The Guardians and Wards Act, 1890 was enacted in order to primarily safeguard the rights of the minor, give him protection and to safeguard his/her property. The Act is generally valid regardless of the religion concerned with the guardianship of minors.
This Act is not in contravention with personal laws. It is an addition to the Hindu Adoption and Maintenance Act, 1956, and has to be read in consonance with it, since it is the only codified personal law about adoption or guardianship in India. In the personal laws of Muslims, Christians, Parsis, and Jews in India, adoption is not permissible. Therefore, before the passage of the Juvenile Justice Act, they opted for guardianship of a minor through the Guardians and Wards Act, 1890. By means of this statute, they cannot opt for full-fledged adoption instead it paves the way for guardianship.
A guardian is anyone who is assigned to take care of the child or the individual’s property or both. The covered citizen, referred to as the ward, is deemed to be legally incapable to care for himself or herself; examples involve a minor or someone suffering from a serious illness or a disability. In households where there are issues of parental neglect, failure, drug abuse, other kinds of abuse on the child, divorce, or death, the question of guardianship most often comes up. The Act attempts to legally identify a guardian and a minor or any potential ward, provides a process for filing a lawsuit, the mechanism in which the guardian may be named, the method in which the minor’s property is listed in respect of this statute.
Table of Contents
Minor, Guardian, And A Ward
“Minor” refers to a person who is considered not to have gained majority as per the definition in the Indian Majority Act, 1875.[1]
A “guardian” is an entity named to look after another individual or their property. They take the responsibility of security and overall care of the person for whoever they are appointed the guardian. He/she has the authority to take legal decisions vis-a-vis the person as well as their property.[2]
“Ward” includes a minor for whom there is a guardian, at a personal level as well as to safeguard his/her property.[3]
Individuals with intellectual disability, autism, cerebral palsy, and various disabilities are in a unique circumstance because they will not necessarily be able to manage their own lives or take legal measures for their own greater good well after they are 18 years or older. Consequently, throughout their entire lives, they will need someone to serve their interests in the legal aspects. Even so, in situations of cerebral palsy and intellectual disability, due to the existence of supporting mechanisms and/or scientific interventions that enable certain individuals to work with differing degrees of competence, there could be a necessity for some kind of minimal care in the form of limited guardianship.
While it is not compulsory to apply for legal custody of an individual with a disability, it is still beneficial to apply for legal custody under the terms of the Guardians and Wards Act, as the National Trust Act, 1999 provides for such appointments. Such a possibility may occur when a person with a disability needs to deal with problems relating to himself/herself, his concerns, and his property, and because he/she will not often be able to make reasonable decisions in those instances, it may be in the best interests for them to be assisted in those circumstances by a legal guardian. Under the Guardians and Wards Act, 1890, the courts are entitled to designate guardians. The High Courts are also inherently eligible to appoint guardians, but this authority is exercised cautiously.
Who Can Be A Guardian?
Both the parents may jointly, or, in case of death, legal separation, divorce, desertion, or even conviction, parents may, jointly or separately, apply for guardianship of their or his/her ward, as the case may be.[4] In the absence of both the parents, the siblings (which includes half and step-siblings), jointly or separately, can apply for guardianship of a minor sibling or a disabled member of the family.[5] If the aforementioned entities do not apply for guardianship, a relative can apply for guardianship. If this case scenario does not take place then guardianship goes up for application for any registered organization.[6]
Section 19 of the Act specifies that a father will not be stripped of his minor children’s natural guardianship until he has been deemed unfit. Hence, according to this statute father is the legal guardian of his rightful minor children, sons, and daughters, the Supreme Court ruled in Gita Hariharan v. Reserve Bank of India[7]. The mother as a primary natural guardian before the father can act as a natural guardian under such conditions, including while the father is alive. In Vandana Shiva v. Jayanta Bandhopadhaya[8], the Supreme Court held that it can as well be lawfully appointed the guardian of the ward and the word ‘after’ used in Section 6(a) was known to be ‘in the absence of’ in place of ‘after the lifetime’.
