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Report No. 83

VI. Restrictions as to Appointment of Guardian

6.57. Section 19-Guardian not to be appointed by the Court in certain cases.-

While, in general, the power of the Court to appoint a guardian-where such an appointment is required for the welfare of the minor-ought not to be subject to any restriction, the Legislature has considered it proper to impose a prohibition against an appointment by the Court in certain special cases, enumerated in section 19. In part, the section is intended to avoid a conflict between the general law relating to guardianship (the Act of 1890) and the special law relating to Court of Wards.

The opening paragraph and clause (c) of the section can be explained on this basis. The other part of the section seems to be based on the assumption that by personal law, the husband of a minor married female and the father of a minor are vested with guardianship of the person of the minor, and the guardianship so vested ought not to be interfered with except where the guardian is unfit. Clauses (a) and (b) are based on some such assumption.

How far the assumption as to the rule of personal law is accurate, and how far the hesitancy of the Legislature to interfere with such guardianship should be allowed to continue in the changed conditions, will be considered in due course. It will be convenient to quote the section. Section 19 is in these terms:-

"19. Nothing in this chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person-

(a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or

(b) of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or

(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor."



The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back




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