Chapter II§5–19
Appointment and Declaration of Guardians
The heart of the Act. §§7–18 lay down a complete procedural ladder for getting a guardian appointed or declared: who may apply (§8), the District Court that has jurisdiction (§9), the contents of the petition (§10), service and publication of notice (§11), interlocutory custody (§12), evidence (§13), simultaneous-proceedings stay (§14), multiple/joint guardians (§15), property outside the local jurisdiction (§16), the welfare-of-the-minor test (§17) and the Collector-by-virtue-of-office (§18). §19 is the all-important bar: the Court cannot appoint a guardian of the person of a minor whose father or mother is alive and not unfit (post-2010), and cannot touch a ward whose property is under a Court of Wards.
15 sections · MVP coverage
[Omitted]
Old provision empowering parents to appoint a guardian for European British subjects — omitted by the Part B States (Laws) Act, 1951.
[Power of parents to appoint in case of European British subjects.] Omitted by the Part B States (Laws) Act, 1951 (3 of 1951), s. 3 and Schedule.
Saving of power to appoint in other cases
Nothing in this Act takes away any power — valid under the personal law the minor is subject to — to appoint a guardian of the minor's person, property or both.
In the case of a minor, nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property, or both, which is valid by the law to which the minor is subject.
Power of the Court to make order as to guardianship
If satisfied it is for the welfare of the minor, the Court may appoint or declare a guardian; the order implies removal of any non-instrument, non-Court-appointed guardian, and successor orders require the existing guardian's powers to have ceased.
(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made— (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian, the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.
Persons entitled to apply for order
Application can only come from the proposed guardian, a relative or friend of the minor, the Collector of the district where the minor resides or has property, or a Collector with class-jurisdiction over the minor.
An order shall not be made under the last foregoing section except on the application of— (a) the person desirous of being, or claiming to be, the guardian of the minor, or (b) any relative or friend of the minor, or (c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has property, or (d) the Collector having authority with respect to the class to which the minor belongs.
Court having jurisdiction to entertain application
For the person of the minor, only the District Court where the minor ordinarily resides. For property, either that Court or the one where the property lies; the latter may return the petition to a more convenient forum.
(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.
(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.
Form of application
Petition (verified like a plaint) must state minor's name/sex/religion/DOB/residence, marital status if female, property details, custodian, near relations, existing guardianship history, what is sought, qualifications or grounds of claim, and reasons; a willingness-declaration signed by the proposed guardian and two witnesses must be annexed. A Collector applies by letter.
(1) If the application is not made by the Collector, it shall be by petition signed and verified in manner prescribed by the Code of Civil Procedure (14 of 1882) for the signing and verification of a plaint, and stating, so far as can be ascertained— (a) the name, sex, religion, date of birth and ordinary residence of the minor; (b) where the minor is a female, whether she is married, and, if so, the name and age of her husband; (c) the nature, situation and approximate value of the property, if any, of the minor; (d) the name and residence of the person having the custody or possession of the person or property of the minor; (e) what near relations the minor has, and where they reside; (f) whether a guardian of the person or property, or both, of the minor has been appointed by any person entitled or claiming to be entitled by the law to which the minor is subject to make such an appointment; (g) whether an application has at any time been made to the Court or to any other Court with respect to the guardianship of the person or property, or both, of the minor, and, if so, when, to what Court and with what result; (h) whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both; (i) where the application is to appoint a guardian, the qualifications of the proposed guardian; (j) where the application is to declare a person to be a guardian, the grounds on which that person claims; (k) the causes which have led to the making of the applications; and (l) such other particulars, if any, as may be prescribed or as the nature of the application renders it necessary to state.
(2) If the application is made by the Collector, it shall be by letter addressed to the Court and forwarded by post or in such other manner as may be found convenient, and shall state as far as possible the particulars mentioned in sub-section (1).
(3) The application must be accompanied by a declaration of the willingness of the proposed guardian to act and the declaration must be signed by him and attested by at least two witnesses.
Procedure on admission of application
On admission, the Court fixes a hearing date and serves notice on the parents (if resident in India), the custodian, the proposed guardian and any other necessary party, plus a posted notice; where Court-of-Wards land is in the property, the Collector is also notified — service of these latter notices is free.
