The Guardians and Wards Act: Appointment of a Guardian

Section 4A is not a piece of housekeeping. Section 8(5) of the Hindu Minority and Guardianship Act picks it up expressly, and section 8(6) of that Act makes a court empowered under section 4A one of the courts that may permit a natural guardian to deal with a minor's immovable property.

Sections 5 and 6: appointments outside the Act

Section 5, which gave parents of European British subjects a power to appoint, was omitted by the Part B States (Laws) Act 1951, and the number is dead.

Section 6: the saving that matters. In the case of a minor, nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property, or both, which is valid by the law to which the minor is subject.

Section 6 is the bridge to personal law. A Hindu father's power to appoint a testamentary guardian under section 9 of the 1956 Act is a power "valid by the law to which the minor is subject", and section 6 leaves it untouched. So the Act does not monopolise guardianship: it supplies a court-based route alongside whatever personal law already provides.

Section 7: the court's power

Sub-section (1). Where the Court is satisfied that it is for the welfare of a minor that an order should be made (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian, the Court may make an order accordingly.

Sub-section (2). Such an order implies the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

Sub-section (3). Where a guardian has been appointed by will or instrument or appointed or declared by the Court, an order appointing another shall not be made until the powers of the existing guardian have ceased under the Act.

Appoint, and declare

The distinction runs through the whole Act and is worth a sentence in any answer.

To appoint is to create the office in a person who did not have it.

To declare is to recognise that a person already is the guardian, by personal law or by a will, and to give that fact the authority of a court order. A natural guardian under section 6 of the 1956 Act, or a testamentary guardian under section 9 of it, is declared, not appointed.

Sub-section (2) is the practical bite. A de facto guardian, who holds no office by will or by court order, is removed by the very order that appoints somebody else. Sub-section (3) protects the two who do hold an office: they must first cease under the Act, by removal under section 39, discharge under section 40 or cessation under section 41.

Section 8: who may apply

An order under section 7 shall not be made except on the application of:

(a) the person desirous of being, or claiming to be, the guardian of the minor;

(b) any relative or friend of the minor;

(c) the Collector of the district or other local area within which the minor ordinarily resides, or in which he has property; or

(d) the Collector having authority with respect to the class to which the minor belongs.

Clause (b) is remarkably wide. Any relative or friend may apply, which means the Act does not require the applicant to have any interest of his own, and a neighbour or a teacher who is worried about a child is inside the section.

Section 9: which court

The person. An application about the guardianship of the person must be made to the District Court having jurisdiction in the place where the minor ordinarily resides. There is no alternative forum.

The property. An application about the property may be made either to that court or to a District Court having jurisdiction where he has property.

Return of the application. If a property application is made to a court other than that of the minor's ordinary residence, that court may return the application if in its opinion it would be disposed of more justly or conveniently by another District Court having jurisdiction.

Compare section 8(6) of the Hindu Minority and Guardianship Act, where jurisdiction to permit a natural guardian to deal with immovable property follows the property alone. The two rules are different because they answer different questions.

"Ordinarily resides" is a question of fact, and it is not the same as where the child happens to be on the day of the application. A child removed to another district on the eve of a petition does not thereby change the court.

Sections 10 to 13: the procedure

Section 10: the form of the application. If not made by the Collector, it must be by petition signed and verified as a plaint is, and must state, so far as can be ascertained, twelve particulars: the minor's name, sex, religion, date of birth and ordinary residence; where the minor is a female, whether she is married and, if so, her husband's name and age; the nature, situation and approximate value of her property; the name and residence of the person having custody or possession of the minor or the property; what near relations the minor has and where they reside; whether a guardian has already been appointed by a person entitled under the minor's personal law; whether any previous application has been made, to what court and with what result; whether the application is for the person, the property or both; the qualifications of the proposed guardian, where the prayer is to appoint; the grounds on which he claims, where the prayer is to declare; the causes which led to the application; and any other prescribed particulars.

The Collector applies by letter addressed to the court, stating those particulars as far as possible.

Sub-section (3) is a requirement students forget: the application must be accompanied by a declaration of the willingness of the proposed guardian to act, signed by him and attested by at least two witnesses. Read with section 17(5), which forbids the court to appoint anybody against his will, the Act is emphatic that guardianship is not imposed.

