“The paramount concern of this statute is the welfare of the child and not the rights of parents”[1]
Introduction to Guardianship under Hindu and Muslim law-
In this article, we will discuss about the concept of guardianship under Hindu and Muslim Law.
The general rules for the concept of guardians are enshrined in the Guardians and Wards Act, 1890. This act provides a uniform law for the safety of children. It allows the Court, to appoint a Guardian who is suitable as per the rule. During British rule, the mother and father were the only natural guardians.
Under the Guardians and Wards Act, 1890, the court can appoint a guardian for protecting the child and his property.[2] Duties of Guardian are mentioned under section 24 & 27 of the said act. A Guardian of the ward must look for his health and education[3]. Guardians can take action for the benefit of his property. Custody of a child can also be taken away from his own father in some cases if it may deem fit to the court.[4]
Guardianship under Hindu Law
The concept of Guardianship is not defined under Dharmashastra. Guardian is any person who takes care of the minor and his property. Under Hindu law, there are three types[5] of Guardians:- Natural Guardian, Guardian appointed by the court or a guardian appointed by the will of minor’s father or mother.[6]
The act also talks about that the Natural Guardian[7] will be the father, and after him, the mother, in case of a boy or an unmarried girl. The natural guardian will be the mother and after her the father in case of an illegitimate boy or girl. In the case of a married girl, the husband will play the role of the Guardian. Apart from this, the mother can also act as a natural Guardian even in the presence of the father of the child.[8]A natural Guardian is allowed to do all those acts which are necessary for the welfare of a child.[9] The natural Guardian can also transfer, sell, dispose of, exchange, or otherwise, any part of the immovable property of a minor.[10]
This act also deals with the concept of Testamentary Guardian [11]. A Hindu father can appoint any guardian for the protection of the child through will in the case where his wife dies without appointing any person as a guardian.
Guardianship under Muslim law
Muslim law also defines three types of Guardians:- Natural, Testamentary, and the Guardian appointed by the court.
Guardianship of a Person
Mother is considered as the guardian of an infant child during marriage and even after the separation. This concept is also known as Hizara. As stated by the Hanafi law, the mother will be the natural guardian of a male child until he reaches the age of seven and a female child until puberty. In the absence of the mother and her relatives, the father will play the role of the guardian.
Guardianship of Property
Legal Guardian, Guardian appointed by the court, and de facto guardian are the three types of guardians for guardianship of property. As stated under the Hanafi school, the father is the first legal guardian of property and after him executor appointed by him. However, the court can also appoint a guardian in absence of legal guardian as per the Guardians and wards Act, 1890.
Sources:
[1] Gaurav Nagpal v. Sumedha Nagpal(2009)1SCC 42
[2] Section 7, The Guardians and Ward Act, 1890
[3] Sec 24, The Guardians and Ward Act, 1890
[4] K.K Maheshankar Joshi v. Pradip Kumar Joshi (1992) 3 SCC573
[5] Section 4(b) Hindu Minority and Guardianship Act, 1956
[6] Hindu Minority and Guardianship Act, 1956
[7] Section 6 of the Hindu Guardianship Act,1956
[8] Githa Hariharan v. Reserve Bank of India(1999) 2 SCC 228
[9] Section 8(Powers of Natural Guardian )
[10] Section 8(2)of the Hindu Guardianship Act 1956
[11] Section 9 of the said act.
This blog is written by Riddhi Chadha, Fairfield Institute of Management & Technology.
Some of her Blogs-
- INTERNET BANKING SECURITY THREATS: Legal framework
- JURISDICTION ISSUES IN E-COMMERCE
- DOCTRINE OF LIS PENDENS
- Guardianship under Hindu and Muslim law
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