The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Contents hide
2 Guardians and Wards Act, 1980
4 Procedure to get Guardianship
4.1 Who may apply for guardianship
4.2 Who may be appoint as guardian
6 Custody and Access of minor children
6.1 Wards Act conduct examination to ascertain the minor’s wishes. [8]
7 Regulating the conduct or proceeding of guardian’s
8 Removal or discharge of Guardian
When a marriage breaks up, most often children are the ones who are affected the most. Today while dealing with the issue of custody of minors, Indian courts have offered leniency in specific provisions so as to decide in the best interests of the minor. Mostly in the case of the minor’s custody, the court observes that the welfare of the minor is superior to the parent’s rights.
When it comes to the custody of minors, the Guardians and Wards Act, 1890 is applied. Apart from this person laws depending upon the faith or religion of the minor are applied, where specific provisions are mentioned under such personal laws that deal with the issue of minor’s custody. For e.g. custody of a minor under Hindu Law is governed by Hindu Minority & Guardianship Act, 1953 similarly Under Muslim Personal Law, specific provisions are available to deal with custody of the minor. Unlike Hindu and Muslim personal laws, Christian and Parsi personal law doesn’t provide any provision to deal with such matters. Hence, such matters are dealt with by the Guardians and Wards Act, 1890.
The Guardians and Wards Act applies to all minors. This act doesn’t conflict with personal laws, as the provisions under this act are applicable only after a guardian for the minor under personal law is appointed. The act defines the rights of a guardian to have custody of the ward wherein the guardian can only claim the custody of a minor after he/she has established that they are the minor’s guardian. The Act empowers the court to grant interim custody of the minor till proceedings are going on. The court can issue such temporary orders of custody under s.12 and s.25 of the Guardians & Wards Act, 1890.
As per s.19(b) of the Hindu Minority and Guardianship Act, the father of the child is considered to be the natural guardian but the SC in the case of Jijabai v Pathankan[1], refused to grant the minor’s custody to the father as he was deemed not fit for the care of the child. Supreme Court through its judgment in the abovementioned case, established that the courts are not bound to give custody to the father rather they are required to decide the custody depending upon the welfare of the child.
While deciding the custody of the child, the court takes into account various factors. S. 17(2) of Guardians and Wards Act states that “the court shall have regard to the age, sex, and religion of 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”. [2]
A guardian is defined as any person who is appointed by the court to look after another or their property. The guardian assumes care and responsibility and protection of the person for whom they are appointed as guardian. The guardian is responsible to take all legal decisions on behalf of the ward, in regard to the ward and their property. The occasion for guardianship arises in the scenarios where the person is a minor i.e. below 18 years of age or the person is unable to care for themselves due to a physical or mental disability. A guardian is require to decide on behalf of the ward protecting the interest of the ward and their property. [3]
As per s.14 of the National Trust Act, an application in Form A under Rule 16(1) must be submitted to the Local Level committee which is headed by the District Collector wherein they are empowered to appoint a guardian in Form B under Rule 16(2) for people with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities. [4]
S.11 of regulations state that both the parents jointly or singly apply for guardianship of their ward in circumstances of death, divorce, legal separation, desertion, or conviction of one parent. In case of death, desertion, the conviction of both the parents, the siblings jointly or singly apply for the guardianship. in case of non-application under the abovementioned scenarios, a relative may apply for guardianship. In the absence of an application by a relative, any registered organization may make an application, or a local level committee may direct a registered organization to make an application for the destitute or abandoned person. [5]
Under S. 12 of regulations state that both the parents jointly or singly apply for guardianship of their ward in circumstances of death, divorce, legal separation, desertion, or conviction of one parent. The parents are eligible for guardianship being the natural guardian of the ward unless the parent is disqualify by the way of loss of citizenship, being of unsound mind, being convict, or being destitute. Apart from this any family member or sibling, or any other person or any other institution may apply for guardianship. For an institution to apply for guardianship, the institute must be register under the law and should be capable of providing care to the ward.
