Tuesday, 31 May 2022

Duties of Guardian


According to Section three of the Indian Majority Act, 1875, someone domiciled in the Republic of

India who is below the age of eighteen years, is a minor and a guardian is the caretaker of a minor,

his or her property, or both. The duty of a guardian is to ensure the welfare of the minor and look

after his  health and education.

Guardianship under Hindu Law:

The law of guardianship is not laid down in ancient texts, it was developed by the courts during the

British regime. Under the Hindu Minority and Guardianship Act, 1956 a guardian can be defined as

"a person having the care of the person of the minor or of his property or both person and property.”

To ensure the welfare of the child is the priority of a guardian, it includes both physical and moral


There are three types of guardians:

Natural Guardians: Hindu Law recognises only three natural guardians of minor children- the father

is the natural guardian and after his death, mother becomes the natural guardian of the children and

in case of married minor girl, her husband is her guardian. Section 13 of the Hindu Minority and

Guardianship Act lays down that welfare of children is paramount to father's right of

guardianship. The position of adopted children is same as natural born children. In case of

illegitimate children, mother becomes the natural guardian of the child even if the father is alive.  

Testamentary Guardians: Under the Hindu Minority and Guardianship Act, 1956, testamentary

power of appointing a guardian has been conferred on both parents by the way of will. The guardian

of a minor girl will cease to be the guardian of her person on her marriage, and the guardianship

cannot revive even if she becomes a widow while a minor. It is necessary for the testamentary

guardian to accept the guardianship, it may be express or implied. 

Guardians Appointed by the Court: The district courts are empowered to appoint guardians under

the Guardians and Wards Act, 1890. The District Court may appoint or declare any person as the

guardian whenever it considers it necessary for the welfare of the child. The District Court has the

power to appoint or declare a guardian in respect of the person as well as separate property of the

minor. Such guardians are also called Statutory Guardian.

Guardianship by affinity: The guardian by affinity is the guardian of a minor widow. In Paras Ram

V. State, it was held that the nearest sapinda of the husband automatically becomes a guardian of the

minor widow on the death of her husband. 

De Facto Guardian: A de facto guardian is a person who takes continuous interest in the welfare of

the minor's person or in the management and administration of his property without any authority of


Guardianship under Muslim Law

The source of law of guardianship and custody are certain verses in the Koran and a few ahadis.

Guardians are classified int following categories:

Natural Guardians: In both the Sunnis and the Shias, the father is recognised as natural guardian and

the mother is not recognised as a guardian, natural or otherwise, even after the death of the father.

Father’s guardianship extends only to legitimate children not illegitimate ones. Mother is not

guardian of even illegitimate children but only a custodian. Among the Sunnis, after the death of the

father, the guardianship passes on to the executor. Among the Shias, after the father, the

guardianship belongs to the grandfather.

Testamentary Guardian: A testamentary guardian may be a one that is appointed as guardian of a

minor beneath a will. Only father or, in his absence, paternal grandfather has the right to appoint a

testamentary guardian. A non-Muslim and a feminine might also be appointed as a testamentary

guardian. However, under Shia law, a non- Muslim cannot be chosen as a testamentary guardian.

Guardian appointed by the Court: On the failure of the natural guardians and testamentary

guardians, the kazi was entrusted with the power of appointment of guardian of a Muslim minor.

The appointment of a guardian by the court is ruled by the Guardianship and Wards Act, 1890.

Guardianship Under Christian Law

The Guardians and Wards Act, 1890 is resorted to in case of Christian minors. According to section

17 a guardian is appointed by the court keeping in mind several factors such as religion of the

minor, the character and capacity of the proposed guardian and if the minor is old enough, his

preference is taken into consideration. As per section 24, a guardian of the person of a ward is

charged with the custody of the ward and must look to his support, health and education, and such

other matters as the law to which the ward is subject requires.

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