Section 11: notice. If satisfied that there is ground for proceeding, the Court fixes a day for hearing and causes notice to be served on the parents of the minor if they are residing in India, on the person having custody or possession, on the person proposed to be appointed or declared unless he is the applicant, and on any other person to whom the Court thinks special notice should be given; and to be posted on a conspicuous part of the court-house and of the minor's residence and otherwise published as the Court thinks fit. Where the property includes land a Court of Wards could take over, the State Government may require notice to the Collector as well, and no charge is made for service or publication of such a notice.

Section 12: interim orders. The Court may direct the person having custody of the minor to produce him, and may make such order for the temporary custody and protection of the person or property as it thinks proper. Where the minor is a female who ought not to be compelled to appear in public, her production must be in accordance with the customs and manners of the country. And the section does not authorise the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of being her husband, unless she is already in his custody with her parents' consent, nor authorise anybody entrusted with temporary custody of property to dispossess a person in possession otherwise than by due course of law.

Section 13: evidence. On the day fixed, or as soon afterwards as may be, the Court shall hear such evidence as may be adduced in support of or in opposition to the application.

Sections 14 to 16: more than one court, more than one guardian

Section 14: simultaneous proceedings. If proceedings are taken in more courts than one, each court, on being apprised of the others, shall stay the proceedings before itself. If they are subordinate to the same High Court, they report to it and the High Court decides where the matter shall proceed; in any other case they report to and are guided by their respective State Governments.

Section 15: several guardians. If the law to which the minor is subject admits of joint guardians, the Court may appoint or declare them. Separate guardians may be appointed of the person and of the property, and where a minor has several properties the Court may appoint a separate guardian for any one or more of them. Sub-sections (2) and (3) were omitted in 1951.

Section 16: property outside the jurisdiction. Where the Court appoints or declares a guardian for property situate beyond its local limits, the court having jurisdiction where the property lies shall, on production of a certified copy of the order, accept him as duly appointed or declared and give effect to the order.

Section 17: the welfare of the minor

This is the section to know by heart.

Sub-section (1). In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

Sub-section (2). In considering what will be for the welfare of the minor, the Court shall have regard to:

• the age, sex and religion of the minor;
• the character and capacity of the proposed guardian and his nearness of kin to the minor;
• the wishes, if any, of a deceased parent; and
• any existing or previous relations of the proposed guardian with the minor or his property.

Sub-section (3). If the minor is old enough to form an intelligent preference, the Court may consider that preference.

Sub-section (5). The Court shall not appoint or declare any person to be a guardian against his will. Sub-section (4) was omitted in 1951.

How to use section 17

Welfare is the guide, and personal law is the frame. The words "consistently with the law to which the minor is subject" mean that the Court applies the minor's own personal law and then, within it, does what serves his welfare. It is a different formulation from section 13 of the Hindu Minority and Guardianship Act, where welfare is the paramount consideration and no other law is mentioned. Where both Acts apply to a Hindu minor, section 13 of the 1956 Act is the stronger statement, and the two are read together because section 2 of that Act makes them supplemental.

The list in sub-section (2) is mandatory to consider, not conclusive. "Shall have regard to" requires the court to weigh each item; it does not tell it what result to reach.

Nearness of kin is only one item among several. A closer relation does not win merely by being closer, and that is the statutory basis for preferring a distant relative, or a mother over a father, where the child's welfare requires it.

The child's own preference is admissible once he is old enough to form an intelligent one, and the section leaves both the age and the weight to the court.

Nobody is made a guardian against his will, which is why section 10(3) requires the written and attested consent of the proposed guardian at the outset.

Sections 18 and 19: the Collector, and when the court may not appoint

Section 18. Where a Collector is appointed or declared in virtue of his office, the order is deemed to authorise and require the person for the time being holding that office to act. So the guardianship attaches to the office and survives a transfer of the officer.

Section 19: four cases in which the Court may not appoint. Nothing in Chapter II authorises the Court:

• to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards;
• to appoint or declare a guardian of the person of a married female minor whose husband is not, in the opinion of the Court, unfit to be guardian of her person;
• to appoint or declare a guardian of the person of a minor, other than a married female, whose father or mother is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor; or
• to appoint or declare a guardian of the person of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of his person.

Clause (b) was substituted by Act 30 of 2010 with effect from 31 August 2010, and the change is one every older textbook gets wrong. Before the substitution the clause spoke of a minor whose father is living and is not unfit. It now reads "whose father or mother is living". The 2010 Act is the same amendment that rewrote sections 8 and 9 of the Hindu Adoptions and Maintenance Act, and it carries the same policy: the mother is put on the footing of the father.

