Court can appoint a guardian
The court, on an application by a party, can appoint or declared a guardian for a ward. The purpose is to ensure the welfare of the minor and take care of the ward’s person and property, as per the Guardian and Wards Act, 1890 (GWA).
A guardian means the person having the legal authority and duty to care for another’s person or property because of the another’s infancy, incapacity, or disability.
A ward is a child under guardianship of an adult person.
Who can apply for such an order?
The person desirous of being or claiming to be the guardian of the minor, any relative or friend of the minor, or the Collector of the District where the minor ordinary lives or has property, can apply for such an order for either appointment or declaration, as a guardian.
A Hindu father or mother in his or her capacity as natural guardian of the child has not to make an application under GWA to the court for a declaration as guardian of the child for its person or property. The only relief she can claim is under Section 25 of the GWA to make an order for arresting the ward and to deliver the child to the custody of the guardian, if the minor is removed from the custody of the guardian.
Which court can entertain an application?
An application for guardianship of the person of the minor should be made to the District Court where the minor ordinarily resides.
The application for the guardianship of the property of minor is to be made either to the District Court where the minor ordinarily resides, or to the District Court where the minor has property.
Application for guardianship should include
An application for guardianship to be filed before the District Court should include the following details: –
- the name, sex, religion, date of birth and ordinary residence of the minor;
- where the minor is a female, whether she is married and if so, the name and age of her husband;
- the nature, situation and approximate value of the property, if any, of the minor;
- the name and residence of the person having the custody or possession of the person or property of the minor;
- what near relations the minor has and where they reside;
- 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;
- 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;
- 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;
- where the application is to appoint a guardian, the qualifications of the proposed guardian;
- where the application is to declare a person to be a guardian, the grounds on which that person claims; the causes which have led to the making of the application; and
- such other particulars, if any, as may be prescribed or as the nature of the application renders it necessary to state.
An application must be accompanied by a declaration of the willingness of the proposed guardian, and the declaration shall be signed by him and attested by at least two witnesses.
Admission of the application
If the District Court is satisfied and there is ground for proceeding on the application, it shall fix a day for the hearing, and send notice of the application and of the date fixed for the hearing, as prescribed in Civil procedure Code (CPC). The notice should be sent to the parents of the minor, the person named in the petition having the custody of the person or property of the minor, the person proposed to be appointed for declared guardian, or any other person as the court finds it necessary.
Court can order production of child
The court can direct the person, having the custody of the minor, to produce the minor in such place and time and issue order for temporary custody of the child.
Hearing of evidence
The court will fix a day for hearing of the application and hear such evidence in support of or in opposition to the application.
In hearing, the court will consider what will be good for the interest and welfare of the minor. That decision must be taken in consideration of the will of the minor, if he is intelligent enough to form a preference.
Guardian not to make profit but get remuneration
A guardian must not make any profit out of his office. But a court appointed guardian is entitled to remuneration as decided by the court.
Duties of the Guardian
A guardian should take care of the health, education, and such other matters of the ward.
Guardian should not remove the ward
The guardian should not remove the ward, from the jurisdiction of the court without its permission.
Minor’s property to be dealt with prudently
A guardian should deal with the property of the ward as a man of ordinary prudence and as if the property is his own.
Guardian should not transfer ward’s property
Guardian should not transfer ward’s property by sale, gift, mortgage, etc without prior permission from the court.
Such a transfer without prior permission of the court is void at the instance of the person thereby affected.
Court can permit selling of property
But the court can grant permission to the guardian to sell the property of the ward in case of necessity or for an evident advantage of the ward.
The order granting permission to sell the property shall recite the necessity or advantage of selling the property. The sale shall be made to the highest bidder by public auction before the court or a court appointed person at the time and place specified by the court.
The proceeds shall be paid into the court by the guardian and that will be disbursed or invested or dealt with by the court as it thinks fit.
Guardian can seek court’s opinion
The guardian can seek the court’s opinion, advice or direction on any question relating to the management or administration of the property of his ward.
Guardian should give bond and accounts
The guardian is bound to give a bond for the amount he receives relating to the property, a statement of accounts relating to the property within 6 months, exhibits his accounts when the court directs, pay balance of the accounts to the court, and apply for the expenses of the ward.
Removal or resignation of guardian
On application of any person interested, the court can terminate the guardian ship of any person on the grounds listed under Section 39 of the GWA.
Similarly, a guardian appointed by court can resign his office by applying to the court. The court will discharge his guardianship if sufficient reason is there, and appoint a successor by its motion.
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