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Report No. 83

Chapter 6-Appointment and Declaration of Guardian

(4) In section 7, an Explanation should be inserted to provide that "property" includes hereditary trusteeship.1

(5) In section 7, a new sub-section should be inserted to ensure that the Court can make an appointment of a guardian conditional on the performance of a condition by the guardian.2

(6) In section 8, a new clause-clause (bb)-should be added to entitle the minor himself to apply to the Court for the appointment of a guardian in certain cases.3

(7) In section 12, a provision should be added in express terms regarding power to make an interlocutory order (for production of the minor) in respect to proceedings under section 25.4

(8) In section 14, the present provision requiring Courts to send a report to the State Government (in case of multiple proceedings filed in Courts which are not subordinate to the same High Court) should be altered. Instead, this report should be submitted to the High Court in whose jurisdiction the proceedings were instituted. The High Court having jurisdiction over the place where they were first instituted should decide where the proceedings should continue.5

(9) Section 17 should be revised so as to make the minor's welfare the paramount consideration in the appointment of a guardian and to equalise the position of the mother with that of the father and to spell out the considerations relevant for determining what order will be for the minor's welfare.6

(10) In section 17, a new provision should be inserted to empower the Court to call for periodical reports from a guardian appointed by the Court.7

(11) Section 6 of the Hindu Minority and Guardianship Act, 1956 should be amended as to the age upto which the custody should ordinarily be with the mother. The age should be revised from five to twelve years.8

(12) A new sectio.- section 18A-should be added as to the appointment of a juristic person as guardian, subject to certain conditions.9

(13) Certain amendments should be made in section 19 to ensure that the welfare of the minor becomes the paramount consideration in appointing a guardian.10

[As to making welfare of the minor paramount under section 25, see point concerning section 25, infra].

(14) It should be provided in section 19 that clauses (a) and (b) of the section do not apply where the husband or the father (or mother) is the applicant for guardianship.11

(15) In section 19(b), after the word "father" the words "or mother" should be added.12

(16) Section 19, clause (b), should be confined to persons other than married females.13

(17) Where, under personal law, the mother or the father is not the natural guardian of the minor, then he or she should also be excluded from the preferential position given by clause (b) of section 19.14

1. Para. 6.10.

2. Para. 6.21.

3. Paras. 6.24 and 6.25.

4. Para. 6.30.

5. Para. 6.33.

6. Para. 6.48.

7. Para. 6.49.

8. Paras. 6.50 and 6.53.

9. Para. 6.56.

10. Paras. 6.59 and 6.83.

11. Paras. 6.59 and 6.83.

12. Paras. 6.75 and 6.83.

13. Paras. 6.76 and 6.83.

14. Paras. 6.81 and 6.83.

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

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