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Report No. 257

B. Amendments to the Guardians and Wards Act, 1890

6.4 The Law Commission recommends the following amendments to this Act:

1. Section 17: This section provides for matters to be considered by the court in appointing the guardian of a minor, and requires the welfare of a minor to be consistent with the laws to which the minor is subject. In the past, Section 17 was read with Section 19 of this Act (which deals with the preferential right of natural guardianship).159

Before being amended by the Personal Laws (Amendment) Act, 2010, Section 19 offered a preferential right to the husband (of a minor girl), or the father (in all other cases) to be the guardian of the minor, if neither were unfit to be appointed guardian. The 2010 Act included the mother along with the father as a natural guardian of the child, and changed the position of the law slightly.160 However, the welfare of the child was still not, under law, truly the paramount consideration in such matters.

159 Law Commission of India, 83rd Report, April (1980), ¶ 6.40, available at
http://lawcommissionofindia.nic.in/51-100/Report83.pdf

160 Personal Laws (Amendment) Act, No. 30 of 2010, chapter II.

The Law Commission recommends that the possibility of any alternate reading be corrected in statute, and reaffirms, in this context, the general recommendations made by the 83rd report of the Law Commission. Thus, in the appointment or declaration of a guardian, the welfare of the minor must be paramount, and everything else must be secondary to this consideration.

In determining welfare, however, the court may give due regard to the laws to which the minor may be subject. As the 83rd report observed, "such an amendment will settle the position for all times to come," 161 and will remove the possibility of the appointment of a guardian without first assessing welfare.

161 Law Commission of India, 83rd Report, April (1980), ¶ 6.40, available at
http://lawcommissionofindia.nic.in/51-100/Report83.pdf

2. Section 19: This section provides for the preferential right of certain persons to be regarded as natural guardians. It provides that the court may not appoint a guardian, if the husband of a minor who is a married female is not unfit to be the guardian of her person, or if the father or mother (who are living) of a minor other than a married female is similarly not unfit to be the guardian. Here, too, the Commission reaffirms the 83rd report regarding the importance of the welfare principle, and recommends that in determining whether a person is unfit to be a guardian in these circumstances, the welfare of the minor under Section 17 shall be the paramount consideration.

3. Section 25: This section provides for the arrest of a ward if the ward leaves or is removed from the custody of his guardian, if such arrest is for the welfare of the ward. As with its recommendations above, the Law Commission concurs with its 83rd report, in various aspects.162 First, the concept of arrest of a minor is an archaic one, and needs to be amended to reflect modern social considerations.

Therefore, the Law Commission recommends a substitute section, replacing 'arrest' with the requirement to return the ward to the custody of his or her guardian. Again, the Commission reiterates the necessity of placing the welfare of the minor as the paramount consideration.

162 Id, ¶ 7.18

Second, the present text of the law is unclear as to whether a guardian who has never had custody of a minor is entitled to the relief under this section. This needs to be clarified, and accordingly, the Law Commission reiterates the recommendations of the 83rd report163 as regards the language of the provision to specifically state that it applies in cases where the child is not in the custody of the guardian, though the latter is entitled to such custody.

Third, it recommends that the court must not make an order under this section in respect of a child of fourteen years of over, without taking into consideration the wishes of the child.164 This is in consonance with the provisions of Section 17 of this Act, which allows the court to consider the stated preference of a minor, if the minor is old enough to form an intelligent preference. In a scenario where the minor of over fourteen years of age has left or been removed from the custody of his or her guardian, the Commission recommends that the court must take into consideration the preference of the child.

163 Id, ¶ 7.14-7.17

164 Id, ¶ 7.20



Reforms in Guardianship and Custody Laws in India Back




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