(1) If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof, and cause notice of the application and of the date fixed for the hearing— (a) to be served in the manner directed in the Code of Civil Procedure (14 of 1882) on— (i) the parents of the minor if they are residing in any State to which this Act extends, (ii) the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor, (iii) the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant, and (iv) any other person to whom, in the opinion of the Court, special notice of the application should be given; and (b) to be posted on some conspicuous part of the court-house, and of the residence of the minor, and otherwise published in such manner as the Court, subject to any rules made by the High Court under this Act, thinks fit.
(2) The State Government may, by general or special order, require that, when any part of the property described in a petition under section 10, sub-section (1), is land of which a Court of Wards could assume the superintendence, the Court shall also cause a notice as aforesaid to be served on the Collector in whose district the minor ordinarily resides, and on every Collector in whose district any portion of the land is situate, and the Collector may cause the notice to be published in any manner he deems fit.
(3) No charge shall be made by the Court or the Collector for the service or publication of any notice served or published under sub-section (2).
Power to make interlocutory order for production of minor and interim protection of person and property
Court may order production of the minor and pass interim custody / property-protection orders; a female minor entitled to purdah must be produced consistent with custom; husband-custody of a female minor is barred unless she is already in her husband's custody with parental consent.
(1) The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.
(2) If the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country.
(3) Nothing in this section shall authorise— (a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or (b) any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.
Hearing of evidence before making of order
On the date fixed, the Court hears any evidence — for or against the appointment — before deciding.
On the day fixed for the hearing of the application, or as soon afterwards as may be, the Court shall hear such evidence as may be adduced in support of or in opposition to the application.
Simultaneous proceedings in different Courts
Parallel guardianship proceedings must be stayed once each Court learns of the other; same-High-Court Courts report up for assignment, otherwise they take direction from their respective State Governments.
(1) If proceedings for the appointment or declaration of a guardian of a minor are taken in more Courts than one, each of those Courts shall, on being apprised of the proceedings in the other Court or Courts, stay the proceedings before itself.
(2) If the Courts are both or all subordinate to the same High Court, they shall report the case to the High Court, and the High Court shall determine in which of the Courts the proceedings with respect to the appointment or declaration of a guardian of the minor shall be had.
(3) In any other case in which proceedings are stayed under sub-section (1), the Courts shall report the case to, and be guided by such orders as they may receive from, their respective State Governments.
Appointment or declaration of several guardians
If the minor's personal law permits joint guardians, the Court may appoint or declare them; person and property may have separate guardians; separate guardians may be appointed for each property.
(1) If the law to which the minor is subject admits of his having two or more joint guardians of his person or property, or both, the Court may, if it thinks fit, appoint or declare them.
* * * * *
(4) Separate guardians may be appointed or declared of the person and of the property of a minor.
(5) If a minor has several properties, the Court may, if it thinks fit, appoint or declare a separate guardian for any one or more of the properties.
Appointment or declaration of guardian for property beyond jurisdiction of the Court
A guardianship order over property outside the appointing Court's jurisdiction is binding — the local Court must accept the certified copy and give effect to the order.
If the Court appoints or declares a guardian for any property situate beyond the local limits of its jurisdiction, the Court having jurisdiction in the place where the property is situate shall, on production of a certified copy of the order appointing or declaring the guardian, accept him as duly appointed or declared and give effect to the order.
Matters to be considered by the Court in appointing guardian
Welfare of the minor is the paramount test — Court weighs age, sex, religion, the proposed guardian's character/kinship/relations and any deceased parent's wishes; an intelligent minor's own preference may be considered; no one shall be appointed against their will.
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
* * * * *
(5) The Court shall not appoint or declare any person to be a guardian against his will.
Appointment or declaration of Collector in virtue of office
When a Collector is appointed by virtue of office, the order authorises whoever holds that office for the time being to act as guardian — guardianship rides with the post, not the person.
Where a Collector is appointed or declared by the Court in virtue of his office to be guardian of the person or property, or both, of a minor, the order appointing or declaring him shall be deemed to authorize and require the person for the time being holding the office to act as guardian of the minor with respect to his person or property, or both, as the case may be.
Guardian not to be appointed by the Court in certain cases
Court cannot appoint a guardian for property already under a Court of Wards, for the person of a married female minor whose husband is not unfit, or — after the 2010 amendment — for the person of any other minor whose father or mother is alive and not unfit.
Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person— (a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or (b) of a minor, other than a married female, whose father or mother is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor, or (c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.