Minors need good care because they are cognitively and physically undeveloped. A minor in India is prohibited from acting freely by law. Ward and guardianship are two different types of general and private laws in India. To safeguard the minor's interests and property, the Guardians and Wards Act of 1890 was passed. The statute, which applies to all of India, went into effect on July 1st, 1890. The Guardian and Ward laws are consolidated and amended under the Act.
The Guardians and Wards Act, 1890 is an Indian legislation that governs matters related to the appointment of guardians for the care and protection of minors, as well as their property. It was enacted to ensure the welfare and safeguard the interests of children who are not of the age of majority and therefore legally incapable of making decisions for themselves. The Act provides a legal framework for the appointment and removal of guardians, as well as the rights, duties, and responsibilities of both guardians and wards.
Features of Guardians and Wards Act, 1890
Some of the key features of the Guardians and Ward Act are,
- According to the statute, a minor's guardian may be appointed by the District Court or any other court within the ward. The guardian looks after the minor, the minor's possessions, or both.
- The Guardian and Wards Act of 1890 is a comprehensive statute that complements individual guardianship rules under every major religion.
- The Act provides procedural legislation that applies to personal laws in specific circumstances even though it is substantive law.
Key Aspects of The Guardians and Wards Act, 1890
Here are some key aspects of The Guardians and Wards Act, 1890:
A "minority" is any individual who has not yet achieved the age of majority, which is typically 18 years old in most nations, as defined by the Guardian and Wards Act of 1890. According to the Indian Majority Act of 1875, this age is also the legal majority in India.
A "guardian" is a person who has legal responsibility for the upkeep and defense of a child under the Guardian and Wards Act. According to the Act, a guardian is anybody who is legally able to act on behalf of a child, whether through a court appointment or as a result of a legal connection, such as a parent, grandmother, or legal guardian.
The Act outlines the procedures for applying for guardianship, the role of the court in appointing, removing, and regulating guardians, and the considerations that must be taken into account while making these decisions.
Points of Consideration
A guardian should take into account the factors listed in Section 17 of the legislation. The court will make decisions based on the minor's rights, welfare, and the facts of the case. Section 17(5) of the legislation states that the court cannot appoint a guardian against the minor's wishes. The court should take the following factors into account:
- The age, sex, and religion of minors should be seen.
- The capacity and character of the guardian. Also, the relation of the guardian with the minor is to be.
- Wish of the deceased parent.
- Any existing or previous relationship of the guardian with the minor or his property.
Appointment of a Guardian
The Guardians and Wards Act, 1890, Section 7 gives the Court the authority to issue a guardianship order. The court may appoint a guardian for the welfare of minors, according to this clause. The guardian can look after the youngster and his belongings. Any guardian may be terminated by the court. When appointed by the court, the guardian may be removed by the court.
Who Can Apply to Be a Guardian?
The Guardians and Wards Act, 1890's Section 8 specifies who is qualified to submit an order application. The following individuals may apply by this section:
- The person who is deciduous of being or claiming to be the guardian of the minor
- A relative or friend of a minor.
- The collector of a district or area where a minor resides or has property
- The collector who has the authority.
Rights and Duties of Guardians
The Act's Section 24 outlines the responsibilities of a guardian of the individual. A minor's guardian is obligated to take care of all of his needs, including support, health, education, and other issues.
Which Court would have the Jurisdiction?
- The Guardians and Wards Act of 1890, Section 9, establishes the court's authority to consider an application.
- If the application relates to the guardianship of minors, the court's jurisdiction is where the minors' guardians live or reside.
- When an application relates to a minor's property, the District Court may have jurisdiction either where the minor resides or where the property is located.
The Guardians and Wards Act, 1890, Section 10, offers a method of application. The petition applies rather than the collector. The Code of Civil Procedure, 1908 specifies how to sign and verify the petition submitted under this clause. A petition of this nature should include all information required by section 10(1) of the Guardians and Wards Act of 1890.
According to this clause, the collector's application must be in the form of a letter. The letter must be addressed to the court and sent by mail or another convenient method. Details referred to in paragraph (1) of section 10 of the Guardians and Wards Act of 1890 must be included in the letter. The application must have a declaration made by the proposed guardian, signed by him, and attested by at least two witnesses.
