Analysis of Guardian and Wards Act, 1890 with reference to Uniform Civil Code

1. INTRODUCTION

Nowadays, Uniform Civil Code is a hot topic to debate regarding the Indian constitution as it tries to mandate the uniformity in laws against personal law based on scriptures and customs of every religious community (major). In the Indian Constitution, the Uniform Civil Code is a part of Directive principles and is discussed in Article 44[1] , which says that State should apply the Uniform Civil Code throughout India’s territory. The debate aroused a question to make some laws applicable to all without violating the fundamental right of right to religious practices. 

The demand of the UCC was first aroused by the women’s activist on the line of women’s right, secularism and Equality. After independence, the need for UCC was first made by Jawaharlal Nehru. However, because of the Muslim members’ opposition, the UCC was made a part of DPSP instead of Fundamental rights.[2]

Also, UCC contains laws on Marriage, divorce, maintenance, adoption, guardianship, succession etc. 

Guardian and Ward's act are one of the types of UCC. This act was required because there was much discrimination based on gender, as the mother used to get guardianship on a limited number of instances. Mother used to get the minor's guardianship only after the father or in the father's absence. In Muslim law, father, grandfather were considered to be the guardians of the minor instead of the mother. An excellent example for the above statement is MS Githa Hariharan and another v. Reserve Bank of India[3]. The facts of this case are as follows- The petitioner and Dr Mohan Ram were married in 1982 and had a son in 1984. In 1984, the petitioner, who was the mother of the minor child, applied for a 9% Relief Bond to RBI as a natural guardian of the child. RBI denied her application stating that she should present a certificate of the guardianship from a competent authority or produce an application signed by the father of the minor child as he is considered to be the natural guardian according to section 6(a) of the Hindu Minority and Guardianship Act of 1956 which states that the natural guardian of a boy or an unmarried girl is the father and after mother[4]. The legal arguments from the petitioner's side were that the RBI communication was arbitrary and is opposed under fundamental rights provided under Article 32 of the Indian Constitution. In this particular case, the judge took the precedent of Gajre v. Pathankhan[1] while giving the judgment and interpreting the meaning of the word ‘after’ in section 6(a) of the Hindu Minority and Guardianship Act of 1956. The judge dismissed the petition regarding the act's constitutionality because as observed in the Gajre case[5], the word after does follow if the father has total apathy towards the child and was not interested in maintaining the child. The court also directed RBI to accept the application of the petitioner. 

In this particular paper, the author will analyze the Guardian and Wards act while discussing various aspects of different and essential sections of the same. 



2. WHAT IS GUARDIAN AND WARDS ACT 

Minors are physically and mentally immature, so they need special safeguard and care. Our laws itself says that the minors cannot act independently but can only act through the guardian. Most countries laws provide that the parents of a minor child are the legal guardian of that child and that the parents can decide who shall become the child's legal guardian on the event of their death. In some cases, the court shall appoint the guardians for the welfare of the child. In India, there is two crucial legislation relating to guardianship. The first one is the Hindu Minority and Guardianship act 1956, and the second one is Guardian and Wards act 1890. Guardian and Wards act 1890 is a secular law regulating guardianship and custody for all children within India's territory. This act lays down the guardians' rights and obligation, procedure and removal and replacement, and remedies for misconduct by them. 

3. GUARDIAN AND WARDS ACT 

MINOR AND GUARDIANS 


Section 4(1) [6]Guardian and Wards act 1890 states the definition of the minor. According to it, ‘minor’ is a person who has not completed his age of 18 years. Therefore, children before this age are supposed to have a legal guardian. This section is directly taken from Section 3(1) of Indian Majority act 1875. 

Here a question arises that who is Guardian? 

According to Section 4(2)[7], a guardian is a person who has the care of the person who is a minor or taking care of his property or of both, i.e. the person and the property. The Hindu Guardianship act explains it further elaborately: natural guardian, the guardian appointed by the will of the minor’s parents, appointed by the court and the person who is empowered to act as such or by under any representation relating to any court of wards. 