The importance of clause (b) is that it makes the parent's unfitness the gateway. So long as a parent is living and is not unfit, the Court cannot appoint anybody else as guardian of the minor's person. That is the section a father relies on to resist a grandparent's petition, and it is the section a petitioner must overcome by proving unfitness. It was section 19(b), read with section 6(a) of the Hindu Minority and Guardianship Act, that was challenged in the second of the two petitions in Githa Hariharan.

Sections 20 to 23: the guardian's position

Section 20: the fiduciary relation. A guardian stands in a fiduciary relation to his ward and, save as provided by the instrument appointing him or by the Act, must not make any profit out of his office. The relation extends to purchases by the guardian of the ward's property, and by the ward of the guardian's property, immediately or soon after the ward has ceased to be a minor, and generally to all transactions between them while the influence of the guardian still lasts or is recent.

Sub-section (2) is the provision to cite when a guardian buys his ward's land, or sells his own to the ward just after the ward turns eighteen. The influence is presumed to continue, and the transaction is examined as a fiduciary one.

Section 21: minors as guardians. A minor is incompetent to act as guardian of any minor except his own wife or child, or, where he is the managing member of an undivided Hindu family, the wife or child of another minor member of that family.

Compare section 10 of the Hindu Minority and Guardianship Act, which is both narrower and stricter: it bars a minor from being guardian of the property of any minor, with no exceptions at all.

Section 22: remuneration. A guardian appointed or declared by the Court is entitled to such allowance, if any, as the Court thinks fit for his care and pains. Where a Government officer is appointed as such, fees are paid to the Government out of the ward's property as the State Government directs.

Section 23: the Collector. A Collector appointed or declared guardian is, in all matters connected with the guardianship, subject to the control of the State Government or of an authority it notifies.

Sections 24 and 25: the guardian of the person

Section 24: the duties. 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.

Four heads: custody, support, health, education, plus whatever the ward's personal law adds. It is the shortest complete statement of the office in the whole of Indian law and it is worth quoting in an answer on the duties of a guardian.

Section 25: the title to custody.

Sub-section (1). If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to that custody, may order his return, and for enforcing the order may cause the ward to be arrested and delivered into the custody of the guardian.

Sub-section (2). For arresting the ward the Court may exercise the power conferred on a Magistrate of the first class by the search provisions of the Code of Criminal Procedure.

Sub-section (3). The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.

Why section 25 is the custody section

The test is welfare, not the guardian's right. The Court orders the return only if it will be for the welfare of the ward to return. A guardian who has the office does not get his ward back for the asking.

Sub-section (3) prevents guardianship being lost by a fait accompli. A relative who keeps the child does not become his guardian by keeping him, and the office is not terminated by the child living elsewhere.

And it is a real remedy. The power to have the ward arrested and delivered up is the enforcement machinery the Act provides, and section 47(c) gives an appeal to the High Court against the making or refusal of an order under this section.

A worked example

Meher, aged nine, lives with her grandmother in Thane after her mother's death. Her father is alive, works in Surat, and has taken no interest in her for four years. The grandmother wants to be appointed her guardian; a distant cousin, who has never met the child, also applies; and a family friend in Thane writes to the court because she is worried.

Who may apply? All three. Section 8 allows an application by the person claiming to be guardian, by any relative or friend of the minor, or by the Collector. The friend needs no interest of her own.

Which court? Section 9(1): an application about the guardianship of the person goes to the District Court having jurisdiction in the place where the minor ordinarily resides, which is Thane, and there is no alternative forum.

What must the petition contain? The particulars in section 10(1), and by section 10(3) it must be accompanied by a declaration of the willingness of the proposed guardian to act, signed by her and attested by at least two witnesses.

Who is told? By section 11, notice goes to the parents if residing in India, so the father must be served; to the person having custody, the grandmother; to the proposed guardian; and to anybody else the court thinks should have special notice. It is also posted at the court-house and at the minor's residence.

Can the father stop it simply by being alive? Section 19(b), as substituted in 2010, prevents the court appointing a guardian of the person of a minor whose father or mother is living and is not, in the opinion of the court, unfit. So everything turns on unfitness, and four years of complete neglect is what the grandmother must prove.

On what does the court decide between the applicants? Section 17: what, consistently with the law to which the minor is subject, appears to be for her welfare, having regard to her age, sex and religion, the character and capacity of each proposed guardian and their nearness of kin, the wishes of her deceased mother, and their previous relations with her. At nine she may well be old enough to form an intelligent preference, which the court may consider under sub-section (3).

