A guardian is a person appointed to take care of another person or his property. He assumes the care and protection of the person for whom he is appointed guardian. Say no to plagiarism. Get a tailor-made essay on "Why Violent Video Games Shouldn't Be Banned"? Get an Original Essay The guardian makes all legal decisions on behalf of the guardian's person and estate. The opportunity to take care of another person can be his minority, that is, a person who has not reached 18 years of age. It may also refer to the guardianship of a person who due to physical or mental deficiencies is unable to care for himself or his property. Since ancient times, the condition of minority has been the reason for the appointment of guardians in all societies. This is due to the fact that a minor is considered unfit to make decisions for himself that may be binding on him towards others. Therefore, a minor person is considered legally incapable of entering into a contract with an adult person. In any case, therefore, the minor was also considered unfit to represent himself except through his guardian. A guardian makes the decision on behalf of the minor to protect the minor's interests and assets. Due to the concept of joint families where a child without parents is looked after by the head of the joint family, there was no need for specific laws in this regard. guardianship but in modern times the concept of guardianship has transformed from paternal power to the idea of ​​protection. It was during the British regime that guardianship law was finally developed and the Hindu Minority and Guardianship Act, 1956 codifies laws relating to minority and guardianship with the welfare of the child at its centre. The Hindu Minority and Guardianship Act was established in 1956 as part of the Hindu Code Bills, the other three important acts created in this period are the Hindu Marriage Act (1955), the Hindu Succession Act (1956) and the Hindu Marriage Act (1955), the Hindu Succession Act (1956) and the Hindu Adoption and Maintenance Act (1956). All these acts were brought under the leadership of Jawaharlal Nehru who wanted to modernize the existing Hindu legal tradition. The Hindu Minority and Guardianship Act of 1956 was intended to improve upon the Guardians and Wards Act of 1890, not to serve as its replacement. This act specifically serves to define guardianship relationships between adults and minors, as well as between people of all ages and their respective property. The Hindu Minority and Guardianship Act outlines policies regarding minorities under Indian Hindu Personal Law. It was later established that the child's father is the natural guardian of the child and that, after his death, the mother becomes the natural guardian of the minor child or children. It was also during this period that testamentary guardianship was first introduced into Hindu law. It has been so accepted and exercised by the courts that the supreme protection of minor children belongs to the State as parens patriae. Latin, Parent of the country.] A doctrine that grants the inherent power and authority of the state to protect people who are legally incapable of acting on their own behalf. Guardianship under Hindu Law The Hindu law on guardianship of minor children was codified and reformed by the Hindu Minority and Guardianship Act, 1956. The Act is an extension of the Guardians and Wards Act, 1890 but not a replacement. The main objective of the central legislation is to define the relationship between guardian and minor and standardize legal guardianship under Hindu law. This law extends to the whole of India except the state of Jammu and Kashmir. Any previous law that is in conflict with this law is declared legally null and void. This law replacesall other relevant laws. This law applies to all Hindus, that is, to those who belong to the Hindu religion or any of its forms of development. Both legitimate and illegitimate minors who have at least one parent who meets the above conditions are subject to the jurisdiction of this law. According to the law, a person who has not reached the age of eighteen is a "minor". Classical Hindu law contained no principles regarding the protection and custody of children. In the joint Hindu family, the Karta was responsible for the general control of all dependents and the management of their properties, and therefore no specific legal rules relating to guardianship and custody were deemed necessary. However, in modern Hindu law, the Hindu Minority and Guardianship Act of 1956, provides that the father is the natural guardian of the minor and, after him, the mother. Article 6(a) of the HMGA provides that: in the case of a minor boy or an unmarried minor girl, the natural guardian is the father and, after him, the mother; and that custody of a minor under the age of five normally falls to the mother. The Guardians and Wards Act of 1890 is a secular law that regulates matters of guardianship and custody of all children in India, while the Hindu Minority and Guardianship Act of 1956 codifies Hindu guardianship and guardianship law. The HMGA and Personal Laws act in addition to the GWA by establishing the substantive law relating to guardianship and custody, while the GWA sets out the procedure for applying to the courts to appoint a guardian for a child. The topic can be discussed under the following headings: (i) Guardianship of the person of minors, (ii) Protection of the assets of minors, and (iii) Guardians of fact and (iv) guardians by affinity: Minor children – Pursuant to the 'art. 4(b), a minor is that person who has not yet or has not reached the age of 18 years or someone in need of protection, e.g. a child who is not physically and intellectually perfect and also lacks understanding of the day-to-day workings of the world. In the concept of this Act, the welfare of the child is equivalent to both the physical and moral well-being of the child and therefore guardians essentially exist to meet these needs of the child. The guardian is the one who has the care of the person or his property or both the person and the property. In modern law, guardians essentially have the task of protecting and caring for the child and taking care of his physical and moral well-being. that is, the well-being of the child is of paramount importance. Guardians can be of the following types: Natural