September 30, 2022

Rights and liabilities of guardian explained: The Guardian and Wards Act 1890

The Guardians and Wards Act, 1890 is a secular act which provides the laws for guardianship to all communities irrespective of 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” means 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.

Duties, Rights and Liabilities of Guardians

A Guardian work in a fiduciary relationship to ward (Section 20)

A guardian stands in a fiduciary relationship to his ward, therefore, he must not make any profit out of his office as a guardian.

The fiduciary relation extends to and affects purchases which made by the guardian of the property of the ward, and by the ward of the property of the guardian, immediately or soon after the ward has ceased to be a minor, and generally all transactions between them while the influence of the guardian still lasts or is recent.

Can a minor be a guardian? (Section 21)

A minor is incompetent to act as guardian of any minor except in following cases-

  • in respect of his own wife or child or
  • where he is the managing member of an undivided Hindu family, the wife or child of another minor Member of that family.

Remuneration of Guardian (Section 22)

A guardian appointed by the court shall be entitled to such allowance as the court may decides in lieu of his care and paints in the execution of his duties.

In case of an officer of the government, appointed as guardian by the court, his fee shall be paid to the government out of the property of the ward as the state government directs.

Duties of the guardian

Guardian of the person (Section 24)

A guardian of the person shall look after to ward’s support, health and education and such other matters as the law requires.

Guardian of Property (Section 27)

A guardian of the property of a ward is bound to deal with property matters as carefully as a man of ordinary prudence would deal with it if it were his own, and, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property.

Removal of the Ward from the custody of Guardian

Removal from the custody of the guardian (Section 25)

If a ward leaves or is removed from the custody of a guardian of his person, the Court, after considering the welfare of the minor, may make an order for his return, and to enforce the order, the court may case the ward to be arrested and to be delivered into the custody of the guardian.

If the ward residing with a person against the will of his guardian, this residence will not terminate the guardianship of the guardian.

Removal from the jurisdiction of the court (Section 26)

A guardian of the person appointed or declared by the Court, shall not, without the leave of the Court by which he was appointed or declared, remove the ward from the limits of its jurisdiction.

This section does not apply to the collector working as guardian or to any guardian appointed by will or other instrument.

Powers of the Guardian

Powers of a testamentary guardian (Section 28)

If a guardian has been appointed by will or other instrument, his powers relating to property will regulated according to the will or that instrument.

His power to mortgage or charge, or transfer by sale, gift, exchange or otherwise, immovable property belonging to his ward is subject to any restriction which may be imposed by the instrument. If he does any act in contravention of this section, that transaction will be void.

Limitation of the power of Guardian

Limitation regarding property (Section 29)

A court appointed guardian of the property, shall not deal with the following property matters of ward, without the previous permission of the court-

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or

(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.

If he does any act in contravention of this section, that transaction will be void.

However, a collector or a guardian appointed by will do not have such restrictions.

Court’s role in respect of ward’s property

  • A court shall not give the permission to guardian under above section except in case of necessity or for an evident advantage to the ward. (section 29)
  • The court, time to time, by order, may define, restrict, extend, the powers of the guardian appointed by the court, in respect of the property matters of the ward.as it may consider to be for the advantage of the ward. (Section 32)
  • A guardian appointed by the Court may apply by petition to the Court which appointed or declared him for its opinion, advice or direction on any present question respecting the management or administration of the property of his ward. (Section 33)

Termination of Guardianship

Removal of guardian (Section 39)

The Court may, on the application of any person interested, or of its own motion, remove a guardian appointed by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely: —

(a) for abuse of his trust;

(b) for continued failure to perform the duties of his trust;

(c) for incapacity to perform the duties of his trust;

(d) for ill-treatment, or neglect to take proper care, of his ward;

(e) for contumacious disregard of any provision of this Act or of any order of the Court;

(f) for conviction of an offence implying, in the opinion of the Court, a defect of character which unfits him to be the guardian of his ward;

(g) for having an interest adverse to the faithful performance of his duties;

(h) for ceasing to reside within the local limits of the jurisdiction of the Court;

(i) in the case of a guardian of the property, for bankruptcy or insolvency;

(j) by reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject.

Discharge of Guardian (Section 40)

If a guardian appointed or declared by the Court desires to resign his office, he may apply to the Court to be discharged.

And if the Court finds that there is sufficient reason for the application, it shall discharge him, and if the guardian making the application is the Collector and the State Government approves of his applying to be discharged, the Court shall in any case discharge him.

Cessation of the Guardianship (Section 41)

The power of the guardian cease in the following cases-

  • By his death, removal or discharge
  • by the ward ceasing to be a minor;
  • in the case of a female ward, by her marriage to a husband who is not unfit to be guardian of her person or, if the guardian was appointed or declared by the Court, by her marriage to a husband who is not, in the opinion of the Court, so unfit; or
  • in the case of a ward whose father was unfit to be guardian of the person of the ward, by the father ceasing to be so or, if the father was deemed by the Court to be so unfit, by his ceasing to be so in the opinion of the Court.