This article has been written by Ms. Aditi Ananya, a 2nd year BBA LLB (Hons.) student of Chanakya National Law University, Patna
INTRODUCTION
Due to the notion of joint families, where a kid without parents is cared for by the head of the joint family, no particular rules governing guardianship were necessary throughout the Hindu Dharamshastras. The courts created guardianship law during the British administration. It was concluded that no one else may be the natural guardian of minor children, other than the father who is the children’s natural guardian and then the mother will take over as guardian of the children upon his death. Testamentary guardianship was also established into Hindu law: it was acknowledged that the highest guardianship of minor children vested in the State as “parens patrie” and was exercised by the courts. In recent times, the concept of guardianship has shifted from paternal control to the idea of protection, and so the Hindu Minority and Guardianship Act, 1956 formalised and revised the Hindu law of guardianship of minor children.
GUARDIANSHIP
An individual designated to take care of another person or his belongings is known as a guardian. He or she accepts responsibility for the individual they have been designated as the guardian’s care and protection. All legal decisions are made by the guardian on behalf of the ward’s person and property. One reason to care for someone else may be that they are a minor, meaning they have not reached the age of eighteen. It can also refer to the guardianship of an individual who is unable of caring for himself or his belongings due to physical or mental impairments.
All civilizations have historically appointed guardians based on a person’s status as a minor. This is because it is believed that a minor is incapable of making decisions for himself, even ones that may have consequences for other people. As a result, a juvenile is regarded by the law as incapable of signing a contract with an adult. Therefore, a juvenile has always been deemed unsuitable to represent themselves in court unless they do so via their guardian. A guardian makes decisions on behalf of the minor to safeguard his property and interests. Only the father, mother, and spouse are acknowledged as natural guardians under Hindu law.
“Father’s minor legitimate children, sons and daughters, are naturally under his guardianship.”
According to Section 6 of the Hindu Minority and Guardianship Act, 1956, a Hindu minor boy or girl who is not married has her father as their natural guardian and her mother as his backup. It further stipulates that a married underage girl’s spouse serves as her guardian.
The powers of the testamentary guardian are discussed in Section 9 of the legislation. A guardian designated by a person’s will or testament is known as a testamentary guardian. This is to guarantee that even in the event of the natural guardian’s passing, the kid will be under monitoring. Both the mother and the father may choose a testamentary guardian under the legislation.
The guardian designated by the court takes over in the event that the first two types of guardians are not present. In this case, the juvenile, their property, or both are placed under the guardianship of the court. A guardian with a certificate is one who has been appointed by the court.
According to Section 13, when designating a juvenile, their wellbeing should be a “paramount consideration.” Therefore, the child’s wellbeing is the first factor considered while choosing a guardian.
Hindu law from before 1956 recognised a guardian known as a guardian by affinity. A minor widow is under the guardianship of the guardian by affinity. According to legal scholar Mayne, in traditional Hindu law, when a woman is widowed while still a minor, the responsibility of guardianship falls upon her husband’s relatives within the sapinda (blood relation) degree, taking precedence over the authority of her own father and his family. Under section 13, the father-in-law’s preference right to be named guardian under Hindu law is just a supplementary consideration.
A testamentary guardian is believed to have the same authority as the natural guardian and be able to use all the rights granted to the natural guardian, as stated in Section 9(5). The only limitations on his exercise of authority will come from the Act’s regulations and the natural guardian’s will.
The Certified Guardians’ power is governed by the Guardians and Wards Act of 1890. The Act’s control over the guardian’s authority and its appointment by the court are identical to those of a testamentary or natural guardian.
A de facto guardian of a minor is an individual who assumes responsibility for the minor’s affairs in the same way as a natural guardian would, without the need for a court-appointed guardian, testamentary guardian, or legal guardian. He doesn’t meddle, and a single act by someone else involving a child’s belongings doesn’t make them the de facto guardian. He might be any adult, such as the child’s older brother or sister, uncle, aunt, or anybody else who helps the minor with basic needs.
According to Section 19 of the Guardians and Wards Act, 1890, a father cannot lose his right to be his minor children’s natural guardian unless he is judged unfit.
The concept of dual guardianship is not recognised by the Act. Adopted children hold the same status as biological offspring. Even in cases when the father is still living, the mother is the minor’s natural guardian. Nonetheless, she only assumes the role of natural guardian for her minor legitimate children in the event that their father passes away or becomes incapable of doing so.
