December 9, 2023

Types of Guardianship: Understanding the different roles and responsibilities

This article has been written by Ms. Kumari Komal, a III rd year student pursuing B.A.LL. B at Lloyd School of Law, Greater Noida.

ABSTRACT:

Incapacity among minors refers to a condition where individuals below the legal age of majority lack the ability to make informed decisions or manage their affairs independently due to various reasons such as age, developmental disabilities, or other incapacitating factors. The implications of a minor’s incapacity extend up to the individual to their familial and social spheres. However, Guardianship balances these requirements by addressing the rights of the minor.  Guardianship roles and responsibilities of a guardian are diverse and demanding, requiring a blend of empathy, competence, and ethical discernment. A successful guardian operates with dedication, compassion, and a commitment to promoting the welfare and rights of their ward. The responsibilities of a guardian extend beyond mere decision-making; they involve fostering a supportive and nurturing environment, advocating for resources and services that benefit the ward, and promoting autonomy and independence to the extent feasible. Effective communication and collaboration with healthcare providers, educators, and other professionals are crucial in fulfilling these responsibilities. 

INTRODUCTION:

Earlier, Children mostly lived in the joint families and were always under the protection of the head of the family i.e. The Karta. Even though the child became an orphan, he still had the support of the family. Whereas in the joint families, when a child became an orphan, he was sent to the ashrams to complete their education. Thus, there was no need of any such law which deals with Guardianship. Even the old texts and laws did not deal with laws relating to guardianship. It was considered that the King is the Supreme guardian i.e., parens patrie for all the orphans. The property and other aspects of such child was considered to be under the king thereafter. The only sage to mention father and mother as the guardian was Narada.

However, in the colonial period, one such law developed know as The Guardians and Wards in the year 1890 which considered the father, mother and other parental relations as the natural guardian. But later in the case of the Kristo v. Kedar, it was held that father is the natural guardian of his child and after his death the mother can be. Later, this piece of legislation was reformed and codified as the Hindu Minority and Guardianship Act,1956. 

Children should never be separated from their biological parents, however there are various circumstances under which the parents are dead or unfit to raise their children in the required manner. Sometimes the parents are alcoholic or too careless that they end up ignoring the needs of the child or maybe the parents are unable to fulfil the needs of their children due to their career and wish to handover the guardianship of the child either temporarily or permanently to someone who is capable to provide care and protection to the child. He/she is entitled to take all the decisions on behalf of the child and his property and re required to act in the best interests of the child. So, when it is impossible to reunite the child with his/her biological parents, the role of guardianship comes into the picture until he turns 18. At the face of it, guardianship seems similar to Adoption but are completely different concepts. The children who are under the guardianship of someone are not considered as the family member of the guardian and the original parents of the child retains certain rights. Whereas, in adoption, the rights of the biological parents are terminated and the child is considered as the family member of the adoptive parents. 

However, guardianship is not only restricted to a child but can also extend to an adult who is incapable of taking care of himself/herself. They are generally physically impaired or differently abled but are mentally well capable. But if the adult is both mentally and physically challenged then the guardian is appointed both for him/her and his/her property. But this guardianship ends as soon as the adult regains the ability to take care of himself or until the adult passes away. Their responsibilities include obtaining medical care if required, consulting with healthcare providers and other supportive services, taking decsions regarding life sustaining or ending therapies, maintaining their bank accounts, and handling other financial matters.

Moreover, in some cases, a court may appoint a guardian with limited powers, granting them the authority only over specific aspects of the individual’s life such as financial or health care decision. Sometimes, the court also appoints a guardian who will in future assume the role of the guardian of the individual upon a triggering event. There are also a few cases in which a guardian is required for a temporary purpose when the permanent guardian is unavailable due to some reasons. They are meant to address some immediate needs. Therefore, the specifics of these roles and responsibilities might differ upon the different circumstances. 

