Intro

Guardianship is a crucial aspect of Indian law, particularly regarding the welfare and protection of
minors. As such, it is essential to understand the nuances of guardianship under different legal systems,
such as Hindu and Muslim law, to protect children's best interests.

This chapter provides a comprehensive overview of guardianship under Hindu and Muslim direction,
highlighting the different types of guardianship recognized under each system, including natural
guardians, testamentary guardians, and guardians appointed by the court. The chapter also discusses
essential case laws that have shaped the understanding of guardianship in India. Furthermore, this
chapter compares and contrasts guardianship under Hindu and Muslim law, highlighting key differences
and similarities. For instance, while both legal systems recognize natural custody, Muslim law also
recognizes Hizanat and Kafalah guardianship, which are not recognized under Hindu law. In conclusion,
this chapter emphasizes the importance of guardianship in India. It underscores the need for a more
nuanced approach to guardianship to ensure the protection and well-being of minors.

Guardianship
Guardianship refers to the legal responsibility of a person to take care of a child's essential needs such
as education, health, and general well-being. When someone other than the child's mother or father is
granted legal custody of the child, they become a guardian with the right to make decisions concerning
the child's welfare. The guardian has a legal responsibility to care for the child and ensure their well-
being.

Guardianship is typically granted to someone other than the child's mother and father when they are
not able to provide adequate care. This applies to children who are under the age of eighteen since they
are physically, intellectually, and emotionally immature and require the care, attention, and protection
of another person. Guardianship may be granted by a court or through other legal processes. The
guardian is legally responsible for making decisions that will promote the welfare and development of
the child. Any act by the guardian that violates the best interests of the child can lead to legal action
against the guardian.

In India, guardianship laws are governed by different personal laws, including Hindu and Muslim laws.
Under Hindu law, guardianship is significant as it is vital in determining a child's custody and upbringing
rights. The natural control of a child is based on the principles of gender and age. A father is considered
the natural guardian of his children, and after him, the mother. However, in the case of a minor's
welfare, the court may appoint a guardian to care for the child.
Importance of guardians for orphans

The act of appointing Guardians when a Will is made ensures that young children do not have to be
placed into care until the Court appoints official Guardians to look after them, saving the children and
family members from further distress at such a difficult time.

The role of a Guardian is a very important one. When you are appointed as a legal guardian you are
responsible for the wellbeing and safety of those children under your guardianship. Being a Guardian
includes making sure that the children are fed, clothed, attend school and looked after in the same way
they would be if their parents were around to do so. It will be your responsibility to ensure that they are
properly supervised throughout their lives until they reach adulthood.

The role of a Guardian is a very responsible one and should not be entered into lightly. There will be
financial, social and emotional implications when taking on such a vast role and the matter should be
discussed in detail between the Testator and the appointed Guardians.

The cost of raising children is ever on the increase and whilst many parents will have ensured that
financial support is in place for their children in the event of their death, this is a major factor when
deciding to take on the role of a Guardian and so should be fully discussed. You may be able to claim
child benefit and receive a Guardian allowance in the event that both parents are deceased.

Some things to consider:

 Guardians take on the role of parent to your children

 Failing to name Guardians in a Will means that the care of minor children will be decided by the
Courts
 It should be made certain that the persons named who will be responsible for bringing up the
children are willing to do so
 Financial provision should be made for the children to enable the Guardians to raise them
 It is best to consider the age of the Guardians and to appoint more than one
 Guardians should also make a Will themselves to further safeguard the future of the children
Legal Framework in India

- Guardianship and Wardship under Indian Law

Guardianship law in india

Guardianship laws in india establish a legal framework to safeguard the rights and well-being of
individuals who, due to age, incapacity, or other factors, require assistance in decision-making. A crucial
aspect of these laws is delineating the rights and responsibilities of guardians. This chapter explores the
key rights and responsibilities bestowed upon guardians by indian laws, emphasizing the importance of
balancing protection with individual liberties.

Guardianship and wards Act, 1890- The guardianship and wards act, 1890 was a secular act which is
answerable to the major issues of the guardianship and custody and it provide provisions irrespective of
the religion, it is applicable to all the citizens of India. The Act is a complete Code laying down the rights
and obligations of the guardians, procedure for their removal and replacement, and remedies for
misconduct by them. It is an umbrella legislation that supplements the personal laws governing
guardianship issues under every religion9Even 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 Guardians and
Wards Act, 1890.

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 10 .”This act authorized the District court to appoint the guardian of minor person or property
or both,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.

10 -S. 4 (2), Guardians and Wards Act, No. 8 of 1890.