INTRODUCTION

“The term guardianship used here is when legal custody of a minor child under the age of 18  years whose necessities like health, food, safety, education.” The residence is taken care of by the person who has legal custody of the child. The person makes all the prudent decisions on behalf of the minor. Usually, the father is the natural guardian, and in some cases, even the mother might be the natural guardian. The various Guardianship laws owed their existence to the British Era when the significant laws relating to inheritance and Guardianship were formulated keeping in mind the religious customs and perspectives.

UNDER THE HINDU LAW GUARDIANSHIP

“The Hindu Minority and Guardianship Act,1956 defines a minor person in Section 4(a) of the Act, and Section 4(b) establishes a guardian.”

The Five Types of Guardianship is-

1. Natural Guardianship
2. Testamentary Guardianship
3. Guardianship appointed by Court
4. De-facto Guardianship
5. Guardianship by affinity[1]

• Natural Guardianship

They are also called “the Guardianship of the person’s property. According to Section 6 of Hindu Minority and Guardianship Act 1956”, natural guardians are mother, father and husband.

Some points of “Section of Hindu Minority and Guardianship Act ,1956” are-

• Section 19- that only when the person is deemed unfit for being a guardian can he can be denied natural Guardianship of minor child or wife for that matter.
• Section 13- “that the welfare and upkeep of the minor is the most essential thing according to the court, so if the court finds them not concerned enough of the welfare, they can be removed.”
• Section 7-“the natural Guardianship of the minor child is passed to the adoptive father after the death of the original father ad then to the adoptive mother after death. If the adoptive father is incapable the only, the adoptive mother can take Guardianship of the illegitimate child.”
• Section 6(b)-“ that the mother is the only natural guardian of the illegitimate child even though the father is alive.”
• Section 6(a)- “that the custody of child below or of the 5 years of the age will be given to mother, only in cases otherwise where she is not find fit it shall be given to the father.”

Case Law

P.S. Ramachandra Iyer, Son of P.S. Vs S.V. Annapurni Ammal wife of P.N.,15th January. 1963

The petition is about a seven-year-old girl minor child whose custody was given to the mother against the will of the girl’s father.  The mother left the minor’s father and took the child to Madras; the mother filed a complaint under “Section 25 of the Guardian and Wards Act 1890.”[2]

• Testamentary Guardian

    Natural guardians appoint them through a will.

• Section 9(1)-“ says that the father has testamentary power means appointing a guardian to be there to take care of even after their death.It can be brought to exercise after the passing of the mother of the child.”
• Section 9(2)- “says that before death of mother if she appoints someone as the testamentary guardian of the child, then father’s appointment shall become ineffective.”

Case Law

Krishnaswami Gourden Vs Palani Ammal 27 March 1936 MLJ 417

In this case, the mother requested the court to place the testamentary guardian if the father was also the executor of the minor child. This petition was made under the Guardian and Wards act. Hence, the lower court made an order wherein it imposed certain conditions on the appellant to discharge his duties as a guardian and directed him to give security for a specified amount.[3]

• Guardians appointed by the Court

Under “the Guardians ad Ward Act 1890” they are also called “certified guardians”.The court can appoint guardians for a minor child when parents are deceased or incapacitated or their parental rights have been terminated due to some reason. Another reason can be the voluntary surrender of them for adoption.

• Guardianship by Affinity

Affinity means Guardianship by the closeness of the relation. “The guardian by affinity is the guardian of the minor widow. The husband’s association, if exists within the degree of sapid are the guardians of a minor widow in preference to her father and his relations.”

Case Law

Paras Ram Vs State

In this case, it was raised that where the Guardianship of a widow is taken away by the father-in-law who forcibly marries her away for money to an unsuitable person against her wishes.[4]

• De-Facto Guardianship

A de-facto guardian who’s substantially concerned with the interest of the minor for his operation and keep off his property without any authority of the law. In Hindu justice, there has to be a nonstop interest process and conduct.

UNDER THE MUSLIM LAW GUARDIANSHIP

“The source of the law of Guardianship is taken up from the Quran. All the ahadis and the Quran exhaustively talk of Guardianship of property of the minor and the related care and Guardianship of the child.”

