1) Meaning of Guardian -
The law of guardianship is based on the incapacity which the law attributes to minors and to persons who are deficient in mental capacity. The guardian occupies a fiduciary position and is bound, for instance, to manage the property of the minor with the same here and prudence with which he would manage own property. Under Hindu Law, a guardian means, a person having the care of the person of another or his property or both, this was so because under Hindu law the husband was the natural guardian of his wife as also of his minor child. there are four Kinds prescribed under the Hindu Minority and Guardianship Act 1956.
2) Definition of Guardian -
Section 4 (b) of the Hindu Minority and Guardianship Act defines "Guardian" (major) means a person having the care of the person of a minor or of his property or of both his person and property and includes –
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor’s father or mother,
(iii) a guardian appointed or declared by a court, and
(iv) a person empowered to act as such by or under any enactment relating to any court of wards.
3) Kinds of Guardians -
According to Section of the Hindu Minority and Guardianship Act, 1956 there are four Kinds of Guardians are as follows -
(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 as such by or under any enactment relating to any court of wards.
(i) Natural Guardian -
A natural guardian is one who becomes so by reason of natural relationship with the minor.In other words, a natural guardian is a person having the care of the person of a minor or of his property or both, by virtue of his natural relationship with the minor. The natural guardian of a minor boy or minor unmarried girl is the father. On the death of the father, the mother becomes the natural guardian.
Section 4(c) of the Hindu minority and guardianship Act 1956 defines "Natural guardian', Section 6 of the Hindu Adoption and Maintenance Act deals with the Natural guardian and Section 8 Lays down the powers of the natural guardian.
See in Detail - Natural Guardian | Family Law
(ii) Testamentary Guardian or Guardian Appointed by will
Testamentary Guardian is a person appointed by who will to be the 'guardian of a child' under 18. (See.... who is Minor ) Under the old law only the Father by which will could appoint a testamentary guardian. Under the Hindu minority and guardianship Act 1956, even the mother can do so. The powers of the testamentary guardian are not higher than those of a natural guardian. They are subject to the limitations imposed by the will. This was so under the old Law also. But under the new law, the testamentary guardian's power's are statutorily curtailed just like the power of natural guardians. That is, the prior permission of the court is required for alienations as in the case of a natural guardian.
See in Detail - Testamentary Guardian | Family Law
(iii) Guardian Appointed or declared by Court
Where the court is satisfied that it is for the Welfare of minor that an order should be made appointing a Guardian of his person or property or both, the court may make an order under the Guardians and Wards Act, 1890 appointing a guardian. In appointing or declaring a person as the Guardian of a minor Welfare of the minor shall be the Paramount consideration.
See in Detail - Guardian Appointed or declared by Court | Family Law
(iv) A person empowered to act as such by or under any enactment relating to any Court of Wards.
Under order 32 of the Civil Procedure Code, a guardian ad litem may be appointed or removed or where the management of an estate is vested, for the time being in a court of wards, Guardian of the minor whose estate is so wasted may be appointed under the provisions of the Court of Wards Act.
v) De Facto Guardian
A de facto Guardian of a minor is neither a legal Guardian nor a testamentary Guardian nor a Guardian appointed by the court, but he is a person who himself, takes over the management of the affairs of the minor as if he was a natural guardian. The old law recognized a de facto Guardian. In regard to alienations of property, his powers wear those of natural guardian. Under the new law of the concept of de facto Guardian has been abolished.
Section 11 of the hi Hindu Minority and Guardianship Act, 1956 deals with De Facto Guardian. Section 11 of the said act prohibits a de facto Guardian to deal with minors property. According to Section 11 of the Act, no person shall be entitled to dispose of, or deal with, the property of Hindu minor merely on the ground of his or her being the de facto guardian of the minor.
vi) Ad Hoc Guardian
One who acts as a Guardian of the minor for the temporary period or for a single transaction, he is called 'Guardian ad hoc'.
vii) A Guardian ad litem -
A person who is appointed to defend an action or other proceedings on behalf of minor or person under a disability is called 'a Guardian ad litem' a Guardian ad litem is not De facto or De jure guardian.
Grounds for Reopening the Partition | Family Law
Distinction / Difference between Joint Family and Coparcenary
Post a Comment