GUARDIAN APPOINTMENT & PROCEDURE
INTRODUCTION:
The right of guardianship of the minor belongs to the father and in his absence to his nominate. Where no one has been nominated then to the grandfather. If he dies the right of guardianship vests in the court.
RELEVANT PROVISIONS
Section 4 (2) and 4 (3) of the Guardians and Wards Act 1890.
DEFINITION OF GUARDIAN
ACCORDING TO SECTION 4 (2) GUARDIANS AND WARDS ACT 1890.
"Guardian means a person having the care of the person of a minor or of his property or of his person and property”
DEFINITION OF WARD
ACCORDING TO SECTION 4 (3) GUARDIANS AND WARDS ACT 1890
"Ward means a minor for whose person or property or both there is a guardian".
KINDS OF GUARDIAN
Kinds of guardian are as under:
- Guardian of person
- Guardian of property
- Guardian for marriage
QUALIFICATION OF GUARDIAN:
To be qualified to be a guardian, the following matters
must be present.
- Muslim: The guardian must be Muslim.
- Major: The guardian must be major. A minor cannot be appointed as a guardian.
- Sane: Only a sane person can be appointed as a guardian.
- Capability: The guardian must be capable of maintaining the minor's property.
WHO CAN BE GUARDIAN OF PROPERTY
- Natural or legal guardian.
- Testamentary guardian.
- The person appointed by the court.
- De facto to guardian.
WHO CAN APPLY FOR APPOINTMENT OF GUARDIAN
The following person can apply for the appointment of the guardian of a minor:
- A person who wishes to be appointed or a person claiming to be the guardian of the minor.
- Any relative or friend of the minor.
- The collector of the district or other local area within which the minor ordinarily resides or which he has property.
- The collector has authority concerning the class to which the minor belongs.
PROCEDURE FOR APPOINTMENT OF GUARDIAN
Contents Of The Application
The contents of the application are as under:
- Name, age, address, sex, religion of the minor.
- Property of the minor.
- Name and address of the person having custody of the minor.
- Whether a guardian of a person or property.
- Name of the relatives of the minor.
Qualification of the proposed guardian.
Whether an application has been at any time made to any other court concerning the guardianship.
The causes which have led to the making of the application.
Any other necessary particulars.
Where application to be given
If it concerns the guardianship of the person of the minor it should be made to the District Court where the r minor ordinarily resides
If it concerns the guardianship of the property of a minor it may be made either
To the District Court where the minor ordinarily resides.
To District Court where a minor has property
If it concerns both person and property of the minor then it may be made to the Court where the minor ordinarily resides.
Procedure on admission of application:
Fixing a day for the hearing:
If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing of the application admitted.
Service of notice:
Where the application is admitted notice of the application and date fixed for the hearing are served upon:
Parents of the minor
Person in custody or possession of the person or property of the minor
Proposed guardian
Any other person to whom in the opinion of the Court special notice should be given.
Pasting of Notices:
The Court may cause the notice of the application to be pasted on some conspicuous part of the Courthouse and of the residence of the minor, and may otherwise publish in such manner as the Court thinks fit.
Notice to the Collector:
The Court may also cause a notice to be served on the collector in whose district the minor ordinarily resides and on every collector in whose district any portion of the land is situated.
Publishing of Notice:
The Court may cause t the notice to be published in any manner he deems fit.
No charge for the service or publication of any notice:
The Court or the collector shall not charge for the service or publication of any notice served or published.
Matters to be considered in the appointment of a guardian:
The following matters shall be considered by the Court in appointing a guardian.
- Age of the minor
- Sex of the minor
- Religion of the minor
- Character and capacity of the proposed guardian and his nearest of kin to the minor
- Any existing or previous relations of the proposed guardian with the minor or his property
- The wishes of the deceased parent about a particular candidate for guardianship.
REMOVAL OF GUARDIAN
Guardian can be removed on the following grounds:
- For abuse of his trust.
- Continued Failure to perform his duties.
- Incapacity to perform the duties.
- For ill-treatment of ward.
- Neglect to take proper care of the ward.
- Conviction of an offence implying in the opinion of the court defect of character which renders unfit him to be the guardian of his ward.
- Interest adverse to the faithful performance of the court.
- Ceasing to reside within local limits of the jurisdiction of the court.
- Insolvency in case of guardian for property of the ward.
- Ceasing because of guardian is liable to cease under the personal law of the minor.
MODES OF REMOVAL
- By the application.
- By the court by its motion.
CONCLUSION:
To conclude I can say that a person protecting the person or property of the minor or both is called a guardian. Guardian may be guardian of person, guardian of property, and guardian of marriage. The guardian must be Muslim, major, sane, and capable of protecting the person or property of the minor. A person wishing to become a guardian may make an application to the Court for the same. And the Court on being satisfied that it is for the welfare of the minor to appoint a guardian, can appoint a guardian. The Court can also remove the guardian on its motion or an application by a person interested.