The Guardians and Wards Act, 1890 is a secular act which provide the laws for guardianship to all communities irrespective to their religions and prescribes the whole procedure of appointing the guardians by court.
This act regulates the procedure of appointing the guardian by court and direct to read the provisions of this act subject to any other act which shall be passed after this act.
Before writing about guardianship it is relevant here to first understand the meaning of Guardian and wards.
Sub-Section (2) and (3) of Section 4 of the act defines the meaning of guardian and wards, when it provides that;
(2) “guardian” mean’s a person having the care of the person of a minor or of his property, or of both is person and property:
(3) “ward” means a minor for whose person or property, or both, there is a guardian.
Appointment and Declaration of Guardian
When a court may appoint a guardian (Section 7)
When the court is satisfied that for the welfare of a minor an order should be made, it can make an order for the appointment of a guardian for his person or property or both. (1)
If there was any de facto guardian before the appointment of guardian by court, the order of the court shall end the guardianship of that de factor guardian. (2)
Who can apply to be a guardian or for the appointment of guardian (section 8)
A court shall make an order for the appointment of a guardian only in following cases-
- on the application of person desirous of being, or claiming to be, the guardian of the minor,
- on the application of a relative or friend of the minor, or
- on the application of the collector of the district or other local area within which the minor ordinarily resides or in which he has property.
Courts which can make order for the appointment of guardian (Section 9)
Following courts have jurisdiction to make an order for the appointment-
In case the application for the guardianship of the ‘person’ of the minor, an application may be make in the district court where the minor ordinarily resides. (1)
In case the application for the guardianship of the ‘property’ of the minor, an application may be made either to the District Court where the minor ordinarily resides or to a District Court where he has property. (2)
Return of Application (3)
If an application for the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.
Form of an application for guardianship (10)
An application made by a person other than collector, shall be in the form of a petition signed and verified in the manner prescribed by CPC, and stating the followings, as far applicable-
(a) the name, sex, religion, date of birth and ordinary residence of the minor;
(b) where the minor is a female, whether she is married, and, if so, the name and age of her husband;
(c) the nature, situation and approximate value of the property, if any, of the minor;
(d) the name and residence of the person having the custody or possession of the person or property of the minor;
(e) what near relations the minor has, and where they reside;
(f) whether a guardian of the person or property, or both, of the minor has been appointed by any person entitled or claiming to be entitled to make such an appointment;
(g) whether an application has at any time been made to the Court or to any other Court with respect to the guardianship of the person or property, or both, of the minor, and, if so, when, to what Court and with what result;
(h) whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both;
(i) where the application is to appoint a guardian, the qualifications of the proposed guardian;
(j) where the application is to declare a person to be a guardian, the grounds on which that person claims;
(k) the causes which have led to the making of the applications; and
(l) such other particulars, as the nature of the application renders it necessary to state
Application by the Collector (2).
If the application is made by the collector, it shall be by letter addressed to the Court and forwarded by post or in such other manner as may be found convenient, and shall state as far as possible the above-mentioned particulars.
If a collector appointed by the court he shall be subject to the control of the state government. (Section 23)
The application for the guardianship must be accompanied by a declaration of the willingness of the proposed guardian to act and the declaration must be signed by him and attested by at least two witnesses.
Notice of the application by the court (Section 11)
If the court is satisfied and admit the application for proceeding, it shall fix a day for the hearing thereof, and serve a notice of the application and of the date fixed for the hearing to-
- the parents of the minor,
- the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor,
- the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant, and
- any other person to whom, in the opinion of the Court, special notice of the application should be given; and
and notice shall be posted on some conspicuous part of the court-house, and of the residence of the minor, and otherwise published in such manner as the Court, subject to any rules made by the High Court under this Act, thinks fit.
Temporary custody of the minor (Section 12)
The court may direct that the person who has the custody of the minor shall produce him at such place and time and before such person as court appoints in this regard. And may further make order for the temporary custody and protection of the person or property of the minor.
A court shall not place the female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any.
Simultaneous proceedings in the courts (Section 14)
If proceedings for the appointment or declaration of a guardian of a minor arc taken in more Courts than one, each of those Courts shall, on being known of the proceedings in the other Court or Courts, stay the proceedings before itself.
And, if the Courts are both or all subordinate to the same High Court, they shall report the case to the High Court, and the High Court shall determine in which of the Courts the proceedings with respect to the appointment or declaration of a guardian of the minor shall be had.
And if the courts are related to different high courts, the Courts shall report the case to, and be guided by such orders as they may receive from, their respective State Governments.
Separate Guardianships (Section 15)
If in the personal law of minor, two guardians may be appointed, the court may appoint joint guardians.
The court may also appoint-
-Separate guardians of the person and of the property of a minor.
-separate guardian in the case of several properties of minor.
Appointment of guardian beyond jurisdiction (Section 16)
If the Court appoints or declares a guardian for any property situate beyond the local limits of its jurisdiction, the Court having jurisdiction in the place where the property is situate shall, on production of a certified copy of the order appointing or declaring the guardian, accept him as duly appointed or declared and give effect to the order.
Matters to be considered by the Court in appointing guardian (Section 17)
In appointing or declaring the guardian of a minor, the Court shall be guided which appear the welfare of the minor.
And in considering the welfare of the minor, the court shall have regard to the followings-
- age, sex and religion of the minor,
- the character and capacity of the proposed guardian and his nearness of kin to the minor,
- the wishes, if any, of a deceased parent, and
- any existing or previous relations of the proposed guardian with the minor or his property.
- If the minor is old enough to form an intelligent preference, the Court may consider that preference.
The Court shall not appoint or declare any person to be a guardian against his will.
Cases in which court has no power to appoint guardian (Section 19)
The court shall not have power to appoint a guardian of the person of following minors-
- minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or
- minor, other than a married female, whose father or mother is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor, or.
- minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.