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 Act 1890.
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 court.
(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; or
(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 belongs.
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 minor;
(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 proposed guardian;
(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 Act extends;]
(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 proper.
(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 before itself.
(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.
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(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.
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(5) The court shall not appoint or declare any person to be a guardian against his will.
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 Cases
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.