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This document discusses the Guardians and Wards Act of 1890 in India. It provides context about pre-existing laws regarding minors and guardianship. It notes that this Act consolidated and reformed previous statutes on the topic to provide uniform law across India, except Jammu and Kashmir. It also discusses how this Act is both a consolidating and amending statute, and how it should be interpreted as such.

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193 views

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Date and Time: Thursday 9 June 2022 12:18:00 PM IST

Job Number: 172824410

Documents (68)

1. 1. Pre-Act law
Client/Matter: -None-
2. 1. Title, extent and commencement.—
Client/Matter: -None-
3. 2.
Client/Matter: -None-
4. 3. Saving of jurisdiction of Courts of Wards and Chartered High Courts.—
Client/Matter: -None-
5. 4. Definitions.—
Client/Matter: -None-
6. 4A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.—
Client/Matter: -None-
7. 5. Power of parents to appoint in case of European British subjects.—
Client/Matter: -None-
8. 6. Saving of power to appoint in other cases.—
Client/Matter: -None-
9. 7. Power of the Court to make order as to guardianship.—
Client/Matter: -None-
10. 8. Persons entitled to apply for order.—
Client/Matter: -None-
11. 9. Court having jurisdiction to entertain application.—
Client/Matter: -None-
12. 10. Form of application.—
Client/Matter: -None-
13. 11. Procedure on admission of application.—
Client/Matter: -None-
14. 12. Power to make interlocutory order for production of minor and interim protection of person and
property.—
Client/Matter: -None-
15. 13. Hearing of evidence before making of order.—
Client/Matter: -None-
16. 14. Simultaneous proceedings in different Courts.—
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17. 15. Appointment or declaration of several guardians.—
Client/Matter: -None-
18. 16. Appointment or declaration of guardian for property beyond jurisdiction of the Court.—
Client/Matter: -None-

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19. 17. Matters to be considered by the Court in appointing guardian.—
Client/Matter: -None-
20. 18. Appointment or declaration of Collector in virtue of office.—
Client/Matter: -None-
21. 19. Guardian not to be appointed by the Court in certain cases.—
Client/Matter: -None-
22. 20. Fiduciary relation of guardian to ward.—
Client/Matter: -None-
23. 21. Capacity of minors to act as guardians.—
Client/Matter: -None-
24. 22. Remuneration of guardian.—
Client/Matter: -None-
25. 23. Control of Collector as guardian.—
Client/Matter: -None-
26. 24. Duties of guardian of the person.—
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27. 25. Title of guardian to custody of ward.—
Client/Matter: -None-
28. 26. Removal of ward from jurisdiction.—
Client/Matter: -None-
29. 27. Duties of guardian of property.—
Client/Matter: -None-
30. 28. Powers of testamentary guardian.—
Client/Matter: -None-
31. 29. Limitation of powers of guardian of property appointed or declared by the Court.—
Client/Matter: -None-
32. 30. Voidability of transfers made in contravention of section 28 or section 29.—
Client/Matter: -None-
33. 31. Practice with respect to permitting transfers under section 29.—
Client/Matter: -None-
34. 32. Variation of powers of guardian of property appointed or declared by the Court.—
Client/Matter: -None-
35. 33. Right of guardian so appointed or declared to apply to the Court for opinion in management of property
of ward.—
Client/Matter: -None-
36. 34. Obligations on guardian of property appointed or declared by the Court.—
Client/Matter: -None-
37. 34A. Power to award remuneration for auditing accounts.—
Client/Matter: -None-
38. 35. Suit against guardian where administration-bond was taken.—
Client/Matter: -None-
39. 36. Suit against guardian where administration-bond was not taken.—
Client/Matter: -None-
40. 37. General liability of guardian as trustee.—

