Who is a ‘guardian’?

Guardian means the person, who is having the care of the person of a minor or his property or both person and property. A father is the ‘natural guardian’ of the minor or an unmarried girl and in the absence of the father, the mother shall be the natural guardian. The husband becomes the natural guardian of a minor girl on marriage and the mother alone shall act as such if the child is illegitimate. A step father or step mother is not a natural guardian. A guardian could be so named through a will, who will be called the testamentary guardian. In situations when a court appoints a person to take care of person or property of a minor or conduct litigation on behalf of the minor, he or she will be a court guardian. A court requiring the protection of minor may appoint or declare even a person other than a parent as a guardian. Apart from a minor to whom guardian may be appointed, in conditions of persons who due to mental illness cannot take care of themselves, guardians may be appointed by courts. A welfare institution which has custody of a minor or a mentally challenged person or an abandoned child could also be a guardian or be appointed as guardian. In inter-country adoption cases, even a foreign national seeking adoption may be appointed as a guardian initially with directions to adopt as per the law of the country to which the foreign national may belong. A ‘local guardian’ is a loose, non-technical term employed by educational institutions to have a local contact where the institution is established and where the minor is lodged, when the parents reside elsewhere.

Laws that govern guardianship issues

The principal enactment that deals with appointment, care, custody and administration of property of a ward who is a minor is Guardian and Wards Act. The Hindu Minority and Guardianship Act deals with rights of natural guardians relating to custody of a minor and also details the powers of dealing with the property of a Hindu minor. The Muslim law of guardianship is governed by custom. The Mental Health Act and the National Trust for Welfare of Persons with Autism, cerebral Palsy, Mental Retardation and Multiple Disabilities Act provide for appointment of guardians for persons who have some physical and mental disabilities and for their care and protection. Medical Termination of Pregnancy Act contains provisions for taking decision on behalf of a minor girl for terminating pregnancy in certain types of situations. The Civil Procedure Code empowers the court to appoint a guardian for prosecuting and defending the rights of a minor involved in litigation

 Guardianship and custody

A guardian is usually a person who also has custody of the minor or a disabled person. In conflict situations such as in matrimonial disputes, the issue relating to custody comes to the fore when a natural guardian who may be a father may not still be granted custody but a mother may be allowed to retain the custody. The Hindu law of guardianship treats the mother to be ‘entitled’ to custody of a male child up to the age of 5 and for a girl child up to 7 years. Muslim law gives the mother a right to custody of minor boy up to the age of 7 and of a minor girl up to the age of puberty. This rule is not inflexible and the welfare consideration of the minor may allow the court to pass orders relating to custody, irrespective of the age of the minor or the relationship of the person to be appointed with the minor. A mother’s right to custody is invariably paramount. The right to custody could be secured by orders of court before a competent district court where the minor normally resides or in pending matrimonial proceedings before any other court of competent jurisdiction.

Powers of a guardian

Guardian substitutes the decision making of a child for its welfare. The right is crucial in matters of residence, education and general upbringing. A minor’s property cannot be sold, gifted or encumbered without the permission of the court. If it is done by a natural guardian, it will be voidable/ invalid, but void if it is done by a person other than a natural guardian. The difference is that in the latter situation the assertion by challenge to the alienation shall be exercised through a positive act by resort to court or otherwise, within a certain period from the date of attaining majority, while in the former, the minor could simply ignore the transaction as not binding. A karta in a Hindu Undivided Family normally enjoys a larger right to deal with the property of a junior member including a minor, but the test of validity shall be driven by considerations of legal necessity or family benefit. Both situations will have to be established by the person who wants to defend the transaction affecting the minor’s property rights. The care and custody of mentally challenged person and protection of property address similar considerations and the guardian shall wield all powers to effectively take all decisions relating to such a person regarding residence, type of medical treatment, managing property, etc.

Court’s powers

In all types of situations of conflict, the court is the ultimate arbiter relating to the affairs of the minor or a disabled person due to mental illness or retardation. The court will always be guided by ‘welfare’ of the personand it is a flexible concept that the court will examine on a case to case basis. The best interests of the minor, if in the opinion of the court shall be different from the substituted decision of the guardian, the court may over run the latter’s decision and declare and guide what shall be done. Even a compromise in respect of a minor’s property will be valid only after a sanction is given by the court. The court’s decisions relating to sanction to sell minor’s property are crucial and so too, are the court’s decision to retain or abort the foetus of a minor girl who is pregnant.