INTRODUCTION
The right of guardianship of the minor belongs to the father and in his absence to nominate Where no one has been nominated then to the grandfather if he dies the right of his guardianship vests in the court.
DEFINITION OF GUARDIAN
According to Section 4(2) Guardians and Wards Act 1890.
“Guardian means a person having the care of the person of a minor or of his property or of his person and property”.
DEFINITION OF WARD
ACCORDING TO SECTION 4(3) GUARDIANS AND WARDS ACT 1890
“Ward means a minor for whose person or property or both there is a guardian”.
DEFINITION OF GUARDIANSHIP
Guardian is a person who acts on behalf of a minor or lunatic. Such an act of a guardian amounts to guardianship.
QUALIFICATION OF GUARDIAN
In order to be qualified to be a guardian, the following matters must be present
- The guardian must be Muslim
- The guardian must be major. A minor cannot be appointed as a guardian,
- An insane person cannot be appointed as a guardian only the same person can be appointed as a guardian.
- Capable to maintain Minor’s Property
CAPACITY FOR MOTHER
For a mother, it is necessary that the mother must not be married to a stranger. If she is married to the stranger then there is apprehension that the interest of the son or daughter may be badly affected.
PERSONS WHO CAN APPLY
The following person can apply for the appointment of the guardian of a minor:
- A person who wishes to be appointed or a person claiming to be the guardian of the minor
- Any relative or friend of the minor.
- The collector of the district or other local area within which the minor resides or which he has property.
- The collector has authority with respect to the class to which the minor ordinarily belongs.
CONTENTS OF THE APPLICATION
- Name, age, address, sex, and religion of the minor.
- Property of the minor
- Name and address of the person having custody of the minor
- Whether a guardian of a person or property
- Name of the relatives of the minor
- Qualification of the proposed guardian
- Whether an application has been at any time made to any other court with respect to the guardianship
- The causes which have led to the making of the application
- Any other necessary particulars
KINDS OF GUARDIAN
- Guardian of the Person (minor or lunatic)
- Guardian of Property
- Guardian for the Marriage
1. GUARDIAN OF PERSON
Following persons are entitled to custody of a person of minor or lunatic,
UNDER HANFIE LAW
Under Hanfi law in the case of a son below seven years of age and of a daughter below the age of puberty, following are the entitled to custody.
Female Relations:
Mother, and in case of failing mother (by absence or disqualification) the following female relation are entitled to custody in order of priority.
- Mother’s mother how high so ever
- Father’s mother how high so ever
- Full sister
- Uterine mother
- Consanguine sister
- Full sister’s daughter
- Uterine sister’s daughters
- Consanguine sister’s daughter
- Maternal aunts in the same order as sisters
- Paternal aunts in the same order as sisters
- Paternal aunts of mother and father in the same order
Male Relations:
Failing mother and female relations, the following male relations are entitled to the custody of a Muslim child in order of priority.
- Father
- Nearest Paternal grandfather
- Full brother
- Consanguine brother
- Other Paternal relations (Full brother son)
- Consanguine brother’s son
- Full paternal uncle
- Consanguine paternal uncle
- Full paternal uncle’s son
- Consanguine paternal’s son
Paternal Relatives:
In the absence of male relations, the following relative shall have entitlement;
- Uterine brother
- Uterine brother’s son
- Father’s uterine brother
- Maternal uncle
- Mother’s uterine brother
UNDER SHIA LAW
The custody of a son below two years of age or of a daughter below seven years of age to the mother and after the mother, the custody of the minor belongs to the father and of being not qualified than to the grandfather how high so ever/The custody of son above two years of age and a daughter above 7 years of age belong to the father and in his absence to the true grandfather how high so ever.
WHO CAN BE THE GUARDIAN OF THE PROPERTY
- A natural or legal guardian can be appointed guardian of property
- Testamentary guardian.
- The court can appoint any person guardian of property in case of the absence of a natural and testamentary guardian
- A person can voluntarily take charge of the property. He is in other words self-appointed guardian
POWERS OF COURT TO MAKE ORDERS AS TO GUARDIANSHIP
When the court is satisfied that it is for the welfare of a minor that an order should be made
- Appointing a guardian of his person or property or both
- Declaring a person to be such guardian, the court may make an order accordingly
REMOVAL OF GUARDIAN
Guardians can be removed on the following grounds:
- For abuse of his trust
- Failure to perform his duties
- Incapacity to perform the duties
- For ill-treatment or neglect to take proper care of his ward
- Conviction of an offense implying in the opinion of the court defect of character which renders unfit him to be the guardian of his ward
- Interest adverse to the faithful performance of the court
- Ceasing to reside within local limits of the jurisdiction of the court
- Insolvency in case of guardian for property of the ward
- Ceasing by reason of the guardian being liable to cease under the personal law of the minor
Modes of Removal
- By the application
- By the court by its own motion
CONCLUSION
It is concluded that the guardian has the right to the movement and action of a person Guardianship extends to the custody of the person and power to deal with the property of the ward. A guardian can be removed from his office under the Guardians and Wards Act 1890.
FAQs
What is the procedure for the appointment of Guardian of a Ward with specific reference to the Guardian & Wards Act, 1890?
(2019-S)
What is the procedure of appointment of a guardian of a ward and what matters are taken into consideration while appointing?
(2018-S)
What are the rights and duties of a guardian of a ward?
(2018-A)
What are the rights and duties of a Guardian under the provisions of the Guardian & Wards Act?
(2017-A, 2016-S)
Briefly explain the procedure of appointment of Guardian of a Minor as per the Guardian & Wards Act and their rights and duties.
(2016-A)
What is the procedure for the appointment of a Guardian of a Muslim under the provisions of the Guardian and Wards Act? What are their rights and obligations?
(2015-A)
Who can be appointed as Guardian of a minor and what procedure to be adopted for such an appointment?
(2012-S)
