GUARDIAN RIGHTS AND LIABILITIES
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.
- A 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.
RIGHTS OF A GUARDIAN:
Right of survivorship among joint guardians:
Where a ward has more than one guardian then in case of the death of any one or more of them the rest of the guardians shall have the right of guardianship.
Right to apply for advice or direction:
A guardian may apply for advice or direction on any present question respecting the administration of the property of the ward.
Right to remuneration:
A guardian is entitled to remuneration for the services rendered by him. But such remuneration should not exceed in amount the remuneration usually paid for the work or services of that kind.
Right to carry on business:
Guardian has the right to carry on business or trade on behalf of the ward but the business or trade must not be of a speculative or hazardous nature.
Right to obtain the restoration of the minor's person:
The guardian can obtain the restoration of the minor's person by taking legal proceedings. He can get him back by application under Sec. 25.
Right to make lease:
A guardian has the right to make a lease of the minor's property where it is necessary for the minor's maintenance and the minor has no other property
Right to enter into a contract:
The guardian has the right to enter into a contract on behalf of the minor.
Conditions:
The contract must be for the benefit of the minor.
The minor is entitled to bring a suit for specific performance of the contract also.
Right to mortgage/charge/transfer by sale of immovable property of ward:
The guardian has the right to mortgage charge or transfer by sale, gift, exchange, or otherwise immovable property of the minor.
Right to make partition:
The guardian has a right to make a partition of the share of minors only if there are shares of minors and adults. However, he has no right to make a partition in the case where all the shareholders are minor.
Right to acknowledge the debt of minor:
A guardian can acknowledge and keep alive a debt of a minor, provided that at the date of acknowledgment, it is not barred by limitation.
LIABILITIES OF GUARDIAN:
Liability not to make any profit of his office:
A guardian stands in a fiduciary relation to his ward and is not allowed to make any profit out of his office and he is bound to deal with the property of the ward as carefully as a man of ordinary prudence would do.
Liability to keep in view the interest of the minor:
The liability of the guardian that he while purchasing or selling the property keeps given the interest of the minor.
Liability to act honestly and faithfully:
It is the liability of the guardian that when he is investing in the property of the ward, he acts honestly and faithfully. and exercise a sound discretion such as a man of ordinary prudence and intelligence use in their affairs.
Liability not to relinquish any claim of minor:
A guardian is not competent to relinquish any claim of the minor unless it is bona fide considered that such relinquishment is necessary in the interest of the minor.
Liability not to remove a ward from the jurisdiction of the court:
It is the liability of the guardian that he should not without the leave of the Court remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed.
Liability to have a record of property:
It is also the liability of the guardian to protect and have the record of the property of the ward.
Liability to recover possession of property:
The guardian should take the necessary steps to recover possession of the property of the minor from an unauthorized person.
Liability to exercise power to the advantage of the minor:
The guardian has been given full power to deal with the minor’s property and even to sell it to invest in a better business, he should exercise his such power to the advantage of the minor.
DUTIES OF GUARDIAN OF PERSON OF MINOR:
According to Section 2 of the Act guardian of the person of the ward is charged with the custody of the ward and must look to the support, health and education, and such other matter as the law to which the ward is subject requires.
Custody:
The guardian of a ward is charged with the custody of the ward under this section and if the ward leaves or is removed from his custody he can get him back by making an application under sec. 2 of the Act.
Maintenance:
The Act contemplates that the guardian will maintain the ward out of the minor’s property or income, if any. This is so even when the father is the guardian.
Religion:
After the death of his father, the child must be presumed to have the religion of his father and the guardian must bring up his ward in that religion. Even where the mother of the child does not follow the religion of the child, she is bound to educate the child about his father's religion and not her own.
Marriage of the ward:
The guardian impliedly takes to act on the term imposed on him by the Court. Where one of the conditions is that he shall not marry the infant without the leave of the Court he is bound by that condition.
DUTIES OF GUARDIAN OF PROPERTY OFMINOR
To deal with the property of Minor:
Where the guardian has been negligent he is liable for the profits which could have been received. The guardian has to be judged as a prudent man who is acting carefully with his own money.
Duty to maintain accounts:
The guardian is required to maintain proper and regular accounts.
Duty to give a bond to judge:
A guardian is bound to give a bond to the judge for the time being with or without sureties engaging duly to account for what he may receive in respect of the property of the ward.
Duty to deliver a statement of immovable property belonging to the ward:
A guardian is bound to deliver to the Court a statement of immovable & movable property to the date of delivering the statement and of the debt due on that date to or from the ward.
Duty to exhibit account in Court:
A guardian exhibits his accounts as the Court may require from time to time.
Duty to apply for maintenance, education, and advancement of the ward:
A guardian shall apply for the maintenance, education, and advancement of the ward and for the celebration of ceremonies to which the ward may be party.
Duty not to mortgage, charge, etc. of the immovable property of his ward:
A guardian should not mortgage charge, transfer by sale, gift, exchange or otherwise any part of the immovable property of his ward, lease any part of that property for after not exceeding five years, and also lease for a period extending more than a year, beyond the date on which that ward will cease to be a minor, without the previous permission of the Court.
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.