VARIOUS PROVISIONS OF GWA 1890 

The various provisions which can be noted are as follows-[8]

● It is secular law. 

● It is also applicable to the Christian and Parsis. 

● It authorizes the District Court or any Court of wards to appoint a guardian to the person or the minor's property when his/her natural guardian or testamentary guardians (who are appointed under the will) fails to discharge their duties the minor. 

● It umbrella is the legislation that supplements the personal laws which govern the guardianship issues under every religion. 

● Even if substantive law applied to a specific case is the parties' personal law, the procedural law applicable is laid down in the GWA.
 

IMPORTANT SECTIONS IN GWA AND INTERPRETATION 


Section 7 gives a court the power to make orders as to guardianship[9]. It lays down the provision that the court, for the welfare of the minor, shall appoint a guardian who can take care of him or his property or both (if it is satisfied that it is for the and in accordance with the welfare of the minor[10]). It also gives the power to the court to remove any guardian who has not been appointed by will or any other instrument or who is appointed or is declared by the court.[11]

Section 8 deals with who has the power to apply or who is entitled to apply for the guardianship order[12]- 

● The person who is desirous of being, or who is claiming to be, the guardian of the minor. 

● Any relative or friend of the minor. 

● The Collector of that district or any other local area in which the minor generally resides or has property. 

● The Collector who has authority w.r.t the class in which the minor ordinarily belongs. 

Section 9 says about the court which has the jurisdiction to entertain the application[13]. If the application is in respect to the minor's guardianship, the jurisdiction lies to the district court where the minor guardians live or where the minor ordinarily resides[14] . If the application is w.r.t. guardianship of the minor's property, then it may be made in the district court where minor ordinarily resides, or a place where he has the property. There is a famous case for understanding the above-quoted text, namely Aparna Banerjee v Tapan Banerjee[15]. The facts of this case are- The mother left his husband’s home with her minor child (who was less than five years of age) in 1979. The mother and son started living in Calcutta. The legal question highlighted in this case was whether the court in Faridabad (where the mother used to live with her husband) has the jurisdiction to entertain any petition regarding the minor as the father filed a petition under Section 25. In this case, the court held that the ordinary residence of the child should be where he is residing with mother[16], hence no jurisdiction to the Faridabad court. 

Section 10[17] to Section 16[18] deals with some relevant provisions of guardianship, including procedure and admission of the application, appointment or declaration of several guardians and so on. R
elevant case law for the above sections is Jai Prakash Khardia v Shyam Sundar Agarwalla[19]. In this case, the court opined that the orders regarding children's custody are interlocutory subject to modification at a future time.[20]


Section 17 lays down the aspects to be measured by the court in entertaining the matter of appointing a guardian for the minor or his property.[21] While bearing in mind this, the court gives more prominence to the welfare of the child. 

● While deciding the matter, the court should look upon the minor's rights, and what, in the circumstance of the case, is in the welfare of the child. 

● The court should see into the age, sex and religion of the minor. 

● The suggested guardian's capacity and character and how closely the suggested guardian is related to the minor. 

● The wishes of the deceased parents. 

● Any existing or previous relationships or the proposed guardian with the person or property of the minor. 

Also, under GWA, the father is the female child's guardian until he is found unfit. In deciding such questions, the well-being of the minor is the most important consideration, and such a question cannot be judged merely based on the rights of the parties obliged under the law.[22] In some cases, the court may consider the opinion of the minor while appointing a guardian. In the case name, Kurian C. Jose vs Meena Jose[23] held that the minor’s opined that a minor’s preference need not necessarily be decisive but is only one of the factors to be considered by the court considering the question of custody.[24]

Also, a court shall not appoint or declare any person to be a guardian against his will. The relevant case law for this is Shavaksha Dolikuka v Thirty Hoshie Dolikuka[25]. In this case, the court held that since the father is not interested in the child's welfare, he is not entitled to the child's custody. So basically it is directly linked with the interest and the welfare of the child. 

