The term Guardian denotes to a person having the care of the person of a minor or of his property, or of his person and property. Generally, a person for whom or whose property a guardian is appointed is known as ward, who is necessarily under 15 years of age or lunatic. The object of guardianship is the care and welfare of the ward.
APPOINTMENT OF GUARDIAN:
According to section 7 of Guardian and Wards Act, 1890, where the Court is satisfied that it is for the welfare of a minor that an order should be made for appointing a guardian of his person or property or both as declaring a person to be such guardian, the Court may make an order accordingly.
PERSONS ENTITLED TO BE THE GUARDIAN:
According to section 8 of Guardian and Wards Act, 1890, the Court can make order on the application of any of the following persons:
1. Person who desires to be appointed or a person claiming to be the guardian of the minor;
2. Any relative or friend of the minor;
3. The collector of the district or other local area within which the minor ordinarily resides or which he has property;
4. The collector having authority with respect to the class to which the minor belongs.
Interlocutory order for production of minor and interim protection of person and property:
According to section 12 of Guardian and Wards Act, 1890 the Court may make an order to a person having custody of minor to produce the minor before the person as it appoints, or may make such an order for temporary custody or protection of person or property. In case of female minor, the Court shall require her production in accordance with customs and manners of the country. However, the Court cannot place a female minor in the temporary custody of a person claiming to be her guardian on the ground of being her husband unless she is already in his custody with the consent of her parents. Moreover, no any person having temporary custody and protection of minor’s property can dispossess any person in possession of any property except by due course of law.
TITLE OF GUARDIAN TO CUSTODY OF WARD:
According to section 25 of Guardian and Wards Act 1890 secures the title of guardians. If a ward leaves or is removed from the custody of a guardian of his person, in such a case the Court considering the welfare of the minor may make an order for the return of minor to the custody of his guarding and for the enforcement of such order the ward may be arrested and delivered into the custody of guardian.
KINDS OF GUARDIANSHIP:
Under Islamic law of Guardianship, the following are the 4 kinds of guardian:
1. Natural or Legal Guardian:
Natural or legal guardian is the one that encompasses a right to regulate and supervise the activities of a minor. Under Muslim law, father is recognized as the natural guardian of a minor. The father’s right to act as guardian of his child is independent and after father such right is vested in grandfather. The father or grandfather may also appoint the executor to act as a legal guardian on his behalf. Thus, the natural or legal guardian of a minor in order of priority are under:-
a. Father;
b. Executor of father;
c. Paternal grandfather;
d. Executor of paternal grandfather.
Under Muslim law, there is no other natural or legal guardian except abovementioned. According to Shia law, in the absence of father only grandfather would act as a legal guardian. In the absence of paternal grandfather, the father’s executor has no right to act as a legal guardian of child.
2. Testamentary Guardian:
A testamentary guardian is one which is appointed as guardian of a minor beneath a will. The father or, in his absence, paternal grandfather has the right to appoint a testamentary guardian. A non-Muslim and feminine may also be appointed as a testamentary guardian. However, according to Shia law a non-Muslim cannot be appointed as a testamentary guardian.
3. Guardian Appointed by Court or Statutory Guardian:
In the absence of a natural and legal guardian, the Court is authorized to appoint a guardian of minor’s person or property or for both. Such appointment of guardian is regularized under Guardian and Wards Act, 1890. Such guardian, as appointed under statute, is also known as statutory guardian. While appointing a guardian the Court takes into consideration welfare of the minor.
4. De-facto Guardian:
A de-facto guardian is a person who is neither a legal guardian nor a testamentary guardian or statutory guardian, but has voluntarily placed himself in the custody and care of a minor. It is an unauthorized person who, as a matter of fact, has custody of the person or property of minor. A de-facto guardian is a mere custodian of the minor’s person and property but has no right over either. He has only responsibilities towards the minor’s person or property or both, but no rights in respect thereof.
MOTHER AS GUARDIAN:
The right of mother as to guardianship is known as ‘hidana’. There are several grounds entitling mother to act as guardian as under:-
1. According to Hanafi law, mother is entitled to the custody of her son till the age of 07 years and of her daughter till age of puberty.
2. In Ithna Ashari law, mother is entitled to the custody of her son till the age of 02 years and of her daughter till the age of 07 years.
3. The mother is considered as the best entitled of her infant child during marriage and after separation from her husband, unless she becomes an apostate, or wicked, or unworthy to be trusted.
4. Where the father and mother are living together, their child must stay with them and the husband cannot take the child away with him. Where the child is in the custody of one of its parents, the other is not to be prevented from seeing and visiting it. The father’s supervision over the child continues in spite of the child being under the care of female relations, for it is the father who has to maintain the child.
Disqualification of Mother or Female Guardian:
Following are the circumstances which render a mother or female guardian as disqualified for guardianship:
1. If she marries to a person not related to the child within the prohibited degree.
2. If she commits immorality, adultery, or neglects to take proper care of the child.
3. A mother does not lose guardianship of her infant children merely because she is no longer the wife of her former husband unless she marries another person.
In the absence of Mother: In the absence of mother or female relations, following persons are entitled are entitled to the custody of a Muslim child in order of priority:
1. The father;
2. The paternal grandfather;
3. Consanguine brother and other paternal relations.
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