The foundation of legal systems around the world has always been child welfare. The Guardian and Wards Act, 1890, is one of the most significant pieces of legislation in India that guarantees the wellbeing of juveniles, especially when natural guardianship is challenged or nonexistent. The Act, which was passed during British colonial control, was designed to give guardians for youngsters, regardless of their caste, religion, or creed, a standardized legal framework for their appointment and supervision.
The Act is mostly applicable when personal laws are inapplicable, silent, or unclear. The Guardian and Wards Act (GWA) is a secular law that applies in a wider legal context, particularly when it comes to matters of custody, guardianship, and management of a minor’s property, even though a large portion of family law in India is governed by religion-specific personal laws (such as Hindu, Muslim, or Christian law).
Historical Background and Legislative Intent
During the colonial period, the British administration encountered a variety of customs and religious practices concerning the custody and care of children. To create uniformity in dealing with such matters, particularly in cases involving Europeans, Anglo-Indians, or individuals whose personal laws were not clearly defined, the Guardian and Wards Act was enacted in 1890.
Its primary intent was to protect the interests and welfare of minors, ensuring that guardians were legally accountable for their duties and decisions. Although the Act has its roots in colonial governance, its underlying principle—the best interest of the child—has stood the test of time and remains a guiding force in modern jurisprudence.
Applicability and Scope
Except in cases where a particular personal law takes precedence, the Act applies to all minors residing in India, regardless of their faith. It is especially used in the following situations:
• There is no natural guardian for the minor;
• The natural guardian is unable, unwilling, or unsuitable to serve in that capacity.
• A minor has inherited or possesses property that needs legal management;
• There is a guardianship dispute, particularly in interfaith marriages or custody disputes.
Who Is a Minor?
A individual who has not reached the age of eighteen is considered a minor under the Act. However, if a guardian is appointed under the Act or under the Indian Majority Act, 1875, the minor continues to be a ward until the age of 21.
Types of Guardians
The Act categorizes guardians into several types, depending on how their guardianship arises.
- Natural Guardian
By default, these are guardians under personal law. For example:
• In accordance with Hindu law, the mother is the primary natural guardian, after the father.
• In accordance with Muslim law, the father maintains guardianship of the property, while the mother is granted custody of small children until a specific age.
• Since guardianship may not be covered in detail by personal laws for Christians and Parses, GWA is relevant.
- Testamentary Guardian
A guardian designated by a natural guardian in their will. In the case of their death, this clause enables parents to guarantee their children’s ongoing care and property management.
- Guardian Appointed by Court (Under the Act)
The Guardian and Wards Act permits the court to designate a guardian in the event that no natural or testamentary guardian is appropriate or available. This is the Act’s most important role since it protects the welfare of the child and permits judicial scrutiny.
- De Facto Guardian
A person who has taken on the care of a minor without official permission is known as a de facto guardian, even if the Act does not recognize them officially. Unless approved, courts often do not accord such individuals’ activities legal weight.
Principles Governing the Appointment of Guardians
The best interest and welfare of the minor is the main tenet that courts adhere to while selecting a guardian. Before rendering a decision, the court must take into account a number of considerations listed in the Act, including:
The minor’s age, sex, and religion.
The proposed guardian’s personality and ability.
the desires of a parent who has passed away.
Any existing relationship between the minor and the proposed guardian.
The minor’s own preferences, if the child is old enough to form an intelligent opinion.
Whether the appointment would involve the child moving away from a familiar environment.
The welfare principle has been repeatedly upheld by Indian courts, including the Supreme Court, making it the supreme consideration over claims based solely on parentage or religion.
Powers and Duties of a Guardian
Once appointed, a guardian has two broad areas of responsibility:
- Guardianship of Person
This covers the minor’s upbringing, education, health, and physical care. The guardian is responsible for the child’s overall development, safety, nutrition, and education.
- Guardianship of Property
Taking care of the minor’s assets and money is part of this. However, without the court’s previous approval, the guardian is not permitted to mortgage, sell, or lease the minor’s property.
Fiduciary Duty
As fiduciaries, guardians are required to act in the ward’s best interest and with the highest good faith. Legal action and removal from guardianship may follow misuse or poor management of the minor’s assets.
Procedural Aspects
Filing for Guardianship
The District Court with jurisdiction over the minor’s typical residence must receive a petition. Information regarding the minor must be included in the application.
• The history of the suggested guardian.
• The applicant’s relationship with the minor.
• The type and worth of any property owned by the minor.
• Any further pertinent information.
Court Proceedings
Following the petition’s filing, the court notifies the appropriate parties—including current or prospective guardians—and has the authority to request an investigation. The minor may also be interviewed by the court.
Termination of Guardianship
The following situations may result in the termination of guardianship under the Act:
• The minor reaches majority (18 or 21, depending on the situation).
• The guardian’s passing.
• Removal by the court as a result of incompetence, carelessness, or misbehavior.
• The ward’s adoption in accordance with a recognized legal statute.
· Achieving the goal for which the guardianship was created.
If the court determines that the guardian is no longer acting in the child’s best interests, it may also decide to revoke guardianship.
Judicial Interpretation and Landmark Cases
The Guardian and Wards Act has been interpreted and modernized in large part by Indian courts. For example:
Githa Hariharan v. Reserve Bank of India (1999)
In this historic case, the Supreme Court ruled that, in cases where the father was not acting in the child’s best interests, the mother might also serve as the child’s natural guardian while the father was still alive.
Roxann Sharma v. Arun Sharma (2015)
The Supreme Court reiterated that the kid’s welfare comes first and that, in custody disputes, personal law would not take precedence over the best interest of the child principle.
These and related rulings have broadened the Act’s interpretation to reflect modern social ideals, such as child rights and gender equality.
Contemporary Relevance
Despite being more than 130 years old, the Guardian and Wards Act is still very significant in contemporary India. It is especially pertinent in interfaith custody issues because of its secular nature.
• Claims for guardianship involving non-heteronormative households.
• Situations in which personal laws don’t offer enough clarification.
Critics counter that the Act needs to be updated to reflect changing ideas about gender roles, families, and child psychology. Reform ideas include:
• Clearly incorporating the rights of children to participate in society;
• Acknowledging shared guardianship and equal rights for both parents.
• Including clauses pertaining to child welfare monitoring and psychological counseling.
Conclusion
A fundamental piece of legislation that still influences how Indian courts handle kids’ custody and guardianship is the Guardian and Wards Act, 1890. Its fundamental tenet—putting the wellbeing of the kid first—has allowed it to stay relevant and successful in spite of its colonial beginnings. The Act is still a vital tool for protecting the rights of minors, especially in a pluralistic and diverse nation like India, even though changes are required to bring it more in line with modern family dynamics and human rights norms.
contributed by Loveshika (intern)