The Guardian and Wards Act, 1890's Section 11 outlines the application admittance process. This provision states that the court will set a hearing date after it is satisfied with the basis for the case. The notification was sent in the way that the Code of Civil Procedure, 1908, prescribed.
The act's Section 15 allows for the declaration or appointment of several guardians. This clause states that if the law recognizes the existence of two or more joint guardians for his person, property, or both. The court considers it relevant to state that it has the authority to name more than one guardian.
A different guardian may be named or proclaimed for the minor's person or property. Additionally, if the minor owns many properties, the court may name or proclaim a different guardian for each property.
Section 16 of The Guardians and Wards Act, of 1890, allows the appointment of a guardian for property outside of the court's purview. When a court appoints a guardian for a minor's property that is located outside of the local jurisdiction.
When can a Guardian Not Be Appointed?
A Guardian may not be appointed by the court under certain circumstances, according to Section 19 of the legislation. If the property is managed by the courts of wards, the court may not designate a guardian or appoint a guardian for someone who:
If the minor is a married woman whose husband is qualified to serve as a guardian.
She is qualified to serve as the person's guardian in the case of a juvenile female who is not married and still has a surviving parent.
Leaving of Custody
The Guardians and Wards Act of 1890, Section 25, grants the title of guardian to those who have guardianship of youngsters. This clause permits the court to issue a return order for the kid if he escapes the guardian's care. The kid may be arrested to make such a return. Section 100 of the Code of Criminal Procedure, 1882 grants the magistrate of First Class the authority to arrest the juvenile.
Removal of Guardian
The act's section 26 deals with excluding the ward from its purview. The court may issue an order for a juvenile's return or arrest and delivery to a guardian if the minor departs from or is taken from the custody of a guardian designated by the court.
Section 39 of the Guardians and Wards Act, of 1890 has a list of conditions for the Removal of the Guardian. The causes for the removal of a guardian by the court are as follows:
- When the guardian abuses trust.
- When a guardian fails to perform duties of trust.
- When the guardian is incapable of performing the duties of trust.
- When the guardian ill-treats, neglects to take proper care of the minor.
- For disregarding any provision of the Guardian and Wards Act, 1890, or order of the court.
- For a conviction of an offense that implies a defect in the character of the guardian, such character makes a person unfit to be a guardian.
- When the guardian ceases to reside within the jurisdiction of the court
- When the guardian of the property is for bankruptcy or insolvency.
The act's section 40 deals with guardian discharge. This provision states that the guardian may request the court to resign from his position at any time. The court will release him if it determines there is a good enough cause. When the guardian is a collector, the court may release him once the state government has approved the application.
HGMA 1956 vs. GWA 1890
The Hindu Guardianship and Minorities Act of 1965 only applies to Hindus and subsets of Hindus such as Jains, Buddhists, Sikhs, Lingayat, Arya Samaj, Followers of Brahmo, Followers of Prarthana Samaj, and Virashiva. The Guardian and Wards 1890 is a secular law that applies to all citizens and communities of India.
Other religious groups including Muslims, Parsis, and Christians are not covered by this statute. This statute supplements, not replaces the statute of Guardians and Wards of 1860. The process for petitioning courts to appoint a guardian is outlined in GWA 1890.
Q1. When might the court refuse to appoint a guardian?
A. When the minor's father or mother is still living and neither parent is deemed incompetent by the court to serve as guardian. Additionally, if the youngster is a married woman whose husband is not unsuited to serve as a guardian.
Q2. Is it possible to decline the role of Guardian?
A. It is possible to decline to act as a guardian. In the District Court, he must file a declaration of his readiness to comply with registration.
Q3. Is it possible for a kid to reject a guardian?
A. The court cannot choose a child's guardian without the child's consent. Additionally, if the kid is old enough to express a reasoned judgment, the court may consider that.
Q4. What type of relationship does a guardian have with a minor?
A fiduciary relationship based on trust exists between the guardian and the minor.
Q5. Is Guardian eligible for compensation?
A. If the court determines that the guardian must incur expenses while performing his obligations, they would be obliged to incur the costs.