 

Types of Guardians and their responsibility:

Broadly, there are 5 types of guardians:

NATURAL GUARDIAN: A natural guardian is related to the minor directly by blood. He is the caretaker of the minor from the very initials. A father is the primary natural guardian of his son and unmarried daughter and after his death or incapacity, the mother becomes the primary natural guardian. In Gita Hariharan v. Reserve Bank of India, the Supreme Court held that under in some cases, even when the father is alive mother can act as a natural guardian. The term ‘after’ used in Section 6(a) has been interpreted as ‘in absence of’ instead ‘after the life-time’.  In case of a married daughter, the natural guardian changes from her biological parents to her husband, who is not directly related to her by blood. In cases of illegitimate child, the mother acts as the primary natural guardian and then follows the father. Also, there cannot be any natural guardian of a minor who has either renounced the world or converts himself to some other religion. Further, step fathers and step mothers do not have any guardianship rights unless appointed by the court. The natural guardians have various responsibilities to be fulfilled in respect of the minor but these rights must be exercised for the welfare of the child and not for the guardian’s interest. The guardian has the right to determine his/her custody and legal representation. In Kumar vs Chethana, SC has held that mother’s remarriage is not a sufficient cause in itself to lose custody of a minor. It was further held that convenience of the parents is irrelevant. To ensure the welfare of the child, the custody may even be given to the third person as was given to the mother and grandfather by SC in case of Poonam vs Krishanlal. Also, the guardian cannot mortgage or transfer any of the immovable property of the minor without the permission of the court. Furthermore, the court cannot give permission unless it is for the benefit of the minor. The guardian must shall not bind the minor in any personal covenants. Moreover, the guardian must provide the basic health necessities and education to the child. The guardianship of the child can cease when the guardian converts himself to a different religion or when the court finds that it is going against the welfare of the child. In the case of Re Madhab Chandra Saha 1997, a father was never active in the interest a minor and after a long time demanded the guardianship. His claim was rejected.

 

TESTAMENTARY GUARDIAN: A testamentary guardian is a person appointed as the guardian of the minor by the consent or will of his natural guardian. There are certain cases where the father before his death appoints an individual as the guardian of his child with the consent of the mother. But now, in the modern laws, the power to appoint a testamentary guardian has been given to the mothers too. In case of illegitimate child, the power resides only with the mother of the child alone. Whereas, when a minor is married, her guardianship transfers to her husband and can not be reversed back to the natural guardians in case the husband dies. The testamentary guardians of a child assume all the powers of a natural guardian unless anything contrary is mentioned in the will and they are not liable to meet the expenses of the child from his personal share. The court may extend or restrict the powers of such guardian for the welfare of the minor. More than one guardian can be appointed, which proves to be useful in certain circumstances where one of the appointed guardians is unable or unwilling to act. In the case of Smt. Vinod Kumari v. Smt. Draupadi Devithe court observed that the woman was the step-mother of the one from her husband’s first marriage and therefore being a step-mother, she can never be a testamentary guardian and in this case, the mother-in-law of the woman was made the testamentary guardian of her step-son. The testamentary guardian is disqualified if he abuses or fails to perform the duties of a guardian and act in the best interest of the child.

 

GAURDIAN APPOINTED BY THE COURT: The court is entitled to appoint the guardian of a minor or his property or both if it is satisfied that it is for the welfare of the child. The are also know ns the certificated guardians. They are under the supervision of the court from the day they have been appointed. The district court has the jurisdiction to allow an application under the guardian and wards act,1890. In cases where the minor is old enough to make a preference regarding the age, sex, and personal laws of the guardian, his preference of the child should be considered. The court must not go against the will of the minor. The powers of a certificated guardian remain the same as the natural guardian but the cessation of the guardianship is similar to that of the testamentary guardian. In the case of Bhola Nath v. Sharda Devi 1954, it was held that the most important consideration which the court must consider while appointing the guardians is the welfare and the best interest of the minor.