In case the institute stops functioning or ceases to exist in the eyes of law, the Local Level Committee may make alternative arrangements for the foster of the ward. The institution can only have temporary guardianship, where a permanent guardian shall be appointed within one year by the Local Level Committee. The applicant for guardianship should live in close proximity to the area where the ward was previously inhabit. As per the regulations, no single male shall be considered for guardianship of a female ward. In the case of a female ward, the male person can be given co-guardianship with his spouse who shall be thereof, consider as master co-guardian. [6]
Declaration of Guardian is a legal document, where the ward declares their wish as to whom they would like
as a guardian for themselves if there were an occasion of guardianship. Under this, the ward can declare two types of guardians. [7]
A Guardian of estate is a person who has the right to possess and manage ward’s property including all assets where a guardian is responsible for enforcing any obligation in favor of the ward and
defend any lawsuits by or against the ward. If there exists an agent named under power of attorney for financial matter, then in case of ward’s incapacity
guardian of estate supersedes named agent of power of attorney.
A guardian of person is a person who has the responsibility to offer care and protection to the ward. If there exists an agent named as Medical Power of Attorney, then the court appointed guardian of the person
supersedes the named Medical Power of Attorney
in case where the ward is incapacitate.
The court while granting the custody of a minor is not bound by establish statutes or strict rules, they are bound by the minor’s welfare where the minor’s welfare is taken as paramount. The court has to give due weightage to all the factors from child’s comfort, contentment, health, education, intellectual development, surroundings, ethical upbringing, economic
well being of guardian, etc. As matters of child custody are very sensitive, the court is lenient in its execution where all orders are consider
as interlocutory orders.
All the custodial orders base on consent are require to be varie by the court wherein estoppel cannot be apply to such orders. The court to properly estimate and examine the welfare of the minor, at times passed interim or
temporary custody till the proceedings are complete
so as to offer care and protection to the minor. To examine the best interest of the minor, the court at times under s.17(3) of the Guardians &
The court from time to time grant various types of custody depending upon the ward’s welfare. Some of which are as following:[9]
Under joint custody, both the parents are involve equally, where both parents work together to make decisions about the child. The child under this type of custody may live with one parent, or
with but the decision-making power rests equally on both the parents.
Under sole custody, the ward lives with one parent, and where only one parent reserves the decision-making rights. The other parent under such custody may have the right to visit the ward.
Under shared custody, the ward lives with both the parents for an equal period where both
the parents reserve the right to make decisions about ward’s life.
Split custody is grant in cases where there is more than one ward, where
a certain number of wards live with
one parent and the remaining live with the other parent. Each parent then becomes responsible for the ward under their care and
reserve the right to make the decision for only those wards.
Physical custody is grant to the parent who will act as guardian of the ward. This custody is grant to ensure that the ward lives in a safe, fulfilling environment.
Legal custody gives the right to the guardian or parent to make all decisions for the ward.
s.43 of Guardians & Wards Act, 1890 deals with orders and their enforcement for regulating conducts of guardians where[10]
s.39 of the Guardians and Wards Act talks about the removal of a guardian
where the court can remove a guardian for any of the following causes:[11]
[1] Jijabai Vithalrao Gajre vs Pathankhan & Ors on 1 September, 1970
[2] Udit Prajpat, Custody Of Minor Under Indian Law, Legalserviceindia.com, January 24, 2021; 9:34 AM http://www.legalserviceindia.com/legal/article-3012-custody-of-minor-under-indian-law.html
[3] Guardianship, thenationaltrust.gov.in, January 25, 2021; 6:48 PM https://www.thenationaltrust.gov.in/content/innerpage/guardianship.php
[4] Guardianship, vikaspedia Domains, January 25 3:47 PM https://vikaspedia.in/social-welfare/differently-abled-welfare/schemes-programmes/legal-guardianship
[5] Guardianship, vikaspedia Domains, January 25 3:47 PM https://vikaspedia.in/social-welfare/differently-abled-welfare/schemes-programmes/legal-guardianship
[7] What Is A Declaration Of Guardian, And How Does It Work? January 25, 2021; 3:57 PM https://meredith-law.com/what-is-a-declaration-of-guardian-and-how-does-it-work/
[8] Devika Sharma Custody of Children | SCC Blog, SCC Blog, January 26 2:17 PM https://www.scconline.com/blog/post/2019/11/25/custody-of-children/
[9] Child custody and access :: Justice, January 26 8:48 PM, https://www.justice.gov.nt.ca/en/child-custody-and-access/
[10] Section 43 – The Guardians and Wards Act, January 26 6:56 PM https://lawgist.in/guardians-and-wards-act/43
[11] Removal of guardian | Guardians and Wards Act | Bare Acts | Law Library | AdvocateKhoj, January 26, 2021, 7:23PM
Drop your comment