PROJECT ASSIGNMENT ON

FAMILY LAW II

TOPIC: Analyze the changing trends on Guardianship in India

Course Teacher
Prof. Ahmar Afaq

SUBMITTED BY

Shubhangi Dixit
B.A. LLB
Division B
PRN No- 16010323155
Semester –4th

Symbiosis law school, Hyderabad

SYMBIOSIS INTERNATIONAL UNIVERSITY
 ACKNOWLEDGEMENT

I would like to express my sincere gratitude and indebtedness to Prof. Ahmar Afaq for his
enlightening lectures on Family law II. I would also like to express my sincere gratitude to
our teaching staff for guiding me the path towards gaining knowledge. I would also like to
thank Symbiosis Law School, Hyderabad, and library for the wealth of information therein. I
would like to thank Library Staff as well for their co-operation.

I would also like to thank my batch mates and seniors who inspired, helped and guided me in
making this project. I am grateful to some of my seniors for their incredible guidance and
support.

NAME: Shubhangi Dixit

ROLL NO: 16010323155

SEMESTER: 4th
 TABLE OF CONTENTS

ACKNOWLEGDMENT………………………………………………….……....2

CERTIFICATE………………………………………………………………..…..4

INTRODUCTION............................................................................................…...5

CITATION………………………………………………………..……….….…...5

BENCH……………………………………………………………..……….....…5

ACTS REFERED……………………………………………..……..……....…...6

FACTS………………………………………………………………....……….…9

ISSUES ..………………………………….....…………………………….…......9

RULES…………………………………………………………………………...11

JUDGEMENT AND RATIO DICENDI ……………………………………….12

OBITER DICTA…………………………………………………………………13

ANALYSIS.............……………………………………………………………...14

CONCLUSION ……………………………………………………………….....18

CASES REFERED ……………………………………………….…………...…19

BIBLIOGRAPHY…………………………………………..……………………22
CERTIFICATE
INTRODUCTION

The changes in laws are made according to the need of the society not by the virtue of law or
the compulsion to have change in law. Indian society has been upgrading day by day and the
status of women is the most questioned issue. Even when we talk about guardianship in India
there are many amendments which are made to give equal rights to women as of child whose
guardianship is given and many changes yet to be made. The need of the societies are is the
utmost preference given by a the law makers. An individual is considered a minor till he or
she attains the age of eighteen. Till a minor attains majority, he has a guardian, who is
empowered to take decisions on behalf of the minor. The minor may also be in the custody of
an individual, who is responsible for his or her daily care and supervision. The rights of
guardianship and custody, while they often rest in the same person, are not the same.
Guardianship implies the right to take decisions on behalf of the minor, and to administer the
property of the minor, if any, till she/he attains majority. Custody is the limited right of taking
care of the daily up-bringing of the child.

The laws governing guardianship and custody in India are the Guardians and Wards Act,
1890 (The GWA), the Hindu Minority and Guardianship Act (The HMGA), as well as
provisions of the Hindu Marriage Act, 1955, the Parsi Marriage and Divorce Act, and the
Indian Divorce Act, and Muslim personal laws. Guardians can be either legal guardians or
natural guardians. Natural guardians are persons presumed by the law to be the guardian of
the minor, and are usually the parents of a child. Legal guardians can either be appointed by a
court of law, or can be appointed vide the testament (will) of a natural guardian.Hindu
Minority and Guardianship Act 1956 were framed for the protection of child rights and
safety. Though all these decades the act served the father as the first guardian before mother
(if father is dead) having the rights to claim the child. This was not just diminishing the
mother or women rights to claim child but also signifying the patriarchal face of the society,
the law also brought with it a lot more setbacks for society. Such thinking or trends of society
had given rise to many social issues like it has given rise to Social inequality, given a sense of
Dependency to women for their social recognition which not just morally but psychologically
bend them towards talking shelter. Child Rights to father diminish the role of women and
their say in the societal platform, this not just diminishes the role of women but also prove to
be her inefficiency to brought up children. Overall Reducing and questioning the power and
rights of women and her capability to stand and represent not just herself but also other
dependent on her. In India there are the following Acts that deal with the provisions of
custody and guardianship-

 Guardians and Wards Act,1890

 Hindu Minority and Guardianship Act, 1956
 Hindu Marriage Act ,1955

TYPES OF GUARDINSHP IN INDIA

NATURAL GUARDIAN:

