Guardianship is a legal process that transfers decision-making authority over an individual. A guardian is a person who is appointed to look after another person or his property. He or she assumes the care and protection of the person for whom he/she is appointed the guardian. The guardian takes all legal decisions on behalf of the person and the property of the ward. The occasion for taking care of another person may be his minority that is, a person who has not completed 18 years of age. It can also refer to guardianship of a person who because of physical and mental deficiencies is unable to take care of himself or his property.

From early times, the condition of minority has been the ground for appointment of guardians in all societies. This is due to the fact that a minor person is considered unfit to take decisions for himself, which can be binding on him as regards others. Therefore, a minor person is treated in law as incompetent to enter into contract with a person who is an adult. In all matters therefore, a minor has also been considered unfit to represent himself except through his guardian. A guardian takes decision on behalf of the minor for protecting the interests of the minor and his property.

The Hindu Minority and Guardianship Act, 1956, regulates guardianship of minor children in Hindu law (covers Hindus, Sikhs, Jains and Buddhists in India). A minor is described as anyone under the age of eighteen, according to Section 4(a) of the Act. A guardian, according to Section 4(b) of the Act, is an individual who is responsible for the child’s care, property, or both. The various forms of guardianship in India include:

Natural guardian, Testamentary guardian, Guardian appointed by the court , De facto guardian and Guardians by affinity.

a) Natural guardian:-
Only three people are considered natural guardians, according to Section 6 of the Hindu Minority and Guardianship Act, 1956: the mother, father, and husband. A father or husband of a minor child or minor wife cannot be stripped of their natural guardianship unless the court considers them incompetent to care for the minor child or wife, according to Section 19 of the Guardians and Wards Act, 1890.

According to Section 13 of the Hindu Minority and Guardianship Act, 1956, the welfare of a minor child is paramount, and if the court decides that the guardianship of any person is not in the best interests of the child, the court may remove that person as the child’s guardian.

Even if the father is alive, the mother is the natural guardian of minor illegitimate children under Section 6(b) of the Hindu Minority and Guardianship Act, 1956. The natural guardianship of the adopted son under Section 7 is passed on to the adoptive father and, after his death, to the adoptive mother. In the case of a legitimate child, a mother may only become a guardian after the father’s death or inability to become a guardian. Section 6(a) states that custody of a child under the age of five should be with the mother unless the court finds that doing so will be harmful to the child’s welfare.

b) Testamentary guardians:-
A testamentary guardian is a guardian appointed in a will by the natural guardian. A father has the testamentary right to appoint a guardian for his legitimate children or property, or both, under Section 9(1), but Section 9(2) states that if the mother is alive after the father’s death, she will be the guardian of the children, and the father’s will will be restored only if the mother dies without appointing a guardian.

The mother of illegitimate children has the authority to appoint a guardian for the children, property, or both under Section 9(4). The guardianship of a minor girl ends when she marries, and it does not come back even though she becomes a widow while still a minor. The person named as a testamentary guardian must explicitly or implicitly acknowledge the guardianship. He has the right to refuse to be the guardian, but once he has agreed to be the guardian, he cannot refuse or resign unless the court gives him permission.

c) Guardians appointed by the court:-
The court can appoint a guardian to a child under the Guardians and Wards Act, 1890 which would be called a “certified guardian”. The powers of the certified guardian are also stated in the Act. The Act confers power to district courts. A district court can choose to select any person as the guardian of a child if it thinks necessary for the welfare of the child. The Act specifies that while appointing the guardian of a child the court must consider the child’s sex, age, parent’s wish, and the personal law of the child. The Act considers that the welfare of the child is of paramount consideration and any decision taken by the court should be for the welfare of the child. High Courts have an inherent power to appoint a guardian to a child, undivided interest in a coparcener, or his separate property but this power is rarely used by the High Court.

d) Guardianship by affinity:-
The guardianship of a minor widow by a relative within the degree of sapinda is known as affinity guardianship. A father-in-law may be a guardian by affinity, but Section 13 of the Hindu Minority and Guardianship Act states that the child’s welfare must come first, so it’s important to make sure the minor widow is safe and that her needs are met by the guardian by affinity.

e) De facto guardian:-
Although the word “de facto guardian” is not stated in any statute, the court has always recognised it. A de facto guardian is someone who has consistently shown an interest in caring for, handling, or managing the infant, his or her property, or both. A de facto guardian is not a legal guardian, and therefore has no legal authority over the child or the child’s property, but he has assumed responsibility for the child and the property. A de facto guardian is not formed by a single or few actions, but rather by a consistent pattern of behaviour regarding the child’s property.