Can the cousin be appointed against his will? No. Section 17(5) forbids it, which is why section 10(3) requires his written consent at the outset.

Suppose Meher runs away back to her father. Section 25: the court may order her return to her guardian if it is of opinion that it will be for her welfare, and may enforce the order; and by sub-section (3) her living elsewhere against her guardian's will does not by itself end the guardianship.

What it does NOT mean

The Act is not a Hindu law. It is secular and applies to a minor of any community; the Hindu Minority and Guardianship Act is supplemental to it by its own section 2.

Appointing and declaring are not the same. A court appoints a person who did not hold the office and declares one who already does, such as a natural or testamentary guardian.

An order under section 7 does not sweep away every existing guardian. By sub-section (2) it removes only one not appointed by will or instrument and not appointed or declared by a court; sub-section (3) protects those two.

Section 9's rule is not one rule. The person goes only to the court of ordinary residence; the property may go there or where the property is.

"Ordinarily resides" is not where the child happens to be. Moving a child on the eve of a petition does not change the court.

Section 17 does not make welfare the only thing. It is "consistently with the law to which the minor is subject"; section 13 of the 1956 Act is the stronger formulation for a Hindu minor.

Nearness of kin does not decide. It is one of five matters the court must have regard to.

Section 19(b) is not a bar where the parent is unfit. Since 2010 it protects a living father or mother who is not, in the opinion of the court, unfit.

Section 25 is not a right of recovery. The order is made only if the return is for the welfare of the ward.

Quick revision

• s.2 is repealed; s.3 saves the Court of Wards and the High Court's jurisdiction; s.4 defines minor, guardian, ward, District Court, the Court and Collector; s.4A allows the High Court to empower, and the District Judge to transfer to, a subordinate officer.
• s.5 is omitted; s.6 saves any power to appoint a guardian valid by the law to which the minor is subject, which is how a Hindu testamentary appointment survives.
• s.7: the court may appoint or declare a guardian of the person or property or both where satisfied it is for the minor's welfare; the order removes a guardian who is neither testamentary nor court-appointed.
• s.8: application by the proposed guardian, any relative or friend, or the Collector.
• s.9: the person, to the District Court where the minor ordinarily resides; the property, there or where the property is, with power to return the application.
• s.10: twelve particulars, and the proposed guardian's written consent attested by two witnesses. s.11: notice to parents, custodian, proposed guardian and others, plus posting and publication. s.12: production of the minor and interim custody, with special protection for a female minor. s.13: evidence heard on the day fixed.
• s.14: simultaneous proceedings are stayed and referred to the High Court. s.15: joint guardians, and separate guardians of person and property. s.16: an order about property outside the jurisdiction is given effect on a certified copy.
• s.17: welfare, having regard to age, sex and religion, the guardian's character, capacity and nearness of kin, the deceased parent's wishes and previous relations; the child's intelligent preference may be considered; nobody is appointed against his will.
• s.18: the Collector holds by virtue of office. s.19: no appointment over property under a Court of Wards, over the person of a married female whose husband is not unfit, over a minor whose father or mother is living and not unfit (substituted 31-8-2010), or where a Court of Wards is competent.
• ss.20 to 23: the guardian is a fiduciary who must not profit, and the relation reaches dealings soon after majority; a minor may be guardian only of his own wife or child or, as managing member, of another minor member's wife or child; remuneration; the Collector is under State control.
• s.24: the guardian of the person is charged with custody, support, health and education. s.25: the court may order the ward's return if it is for his welfare, and residence elsewhere does not end the guardianship.

Test yourself

1. Who may apply for the appointment of a guardian, and to which court? The person desirous of being or claiming to be guardian, any relative or friend of the minor, the Collector of the district where the minor ordinarily resides or has property, or the Collector having authority over the class to which the minor belongs. An application about the person of the minor goes to the District Court where he ordinarily resides; one about property may go there or to a District Court where he has property.

2. What matters must the court consider in appointing a guardian? Under section 17, what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor, having regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. If the minor is old enough to form an intelligent preference, the court may consider it, and no person may be appointed against his will.

3. When may the court not appoint a guardian of the person of a minor? Where the minor is a married female whose husband is not, in the court's opinion, unfit; where the minor's father or mother is living and is not, in the court's opinion, unfit; and where the minor's property is under the superintendence of a Court of Wards competent to appoint a guardian of the person. The court also may not appoint a guardian of property that is under a Court of Wards.

4. What are the duties of a guardian of the person? He 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.