Section 6 of the HMG Act enumerates the natural guardians of a Hindu Minor.If the minor is
a boy or unmarried girl above five years old, the natural guardian is his/her “father” and after
him the “mother”.The expression “the father, and after him the mother”, gives an effect that
the mother can be considered as the natural guardian only after the lifetime of the father.
During the interpretation of this expression, it is made clear that if the father is physically
unable to take care of the minor or he is staying away from where the mother and the minor
are living or because of his indifference between him and the mother of the minor, the mother
can act as natural guardian even during the lifetime of the father in respect of a minor’s
person and his property. If the minor is a boy or unmarried girl below five years old, the
natural guardian is his/her “mother” and after her the “father” (Section 6(b)). Even then, this
right of the mother is not an absolute right. The court has to give paramount consideration to
the welfare of the minor. In Mohan vs. Sandhya 1, the Hon’ble Madras High Court held that
though the mother is the natural guardian of a minor below five years old, when there are
strong reasons to make the mother unfit to have the custody, it is the paramount duty of the
Court to remove the minor child below five years from the custody of the mother and entrust
the same to the father. If the minor is a married girl, the natural guardian is her husband
(Section 6(c)). Even in this case, the right of the husband is not an indefeasible one. In Patel
Verabhai Kalidas vs. State of Gujarat2, it was held that, simply because the husband is named
as a natural guardian, he cannot be ipso-facto said to be entitled to the custody of a married
minor girl. His claim has got to be decided on the facts and circumstances of his case.

1
Mohan vs. Sandhya AIR 1993 Mad 59
2
In Patel Verabhai Kalidas vs. State of Gujarat (2000) DMC 431
TESTAMENTARY GUARDIAN:

Section 9 of the HMG Act enumerates the testamentary guardians of a Hindu Minor and their
powers. The father acting as the natural guardian shall appoint a guardian who is otherwise
known as the testamentary guardian to take care of the minor or minor’s property (except
undivided interest) or both. However, if the father predeceases the mother of the minor, the
appointment of the testamentary guardian cannot take effect. At that point of time, the mother
becomes the natural guardian and during her lifetime the testamentary guardian appointed by
the father cannot function. When the mother appoints a testamentary guardian, such guardian
znatural guardian and therefore appointment of a testamentary guardian by the father or the
mother will therefore cease to have effect after the marriage of the minor.

LEGAL GUARDIAN:

A person appointed or declared by the court to take care of the minor or minor’s property or
both, is otherwise known as legal guardian. Powers of a legal guardian: Section 29 of the
Guardian and Wards Act 1890, expressly states the powers of a guardian declared or
appointed by the court. The powers are same as that of a natural guardian. Moreover, the
court shall recite the necessity, property to be dealt with and any other conditions in the order
granting permission for the legal guardian. The alienation of a minor’s property by a legal
guardian is voidable at the instance of the minor.

DE FACTO GUARDIAN:

A de facto guardian is a person who takes continuous interest in the welfare of the minor’s
person or in the management and administration of his property without any authority of law.
Hindu jurisprudence has all along recognized the principle that if liability is incurred by one
on behalf of another in a case whether it is justified, then the person, on whose behalf the
liability is incurred or, at least, his property, is liable, notwithstanding the fact that no
authorization was made for incurring the liability.

The statute does not expressly define the term “de facto guardian”. During the interpretation
of Section 4(b) and Section 11 of HMA Act, though it does not define de facto guardian in
express terms, it is to be seen that he is a person who takes care interest.

Earlier legislation regarding Guardianship of children under Indian laws:

Though India is a secular country, but to maintain the diversity and to provide equal status to
all the religion and to maintain the essence of every religion, some customary laws are being
promoted which guides the person who belongs to that particular religion. The laws relating
to the legitimate and illegitimate children are dealt under those customary laws.

 Guardianship of an child under Hindu Minority and Guardianship Act

Guardianship basically means the authority and responsibility of an individual backed up by

law to take care of a minor child and his/her property till the child attains its majority.
Under Hindu Minority and Guardianship Act Sec. 6 which states that as per law the natural
guardian of a legitimate minor male or female child is the father.

Under Sec.6 of Hindu Minority and Guardianship Act ,which also deals with the concept of
illegitimate children where the mother of the illegitimate children has been stated as the
natural guardian of the children.

