The second chapter of Guardian’s and Ward’s Act 1890
contains rules and regulation related to appointment and declaration of
guardians. Read on to find more about the second chapter of Guardian’s and Ward’s
5. Power of Parents to Appoint in Case of European British Subjects
[Rep. by the Part B States (Laws) Act, 1951 (3 of 1951), s. 3 and Schedule].
6. Saving of Power to Appoint in Other Cases
In the case of a minor, 10[***] nothing in this Act shall be construed to take
away or derogate from any power to appoint a guardian of his person or property
or both, which is valid by the law to which the minor is subject.
7. Power of the Court to Make Order as to Guardianship
(1) Where the court is satisfied that it is for the welfare of a minor that an
order should be made-
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian,
the court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has
not been appointed by will or other instrument or appointed or declared by the
(3) Where a guardian has been appointed by will or other instrument or appointed
or declared by the court, an order under this section appointing or declaring
another person to be guardian in his stead shall not be made until the powers
of the guardian appointed or declared as aforesaid have ceased under the
provisions of this Act.
8. Persons Entitled to Apply for Order
An order shall not be made under the last foregoing section except on the
application of -
(a) the person desirous of being, or claiming to be, the guardian of the minor;
(b) any relative or friend of the minor; or
(c) the Collector of the district or other local area within which the minor
ordinarily resides or in which he has property; or
(d) the Collector having authority with respect to the class to which the minor
9. Court Having Jurisdiction to Entertain Application
(1) If the application is with respect to the guardianship of the person of the
minor, it shall be made to the District Court having jurisdiction in the place
where the minor ordinarily resides.
(2) If the application is with respect to the guardianship of the property of
the minor, it may be made either to the District Court having jurisdiction in
the place where the minor ordinarily resides, or to a District Court having
jurisdiction in a place where he has property.
(3) If an application with respect to the guardianship of the property of a
minor is made to a District Court other than that having jurisdiction in the
place where the minor ordinarily resides, the court may return the application
if in its opinion the application would be disposed of more justly or
conveniently by any other District Court having jurisdiction.
10. Form of Application
(1) If the application is not made by the Collector, it shall be by petition
signed and verified in manner prescribed by the Code of Civil Procedure, 1882
(14 of 1882)7, for the signing and verification of a plaint, and stating, so
far as can be ascertained,-
(a) the name, sex, religion, date of birth and ordinary residence of the minor;
(b) where the minor is a female, whether she is married, and if so, the name
and age of her husband;
(c) the nature, situation and approximate value of the property, if any, of the
(d) the name and residence of the person having the custody or possession of
the person or property of the minor;
(e) what near relations the minor has, and where they reside;
(f) 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;
(g) 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;
(h) 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;
(i) where the application is to appoint a guardian, the qualifications of the
(j) where the application is to declare a person to be a guardian, the grounds
on which that person claims;
(k) the causes which have led to the making of the application; and
(l) such other particulars, if any, as may be prescribed or as the nature of
the application renders it necessary to state.
(2) If the application is made by the Collector, it shall be by letter
addressed to the court and forwarded by post or in such other manner as may be
found convenient, and shall state as far as possible the particulars mentioned
in sub-section (1).
(3) The application must be accompanied by a declaration of the willingness of
the proposed guardian to act, and the declaration must be signed by him and
attested by at least two witnesses.
11. Procedure on Admission of Application
(1) If the Court is satisfied that there is ground for proceeding on the
application, it shall fix a day for the hearing thereof, and cause notice of
the application and of the date fixed for the hearing-
(a) to be served in the manner directed in the Code of Civil Procedure,1882(14
of 1882)11 on-
(i) the parents of the minor if they are residing in 11[any State to which this
(ii) the person, if any, named in the petition or letter as having the custody
or possession of the person or property of the minor;
(iii) the person proposed in the application or letter to be appointed or
declared guardian, unless that person is himself the applicant; and
(iv) any other person to whom, in the opinion of the court special notice of
the applicant should be given; and
(b) to be posted on some conspicuous part of the court-house and of the
residence of the minor, and otherwise published in such manner as the court,
subject to any rules made by the High Court under this Act, thinks fit.
(2) The State Government may, by general or special order, require that when
any part of the property described in a petition under section 10, sub-section
(1), is land of which a Court of Wards could assume the superintendence, the
court shall also cause a notice as aforesaid to be served on the Collector in
whose district the minor ordinarily resides and on every Collector in whose
district any portion of the land is situate, and the Collector may cause the
notice to be published in any manner he deems fit.