guardians Testamentary guardians Guardians appointed or declared by the court. There are two other types of guardians, existing under Hindu law, guardians de facto and guardians by affinity. Natural Guardians: According to Hindu law, there are only three types of natural guardians. They are the father, the mother and the husband. The Father - Section 19 of the Guardians and Wards Act 1890 states that "the Father is the natural guardian of his lawful minor children, sons and daughters". It is further clarified that the father cannot be deprived of this right until and unless he is declared unfit for the same. Under the Sec. 13 of the Hindu Minority and Guardianship Act which states that the welfare and well-being of the minor are of utmost importance, while the right of guardianship of the father comes at a subordinate level. The act thus states that the position of adopted children is equal to that of a natural child. Even if the father neglects to care for or fulfill his obligations towards the child, or refuses to act as natural guardian, the mother cannot be the natural guardian of the child as long as the father is alive, as held in the cases Sundara Murthy v . Shanmuga Nadar[1] and Ramachandra v. Annapoorni[2]. The Mother – the mother is the guardiannatural guardian of the legitimate minor child(ren) only if the father is dead or otherwise declared unfit, but she is the natural guardian of the illegitimate minor child even if the father is alive and perfectly fit. The mother's guardianship position of the adopted child is the same as that of the natural child/children. The provisions of section 6, clause (a) of the Hindu Minority and Guardianship Act provide that the custody of a minor who has not completed the age of five years normally vests in the mother. Therefore, the mother is entitled to custody of the child under the age of five, unless the welfare of the child requires otherwise. In the case of Gita Hariharan v. Reserve Bank of India[3] and Vandana Shiva v. Jayanta Bandhopadhaya[4] , the Supreme Court of India held that in certain circumstances, even during the period when the father is alive, the mother can act as a natural guardian of the child(ren). The term “after” used in Section 6(a) has been interpreted to mean “in the absence of” instead of “after life.” In the Gita Hariharan case, the constitutional validity of Section 6(a) was challenged on the ground that it violated the guarantee of gender equality under Article 14 of the Constitution of India. The Supreme Court examined the meaning of the word after and examined whether, under the scheme of the law, the mother was deprived of the right to be natural guardian during the life of the father. The Court observed that the expression after “shall be interpreted in light of the principle that the welfare of the child is the paramount consideration and the constitutional mandate of equality between men and women. The Court held that the term after in section 6(a) should not be interpreted to mean after the life of the father, but rather to mean in the absence of the father. The Court further clarified that the absence could be understood as temporary or otherwise or total apathy of the father towards the child or even incapacity of the father due to illness or otherwise. Therefore, in the specific situations noted above, the mother could be the natural guardian even during the father's lifetime. Section 13 of the HMGA states that, in deciding the guardianship of a Hindu minor, the welfare of the child shall be the paramount consideration and that no person shall be appointed as guardian of a Hindu minor if the court is of the opinion that he will do so. not be for the welfare of the child. Regarding protection under the HMGA the following can be concluded. Firstly, the father continues to have a preferential position when it comes to natural guardianship and the mother becomes natural guardian only in exceptional circumstances, as explained by the Supreme Court in the Gita Hariharan. Therefore, even if the mother has custody of the child since birth and is solely responsible for the child's care, the father can, at any time, claim custody based on his superior guardianship rights. Gita Hariharan, therefore, does not adequately address the original issue in Section 6(a) of the HMGA. Secondly, all legal guardianship provisions are ultimately subject to the principle contained in Section 13 that the welfare of the child is the paramount consideration. In response to the father's stronger guardianship rights, this is the only provision a mother can use to argue for custody/guardianship in the event of a dispute.[5] In a case where the mother and father had quarreled and were living separately and the minor daughter was under the care and protection of the mother, the Supreme Court held that the mother should be regarded as the natural guardian of the minor - Jijabhai Vitharao Gajre v. Pathankhan[6]. No person shall have the right to act as natural guardian of the minor provided that he has changed his religion or renounced itcompletely in the world. Stepparents are not entitled to guardianship unless this is specified by the court. The law does not recognize the principles of joint guardians. The Husband – the husband is the natural guardian of the minor wife. The courts, in interpreting this provision have made it subject to the welfare of the minor wife and it has been held that it is generally not within the welfare of the child for the immature minor wife to live in the custody of the husband, which was discussed in the case of Arumgo v. Viraraghava[7] and Navneet v. Purshotam[8]. The power of the natural guardian can be divided into two heads: Right relating to the body of the minor – Keeping in mind the importance of the above lines, the body of the minor under Section 8(i) according to which the natural guardian can perform all the functions relating to the care of the minor which are for his benefit. The power of natural guardian of minor's property - Section 8 of the HMGA 1956 describes the powers of a natural guardian as follows:A guardian may do any act, subject to the provisions of this section, which is necessary or reasonable and expedient for the benefit of the minor or his estate. But the guardian, under no circumstances, will bind the minor with a personal agreement. The guardian may not, without