Where the mother of an illegitimate child without any notice to the father is the natural
guardian and after her the father may be given the guardianship.

 Guardianship of children under Mohammedan law

Under Mohammedan law mother is not the natural guardian of the legitimate and illegitimate
children. But the custody of the illegitimate child is given to the mother and her relatives..
Father is not entitled to have the guardianship or the custody of the minor illegitimate
children and in case of a minor legitimate child the father is the natural guardian.

 Guardianship of a child under Guardians and Wards Act, 1890

With regards to the guardianship of a Christian and Parsi Children are dealt under the
Guardianship and Wards Act, where the provisions have been laid down that for acquiring a
guardianship of a child, the mother has to send a notice to the father of the child, this has
been dealt under Sec.11 of the Guardianship and ward Act.
The loophole in this provision is relating to the child who was not born within a marriage.
What if the mother does not want to disclose the name of the father? What if the father is not
aware of the child? What if the father is aware but has not contacted the child and the mother.
Is it necessary to send a notice to the father?As Hindu Minority and Guardianship Act as well
as Mohammedan law, gave the sole authority of the illegitimate child to its mother, but what
about people other than these two religions, what about other religion?

STATUS OF FATHER IN GUARDIANSHIP

historically, most com munities treat the father's right over his children as paramount. In
India too, the father was traditionally privileged over the mother across most religious
communities, sects and tribal customs.
The law has been rigid with regard to Muslim minors. Under Hanafi and Shia law, a
schoolboy may be with the mother till the age of seven and two years respectively, while a
daughter could be with her mother up to puberty under Hanafi law and until the age of seven
under Shia law.

Under Hindu law, the custody of children under Section 6 of the Hindu Adoption and
Guardianship Act, 1956, is with the father, and after him the mother, with the proviso that
custody of a minor less than five years old should be with the mother. Under Section 49 of
the Parsi Marriage and Divorce Act, 1936 and Section 41 of the Indian Divorce Act, 1869,
courts are authorised to issue interim orders for custody, maintenance and education of minor
children in any proceedings. Guardianship for Parsi and Christian children is governed by the
Guardians and Wards Act, 1890.

The Guardians and Wards Act, 1890, enacted more than a century ago, also recognises the
father as the natural guardian of a minor child, and enables him to apply for the custody of
the child. Unless there are overwhelming circumstances to the contrary, the law is firmly on
the side of the father as the child's natural guardian.

FACTS OF THE CASE-The questions which have been raised above were solved in the case
filed by a Christian unwedded mother, who wanted the custody of its child and had applied
for it in the district court under Sec. 7 of the Guardianship and Ward Act, who directed her to
send a notice to the father of the child under Sec.11 of the concerned Act. She appealed
against it in the Delhi High Court, stating the fact that the father was not aware of the child
and that he was not in contact with them, hence she does not wanted to disclose the identity
of the child’s father. The H.C. rejected her appeal on the basis of Sec. 11 and Sec.19 of the
Act, stating that in the matter of guardianship it is necessary to send a notice to the father, as
the natural father might have interest in the welfare and custody of the child even if there is
no marriage.

Later she appealed to the SC , who set aside the decision of the trial court and the H.C. of
Delhi and gave a judgement in favour of the women on 6th July, 2015.The judgement was
passed by Justice. Vikramajit Sen with the advice of Mr Luthra as an amicus curaie.

To answer these issues S.C. not only interpreted the provisions of Guardian and Ward Act but
along with it, it also interpreted the provisions of Hindu Minority and Guardianship Act on
the basis that India being a secular religion, it does not pays an onus to the religion of the
appellant, what has to be done in this case is to interpret the law of the land in light of
legislative intent and prevailing case law, and has to decide

“whether an unwedded mother can have the sole guardianship of its child without sending
any notice to the father?

Points considered by the Supreme Court in declaring the new legislation relating to the
guardianship of unwedded mother:

To reach to a satisfying judgement keeping in view all the facts and circumstances of the
following points were considered in determining the same.

