Matters Considered by Court for Guardian
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 his property or 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.
MATTERS TO BE CONSIDERED FOR APPOINTMENT OF GUARDIAN:
The following matters are to be considered for the appointment.
I. Age:
The age of the minor is first considered by the court. during the tender age of a child, he needs the care and affection of the person interested in him. so when a minor is above 17 years old, there is no use in pointing to a guardian of his person.
II. Sex:
Under the Guardians and Wards Act, a virgin should not be given the custody of a male if there exists no prohibition to the marriage.
III. Religion:
Under the law, the child must be presumed to have the father's religion. the court must take into consideration this aspect while appointing the guardian.
IV. Capacity of proposed guardian:
The court must be the capacity, and qualification, of the proposed guardian.
V. Kinship with the minor:
The court must take into consideration the relationship and nearness of kin with the minor.
VI. Wishes of the minor:
The wishes of the minor are also considered by the court while making the appointment of the guardian.
VII. Personal law of the minor:
The appointment of the guardian should be made in a way that he could not interfere with the personal law of the minor.
VIII. Wishes of the deceased parents of the minor:
The wishes of the deceased parent of the minor are also considered by the court.
IX. Character of the proposed guardian:
The court must take into consideration the character of the proposed guardian.
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.