 

GAURDIANS BY AFFINITY: During the colonial rule, the concept of child marriage was prevalent in most of the parts of India. Before the marriage of a girl child, her guardians were her parents but after marriage the guardianship transfers to her husband. But there may arise cases where the husband may die then the responsibilities of guardianship shift to the nearest sapindas of the husband. So basically, the guardian by affinity is the guardian of the minor widow. This category of guardianship is not recognized under the Hindu Minority and Guardianship ,1956 but can be found under the Guardians and wards act,1850. Since it has not been recognized in the present law so the powers remain very basic and at par with those of the natural guardians. The most important case law which gave a logical end to this category of guardianship was Pras Ram v. State of UP in which the father-in-law of the minor widow forcefully married her to a man who seemed unsuitable for her. The question before the court was that whether the father-in-law was entitled was her lawful guardian or not. The court held that the father-in-law was a lawful guardian of the minor widow and he was not guilty of forcefully marrying her to some other man.

DE FACTO GUARDIAN: The literal meaning of the phrase ‘de facto’ means ‘from the fact’ which contrasts the phrase ‘de jure’ which means ‘from the law’. Such a guardian is neither the natural guardian nor the testamentary guardian of the child. Also, he is not appointed by the court. He becomes the guardian of the minor by the virtue of him taking continuous interest in the welfare of the child and protection of his property with a bona fide intention. It may include his close relatives or friends. However, a mere caretaker or interested person cannot become the guardian unless there is some continuity in the course of conduct which reflects the welfare of the child. They are not entitled with the right to deal with the property of the minor. This guardianship doesn’t require the court to appoint them or derive any power from the authority of law. In particular, the de facto guardians are not allowed to manipulate with the minor’s property.  In Hanuman Prasad Pandey’s Case the Privy Council held that a de facto guardian has the same power, as a natural guardian as far as alienating the minor’s property is concerned. But in the contrasting judgement of Amanat Hussain and Anr. Vs. Sahida Begum and Ors., the alienation made by de facto guardians are on a par with those made by de jure guardian under the Hindu Law and if they lack justification, they are voidable.

CONCLUSION: 

Indian citizens are governed by different laws relating to marriage, divorce, adoption but guardianship plays a very important and crucial role for the overall development of a child in a healthy manner. It offers stability to the child at a very young and fragile age. Earlier, the society was quite male dominating and only fathers were considered as the guardian of a minor who made all the important decisions regarding the child. This strictly violated the principle of equality but in the recent judgements it can be seen that mothers have been adequately been given a legal status as a child’s guardian. Sometimes the guardians become too protective and over dominating which negatively effects the child and curtails their basic freedom. But none of the categories of guardians have an absolute right over a child. The role of a guardian starts and ends with the welfare of the child. The term welfare is a very wide term and includes various aspects such as spiritual, moral and physical wellbeing of the child. It also requires the guardian to be emotionally, financially and physically involved. Still there are a few existing pieces of legislations which needs to be reformed to bring change in the society.

 

REFERENCES:

BOOKS:

  • Dr. Paras Diwan, Modern Hindu Law, ISBN-13: 9789391787554, 26th Edition
  • Dr. S.R. Myneni, Hindu Law, ISBN-13: 9789394739420, 2nd Edition

BARE ACTS:

  • The Hindu succession Act, 1956
  • The Hindu Minority and Guardianship Act, 1956
  • The Guardians and Ward Act, 1890

CASE LAWS:

  • Kristo v. Kedar, (1889) ILR 16 Cal 620
  • Gita Hariharan v. Reserve Bank of India, AIR 1999 SC 1149
  • Smt. Vinod Kumari v. Smt. Draupadi Devithe, 7 July, 2010
  • Hanuman Prasad Panday v. Mussumat Babooee Munraj, 1856 PC
  • Amanat Hussain and Anr. v. Sahida Begum and Ors,  (2015) 07 GAU CK 0012
  • Paras Ram v. State of UP,  AIR 1960 All 479

 

WEBSITES:

 

Featured articles
Quiz for AIBE and Mumbai University students preparation
Non Disclosure Agreement
Music and IPR in BOLLYWOOD
Drafting for a Bollywood Movie
Documentations required for web series – notes
IPR QUIZ

Related articles

All articles