No single male can actually become the guardian of the female ward. In fact, in case of a female ward, the male shall be in a relation called co-guardianship by his wife necessarily, and the spouse who shall be deemed as the master co-guardian.[9]
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Removal Of Guardian
In case of abuse or gross negligence of the concerned ward, the parents, relative, or a close acquaintance can apply for the revocation of guardianship of the said guardian. This should be done in accordance with the prescribed procedure.
An elaborate investigation is carried out thereafter upon receiving such an application. Guardianship is revoked if the authority is satisfied that there is a ground for removal and particular reasons must be recorded in writing. A new guardian is usually appointed to make other necessary arrangements as may be for the care and protection of that ward.[10] In case of revocation of the guardianship, the said guardian is bound to release and subsequently deliver all the charges from all property of the minor or person with a disability to the new guardian. Besides, he/she has to account for all monetary transactions received or disbursed by him/her in the due course.[11]
Process Of Guardianship Under The Act
The District Court has the power to appoint or declare a guardian in respect of the person as well as separate for the property of the minor. The authority is bestowed on the District Court under the Guardians and Wards Act, 1890. The District Court may nominate or appoint any person as the guardian whenever it finds appropriate for the child’s welfare.[12]
Additionally, the welfare of the child is of utmost importance in this scenario. The Chartered High Courts are inherently eligible to name guardians of the persons along with their property. This jurisdiction applies to the indivisible interest of a coparcener as well. The guardian assigned by the court is classified as the guardian of the certified guardians. Certified guardian authorities and rights are principally dictated by the Guardians and Wards Act, 1890. There are quite a few actions that he/she can, in fact, carry out without the court’s prior approval.[13]
All these processes actually start only when the person who was able and willing to take a ward under himself/herself and serve as his guardian and in the same respect he/she has submitted an application. The applications should include all the relevant details that may have been needed, including the guardian’s background and the justification for the guardianship as well. This is only the initial step. Once the appeal is approved by the judge, a date for a hearing may be scheduled. Before reaching a decision, the court will consider testimony and other evidence in this regard.[14]
Quite unlike the provisions outlined in the Hindu Adoption and Maintenance Act, 1956, where a child once adopted has only single set of parents, comprising either mostly heteronormative couples. On the contrary, this Act allows for more than one guardian for a minor as well as his/her property.
In guardianship cases, while determining the guardians, the court is expected to use its discretionary authority and interpretative skills to weigh in the minor’s needs and interests. It is important to take into account his or her age, sex, faith, the compatibility equation with the guardian, the death of the parent, etc. The choice and preference of a minor must be taken into account.
Conclusion
This statute is specifically noteworthy for real life situations. It is a matter of overall public policy for a society and a nation to keep minors safe and in good hands. Therefore, there can be nothing better than honourable court looking into the same. Another remarkable feature is that it is secular legislation and encompasses different religions so that restrictions imposed by religions that do not provide for adoption in personal laws can be dealt with. All in all, this piece of legislation is a pragmatic way to protect minors and disabled people.
References –
[1] The Indian Majority Act, 1875, s. 4(10).
[2] Guardians and Wards Act, 1890, s. 4(2).
[3] Guardians and Wards Act, 1890, s. 4(3).
[4] The Guardians and Wards Act, 1890, s. 11(i).
[5] The Guardians and Wards Act, 1890, s. 11(ii).
[6] The Guardians and Wards Act, 1890, s. 11(iii).
[7] (1999) 2 SCC 228.
[8] AIR 1999 SC 1149.
[9] The Guardians and Wards Act, 1890, s. 12.
[10] The Guardians and Wards Act, 1890, s. 26(i).
[11] The Guardians and Wards Act, 1890, s. 26(ii).
[12] The Guardians and Wards Act, 1890, s. 4(a).
[13] The Guardians and Wards Act, 1890, s. 51.
[14] The Guardians and Wards Act, 1890, s. 10.
BY SHATAKSHI | NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE