Report No. 83
6.38. Need for harmony.-
In order that the Indian legal system-in regard to statutory rules relating to the criteria for guardianship-may reflect an approach which is sound on the merits, adequate in its coverage and integrated and harmonious in its structure, it is necessary that the matter may be examined in some depth. Accordingly, in the present discussion, while concentrating on section 17 of the Act of 1890, we shall also have occasion to consider section 19 of the same Act and analogous provisions of the Act of 1956.
We first quote section 17 of the Act of 1890.
"Section 17-Matters to be considered by the Court in appointing guardian.-(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(5) The Court shall not appoint or declare any person to be a guardian against his will."
Section 19 of the Act of 1890 is as follows:-
"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."
Under section 6 of the Hindu Minority and Guardianship Act of 1956, the father is the natural guardian of a minor, but section 13 of that Act expressly provides that while appointing or declaring any person as guardian by a Court, the welfare of the minor shall be the paramount consideration.
Section 13 is quoted below:1
"Welfare of minor to be paramount consideration.
13. (1) In the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, of the Court is of opinion that his or her guardianship will not be for the welfare of the minor."
Some difficulty is,2 no cannot, caused by section 2 of the Act of 1956, which provides that the provisions of the Act shall be "in addition to those of" the Act of 1890. The General view, however, is that the provision of section 19 of the Act of 1890 and those of section 6 of the Act of 1956 should be construed together.3
1. Section 13, Hindu Minority and Guardianship Act, 1956.
2. Cf. Ratan v. Bishan, AIR 1978 Born 190.
3. Ulna Prasad v. Ganga Sahali, AIR 1973 Raj 95.