 Law Commission of India report, 2015 this stated that the main purpose of any
legislation dealing with a child, its main focus should be towards the welfare of the
child. Hence the main essence of the Guardianship and Minority Act is to ensure
the welfare of the child therefore under Sec.7 the initial thing which has to be
taken into consideration for guardianship of a child is the child’s welfare and the
rights of the mother and father and their interests are subservient.
 Also in view of Sec. 11 of the Guardianship and ward Act, if the notice is not
given to the father would deprive him from his right and also as per Sec. 19 of the
 Act , which states that a guardian cannot be appointed if the father of the minor is
alive and is not unfit to be the guardian of the child in the opinion of law but if the
father shows no interest and has no involvement till date in the child’s life. Then
the priority should be given to the mother who has been with child and has taken
care of the child.
 In this case the question regarding right to privacy also came up on which the
court sustained that the right to privacy of the women would be violated if, she
discloses the name of her child’s father, and right to privacy is a fundamental right
provided by constitution.
 The Supreme Court also used foreign legislation as per reference of countries and
came to the conclusion the child welfare has to be seen wholly and to promote it
judgement should be passed, hence in this case the father was not in contact with
the child and the mother, and the mother was financially strong as she by herself
had taken care of the child without anyone help. Therefore sending a notice to the
father would not add to the welfare of the child.

NEW LEGISLATION:

New legislation was made in favour of the unwedded mother of the child, which ensured the
mother the power of the guardianship and custody of its child, when the father was not in
contact of the mother and the child.

 It is not necessary to state the name of the father in applications for admission in
school and while attaining passport for the minor child.
 If single mother or unwedded mother applies for the birth certificate, then the
authorities may only require the women to get an affidavit and on basis of it
should issue the birth certificate, unless there is a contrary court direction to it.
 The unwedded mother under the Guardianship and Ward Act, can have the
guardianship as well as the custody of the child without sending notice to the
father.

Hence the appellant application for guardianship expeditiously without requiring notice to be
given to the father of the child was accepted.
ANALYSIS

Since minors are generally protected and cared for by their parents, a minor's parents make
any and all legal decisions that may be necessary for his or her welfare. However, in some
cases a child may need a separate individual to attend to their legal rights, because the minor
has inherited assets or no longer has a parent qualified to make legal decisions on his or her
behalf. In these cases, a guardian can either be chosen voluntarily by the family or appointed
by the court. A guardianis someone who makes legal decisions for another person, called
a ward, who is unable to make those decisions on their own.

SELECTING GUARDIANS OF MINORS:

A guardian should be selected with the best interests of the minor in mind. Courts prefer a
chosen guardian to have ties to the ward, such as:

 A person chosen by the ward

 A parent or another relative
 A state employee or private person familiar with the ward

If the parents are still alive, before a nonparent is chosen as a guardian the parents must be
deemed unable or unfit to look after the best interests of the minor. When minors are
removed from the care and supervision of their parents, and adoption is either not
forthcoming or not a viable option, guardianship is considered a reasonable alternative. Even
after a guardian is chosen for a minor, most state statutes allow that at age fourteen (or other
reasonable age), the minor may select (or at least voice a preference) concerning who will be
selected to serve a guardian.

GUARDIAN'S ROLE AND RESPONSIBILITIES:

The guardian of a minor looks after the direct physical well-being of the minor and the assets
of the minor's estate. A guardian is also necessary to:

 Provide a legal residence in order for the ward to attend a public school;
 Apply for public assistance benefits for a minor if needed;
  Apply for public housing on behalf of a minor where necessary; and
 Bring a lawsuit on behalf of the minor.

The guardian also receives and maintains any money due the minor for his or her care or
support. The guardian is required to maintain, account for, and preserve any excess funds
beyond what is necessary to support the minor. The guardian has a duty to look after the
minor's personal property and assure the proper education of the ward. The guardian is also
required to authorize any necessary medical or other care for the well-being and health of the
ward. Generally, the guardian provides whatever care would be given to a child by his or her
parents.

