Report No. 110

V. Guardian Appointed by

12.23. Section 60-Scope.- Section 60 reads-

"A father, whatever his age may be, may by will appoint a guardian or guardians for his child during minority".

This section does not apply to Hindus, Buddhists1-2, etc. The section really belongs to the law of testamentary guardianship. It finds a place in the Act because it also touches upon the sphere of wills.

1. See Third Schedule read with section 57(c).

2. See section 9, Hindu Minority and Guardianship Act, 1956.

12.24. Question of mother's right.-

While section 60 has created no problems, we are of the view that a similar right should be conferred on the mother, at least in the absence of the father, or, where the father is under disability. It appears to us that an amendment conferring such a right would be in conformity with present day thinking. At the time when the section was enacted, social opinion, in general, regarded the father as the only person primarily concerned with the future of the child. That is hardly the situation now.

12.25. English law.-

In this connection it may be noted that in English law, either parent may, by will, appoint a guardian of a minor child. The relevant statutory provisions (which contain certain other matters of detail also) are quoted below:-1

"4. Power of father and mother to appoint testamentary guardians--

(1) The father of a minor may by deed or will appoint any person to be guardian of the minor after his death.

(2) The mother of a minor may by deed or will appoint any person to be guardian of the minor after her death.

(3) Any guardian so appointed shall act jointly with the mother or father, as the case may be, of the minor so long as the mother or father remains alive unless the mother or father objects to his so acting.

(4) If the mother or father so objects, or if the guardian so appointed considers that the mother or father is unfit to have the custody of the minor, the guardian may apply to the court, and the court, may either-

(a) refuse to make any order (in which case the mother or father shall remain sole guardian); or

(b) make an order that the guardian so appointed

(i) shall act jointly with the mother or father; or

(ii) shall be the sole guardian of the minor.

(5) Where guardians are appointed by both parents, the guardians so appointed shall, after the death of the surviving parent, act jointly.

(6) If, under section 3 of this Act, a guardian has been appointed by the court to act jointly with a surviving parent, he shall continue to act as guardian after the death of the surviving parent, but, if the surviving parent has appointed a guardian, the guardian appointed by the court shall act jointly, with the guardian appointed by the surviving parent."

1. Sections 4(1) and 4(2), Guardianship of Minors Act, 1971 (Eng.).

12.25A. Section 60-

Suggestion for radical change considered.-We have taken note of the suggestion1 of one writer (in an article published in the Statesman), that "either parent" should, under section 60, have the right to decide what is best for their child in the event of their death. We are not inclined, for the present, to go beyond what we have already recommended.

1. Shahnaz Anklesaria Laws which Discriminate Against Women, (20 June, 1984) Statesman, P. 6.

12.26. Recommendation.-

We are not sure whether public opinion in India-even amongst persons governed by section 60-would welcome such a radical change. However, we are of the view that the mother's right should, as a first step1, be given recognition, at least for cases where the father is absent or incompetent to act.

1. Cf. section 9, Hindu Minority and Guardianship Act, 1956.

12.27. Requirement of sound mind.-

Apart from this point, which is of substantial importance, there are certain matters of detail also requiring attention. It is obvious that under section 60, a person ought not to be allowed to make an appointment of a testamentary guardian unless he (the person appointing) is of sound mind. It is appropriate that this requirement should find a place in section 60, on the lines of section 59 which relates to ability to dispose of property by will. We recommend that section 60 should be amended to carry out the above object.

12.28. Minority.-

Incidentally, the "minority", mentioned at the end of the section, is of the child, and not of the father. Opportunity could also be taken of making that clear.

12.29. Recommendation to revise section 60.-

In the light of the above discussion, we recommend that section 60 should be revised as under:-

"60. (1) A father, whatever his age may be, if of sound mind1 may, by will, appoint a guardian or guardians for his child during the minority of the child2.

(2) A mother3, whatever her age may be, if of sound mind, and if the father is dead or incapable of acting by reason of mental incapacity, may by will appoint a guardian or guardians for her child during the minority of the child".

1. See para. 12.27, supra.

2. See para. 12.28, supra.

3. See para. 12.26, supra.