INTRODUCTION
A person who accepts the office of guardianship actually undertakes to act on the terms imposed by the court of law. However, the guardian is bound by some duties and liabilities, under the Guardians and Wards Act, 1990.
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 the guardian amounts to guardianship.
DEFINITION OF MINOR
According to Hanafi & Shafi Law:
The age of puberty is presumed at the age of fifteen years.
According to Shia Law:
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 a sane 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
DUTIES OF THE GUARDIAN FOR PERSON
According to this section, a guardian of the person of a ward is charged with the custody of the ward and must look to the health and education and such other matters as the law to which the ward is subject requires.
The Welfare of the Ward
The welfare of the minor is the main consideration and is a yardstick by which the social individual and spiritual preference for the ward are determined.
Custody of Ward
The guardian is charged with the custody of the ward Custody here means actual as well as constrictive custody.
If Ward Leaves
If the minor leaves or is removed from the custody of a guardian, he can get him back by making an application under Section 25 of the Guardian and Wards Act.
Maintenance of Ward
A father is bound to maintain his son till he has attained puberty and his daughter t she has married But a de-facto guardian maintains the wards out of the property or income of the ward.
Education of the Ward
The maintenance includes the cost of living as well as the education according to the status of the family to which the minor belongs.
The religion of the Ward
After the death of his father, the child is presumed to have followed the religion of his father and it is the duty of the guardian to bring him up in that religion if a father changes his religion he can bring up his child according to his own wishes.
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 realization protection or benefit of the property.
POWER TO DEAL IMMOVABLE PROPERTY
Father being the legal guardian of the property of his minor children, is empowered to alienate immovable property belonging to them on specified conditions. Power to alienate was neither. absolute nor without fetters Islam subjects such power to stringent conditions governing rule would be the rule of absolute necessity and benefit.
CAPACITY TO CONTRACT
He has no capacity to contract because of his defect in understanding but if his acts had the license and authority of his guardian then such defect would be removed and the minor would be accounted as an adult.
RIGHT OF PRE-EMPTION
Pre-emption, being a mode for the fresh acquisition of immovable property, cannot be equated with its sale for necessity and benefit to minors.
POWER TO CONCLUDE AGREEMENT TO SELL
There is no being for specific enforcement of such executor agreement existing under law.
SALE OF MINOR’S PROPERTY
Minor’s relative seeking cancellation of sale on the ground that the guardian was a drug addict. Such allegations should be determined after a detailed query and if necessary recording of evidence. A test of justice would be best served, if allegations and counter-allegations are determined through the recording of evidence so that the rights of all parties including minors are protected. It is the duty of the guardian to sell the minor’s property.
POWER OF GUARDIAN FOR MARRIAGE
The powers of a guardian for management are as follows.
Power to Contract Marriage
A guardian for marriage may give a minor or a lunatic in marriage and such marriage is valid, though it may be repudiated by the minor by way of the option repudiation, the option of puberty. A minor’s or a lunatic’s marriage without the consent of a guardian is not valid. A minor cannot contract marriage, nor can appoint an agent to manage.
Power of Contracting Conditions
A guardian may at the time of marriage enter into certain matrimonial conditions But such conditions should be lawful and reasonable. For example, an authority to pronounce Talak given to the wife in a marriage contracted by the guardian of a minor is binding.
Power to contract Khula:
The father of a minor or lunatic wife can enter into Khula on her behalf, but a Khula cannot be entered into on behalf of a minor husband. The Khula would be valid only if it is ratified by her.
Power to pronounce Talaq
Under the Shia law, the guardian of a lunatic who has attained puberty and who is of unsound mind may pronounce a Talaq if it is necessary in the interest of the lunatic. But the guardian of a minor is incompetent to pronounce a Talaq for a minor wife under all the laws.
Power to Relinquish Dower
Under the Shia law, the father or grandfather is entitled to make relinquishment. The wife’s guardian may relinquish the dower to which she would be entitled in the event of Talak before consummation. The husband’s guardian has no legal power to give up his ward’s right to half the dower in the event of Talak before consummation. But either of these guardians cannot discharge the entire dower.
POWERS OF GUARDIAN APPOINTED BY COURT
The powers of guardians appointed by the Court are governed by the Guardians and Wards Act 1890. Sections 27 to 37 of the Guardians and Wards Act, 1890 deal with the guardian of property.
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 these sections any other beneficiary or his representative would have against his trustee.
POWERS OF DE-FACTO GUARDIAN
The powers of a de facto guardian are the following.
Power regarding Immovable Property
A de facto guardian who may be a relative or a stranger, has no power to deal with the minor’s property. A de-facto guardian has the power to sell or pledge immovable properties of the minor for the minor’s imperative needs, such as food, shelter, clothing, or medical care.
Power regarding Movable Property
A de facto guardian has the power to alienate the movable property of the minor for its maintenance. He can either sell or pledge the goods for the benefit of the minor A de facto guardian dispose of movable property, such as goods and chattels not only but also to guardians appointed by the Court and de facto guardians.
CONCLUSION
It is concluded that the guardian has the right to the movement and action of the person. Guardianship extends to the custody of the person and the power to deal with the property of the ward. The guardian has rights duties and liabilities according to the Guardian and Wards Act of 1890.
FAQs
Briefly explain the rights and duties of a Guardian under the provisions of the Guardian & Wards Act.
(2019-A)
What are the rights and liabilities of the Guardian of a ward under the Guardian & Wards Act?
(2015-)
How a Guardian is appointed? What are his rights and duties under Guardian& Wards Act?
(2013-A)
Explain briefly the rights and duties of a Guardian of minors, appointed under the provisions of the Guardian and Wards Act, of 1890.
(2012-A)
