Guardianship_PPT.pptx

n

1. Minority & Guardianship Ms Divya Verma Department of Law Parul University 8/10/2023 1

2. Classification of Guardians Guardians may be divided into three classes, namely- i ) Natural Guardians ii) Guardians appointed by a father by will/ Testamentary Guardian iii) Guardians appointed under the Guardians and Wards Act, 1890 8/10/2023 2

3. Natural Guardian The father is the natural guardian of the person and of the separate property of his minor children and next to him the mother unless the father has by his will appointed another person as the guardian of the person of his children. When the father is alive, he is entitled to the custody of his minor child however young it may be, in preference to mother. 8/10/2023 3

4. Natural Guardian Failing the father and mother, the court may appoint the nearest male paternal kinsmen and failing paternal kinsmen, the nearest male maternal kinsmen as the guardian of the minor. But the court is not bound to do so and it may appoint a maternal relation in preference to a paternal relation or it may even appoint a stranger if the welfare of the minor requires it. 8/10/2023 4

5. Natural Guardian The Court has no power to appoint a guardian of a minor if his father is alive and is not in the opinion of the court unfit to be guardian of the person of the minor. These rules apply- i ) to the custody of the person of a minor governed by the Mitakshara as well as the Dayabhaga law. ii)to the custody of the separate property of a minor as well as his undivided interest in the coparcenary property in cases governed by the Dayabhaga law. 8/10/2023 5

6. Powers of Natural Guardian The natural guardian of a Hindu minor has power in the management of his estate, to mortgage or sell any part thereof in case of necessity or for the benefit of the estate ( Case:Hunooman Persaud vs. Mussumat Babooee , 1856 ). 8/10/2023 6

7. Powers of Natural Guardian Alienation by natural guardian for legal necessity: Where the mother as natural guardian of her minor son sold the only house already burdened with a mortgage debt created by her husband, as there was no possibility of being able to redeem the mortgage, it was held that the sale was for legal necessity. 8/10/2023 7

8. Powers of Natural Guardian Alienation by the natural guardian for the benefit of the estate: Alienation of property in danger of deterioration of value or lands barren and yielding no income may be regarded as for the benefit of the estate. 8/10/2023 8

9. Testamentary Guardian A Hindu father may orally or by writing nominate a guardian for his child so as to exclude even the mother from the guardianship. The mother has no power to appoint a guardian by will but the Court may have regard to her wishes expressed in her will. The court is bound in appointing a guardian to have regard to the wishes of the father contained in his will. 8/10/2023 9

10. Testamentary Guardian is a guardian who is  appointed by way of will . It is done to ensure that the child will have a guardian even after the death of the natural guardian who may require supervision over themselves or their estate. A testamentary guardian cannot act as a guardian if the natural guardians are alive. 8/10/2023 10

11. After the enactment of Hindu Minorities and Guardianship Act of 1956, it is clear that natural guardians will have the preference over any other guardian. If the Father appoints a Testamentary guardian and mother outlives him, she will be the natural guardian. The testamentary guardian can only exercise his rights and power after the passing of the Mother. 8/10/2023 11

12. Guardians appointed under the Guardians & Wards Act, 1890 Where the court is satisfied that it is for the welfare of the minor that an order should be made appointing a guardian of his person or property or both, the court may make an order under the Guardians and Wards Act, 1890 appointing a guardian. 8/10/2023 12

13. Guardians appointed under the Guardians & Wards Act, 1890 In appointing the guardian of a minor, the court shall be guided by what appears in the circumstances to be for the welfare of the minor. In considering what will be for the welfare of the minor, the court shall have regard to the age and sex of the minor, the character and capacity of the proposed guardian and his nearness of kinship to the minor, the wishes of a deceased parents and any existing or previous relations of the proposed guardian with the minor or his property. If the minor be old enough to form an intelligent preference, the court may consider that preference. 8/10/2023 13

14. Guardians appointed under the Guardians & Wards Act, 1890 Alienation by the guardian appointed under the Guardian and Wards Act, 1890: Where a guardian is appointed of the property of a Hindu minor under the Guardian and Wards Act, 1890, he cannot alienate the property of the minor without the sanction of the court not even in the case of necessity. If he does so, the alienation is voidable at the option of the minor. 8/10/2023 14

15. Other Issues relating to Guardianship Guardianship of an adopted son – The guardianship of an adopted son who is a minor passes on his adoption from his natural father and mother to his adoptive father and mother. Remarriage of mother: A Hindu widow does not by the mere fact of her remarriage lose her right of guardianship. 8/10/2023 15

16. Other Issues relating to Guardianship Change of religion by the father: The fact that a father has changed his religion is of itself no reason for depriving him of the custody of his children. Change of religion by mother: Where a Hindu mother changes her religion, the court may if it deems to be in the interest of the minor, remove the child from the custody of the mother and place the child under a Hindu guardian. 8/10/2023 16

17. Cessation of Power of the Guardian According to Section 41 of the Guardians and Wards Act , 1890 8/10/2023 17

18. Removal of the guardian According to Section 39 of the Guardians and Wards Act , 1890 8/10/2023 18

19. Guardianship by affinity The Guardian of minor widow. 8/10/2023 19

20. De facto guardian A person who takes continuous interest in the welfare of the minor’s person or in the management or administration of his property without any authority of Law. 8/10/2023 20