GUARDIAN Appointment and Removal
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
- I. Natural or legal guardian.
- II. Testamentary guardian.
- III. Person appointed by the court.
- IV. 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.
PERSONS ENTITLED TO ACT AS GUARDIAN
Under Hanfi law:
Under Hanfi law in the case of a son below seven years of age and of a daughter below the age of puberty following are the entitled to act as guardian
- Mother
- Mother’s mother how high-so-ever
- Father’s mother how high-so-ever
- Full sister
- Uterine sister
- Consanguine sister
- Full sister’s daughter
- Uterine sister’s daughters
- Consanguine sister’s daughters
- Maternal aunts in the same order
- Paternal aunts in the same order
- Paternal aunts of mother & father in the same order
In the absence, the following female paternal relations shall have entitlement.
- Father
- Paternal grandfather
- Full brother
- Consanguine brother
- Full brother’s son
- Consanguine brother’s son
- Full brother of the father
- Consanguine brother of the father
- Son of father’s full brother
- Son of father’s consanguine brother
In the absence of the following relative shall have entitlement:
- Uterine brother
- Uterine brother’s son
- Father's uterine brother
- Maternal uncle
- Mother’s uterine brother
UNDER SHIA LAW:
Mother (When male child below 2 years and female child below 7 years)
- Father (In case mother died)
- Father’s Father
- Uncertain on whom right devolves on the failure of father’s father.
- Father (When male child over 2 years and female child over 7 years)
FEMALE WHEN DISQUALIFIED FOR CUSTODY:
A female including the mother, who is otherwise entitled to the custody of a child loses the right of custody.
- If she marries a person not related to the child within the prohibited degree e.g., to a stranger.
- If she goes and resides, during the subsistence of marriage at a distance from the father's place of residence.
- If she is leading an immoral life.
- If she neglects to take proper care of the child.
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 the 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.