a) of the HMGA. Second,
all statutory guardianship arrangements are ultimately subject to the principle contained in
Section 13 that the welfare of the minor is the ‘paramount consideration.‘ In response to the
stronger guardianship rights of the father, this is the only provision that a mother may use to
argue for custody/guardianship in case of a dispute.

The point of difference between the GWA and the HMGA lies in the emphasis placed
on the welfare principle. Under the GWA, parental authority supersedes the welfare principle,
while under the HMGA, the welfare principle is of paramount consideration in determining
guardianship. Thus, for deciding questions of guardianship for Hindu children, their welfare is
of paramount interest, which will override parental authority. But for non-Hindu children, the
court‘s authority to intervene in furtherance of the welfare principle is subordinated to that of
the father, as the natural guardian.39

iii. Hindu Marriage Act, 1955

Section 26 of the Hindu Marriage Act authorizes courts to pass interim orders in any proceed-
ing under the Act with respect to custody, maintenance and education of minor children, in

36
(1999) 2 SCC 228
37
Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228, 25
38
Hindu Minority and Guardianship Act, No. 32 of 1956, S.13
39
Guardian and Wards Act, No. 8 of 1890, S. 17(1) (―In appointing or declaring the guardian of a minor, the
court shall . . . be guided by what, consistently with the law to which the minor is subject, appears in the circum-
stances to be for the welfare of the minor.‖) (Emphasis added).

9
consonance with their wishes. The Section also authorizes courts to revoke, suspend or vary
such interim orders passed previously.

On 6th July 2015 the Supreme Court in ABC v. The State (NCT of Delhi)40, delivered a
path breaking judgment on gender equality and ruled that even an unwed mother must be rec-
ognized as legal guardian of her child without forcing her to disclose the name of the child‟s
biological father.

DUTIES, RIGHTS AND LIABILITIES OF A GUARDIAN UNDER

HINDU LAW

Thee various Duties, Rights and Liabilities of A Guardian have been enumerated u/sec 20-37
of Guardians and Wards Act 1890, which have been enumerated below:-

20. Fiduciary Relation of Guardian to Ward

(1) A guardian stands in a fiduciary relation to his ward, and, save as provided by the will or
other instrument, if any, by which he was appointed, or by this Act, he must not make any
profit out of his office.
(2) The fiduciary relation of a guardian to his ward extends to and affects purchases by the
guardian of the property of the ward, and by the ward of the property of the guardian, immedi-
ately or soon after the ward has ceased to be a minor and generally all transactions between
them while the influence of the guardian still lasts or is recent.

21. Capacity of Minors to Act as Guardians

A minor is incompetent to act as guardian of any minor except his own wife or child or where
he is the managing member of an undivided Hindu family, the wife or child of another minor
member of that family.

22. Remuneration of Guardian

(1) A guardian appointed or declared by the court shall be entitled to such allowances, if any,
as the court thinks fit for his care and pains in the execution of his duties.
(2) When an officer of the government , as such officer , is so appointed or declared to be
40
[Arising out of SLP (Civil) No. 28367 of 2011

10
guardian, such fees shall be paid to the government out of the property of the ward as the State
Government, by general or special order, directs.

23. Control of Collector as Guardian

A Collector appointed or declared by the court to be guardian of the person or property or both,
of a minor shall, in all matters connected with the guardianship of his ward, be subject to the
control of the State Government or of such authority as that Government, by notification in the
Official Gazette, appoints in this behalf.

Guardian of the Person

24. Duties of Guardian of the Person

A guardian of the person of a ward is charged with the custody of the ward and must look to
his support, health and education, and such other matters as the law to which the ward is subject
requires.

25. Title of Guardian to Custody of Ward

(1) If a ward leaves or is removed from the custody of a guardian of his person, the court, if it
is of opinion that it will be for the welfare of the ward to return to the custody of the guardian,
may make an order for his return and for the purpose of enforcing the order may cause the ward
to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the court may exercise the power conferred on a
Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of
1882)16.
(3) The residence of a ward against the will of his guardian with a person who is not his guard-
ian does not of itself terminate the guardianship.

26. Removal of Ward from Jurisdiction

(1) A guardian of the person appointed or declared by the court , unless he is the Collector or
is a guardian appointed by will or other instrument, shall not, without the leave of the court by
which he was appointed or declared, remove the ward from the limits of its jurisdiction except
for such purposes as may be prescribed.
(2) The leave granted by the court under sub-section (l) may be special or general and may be
defined by the order granting it.