LAW COMMISSION OF INDIA’S REPORT ON GUARDIANSHIP AND

CUSTODY LAWS:

The Law Commission of India has submitted its Report No. 257 on “Reforms in Guardianship
and Custody Laws in India” today to the Union Minister of Law and Justice. The report
suggests amendments to existing laws to emphasize the “welfare of the child” in custody and
guardianship matters, and introduces the concept of joint custody as an option to be considered
in certain cases.
Children are the worst affected in proceedings of divorce and family breakdowns. Often,
parents use children as pawns to strike their own bargains, without considering the emotional,
social and mental upheavals that the children may face. The Commission believes this
imbalanced situation can be addressed in some measure through changes to the law that will
place a duty upon the court to uphold the child’s welfare in each and every case. This will
ensure that the child’s future is safe and protected, regardless of changing familial
circumstances.
Courts in India have recognised the welfare principle, but many aspects of the legal and judicial
framework remain wanting. Courts tend to grant custody of a child to either one parent or
another, presuming that it is for the welfare of the child. Joint custody arrangements, where both
parents have custody of the child, are rarely considered.
Problems in court decisions are compounded by inconsistencies in the law. For instance, the
Hindu Minority and Guardianship Act, 1956, regards the welfare of the child as being of
paramount consideration, but the Guardians and Wards Act, 1890, contains no such provision.
Similarly, the 1956 law does not treat the mother on an equal footing with the father as the
natural guardian of her child. Further, custody battles are among the most fiercely fought in
courts, because there is no agreement or understanding about what constitutes the welfare of the
child. As a result, it is impossible to ensure that the interests of the child are actually protected.
The legal framework also contains no guidelines about the manner and process by which
custody issues should be handled.
Accordingly, this report of the Law Commission reviews the current laws dealing with custody
and guardianship, and recommends legislative amendments to the Guardians and Wards Act,
1890 and the Hindu Minority and Guardianship Act, 1956. These amendments are necessary in
order to bring these laws in tune with modern social considerations. Major amendments are
recommended to the Guardians and Wards Act, 1890, by introducing a new chapter on custody
and visitation arrangements. The Commission believes that the Guardians and Wards Act, 1890,
being a secular law, will be relevant for all custody proceedings, besides any personal laws that
may apply.
The new chapter opens with a set of objectives, to clarify that the welfare of the child is the
primary guiding factor in all such matters. For the first time in India, the amendments also
introduce several concepts relating to joint custody and child welfare, such as child support,
mediation processes, parenting plans, and grand parenting time.

The key aspects of the legislative recommendations are as follows:

1. Welfare principle: The draft law strengthens the welfare principle in the Guardians and
Wards Act, 1890, with a continuous emphasis on its relevance in each aspect of
guardianship and custody related decision-making
 2. Abolition of preference: The draft law removes the preference for the father as the
natural guardian under Hindu law, and both parents are granted equal legal status with
respect to guardianship and custody.
3. Joint custody: The draft law empowers courts to award joint custody to both parents in
circumstances conducive to the welfare of the child, or award sole custody to one parent
with visitation rights to the other.
4. Mediation: Parties to a custody matter must ordinarily consider expert-led and time-
bound mediation, which can not only promote better outcomes for parents and children,
but also reduce the strain on the overburdened court system.
5. Child support: The draft law empowers courts to fix an amount specifically for child
support, to meet basic living expenses of the child. Financial resources of parents, and the
standard of living of the child must be considered when fixing such amounts. Child
support must continue till the child turns 18, but may be extended till 25; or longer, in case
of a child with mental or physical disability.
6. Guidelines: The draft law includes detailed guidelines to help courts, parents and other
stakeholders arrive at the best arrangement to serve the welfare of the child. The
guidelines introduce several new concepts in this regard, including parenting plans, grand
parenting time, visitation rights, and relocation of parents. They also elaborate the position
on related aspects such as determining the intelligent preference of a child, access to
records of the child, and mediation.

CONCLUSION

Society is dynamic, it changes with time and hence the issues also changes with time. The
new judgment indicates the flexibility of law, which can be changed as per the new
grievances of people. These judgments also shows the change in patriarchal society, where
since from beginning the name of father was required even though the father was not
concerned regarding the child and the mother. Therefore these judgement made the meaning
of guardianship more clear, that the one who is working for the welfare of the child and who
is concerned about it will have the custody and not just because the person might be
concerned about the child. Also as per the Indian Succession Act, 1925, which is applicable
to Christians in India, it stated that the domicile of the illegitimate child is based on the
domicile of the mother at the time of the birth. Apart of it the Convention on the Rights of
the Child, which India has acceded on 1992, states that not only under Indian legislation but
also under all jurisdictions across the globe, child welfare is the most important aspect which
has to be determined and not the right of parents, hence through this new judgement the S.C.
also paid importance to the welfare of the child.

BIBLIOGRAPHY