The Hindu Minority and Guardianship Act’s proviso to clause (a) of section 6 states that a minor’s custody should normally remain with their mother if they haven’t reached the age of five. Therefore, unless the minor’s welfare dictates differently, the mother is entitled to custody of the kid under five years old.
Additionally, it is interpreted that the welfare of the child should be taken into consideration when designating a guardian for a young child under sections 7 and 17 of the Guardians and Wards Act, 1890.
GUARDIANSHIP OF INDIVIDUALS WITH SPECIAL NEEDS
The Guardians and Wards Act, 1890 (GWA); the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (NTA); the Rights of Persons with Disabilities Act, 2016 (RPWD); and the Mental Healthcare Act, 2017 (MHA) are the four main pillars of the Indian legal system in this respect. It’s important to remember that, despite some overlap, each law establishes distinct requirements for guardian eligibility, defines the guardian’s authority, and permits various methods for guardian appointment.
When applying for guardianship, the age of the person with special needs is the most crucial factor to consider. The guardian’s authority, duties, and obligations are determined by the age of the individual and the applicable legislation.
If someone wants to apply to be a guardian for someone with special needs, they should take the following into account:
As was already said, the most crucial factor is the person’s age. The laws that control the appointment of a guardian for a person with special needs are divided into two categories: minor laws and major laws.
After age, the individual’s personal law will be taken into account when determining whether or not a kid with special requirements. The Hindu Minority Guardian Appointment Process would be applied for under the HMGA. However, the GWA would be used to apply for the appointment of a guardian for a minor of a different faith.
Applying to be appointed as a guardian of a juvenile with special needs involves meeting some fundamental requirements. Anyone who is competent and wants to be a guardian can submit an application. The guardianship of a youngster with special needs may be applied for by anybody, even foreign nationals.
The type of handicap would determine whether or not a guardianship application may be filed under a specific law for a person with special needs who has reached adulthood. The above-mentioned NTA is a piece of law for particular difficult impairments. Since the RPWD applies to all disabled people, it is acceptable to apply for the appointment of a guardian for a person with any kind of impairment.
The NTA’s requirements would immediately disqualify a foreign national who applied to be a guardian of a person with special needs under the RPWD alone.
The extent of guardianship varies with regard to people with special needs, especially those who are mentally ill.
Applications for the appointment of a nominated representative or a limited guardian may be submitted under the MHA or the RPWD, respectively.
Individuals who suffer from autism, cerebral palsy, mental retardation, or various impairments are unique because, even after reaching adulthood, they may not always be able to make decisions for their own welfare or manage their own life. As such, they could need someone to advocate for them in court for the remainder of their life. However, because enabling mechanisms and/or scientific facilitations allow individuals with cerebral palsy and various impairments to function with varied degrees of independence, there may not be a need for full guardianship in certain circumstances.
The inability to acquire knowledge at the rate that a normal human being should be able to is referred to as a “mental disability.” These days, mental health illnesses are getting more and more acknowledged due to technological advancements. Mental illnesses were formerly considered “insanity,” but they are now recognised as “psychiatric conditions.” Particular guardianship criteria have been formed in order to provide aid to those who are in need, as the world is aware of their predicament.
The guardianship of individuals with mental disabilities is specifically covered by the National Trust Act, 1999
A mentally impaired person’s guardianship rights are outlined in Section 14 of the National Trust Act. The mentally retarded individual and his belongings must be cared for by the guardian designated under this clause. This section grants the authority to designate a guardian for mentally impaired individuals to a committee at the municipal level. The district collector must receive an application for legal guardianship before designating the guardian, provided the collector is pleased with the application. Legal guardianship applications can be submitted online via the official website or offline at the local committee.
Those listed below are eligible to petition for guardianship:
- a handicapped person’s parent or other relative. (Anyone connected to the handicapped person by blood, marriage, or adoption is considered a relative under chapter VI of the National Trust.)
- Any recognised organisation with the guardian’s approval
The local committee must also consider
- Whether the mentally retarded individual needs a guardian when awarding guardianship.
- the reason behind requesting guardianship.
The local committee reviews the application when it is satisfied.