Guardian of Property
27. Duties of Guardian of Property

A guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary
prudence would deal with it, if it were his own and subject to the provisions of this Chapter, he
may do all acts which are reasonable and proper for the realisation, protection or benefit of the
property.

11
28. Powers of Testamentary Guardian

Where a guardian has been appointed by will or other instrument, his power to mortgage or
charge, or transfer by sale, gift , exchange or otherwise , immovable property belonging to his
ward is subject to any restriction which may be imposed by the instrument, unless he has under
this Act been declared guardian and the court which made the declaration permits him by an
order in writing, notwithstanding the restriction, to dispose of any immovable property speci-
fied in the order in a manner permitted by the order.

29. Limitation of Powers of Guardian of Property Appointed or Declared by the Court

Where a person other than a Collector, or than a guardian appointed by will or other instrument,
has been appointed or declared by the court to be guardian of the property of a ward, he shall
not without the previous permission of the court, -
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immov-
able property of his ward, or
(b) lease any part of that property for a term exceeding five years or for any term extending
more than one year beyond the date on which the ward will cease to be a minor.

30. Voidability of Transfers Made in Contravention of Section 28 or Section 29

A disposal of immovable property by a guardian in contravention of either of the two last fore-
going sections is voidable at the instance of any other person affected thereby.

31. Practice with Respect to Permitting Transfers Under Section 29

(1) Permission to the guardian to do any of the acts mentioned in section 29 shall not be granted
by the court except in case of necessity or for an evident advantage to the ward.
(2) The order granting the permission shall recite the necessity or advantage, as the case may
be, describe the property with respect to which that act permitted is to be done, and specify
such conditions, if any, as the court may see fit to attach to the permission; and it shall be
recorded, dated and signed by the Judge of the court with his own hand, or, when from any
cause he is prevented from recording the order with his own hand, shall be taken down in
writing from his dictation and be dated and signed by him.
(3) The court may in its discretion attach to the permission the following among other condi-
tions, namely,-
(a) that a sale shall not be completed without the sanction of the court;
(b) that a sale shall be made to the highest bidder by public auction before the court or some
person specially appointed by the court for that purpose, at a time and place to be specified by
the court, after such proclamation of the intended sale as the court subject to any rules made
under this Act by the High Court, directs;
(c) that a lease shall not be made in consideration of a premium or shall be made for such term
of years and subject to such rents and covenants as the court directs;
(d) that the whole or any part of the proceeds of that act permitted shall be paid into the court
by the guardian, to be disbursed there from or to be invested by the court on prescribed securi-
ties or to be otherwise disposed of as the court directs.
(4) Before granting permission to a guardian to do an act mentioned in section 29, the court
may cause notice of the application for the permission to be given to any relative or friend of

12
the ward who should, in its opinion, receive notice thereof, and shall hear and record the state-
ment of any person who appears in opposition to the application.

32. Variation of Powers of Guardian of Property Appointed or Declared by the Court

Where a guardian of the property of a ward has been appointed or declared by the court and
such guardian is not the Collector, the court may, from, time to time, by order, define, restrict
or extend his powers with respect to the property of the ward in such manner and to such extent
as it may consider to be for the advantage of the ward and consistent with the law to which the
ward is subject.

33. Right of Guardian so Appointed or Declared to Apply to the Court for Opinion in
Management of Property of Ward.

(1) A guardian appointed or declared by the court may apply by petition to the court which
appointed or declared him for its opinion, advice or direction on any present question respect-
ing the management or administration of the property of his ward.
(2) If the court considers the question to be proper for summary disposal, it shall cause a copy
of the petition to be served on, and the hearing thereof may be attended by, such of the persons,
interested in the application as the court thinks fit.
(3) The guardian stating in good faith the facts in the petition and acting upon the opinion,
advice or direction given by the court shall be deemed, so far as regards his own responsibility,
to have performed his duty as guardian in the subject- matter of the application.