(3) No charge shall be made by the court or the Collector for the service or
publication of any notice served or published under sub-section (2).
12. Power to Make Interlocutory Order for Production of Minor and Interim
Protection of Person and Property
(1) The court may direct that the person, if any, having the custody of the
minor, shall produce him or cause him to be produced at such place and time and
before such person as it appoints, and may make such order for the temporary
custody and protection of the person or property of the minor as it thinks
(2) If the minor is a female who ought not to be compelled to appear in public,
the direction under sub-section (1) for her production shall require her to be
produced in accordance with the customs and manners of the country.
(3) Nothing in this sections shall authorise-
(a) the court to place a female minor in the temporary custody of a person
claiming to be her guardian on the ground of his being her husband, unless she
is already in his custody with the consent of her parents, if any, or
(b) any person to whom the temporary custody and protection of the property of
a minor is entrusted to dispossess otherwise than by due course of law any
person in possession of any of the property.
13. Hearing of Evidence Before Making of Order
On the day fixed for the hearing of the application or as soon afterwards as
may be, the court shall hear such evidence as may be adduced in support of or
in opposition to, the application.
14. Simultaneous Proceedings in Different Courts
(1) If proceedings for the appointment or declaration of a guardian of a minor
are taken in more courts than one, each of those courts shall, on being
apprised of the proceedings in the other court or courts, stay the proceedings
(2) If the courts are both or all subordinate to the same High Court, they
shall report the case to the High Court, and the High Court shall determine in
which of the Courts the proceedings with respect to the appointment or
declaration of a guardian of the minor shall be had.
12[(3) In any other case in which proceedings are stayed under sub-section
(l),the court shall report the case to, and be guided by such orders as they
may receive from their respective State Governments.]
15. Appointment or Declaration of Several Guardians
(1) If the law to which the minor is subject admits of his having two or more
joint guardians of his person or property or both, the court may, if it thinks
fit, appoint or declare them.
13[* * *]
(4) Separate guardians may be appointed or declared of the person and of the
property of a minor.
(5) If a minor has several properties, the court may, if it thinks fit, appoint
or declare a separate guardian for any one or more of the properties.
16. Appointment or Declaration of Guardian for Property Beyond
Jurisdiction of the Court.
If the court appoints or declares a guardian for any property situate beyond
the local limits of its jurisdiction, the Court having jurisdiction in the
place where the property is situate shall, on production of a certified copy of
the order appointing or declaring the guardian accept him as duly appointed or
declared and give effect to the order.
17. Matters to be Considered by the Court in Appointing Guardian
(1) In appointing or declaring the guardian of a minor, the court shall,
subject to the provisions of this section, be guided by what, consistently with
the law to which the minor is subject, appears in the circumstances to be for
the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the court shall
have regard to the age, sex and religion of the minor, the character and
capacity of the proposed guardian and his nearness of kin to 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.
(3) If minor is old enough to form an intelligent preference , the court may
consider that preference.
14[* * *]
(5) The court shall not appoint or declare any person to be a guardian against
Comment: We are, however, satisfied having regard to the circumstances of the
case and the past history that the custody of the child should be immediately
given to the mother as the child is less than 5 years old. The mother will,
therefore, have the custody of the child. It will, however, be open to the
father, that is, respondent No. 1 to apply for the custody of the child in
appropriate guardianship proceedings. The respondent No. 1, however, will be
entitled to visit the residence of the petitioner @page-SC1157 and be with the
child during week ends (on Saturdays and Sundays)., Smt. Manju Tiwari v. Dr.
Rajendra Tiwari, AIR 1990
Supreme Court 1156
18. Appointment or Declaration of Collector in Virtue of Office
Where a Collector is appointed or declared by the court in virtue of his office
to be guardian of the person or property or both, of a manor, the order
appointing or declaring him shall be deemed to authorise and require the person
for the time being holding the office to act as guardian of the minor with
respect to his person or property or both, as the case may be.
19. Guardian not to be Appointed by the Court in Certain
Nothing in this Chapter shall authorise the court to appoint or declare a
guardian of the property of a minor whose property is under the superintendence
of a Court of Wards or to appoint or declare a guardian of the person-
(a) of a minor who is married female and whose husband is not, in the opinion
of court, unfit to be guardian of her person; or
(b) 15[* * *] of a minor whose father is living and is not in the opinion of
the court, unfit to be guardian of the person of the minor; or
(c) of a minor whose property is under the superintendence of a Court of Wards
competent to appoint a guardian of the person of the minor.