The law of Guardianship has three types-

1. Natural Guardianship
2. Testamentary Guardianship
3. Guardianship appointed by the court

• Natural Guardianship

“The Muslim laws mainly recognize the Father  ‘only’ as the sole and main guardian of the minor child and even in the case of father’s death the guardianship shifts to the grandfather or the appointed executor in some cases and not the mother or any female member of the minor child. The father entire control over the education, religion and upbringing shall be administered by the father itself despite the presence of the mother of the minor child.

In the case of an illegitimate child the Guardianship and custody do not go to the father but in the case of an illegitimate child of the mother the custody shall go to the mother.

In the case of Sunni Muslims, the father is the only natural guardian of the minor child and after the death of the father, the Guardianship and responsibility does to the appointed executor of the minor child and not to the mother even if she is alive.

In the case of Shia Muslims, after the death of the father the Guardianship goes to the grandfather even if there is an executor appointed by the father, still, the Guardianship shall go to the grandfather. And in the absence of the grandfather, it goes to the executor of the grandfather.”

 Case Law

 Imambandi v. Mutsaddi (1918) 45 Cal 887, it was rightly held that until the father is alive, he shall be the natural Guardianship of the minor child.[6]

• Testamentary Guardianship

Mainly in both Shia and Sunni Muslims, the father has the power to determine who shall be the testamentary guardian, the same power is possessed by the grandfather of the minor child as well but not the mother. In the case of Shias, if grandfather is alive, there is no need to appoint a testamentary guardian since he shall already be there to take care of the minor child. In both Shias and Sunnis the mother doesn’t have the power to appoint the testamentary guardian. Only in two circumstances can she appoint the testamentary guardian when she is the executrix of the child or when she has to appoint the executor for her own property.

• Guardian appointed by the court

According to “the Guardians and Wards Act 1890” upon the failure of the testamentary and natural guardians the court shall appoint a guardian for the “welfare and upkeep of the child.”Though the High Court has this power it is exercised seldom.

UNDER THE CHRISTIAN LAW GUARDIANSHIP

Since there is an excess of the heterogeneous family in the western culture it is extremely difficult to make sure of the custody and guardianship of the child. But, according to common practices in the West, the mother has the natural Guardianship and custody of the minor child. She is the primary caretaker of the child. She also has the power to file a petition against the father to prove his paternity and that he is the lawful biological father of the minor child.

“Section 17 of the Guardians and Wards Act 1890” [5] is secular and keeps the welfare of the child above the boundaries of religion. The minor can also state his or her preference when they are old enough to decide for themselves.

UNDER THE PARSI LAW GUARDIANSHIP

There is no separate law to deal with Parsi children, the Guardian and Wards Act 1890 is the determinant in their case as well. Keeping aside religion the secular law talks of the welfare of the child. Once the child becomes an adult he or she can determine the custody for themselves.

CONCLUSION

The various personal laws have been dealt with in the draft above. Hindu laws, Muslim laws, Christian laws and Parsi laws have been talked about in detail and depth substantiating them with case laws as well. : The Guardians and Wards Act, 1890” is the prime document to govern the matters of minor custody and Guardianship. The child is the future of the nation and be it any religion the welfare and upkeep of the minor are prioritized. Whoever be the guardian the main aim is the upbringing of the child and that the necessities like shelter, education and health should be taken care of.

ENDNOTES

1. The Hindu Minority and Guardianship Act,1956
2. P.S. Ramachandra Iyer, Son of P.S. Vs S.V. Annapurni Ammal
3. Krishnaswami Gourden Vs Palani Ammal 27 March 1936 MLJ 417
4. Paras Ram Vs State
5. Guardians and Wards Act 1890
6.  Imambandi v. Mutsaddi (1918) 45 Cal 887
7. https://www.indianalegalservices.org/node/51/general-information-about-guardianship-child
8. http://www.legalserviceindia.com/article/l35-Guardianship.html
9. http://legislative.gov.in/sites/default/files/A1956-32_0.pdf
10. https://blog.ipleaders.in/guardianship-child-different-personal-laws/

This article is written by Astha Deep student at CNLU, Patna