prior permission of the court: mortgage, levy, or transfer the minor's real property by sale, gift, exchange, or otherwise. Rent the property for a period exceeding 5 years or if the rental contract ends one year after the minor reaches the age of majority. Any sale of property in violation of the previous two points is voidable at the insistence of the minor. the court does not authorize the sale of real property unless it is necessary or clearly for the benefit of the minor. These powers also include the following: Right to custodyRight to determine the religion of childrenRight to educationRight to control movementRight to reasonable punishmentA Hindu mother has the right to act as natural guardian of her illegitimate minor children can, by will, appoint a guardian for someone of them with respect to the person of the minor or his property or with respect to both. The guardian so appointed by will shall have the right to act as guardian of the minor after the death of the minor's father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to the extent permitted and subject to restrictions, if any, as specified in this Act and in the will. The right of the guardian thus appointed by will will cease, in the event that the minor is a girl, upon marriage. In the case of Manik Chandra v. Ram Chandra[9] it was held that the meaning of "necessity" and "benefit" of a minor are quite broad and the courts have the power to widen their scope based on the facts of the case before giving permission. According to section 12, no guardian can be appointed for the undivided interest in the joint property of the minor. However, if necessary, the court can appoint a guardian for the entire joint family. Minor cannot be guardian of another minor: – As described in Section 10 of the Act, no minor can be guardian of another minor. In the case of Ibrahim v. Ibrahim, 1916, it was held that the minor can be the guardian of his wife but cannot be the guardian of her property. These rights are conferred on the guardians in the interest of the minor children and therefore each of these rights are subordinate to the well-being of the minor children. Natural guardians also have the obligation to support minor children. Testamentary guardians: This form of guardianship also originated in English times. In this particular type of guardianship it is important and necessary that the testamentary guardian accepts "the guardianship". Acceptance may be express or implied. The testamentary guardian canrefuse to accept the appointment or may renounce it, but once accepted he cannot refuse to act or resign except with the permission of the court. Under Section 9, Hindu Minority and Guardianship Act, the testamentary guardian can be appointed only by will. The guardian of a minor will cease to be the guardian of her person upon marriage, and guardianship can no longer be restored even if she becomes a widow while she is a minor. It was the father's decision to appoint testamentary guardian(s). By appointing a testamentary guardian, the father could exclude the mother from her natural guardianship of the children after her death. Under the Hindu Minority and Guardianship Act, 1956, the testamentary power to appoint a guardian is now vested in both parents. The father can appoint a testamentary guardian but if the mother survives him, her testamentary appointment will be ineffective and the mother will be the natural guardian. If the mother appoints a testamentary guardian, her nominee will become testamentary guardian and the father's appointment will continue to have effect. If the mother does not nominate, the guardian nominated by the father will become guardian. It seems that a Hindu father cannot appoint a guardian. of illegitimate minor children even when he has the right to act as their natural guardian, pursuant to art. 9, paragraph 1, gives him testamentary power over his legitimate children. Regarding illegitimate children, Sec. 9(4) confers this power on the mother alone. The powers conferred on testamentary guardians: according to Sec. 9(5) of the Hindu Minority and Guardianship Act, the testamentary guardian has the power to exercise all the rights of the natural guardian, subject to any restrictions provided by the will or by law. A testamentary guardian cannot sell the property of a minor without prior permission from the court. Court Appointed Guardians: The court appointed guardian is known as a certified guardian. The appointment of a guardian by the court is governed by the Guardians and Wards Act 1890. The High Courts also have inherent jurisdiction to appoint guardians, but this power is exercised sparingly. The Hindu Minority and Guardianship Act is supplementary to and not derogatory to the Guardians and Wards Act. Under the Guardians and Wards Act, 1890, jurisdiction is vested in the District Court. The district court has the power to appoint or declare a guardian over the person or individual property of the minor. When appointing a "guardian", the court takes into consideration several factors, including age, gender, parental wishes and the personal rights of the minor. The established High Courts have inherent jurisdiction to appoint guardians of the person and property of minor children. This power extends to the undivided interest of a co-parcener. A Hindu father or other senior coparcenary of a family has no power to appoint, by will or otherwise, testamentary guardians of the coparcenary property of the minor[10]. Power than that of court-appointed guardians/certified guardians: Their powers are controlled by the Guardians and Wards Act, 1890. There are very few acts he can do without the prior consent of the court. Ultimately, his powers are coextensive with those of the sovereign and he can do all those things for which he requires the permission of the Honorable Court, which the sovereign has the power to do. A certified guardian from the date of his appointment is under the supervision, guidance and control of the court. Guardianship by Affinity: This is one of those laws that existed before 1956. This form of guardianship was for a minor widow. In the case of Paras Nath v. State, Allahabad HC 1960[11], it is held that the father-in-law is the legal guardian of a minor widow. However, this view was not adopted by the HC of Nagpur and the HC of Madras and they held that the, 393