Section 19 deals with cases where the court may not assign a guardian[26]. The court shall not assign a guardian where the minor's parents are alive and mentally & physically fit to look after the child's interest. There is an exception in this particular section, i.e. it excludes a married female whose husband is fit to be a guardian of her person. 



According to Section 20, a guardian must be in the fiduciary relationship with his ward because the guardian ward relationship's main element is trust[27]. According to Section 21, a minor cannot act as guardian of another minor except in certain circumstances[28]. Then if the court thinks fit, the guardian is entitled to get remuneration under Section 22. [29]

Section 24 says about the duties of the guardian of the person. A guardian is charged with custody of the ward and must support the ward and his health and education-related matters[30]. Also, Section 25 deals with the authority of the guardian over the custody of the ward[31]. Section 25(a) says that if award leaves or removed from the custody of the guardian, the court can issue an order for the wards return if it believes that it for the ward's welfare to be returned to the custody of the guardian. 

Section 27 deals with the duties of the guardians of property[32]. A guardian of the ward's property is bound to deal the property as prudently as a man of conventional farsightedness would deal with it if it were his own[33] and he should do all the acts which are reasonable and proper for the benefit and protection of the property. Section 28 deals with the powers of the testamentary guardian[34]. If a will or any other instrument has appointed a guardian, he should deal that property on the conditions and restrictions imposed by that instrument.

Section 29 says about the limitations of the power of guardians of property appointed or declared by the court.[35] According to this section 

● A guardian cannot mortgage, sell, transfer by gift, exchange any part of the minor’s immovable property. 

● Cannot lease any part of the property for more than five years or more than one year if the ward will cease to be a minor. 

The guardian will need the prior permission of the court to do the above state things. 

Section 38-42 deals with the termination of the guardianship. Section 38 says about the right of a survivor among joint guardians.[36] It says that if one of the joint survivors dies, the other guardian is in charge until further stated by the court. 

One of the most essential section of the GWA is Section 39, which states about circumstances in which a guardian can be removed.[37] These are- 

● For the abuse of trust. 

● For the failure in performance of his duties (of trust). 

● For proving to be incapable of performing the respective duty. 

● For not treating well or for the neglect of the duties towards the ward. 

● For willfully not obeying any of the provision of this act, i.e. GWA or any order given by the court. 

● A defect in the guardian's character does not make him fit to be the ward's guardian. 

● For not faithfully performing his duties. 

● For not residing within the limits of the court in which it has jurisdiction. 

● In the case of guardian of the property, bankruptcy or insolvency. 

Then, Section 40 says that the guardian appointed or declared by the court decides to resign his office, and then he may apply to the court for it[38]. Moreover, Section 41 deals with the various grounds for the cessation of guardianship of person and property. Such grounds include death, removal or discharge of the guardian; or ward attaining the age of majority; or Marriage of the female ward; or in case of the ward of the unfit father.[39]

Section42 lays down the provision that if the guardian is dead, discharged or removed, then the court on its discretion or under an application which may be filed under Chapter II can declare or appoint any other guardian for the person or property.[40]

These are the main provisions which are laid down under Guardian and Wards act 1890. 

4. CONCLUSION 

The author in this particular paper has tried to analyze the Guardian and Wards Act, i.e. why the act was needed, the various provisions of the act and how it got successfully enacted in India. A child's guardianship is the real matter of concern because the minors need physical and mental care to live a good and healthy life. Before enacting this act, there was much discrimination towards the mothers as they (mothers) used to get guardianship of her child in a limited number of cases. Those cases used to have one thing in common, i.e. when the father was not alive. It shows society's biases towards the women as she was not given the guardianship when the fathers do have a total apathy towards the minor, which is not following the minor's best interest. This discrimination was prevalent at that time. There was an excellent requirement for this type of activity so that the child or minor can get proper care and live a happy life. 

After the enactment of the Guardian and Wards act 1890, a uniform measure was established in society. It brought a consistent structure in the procedure of the guardianship. 