The law of guardianship in Muslims came from certain verses in the Quran and a few hadids. Under Muslim law, there are only three types of guardians:

a) Natural guardian:-
The only father is considered the natural guardian of a child under Muslim law, and the mother is not considered a natural or other guardian even after the father’s death. Even if the child’s custody is not with him, the father is considered the child’s only natural guardian and has authority over all decisions concerning the child.

Only the father’s legitimate children are under his guardianship. He is not entitled to guardianship of the illegitimate children. A Muslim mother may have custody of her children, but she is not allowed to be their guardian.

The parent is the natural guardian of a child in Sunnis, and the guardianship is passed to the executor after the father’s death. The father is the natural guardian of Shias, but after his death, the guardianship is passed to the grandfather, if he is still alive. And even if the father has named an executor, if the grandfather is alive, the guardianship will be vested in him. Only in the absence or after the death of the grandfather will the executor become the guardian. If the grandfather names an executor before his death, the executor appointed by the grandfather becomes the guardian after the grandfather’s death.

b) Testamentary guardian:-
The term wali, guardian, amin, or kaim-mukam refers to a testamentary guardian. The father can appoint a testamentary guardian in both Shia and Sunni traditions. In the absence of the father and his appointed executor, the grandfather has the power to appoint a testamentary guardian. The father’s guardian is only true in Shias if the grandfather is deceased; otherwise, the grandfather has the power to appoint the testamentary guardian. In both Shias and Sunnis, the mother has no right to name a guardian for her children except in two cases:

i) By her father’s will, she has been named executrix. She owns a home that will pass to her children after she passes away.

ii) By the father’s or grandfather’s will, a mother may be appointed as a testamentary guardian or executrix of a kid. A non-Muslim mother may be named as a testamentary guardian in the case of Sunnis, but not in the case of Shias. A testamentary guardian must explicitly or implicitly recognize the guardianship. If the guardianship is agreed, it can only be denied or renounced with the court’s approval.

c) Guardian appointed by the court:-
When natural and testamentary guardians fail, the court has the right to appoint a guardian for the child. The Guardians and Wards Act of 1890 governs the appointment of a guardian for a child from any group. The Act empowers the district court to nominate a guardian after considering the child’s best interests. The High Court also has the authority to name a guardian for a minor, which it only does on rare occasions.

The Guardianship and Wards Act of 1890, which is a secular Act, determines the guardianship of Christians. The guardian appointed for the child for the property must consider the child’s health, according to Section 17 of the Act. The section notes that when naming a guardian, the sex, age, faith, character, and capability of the proposed guardian, desires of the child’s parents, and if the minor child is old enough, his choice must also be taken into account.

When the father or husband is fit to be the guardian of the child or wife, Section 19 of the Act states that the court has no power to appoint a guardian or when the property is under the control of the Court of Wards. Section 24 notes that the guardian should assume custody of the child and that it is the guardian’s responsibility to provide for the child’s health, education, and other needs.

The Guardianship and Wards Act of 1890 governs a child’s guardianship. The Parsis do not have their own personal guardianship rules. It is predominantly governed by Hindu customs and rules. In addition, Muslims, Christians, and Parsis have no personal laws on adoption. The Guardianship and Wards Act of 1890 requires them to go to court. A child should only be taken into foster care, and once he reaches the age of majority, he has complete autonomy over his decisions.

Children are a country’s future, so it’s important that they grow up in a positive atmosphere where they are well treated and nurtured. A minor child is incapable of self-care or making choices. There is a need for someone to look after the child, to help, to love, and to provide all of the child’s basic needs. As a result, a child’s guardian should be someone who takes good care of the child. The wellbeing of a child thus should be the most important factor when naming guardians.

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