Removal of a Guardian

Guardianship is a relation which is established by a Court, which gives a person the legal right to care and make decisions for another person who is minor and unable to make decisions for himself. As the Court appoints the guardian for the welfare and interest of the child similarly, the Court may also remove a guardian in the interest of the child after considering several factors. This article enlightens us about several factors and provisions under which a guardian can be removed from his guardianship.

Introduction

Love, Safety, Stability, and Permanency these are what a child needs to develop. We all know that children are physically and mentally immature, so they need special safeguards and care. Our laws itself says that minor can`t act independently but can act only through the guardian. Most country laws provide that the parents of a minor child are the legal guardian of the child and that parents can designate, who shall become the child legal guardian. In some cases, the Court will appoint as well as remove the guardian for the welfare of the child. Children who deal in guardianship laws are minor (i.e. who has not completed the age of 18 years).

Who is a Guardian?

A Guardian is an adult who raises a child who cannot live with their parents. This might be a grandparent, aunts, uncle, sibling, foster carer, or anyone interested in child welfare. Guardians can make all the parenting decisions, can access universal support services just like parents. A guardian looks after the welfare and well-being and even the property of the child if any.

What is Legal Guardianship?

Legal guardianship typically refers to a relationship established by the Court whereby an individual takes care of another individual who cannot take care of themselves.

In India there is two important legislation relating to guardianship:

I. Section 4 (b) of the Hindu Minority and Guardianship Act, 1956.[1]

“guardian” means a person having the care of the person of a minor or of his property or both his person and property, and includes –

  1. a natural guardian,
  2. a guardian appointed by the will of the minor’s father or mother,
  3. a guardian appointed or declared by a Court, and
  4. a person empowered to act under any enactment relating to any Court of words.

II. Section 4 (2) of the Guardian and Wards Act, 1890.[2]

“Guardian” means a person having the care of the person of a minor or of his property or of both his person and property.

Removal of a Guardian

A guardian is appointed by the Court for the care and protection of the child as child welfare is the paramount consideration of the law. The Court has the power to appoint a guardian for the welfare of the child at the same time Court may also remove the guardianship from the person, where a person fails to perform his obligation as a legal guardian or in some other situation in child’s interest.

Circumstances under which guardianship of a child remove:

1)     When the child attained the age of majority;

When the child attained the age of majority (i.e. 18 years) and capable of maintaining himself, upon the application the Court may remove the guardian who was appointed to maintain the child.

2)     When the child gets married;

In the case of marriage of a girl child, her husband will become her legal guardian and in the case of marriage of a minor male child, the guardian of the girl child becomes his guardian as well.

3)     When the child gets adopted;

When the child is adopted, the adoptive parents become the legal guardian of the child and the guardianship of the person removed who has given the child in adoption.

4)     When the child dies before attaining the age of majority;

Guardianship over the child removes when the child dies before attaining the age of the majority.

5)     When the guardian becomes ill, incapacitated, or dies;

In case the guardian becomes ill, incapacitated, or dies in these situations the guardianship over the child removed.

6)     When the Court ends the guardianship, as the guardian’s assistant or protection is no longer needed;

When the parents of the child made an application before the Court for removal of the guardianship of the child to take their custody back.

7)     When the person appointed by the Court as guardian, was not able to perform his obligation or unfit to be a guardian; or

The person who is appointed by the Court as a legal guardian does not perform his obligation as a guardian, the Court will remove him from guardianship for the welfare of the child.

8)     When the person who is appointed as a guardian resigns from guardianship.

When the guardian ends his guardianship over the child on proving in the Court hearing that it was for the benefit of the child that he shall resign.

Provisions regarding the removal of a Guardian:

A. Section 13 of Hindu Minority and Guardianship Act, 1956.[3]

The Welfare of minors to be the paramount consideration.

  • In the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.
  • No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor.

This section applies only to Hindu as defined under section 3 of this act, it states about child welfare to be the paramount consideration and hence give the right to the Court to terminate or remove the guardianship of any person if the appointment is not in the interest of the child.