The guidelines for involuntary guardianship are established under the Rights of Person with Disabilities Act of 2016. According to Section 13 of the aforementioned Act, the district collector may designate a legal guardian for a mentally impaired person if he believes such person is incapable of taking care of themselves. The guardian designated under this provision may be granted limited guardianship, which would allow the guardian and the mentally ill person to make all choices with mutual consent, or plenary guardianship, which would grant the guardian complete control over the decisions made by the person in question.
CASE LAWS
- G. Babu v. District Collector And Others 2023 SCC ONLINE MAD 568
Issue
The question on the table is whether the petitioner can be named as his sister’s legal guardian under Section 14 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (Central Act 44 of 1999).
Facts
Ms. G.P., the sister of the petitioner, has “chronic schizophrenia.” The jurisdictional Tahsildar has attested to Ms. G.P.’s spinster status, mental illness, and placement under her brother Babu’s (hereafter petitioner) care. The petitioner’s request was denied only on the grounds that there is no provision for designating a legal guardian for an individual with mental illness under Central Act 44 of 1999.
Relevant Law
The Central Act 44 of 1999’s Section 14 states the following: “Appointment of guardianship – The aforementioned clause allows a “person with handicap” to have a guardian appointed for them.
According to Section 2(o) of the 1999 Act, a disability is considered “severe” if it accounts for eighty percent or more of one or more multiple impairments. The Central Act 1 of 1996’s Section 2(i) is as follows: “(i) “Disability” refers to: (i) blindness; (ii) low vision; (iii) leprosy rehabilitation; (iv) hearing loss; (v) locomotor disability; (vi) mental retardation; (vii) mental illness; Section 102 of the Rights of Persons with Disabilities Act, 2016 (Central Act 49 of 2016) had abolished Central Act 1 of 1996.
It is clear from reading the aforementioned sections that both the 1995 Act and the 2016 Act designate mental illness as a handicap.
Argument
The authorities seem to believe that acquired impairments are not intended to be addressed by the 1999 Act. For this reason, I believe that mental illness should not be excluded from the 1999 Act’s purview.
Judgement
The sibling of the petitioner has a 60% impairment. According to the 1999 Act, a person’s condition will only be classified as severe if they have more than 80% handicap. As was previously mentioned, the 2016 Act abandoned the idea of a severe impairment. It is abundantly evident from the documentation that the petitioner’s sister has a benchmark impairment. The justification for designating a guardian has been amply demonstrated. In light of this, the order that is being contested in this writ petition is set aside. It is directed that the petitioner be appointed as Ms. G.P.’s guardian by the first respondent.
- Shivbaran Lal v. State Of U.P. 2014 SCC ONLINE ALL 15570
Facts
Petitioner-Under the Mental Health Act of 1987, petitioner 1 submitted an application (recorded as Misc. Case No. 523 of 2011) to designate Kumum, petitioner 2 (who suffers from mental illness), as her guardian. As per the Government Order No. Sa-3-1155/10-2-81 dated 6.8.1981, the State of Uttar Pradesh has granted a family pension to those who are mentally ill and physically handicapped.
With a handicap of almost 75%, the Chief Medical Officer’s certificate unequivocally demonstrates that Petitioner 2 was mentally ill and in need of treatment.
Judgement
A mentally ill person is defined as someone who is suffering from a mental illness and in need of treatment due to any mental disease. This definition applies to guardianship appointments made under the Mental Health Act. With a handicap of almost 75%, the Chief Medical Officer’s certificate unequivocally demonstrates that Petitioner 2 was mentally ill and in need of treatment. As a consequence, the writ petition is granted.
CONCLUSION
In summary, guardianship in situations of mental impairment necessitates an all-encompassing, person-centered, and rights-based strategy. It necessitates constant cooperation between solicitors, medical staff, families, and, if feasible, the patients themselves. Prioritising the autonomy and well-being of those who are mentally disabled allows society to achieve a difficult yet vital balance between protecting the rights and dignity of each individual and protecting protection.
REFERENCES
- Babu v. District Collector And Others 2023 SCC ONLINE MAD 568
Shivbaran Lal v. State Of U.P. 2014 SCC ONLINE ALL 15570
https://www.legallore.info/post/guardianship-under-hindu-law
https://blog.ipleaders.in/natural-guardian-hindu-law/