The Guardians and Wards Act is a Central legislation enacted by the Parliament in 1890 with a view to protect the interests of minor and to grant security to the person and property of the minor. The Act is of universal application irrespective of the religion dealing with guardianship of children applicable to the Indian Territory as a whole but not applicable to State of Jammu and Kashmir.
The Act defines the term ‘minor’ as a person who has not reached the age of majority as provided under the Indian Majority Act of 1875. A person concerned of a minor or his property or both is said to be a ‘guardian’. The minor whose property and person is managed by a guardian is termed as a ‘ward’.
The Act empowers the High Court to order the District Judge or an officer subordinate to him to grant permission to his subordinate officials to dispose any case which is transferred to him. The Court where the cases are transferred in which the appointment of guardian is involved, such court shall be deemed to have appointed the guardian by an order of the District Court Judge. The Act does not bar the jurisdiction of any valid authority to appoint a guardian to the person or property of a minor. The Court is authorized under the Act to appoint guardian to uphold the interests of a minor and an order shall be made in this behalf to affirm someone as the guardian. The application regarding the guardianship of a minor shall be considered only by the District Court having jurisdiction specified by the Act.
Where the petition is not prepared by the Collector, then the plaint shall be signed and verified according to the process prescribed under the Civil Procedure Code for a petition. It shall contain the name, age, residence, details of relatives etc and such other details specified by the Act. The plaint shall contain the details of the guardian previously appointed for a minor by any authority legally entitled to do so. If any application for appointing a guardian has been submitted in any court, such details shall be furnished. But if the application is put forward by the Collector, then it shall be framed in a convenient manner and the statement of the guardian of his compliance shall also be attached.
The Court shall intimate a notice to the concerned parties informing the acceptance of the application and the date of hearing in the manner prescribed under the Civil Procedure Code. The Court shall appoint the guardian in consonance with law applicable to the minor for preserving his interests and shall consider the personality, character and capability of the guardian and consider the relationship of the guardian with the minor. The guardian shall not take any profits out of the property of a minor and shall have a fiduciary relation with that of the minor, but he can acquire property on behalf of the minor. The Act exempts a minor to be appointed as guardian of another minor except the wife and children. The guardian and the officer exercising functions for a minor shall be entitled to remuneration which shall be payable from the property or assets of the ward. The guardian is entrusted with the duty to take care of the ward, his health, education and other matters specified under the legislation. The property of the ward shall be looked after with due diligence and shall do such acts for the security, assistance and realization of such property.
The Court is empowered to remove a guardian on receiving an application in this regard by the concerned persons on the causes mentioned under Section 39 of the Act. For regulating the behavior and proceedings of the guardian, the Court is authorized to make orders on an application by the person related to the minor. The High Court is granted power to frame rules to execute the provisions contained in the Act and matters connected therewith.
The Parliament has introduced The Personal Laws (Amendment) Bill, 2010, which aims to amend the Guardianship and Wards Act, 1890. The Bill seeks to amend Section 19(b) of the 1890 Act and provides that the Court shall not appoint a guardian where the parents of the minor are alive and are physically and mentally fit to look after the interests of a minor, but the Section excludes a married female. The Bill received the assent of the President and came into effect on 31st August, 2010.