34. Obligations on Guardian of Property Appointed or Declared by the Court

Where a guardian of the property of a ward has been appointed or declared by the Court and
such guardian is not the Collector, he shall-
(a) if so required by the court, give a bond, as nearly as may be in the prescribed form, to the
Judge of the court to ensure for the benefit of the Judge for the time being, with or without
sureties, as may be prescribed engaging duly to account for what he may receive in respect of
the property of the ward;
(b) if so required by the court , deliver to the court, within six months from the date of his
appointment or declaration by the court, or within such other time as the court directs, a state-
ment of the immovable property belonging to the ward, of the money and other movable prop-
erty which he has received on behalf of the ward up to the date of delivering the statement, and
of the debts due on that date to or from the ward;
(c) if so required by the court, exhibit his accounts in the court at such times and in such form
as the court from time to time directs;
(d) if so required by the court, pay into the court at such time as the court directs the balance
due from him on those accounts, or so much thereof as the court directs; and
(e) apply for the maintenance, education and advancement of the ward and of such persons as
are dependent on him, and for the celebration of ceremonies to which the ward or any of those
persons may be a party, such portion of the income, of the property of the ward as the court
from time to time directs, and, if the court so directs, the whole or any part of that property.
17[34A. Power to award remuneration for auditing accounts
When accounts are exhibited by a guardian of the property of a ward in pursuance of a requi-
sition made under clause (c) of section 34 Or Otherwise, the Court May Appoint a Person to
Audit the Accounts, and May Direct that Remuneration for the Work be Paid out of the Income
of the Property.]

13
35. Suit against guardian where administration - bond was taken

Where a guardian appointed or declared by the court has given a bond duly to account for what
he may receive in respect of the property of his ward, the court may on application made by
petition and on being satisfied that the engagement of the bond has not been kept, and upon
such terms as to security, or providing that any money received be paid into the court, or oth-
erwise as the court thinks fit, assign the bond to some proper person, who shall thereupon be
entitled to sue on the bond in his own name as if the bond had been originally given to him
instead of to the Judge of the Court, and shall be entitled to recover thereon, as trustee for the
ward, in respect of any breach thereof.

36. Suit Against Guardian where Administration-Bond was not Taken

(1) Where a guardian appointed or declared by the court has not given a bond as aforesaid, any
person , with the leave of the court, may, as next friend, at anytime during the continuance of
the minority of the ward, and upon such terms as aforesaid, institute a suit against the guardian,
or, in case of his death, against his representative, for an account of what the guardian has
received in respect of the property of the ward, and may recover in the suit, as trustee for the
ward, such amount as may be found to be payable by the guardian or his representative, as the
case may be.
(2) The provisions of sub-section (1) shall, so far as they relate to a suit against a guardian, be
subject to the provisions of section 440 of the Code of Civil Procedure as amended by this Act,
1882 (14 of 1882)18.

37. General Liability of Guardian as Trustee

Nothing in either of the two last foregoing sections shall be construed to deprive a ward or his
representative of any remedy against his guardian, or the representative of the guardian, which,
not being expressly provided in either of those sections, any other beneficiary or his representa-
tive would have against his trustee or the representative of the trustee.

CONCLUSION
The evolving discourse around guardianship indicates a gradual shift away from the patriarchal
notions of familial lineage. However, there is still little clarity on how this recognition is to be
read with other rights, e.g., the right of a single parent to apply for a passport for a child without
seeking the consent of a spouse. More importantly, the best interests of the child remains an
inconsistently applied standard across lower courts. The Law Commission of India, in its
257th Report on Guardianship and Custody laws, states, “the wide discretion available to
judges under the welfare principle also means that certain issues that should merit considera-
tion are not treated seriously while determining custody.” The Report takes the example of
how courts often disregard even serious allegations of sexual abuse made by children against
by male relatives. Further, it goes on to address the concerns of “father’s rights” groups that
laws on custody are disproportionately favourable to women. The Report states that not only
are such concerns baseless, they are also blind to the fact that when there is no equality in the
sharing of parental responsibilities during the subsistence of marriage, the demand for a proce-
dural equality of rights after the dissolution of marriage is baseless.

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The comments of the Law Commission make it amply clear that a family is no longer perceived
as a perfect haven of equal responsibilities which can nurture a child. However, even the Law
Commission does not fully commit itself to exploring the contours of single-parent guardian-
ship, but it suggests joint custody as a solution for such problems. While joint custody may
indeed be a favourable solution in many cases, the suggestion of the Law Commission indicates
an inability to truly question the traditional forms of family.
We are currently living in a time when not only gender roles, but the entire notion of gender
itself is being questioned. Despite stiff resistance from the State and patriarchy, the institution
of the family is being opened to the scrutiny of the critical public eye.

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 WEBLIOGRAPHY

1)http://altlawforum.org/litigation/the-changing-face-of-the-family-guardianship-custody-
and-the-law/
2)http://www.legalserviceindia.com/article/l35-Guardianship.html
3)http://www.indiaparenting.com/adoption/391_3711/chapter-iii-duties-rights-and-liabilities-
of-guardians-general.html
4)https://www.linkedin.com/pulse/law-minority-guardianship-india-aravind-raj-d

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