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Client/Matter: -None-
41. 38. Right of survivorship among joint guardians.—
Client/Matter: -None-
42. 39. Removal of guardian.—
Client/Matter: -None-
43. 40. Discharge of guardian.—
Client/Matter: -None-
44. 41. Cessation of authority of guardian.—
Client/Matter: -None-
45. 42. Appointment of successor to guardian dead, discharged or removed.—
Client/Matter: -None-
46. 43. Orders for regulating conduct or proceedings of guardians, and enforcement of those orders.—
Client/Matter: -None-
47. 44. Penalty for removal of ward from jurisdiction.—
Client/Matter: -None-
48. 45. Penalty for contumacy.—
Client/Matter: -None-
49. 46. Reports by Collectors and subordinate Courts.—
Client/Matter: -None-
50. 47. Orders appealable.—
Client/Matter: -None-
51. 48. Finality of other orders.—
Client/Matter: -None-
52. 49. Costs.—
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53. 50. Power of High Court to make rules.—
Client/Matter: -None-
54. 51. Applicability of Act to guardians already appointed by Court.—
Client/Matter: -None-
55. 52. Amendment of Indian Majority Act.—
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56. 53. Amendment of Chapter XXXI of the Code of Civil Procedure.—
Client/Matter: -None-
57. Nature of the writ of habeas corpus
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58. Wishes of the Child
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59. Welfare of the Child is Paramount Consideration
Client/Matter: -None-
60. Writ is Refused when Material Facts are Disputed
Client/Matter: -None-
61. Writ Lies in Case of Urgency
Client/Matter: -None-
62. Proceedings for Custody under Writ Jurisdiction and Guardians and Wards Act

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Client/Matter: -None-
63. I INTRODUCTORY
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64. Preamble.—
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65. 1. Short title.—
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66. 2. Saving.—
Client/Matter: -None-
67. 3. Age of majority of persons domiciled in India.—
Client/Matter: -None-
68. 4. Age of Majority how Computed.—
Client/Matter: -None-

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(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed > Dr Paras Diwan:
Law of Adoption, Minority, Guardianship and Custody, 5th ed > PART III THE GUARDIANS AND
WARDS ACT, 1890

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—

Comments

1. Pre-Act law

It is interesting to note that among the some of the earliest statutes, enacted by the British Indian legislature, one of
them, the present one, relates to minors. However, these early statutes deals with Indian and non-Indian minors
separately. It is also interesting to note that the Charters of the High Courts and the High Court Act of 1861
conferred special jurisdiction on the High Courts in regard to minor children. (See our commentary on section 3 of
this Act). Before 1890 there were scattered statutes and regulations enacted by the Presidencies of Madras,
Bombay and Bengal. These were:

(a) Act 40 of 1856 enacted by Bengal Presidency was applicable to non-European minor British subjects
residing in Bengal, Punjab and Oudh, provided they were not under the superintendence of any court of
wards.
(b) Act 9 of 1861 dealt with guardianship and custody of non-European minor Children who were British
subjects. The Act applied to the whole of British India.
(c) Act 20 of 1864 of the Bombay Presidency applicable to non-European British subjects residing in Bombay.
(d) Act 13 of 1874 provided for guardianship of European minor children who were British subjects residing in
territories other than those falling within the jurisdiction of the Chartered High Courts.
(e) Acts and Regulations of the Madras Code applied to non-European minors who were British subjects
residing in Madras and who were not under the superintendence of the courts of wards.

However, none of these statutes affected the rule of Hindu law and Muslim law relating to the guardianship and
custody of minor children. Under these statutes a guardian of the person or property of a Muslim or Hindu child
could be appointed only if such an appointment was sought.
2. Consolidating and Reforming Statute

As the preamble clearly states, the Guardians and Wards Act is a consolidating and amending statute. All the
provisions of scattered statutes have been consolidated under the present Act. But, then, the Act is not a mere
Page 2 of 3
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed

consolidating statute; it has also reformed the law. Some of the provisions of the old statutes have been abrogated
and some new ones have been added. This implies that the Act repeals all the previous statutes and regulations on
the subject and provides one uniform law extending over the entire territories of India, except the state of Jammu
and Kashmir.