However, there was a concern that arose in the Githa Hariharan case: the child's guardianship will first go to the father rather than the mother (as stated in section 6(a) of Hindu Minority and Guardianship act. This opened a broad implication on the action as it clearly shows biasness towards the mother. The word ‘after’ needed interpretation in this section. In this case, the judge orated that the word after does not include in the cases where the father is in total apathy with the child or is not interested in the minor's State of affairs. 

The judge's resolution showed that the Guardianship act is not biased and is opened to broad implications. By the discussion, as done in the research paper, we conclude that guardianship of minor or his property do have much importance in the life of the minor and it should be given to a person who is deemed fit for that part, and it should be performed in the manner which is in the best interest of the minor. 

- Ayush Agarwal
2nd Year, NUJS


[1] The Constitution of India, 1950, Art. 44. 

[2] "CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)- VOLUME VII" (PDF). Lok Sabha. Archived(PDF) from the original on 10 August 2019. Retrieved 10 August2019. 

[3] Ms Githa Hariharan and another v. Reserve Bank of India and another AIR 1999, 2 SCC 228. 

[4] Hindu Minority and Guardianship Act, 1956, §6. 

[5] Id. 

[6] Guardians and Wards Act, 1890, §4(1). 

[7] Guardians and Wards Act, 1890, §4(2). 

[8] Guardianship & Custody - Part 1- Guardian & Wards Act, 1890 - Indian Family Law, February 18, 2019, available at https://www.youtube.com/watch?v=v-f4Dwss6n0 (Last visited on February 27, 2020). 

[9] Guardians and Wards Act, 1890, §7. 

[10] Welfare of minor, available at http://ncpcr.gov.in/showfile.php?lang=1=1&=270=708 (Last visited February 29, 2020). 

[11] Id. 

[12] Guardians and Wards Act, 1890, §8. 

[13] Guardians and Wards Act, 1890, §9. 

[14] Inconvenience Of Wife Should Be Treated As Prime Consideration In Transfer Petitions Arising Out Of A Matrimonial Suit: Calcutta HC, available at https://www.livelaw.in/news-updates/inconvenience-of-wife-should-be-treated-as-prime-consideration-in-transfer-petitions-arising-out-of-a-matrimonial-suit-calcutta-hc-read-judgment-151695 (Last visited February 29, 2020). 

[15] Aparna Banerjee v Tapan Banerjee (AIR 1986 Punj & Har 113) 

[16] Id. 

[17] Guardians and Wards Act, 1890, §10. 

[18] Guardians and Wards Act, 1890, §16. 

[19] Jai Prakash Khardia v Shyam Sundar Agarwalla (AIR 2000 SC 2172) 

[20] Id. 

[21] Guardians and Wards Act, 1890, §17. 

[22] Sumedha Nagpal v State of Delhi (2000) 9 SCC 745. 

[23] Kurian C. Jose vs. Meena Jose (1992 (1) KLT 818). 

[24] Id. 

[25] Shavaksha Dolikuka v Thirty Hoshie Dolikuka (AIR 1984 SC 410). 

[26] Guardians and Wards Act, 1890, §19. 

[27] Guardians and Wards Act, 1890, §20. 

[28] Guardians and Wards Act, 1890, §21. 

[29] Guardians and Wards Act, 1890, §22. 

[30] Guardians and Wards Act, 1890, §24. 

[31] Guardians and Wards Act, 1890, §25. 

[32] Guardians and Wards Act, 1890, §25(a). 

[33] Duties of guardian of property, Guardian of property, available at https://www.legal-lenses.com/section/23282/ (Last visited on February 29, 2020) 

[34] Guardians and Wards Act, 1890, §28. 

[35] Guardians and Wards Act, 1890, §29. 

[36] Guardians and Wards Act, 1890, §38. 

[37] Guardians and Wards Act, 1890, §39. 

[38] Guardians and Wards Act, 1890, §40. 

[39] Guardians and Wards Act, 1890, §41. 

[40] Guardians and Wards Act, 1890, §42.

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