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Report No. 83

4.12. Concept of de facto guardian recoginsed in various branches of law.-

The concept of de facto guardian1 is not peculiar to Hindus. It is familiar to Muslim law as administered in India,1 though the powers of de facto guardians as regards the disposition of property of Muslim minors are narrower than those that were recognised by Hindu law before the Act of 1956. In fact, the concept is born out of necessity, and necessity knows no boundaries of race or religion.

Nor is the concept confined to civil law. For example, the Explanation to section 361 of the Indian Penal Code also gives a wide meaning to "lawful guardian", and runs as follows:1

"The words 'lawful guardian' in this section include any person lawfully entrusted with the care or custody of such minor or other person

This shows that the concept of a person acting de facto is not new. The above definition, it may be noted, is inclusive.

1. Section 361, Indian Penal Code.

1. Musa Miya v. Kadar Bux, (1928) 55 IA 171 (179) (PC).



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




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