 In Jijabai Vithalrao Gajre v/s Pathankhan and Others,[4] the mother and father were living separately, the minor daughter was under the care and protection of the mother. Supreme Court removed the natural guardianship of the father and held that mother to be the natural guardian of her minor daughter even though the father was alive as the father being natural guardian under section 6 of Hindu Minority and Guardianship Act, 1956, as father was not taking any interest in the affairs of the child. The natural guardian may be father or mother whoever is available for taking care of the child and interested in the welfare of the child.

1.     Section 39 of Guardians and Wards Act, 1890.[5]

Removal of a guardian. — The Court may, on the application of any person interested, or of its own motion, remove a guardian ap­pointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely:

  • for the abuse of his trust;
  • for continued failure to perform the duties of his trust;
  • for incapacity to perform the duties of his trust;
  • for ill-treatment, or neglect to take proper care, of his ward;
  • for contumacious disregard of any provision of this Act or of any order of the Court;
  • for conviction of an offence implying, in the opinion of the Court, a defect of character which unfits him to be the guardian of his ward;
  • for having an interest adverse to the faithful performance of his duties;
  • for ceasing to reside within the local limits of the jurisdiction of the Court;
  • in the case of a guardian of the property, bankruptcy or insolvency;
  • by reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject.

The guardian and ward act, 1890 is applied to all the Indians irrespective of their religion. Under this section, the Court may on receiving the application, remove the guardianship based on various grounds as mention under this section, for the welfare of the child. 

In Shahnaz Akhtar @ Sk. Sabbu vs Safiullah Khan,[6] the case is filed by the maternal uncle of the minor child, for the custody of the child under section 7 of Guardians and Wards Act,1890, and removing the guardianship of the father under section 39 (f) of Guardians and Wards Act, 1890.

The Court on viewing the evidence, including the fact that the appellant, his father, and mother have been convicted in the criminal case for causing the death of the minor’s mother allowed the custody of the child with the maternal uncle, after seeing the welfare and overall interest of the minor child.

In Dinanath And Anr. vs Chandrabhagabai And Anr,[7] the deputy nazir of the Court of the district judge was appointed as guardian of the properties of the four minors. The eldest brother on completing the age of 21 years made an application that possession of the properties in respect of which guardian had been appointed should be restored him under section 39 (j) of Guardians and Wards Act, 1890. Court held that as soon as the minor arrived at the age of majority the appointing guardian of the property ceased to be operative. Lastly, after imposing the condition Court allowed the application and removed the guardianship.

Conclusion

 Guardianship is a concept in which someone is appointed to care or handle the affairs of a minor child who is incapable of administering his/her affairs as child welfare is one of the objectives of the legislature as defined under section 13 of Hindu Minority and Guardianship Act,1956. From the above- said provisions, it is clear that the Court may be empowered to remove the guardian if the person appointed as guardian is unfit or does not perform his obligation which leads to child welfare because proper guidance would make a lot of difference in the child’s healthy development.  

Assessment Questions

Question 1: Who is a legal guardian?

Answer: A legal guardian refers to a person who is appointed by the Court to care for the minor child.

Question 2: Can guardianship be removed?

Answer: Yes

Question 3: Who can remove a guardian?

Answer: Court may remove a guardian for the welfare of the child.

Question 4: Under what circumstances Court may remove guardianship?

Answer: There are several grounds as mentioned under section 39 of Guardians and wards Act, 1890 under which Courts may remove guardianship.

Question 5: What are the provisions under which guardianship may be removed?

Answer: Guardianship can be removed under Section 39 of Guardians and Wards Act, 1890 and Section 13 of Hindu Minority and Guardianship Act, 1956.


[1] https://www.indiacode.nic.in/handle/123456789/1649?locale=en

[2] https://indiankanoon.org/doc/282923/

[3] https://indiankanoon.org/doc/136612392/

[4] 1971 AIR 315, 1971 SCR (2) 1:https://www.lawyerservices.in/Jijabai-Vithalrao-Gajre-Versus-Pathankhan-and-Others-1970-09-01

[5] https://indiankanoon.org/doc/474645/

[6] https://indiankanoon.org/doc/640349/

[7]  AIR 1958 Kant 92, AIR 1958 Mys 92, ILR 1958 KAR 171, (1958) 36 MysLJ: https://indiankanoon.org/doc/997937/

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