Removal of a Guardian
Authored by Pulkit Tiwari
Keywords: Guardian, Hindu minority and guardianship act.
A good man someday might have thought that it would be so good if someone could protect and take care of his/her things, and he might have brought the idea to life by actually appointing someone as its protector, and a title, therefore, raised i.e. Guardian. Well, the story which I manuscript is totally fictional but I hope that somehow this way would be the birth of the title. “Guardian” in a literal sense means a person who protects or defends something or someone, but the same is not ricocheted in the legal sense. Legally the term means a person who has the legal authority and the corresponding duty to care for the personal and property interests of a person.
Generally, guardian in the legal spectrum is much talked relating to the custody of children. Parents are also considered as guardians but ‘natural’ ones where guardianship is not provided by the law. Then there are guardians whom the court provides the custody of a minor when it is proved that the natural guardians are incapable of upbringing their child. The idea was first brought in India during the reign of British as The Guardians and Wards Act of 1890 (GWA) and since its initiation, it has ever flourished. The growth is not quite the ones seen in western countries. They have brought in the idea of foster homes which isn’t even ricocheted in Indian laws.
The concept of a legal guardian is not forever binding to someone, even it has an end. The means to end are different i.e. the guardianship can end under different conditions. There is no just one condition for a guardianship to end. The paradigm of removal of guardianship is a difficult one but is burdensome in India because laws here focus on both the point of view of morality as well as religion. Laws for the appointment of guardianship is an important perspective but laws removal of guardianship is a vital reason being that if guardianship is given to a person with bad intentions it would be a far worse scenario than having no scenario.
What is a guardian?
The Guardians and Wards Act of 1890 (GWA) defines ‘guardian’ as a person having the care of the person of a minor or of his property or of both his person and property.
There also exists a concept of natural guardianship in the Hindu Minority and Guardianship Act of 1956. Section 6 of the act mentions that the natural guardian of a Hindu minor boy or an unmarried girl is the father, and only after him, the mother. Natural Guardianship is the title that is only given to the biological parents of a child.
Removal of a guardian
Section 39 of GWA talks about the condition under which a guardian can be removed. The section mentions that the court may remove a guardian appointed or declared by the court of law, will or any other instrument, for any of the following reasons:
• for abuse of his trust;
• for continued failure to perform;
• for incapacity to perform the duties of his trust;
• for ill-treatment, or neglect to take proper care, of his ward;
• for contumacious disregard of any provision of this act or of any order of the court;
• for conviction of any offense implying, in the opinion of the court, a defect of character which unfits him to be the guardian of his ward;
• for having an interest adverse to the faithful performance of his duties;
• for ceasing to reside within the local limits of the jurisdiction of the court;
• in the case of a guardian of the property, for bankruptcy or insolvency.
Summarizing the whole pointers we conclude that a court expects a guardian to be a person of good morality, clear intentions, disciplined and trustworthy. Additional conditions added by the court are domicile in the locality of the area mentioned by the court. These conditions are added because the court wants to hand over an important thing only in the hand of a person whom the law deems worthy of the act that he/she would himself/herself be maintained and maintain the thing/person handed over to his/her custody. The guardian not only is removed off the possession of a thing when found misacting but is also held liable for violating the trust embedded or/and damages caused to the property of the ward if any in him/her by the court of law.
Termination of Natural Guardianship
Even natural guardianship can be removed when it does not seem to bring benefits that a child is entitled to. The conditions are as follows:
• when the guardian of a child causes strain or any kind of harm to the child;
• when the guardian is not able to keep the child in a stable pace ensuring mental growth;
• when the guardian does not have a fixed source of income to support the education or provide sufficient means for the growth of the child;
• after attaining the age of 12 years the child itself is entitled to decide with which parent to stay.
Termination of Guardianship
Termination of guardianship is not as same as removal. Termination is the conditions under which the guardianship automatically comes to an end. The conditions under which guardianship terminates are as follows:
• when the child turns into a major and can maintain and look after himself/herself, the guardianship of his/her guardian terminates;
• when the child dies before attaining majority;
• when the guardian decides to resign.
Paraphrasing it in easier words the laws mention that termination can be brought on the will of the child, unusual death of the child in custody, and no will of the guardian to continue. The law is not a gully cricket that the guardian can resign without fulfilling his duties i.e. to notify relatives of the child in discussion and going through a court procedure to provide a suitable alternative guardian to the child.
From every condition of either removal or termination mentioned in the article it can be concluded that the primary moto of the law is to grant a stable life for a child then it does not matter if it comes from a biological parent i.e. natural guardian or from a court appointed guardian. The conditions of removal are based on the breach of the trust through which court embedded in a person the guardianship. There exists a difference between removal and termination of a guardian. The difference is that the removal is done by a mala fide act of the guardian and removal does not take place on the will of the guardian, whereas termination takes place on completion of a condition or by the will of the child or by the will of the guardian.
1.) The Guardians and Wards Act, 1890
2.) The Hindu Minority and Guardianship Act, 1956
3.) Akansha, Termination of Guardianship under Hindu Minorities and Guardianship Act, 1956, Blog iPleaders (June 4, 2019), https://blog.ipleaders.in/guardianship-termination-hindulaw/#:~:text=Upon%20attaining%20the%20age%20of,his%20care%20or%20his%20property.&text=In%20a%20given%20situation%2C%20if,will%20be%20her%20rightful%20guardian.