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Minority Act And Guardianship

In the premature stage of one�s life, a child is incapable of taking care of himself,his/her own body and his/her property because of his minority. A child can not handle his/her own matters. A child is even unable to understand what is right and what is wrong. So, he requires the help of some other person to take care of himself. For the advantage of the minors, the lawmakers have made specific laws which allow some relaxation and support to the lives of the minors.

The modern laws on minority and guardianship are regulated by the Hindu Minority and Guardianship Act, 1956. The father is the natural guardian of the child and after his death, the mother will take the responsibility of the guardianship of the child.

Definition of the minor and the guardian

In this Act,
� �minor� means a person who has not completed the age of eighteen years;
� �guardian� means a person having the care of the person of a minor or of his property or of both his person and property, and includes:
  1. A natural guardian
  2. A guardian appointed by the will of the minor�s father or mother,
  3. A guardian appointed or declared by a court, and
  4. A person empowered to act as such by or under any enactment relating to any court of wards;
    �natural guardian� means any of the guardians mentioned in section 6.

Types of guardian

There are 3 types of guardian who are in the following:
  • Natural Guardian
  • Testamentary Guardian
  • A Guardian appointed by the Court

Natural Guardian

> A natural guardian, in legal terms, is a child�s biological or adopted mother or father. In a divorce, either or both parents may be granted legal custody with guardian rights. A natural guardian is empowered to make a wide range of decisions for a minor child, including medical and financial matters that legally require a parent or guardian�s consent.

Advantages and Disadvantages of Natural Guardians

The main advantage of recognizing natural guardians is that virtually all children immediately have someone responsible for their care. No legal intervention or related expenses are necessary. Furthermore, the concept of a natural guardian is itself natural. The vast majority of parents have a natural interest in caring for their children.

The main disadvantage of natural guardians is that seemingly unfit parents often retain guardianship until they do something terribly wrong. Unfit natural guardians are more of a liability than an asset for children. Critics of automatic natural guardianship complain that you need a license to drive a car, but anyone is allowed to have kids.

Testamentary Guardian

A Testamentary Guardian is one who is appointed by a will of the natural guardians of the minor. The testamentary guardian becomes entitled to act as the guardian of the minor after the death of the natural guardian. He can exercise all the rights and powers of a natural guardian to such extent and subject to such restrictions as are specified in the Act and in the will. It is necessary for the testamentary guardian to accept �the guardianship. Acceptance may be express or implied. A testamentary guardian may refuse to accept the appointment or may disclaim it, but once he accepts, he cannot refuse to act or resign except with the permission of the court.

Testamentary guardians and their powers (Section 9 of the Hindu Minority and Guardianship Act 1956

  1. A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor�s person or in respect of the minor�s property (other than the undivided interest referred to in section 12) or in respect of both
  2. An appointment made under sub-section (1) shall have not effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.
  3. A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor�s person or in respect of the minor�s property (other than the undivided interest referred to in section 12) or in respect of both.
  4. A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will appoint a guardian for any of them in respect of the minor�s person or in respect of the minor�s property or in respect of both.
  5. The guardian so appointed by will has the right to act as the minor�s guardian after the death of the minor�s father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.
  6. The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.

A Guardian Appointed By The court

Guardian is a person who formally appointed to look after a child's interest on the death of child's parents. The guardian occupies a fiduciary position and is bound, for instance, to manage the property of the minor with the same here and prudence with which he would manage own property. Appointment can be made either by the Courts during family proceedings, if it is considered necessary for the child's welfare, or privately by any parent with parental responsibility.

If the court is satisfied that it is for the Welfare of minor that an order should be made appointing a Guardian of his person or property or both, the court may make an order under the Guardians and Wards Act, 1890 appointing a guardian. In appointing or declaring a person as the Guardian of a minor Welfare of the minor shall be the Paramount consideration.

Additional grounds where a guardian is appointed

  1. Guardianship of Minor�s property(De Facto guardian)
    A minor, who is under the tender age may achieve some property which is given by inheritance, gift etc. because of child underage, he/she can not take proper care of the property.
  2. Guardianship of a minor widow (guardianship by affinity)
    Earlier days of the Smritis child marriage was very common. After the marriage happened of a minor girl with the husband, then the husband became the guardian of the girl. In any situation, if the husband died then the minor widow should not feel unsafe.

Adoption of a child by any guardian is creating a relationship of the child and the guardian, it creates the subject matter of personal law and for a minor, it is mandatory to protect his property and for that reason, there is a guardian who will take care of him and his property. Special thanks to the lawmakers who invented these types of laws for protecting the minor and his property and for the unmarried girl and widow. In this way, no one can steal the property of anyone who is a minor.

Therefore, the guardian is very necessary for a minor to protect himself physically or mentally and secure from any danger.

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