Report No. 257

A. Statutory Law

(i) Guardians and Wards Act, 1890

2.2.1 The GWA is a secular law regulating questions of guardianship and custody for all children within the territory of India, irrespective of their religion. It authorizes the District Courts to appoint guardians of the person or property of a minor, when the natural guardian as per the minor's personal law or the testamentary guardian appointed under a Will fails to discharge his/her duties towards the minor.

The Act is a complete code laying down the rights and obligations of the guardians, procedure for their removal and replacement, and remedies for misconduct by them. It is an umbrella legislation that supplements the personal laws governing guardianship issues under every religion.20 Even if the substantive law applied to a certain case is the personal law of the parties, the procedural law applicable is what is laid down in the GWA.21

20 For instance, Section 2 of the HMGA states that its provisions are 'supplemental' to and 'not in derogation' of the GWA.

21 Guardian and Wards Act, No. 8 of 1890, § 6 ("In the case of a minor, nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property or both, which is valid by the law to which the minor is subject.").

2.2.2 Section 7 of the GWA authorizes the court to appoint a guardian for the person or property or both of a minor, if it is satisfied that it is necessary for the 'welfare of the minor.'22 Section 17 lays down factors to be considered by the court when appointing guardians.23 Section 17(1) states that courts shall be guided by what the personal law of the minor provides and what, in the circumstances of the case, appears to be for the 'welfare of the minor.'24

Section 17(2) clarifies that in determining what is for the welfare of the minor, courts shall consider the age, sex and religion of the minor; the character and capacity of the proposed guardian and how closely related the proposed guardian is to the minor; the wishes, if any, of the deceased parents; and any existing or previous relation of the proposed guardian with the person or property of the minor.25 Section 17(3) states that if the minor is old enough to form an intelligent opinion, the court 'may' consider his/her preference.26

22 Guardian and Wards Act, No. 8 of 1890, § 7.

23 Guardians and Wards Act, No. 8 of 1890, § 17.

24 Guardian and Wards Act, No. 8 of 1890, § 17(1).

25 Guardian and Wards Act, No. 8 of 1890, § 17(2).

26 Guardian and Wards Act, No. 8 of 1890, § 17(3).

2.2.3 Section 19 of the GWA deals with cases where the court may not appoint a guardian.27 Section 19(b) states that a court is not authorized to appoint a guardian to the person of a minor, whose father or mother is alive, and who, in the opinion of the court, is not unfit to be a guardian.28 The earlier Section 19(b) prevented the court from appointing a guardian in case the father of the minor was alive. This clause was amended by the Personal Laws (Amendment) Act, 2010 and was made applicable to cases where even the mother was alive, thus removing the preferential position of the father.29

27 Guardian and Wards Act, No. 8 of 1890, § 19.

28 Guardian and Wards Act, No. 8 of 1890, § 19(b).

29 Personal Laws (Amendment) Act, No. 30 of 2010, § 2.

2.2.4 Section 25 of the GWA deals with the authority of the guardian over the custody of the ward.30 Section 25(1) states that if a ward leaves or is removed from the custody of the guardian, the court can issue an order for the ward's return, if it is of the opinion that it is for the 'welfare of the ward' to be returned to the custody of the guardian.31

30 Guardian and Wards Act, No. 8 of 1890, § 25.

31 Guardian and Wards Act, No. 8 of 1890, § 25(1).

2.2.5 Reading the above provisions together, it can be concluded that, in appointing a guardian to the person or property of a minor under the GWA, courts are to be guided by concern for the welfare of the minor/ward. This is evident from the language of Sections 7 and 17. At the same time, the implication of Section 19(b) is that, unless the court finds the father or mother to be particularly unfit to be a guardian, it cannot exercise its authority to appoint anyone else as the guardian. Thus, power of the court to act in furtherance of the welfare of the minor must defer to the authority of the parent to act as the guardian.