This being a consolidating and amending statute, its provisions are to be interpreted as such.
3. Order XXXII, rule 4(2), Civil Procedure Code

Under Order XXXII, rule 4(2) it is now laid down that whenever a guardian of a minor is declared or appointed by
the court, it is the guardian who should be preferred for appointment as next friend or guardian ad litem of the minor
in any proceedings by or again the minor.
4. Complete Code

Although the statute is described as consolidating and amending statute, it is a complete code defining the rights
and remedies of guardians and wards. This means that all matters relating to guardianship, the rights, obligations
and responsibilities of the certificated guardian, the removal and replacement of the guardian and remedies of the
ward are regulated by the provisions of the Act. Thus, for instance, when a natural guardian (whether of a Hindu,
Muslim or any other child) seeks to establish his rights as guardian of the child or seeks the custody of, or access
to, the child, he should proceed under this Act and not by way of a civil suit.1 Similarly, when a natural guardian
wants to recover the custody of his child from a person to whom he has entrusted it, his remedy is not by a civil suit
but by an application under the Act.2

It should be noted that only the guardians of the property or person of the minor are covered under the Act. All other
guardians, such as guardian of marriage or guardians in litigation, fall outside the purview of the Act.
5. Application of Civil Procedure Code

The Guardians and Wards Act is not a complete code in respect of procedural matters. Wherever the Act is
deficient in any procedural matter, recourse has to be had to the provisions of the Civil Procedure Code.3

557 . These cases have been followed by the Supreme Court in Subha Rao v. ITC, AIR 1956 SC 604 [LNIND 1956
SC 49]; ITO v. Kanhayalal, AIR 1959 SC 135 [LNIND 1958 SC 107]; Union of India v. Mohindra Supply Co., AIR 1962
SC 256 [LNIND 1961 SC 295].
2 Annie Beasant v. G. Naranaiak, ILR (1915) 38 Mad 807 (PC); Sham Lal v. Bindo, ILR (1904) 26 All 594 ; Ghasita v.
Wazira, 32 PR 1989.
3 Annie Beasant v. G. Naranaiak, ILR (1915) 38 Mad 807 ; Bhago v. Kashi Ram, AIR 1925 Nag 328 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed > Dr Paras Diwan:
Law of Adoption, Minority, Guardianship and Custody, 5th ed > PART III THE GUARDIANS AND
WARDS ACT, 1890 > CHAPTER I PRELIMINARY

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER I PRELIMINARY

1. Title, extent and commencement.—

(1) This Act may be called the Guardians and Wards Act, 1890.
(2) It extends to the whole of India *[except the State of Jammu and Kashmir] **[***]; ***[***].
(3) It shall come into force on the first day of July, 1890.

Comments

1. Scope

This is the usual first section of an Indian statute which invariably deals with the title, extent and
commencement of a statute.
2. Amendment

Act 26 of 1968 introduced the proviso to sub-section (2). “Renoncants” are those inhabitants of Pondicherry
who have opted for the local Franco Indian law. They have been exempted from the application from the family
law statutes. Thus, for instance, the Hindu Minority and Guardianship Act does not apply to them.

See also our commentary on section 3 of the Hindu Minority and Guardianship Act in Part II of this work.
3. VIII of 1890: Guardians and Wards Act: Extent of its Applicability

The Guardianship and Wards Act is a consolidating and reforming statute. The Act applied to all the British
Indian Provinces, and at present it applies to the whole of India except the State of Jammu and Kashmir which
has its own statute on the subject.

It applies to all minor children of any caste and creed, though in appointing or declaring a person as guardian of
Page 2 of 3
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed

the minor the court will take into consideration the personal law of the minor. In a sense, the procedural law
regarding the appointment or declaration of a person as guardian is laid down in the Guardians and Wards Act,
yet the substantive law is still the personal law. If the court does not appoint a guardian of a minor, the minor
will continue to be governed by his personal law. It is only when the court appoints a guardian, the guardian
appointed by the court comes under the provision of the Guardians and Wards Act. Then his duties, rights and
liabilities are governed by the provisions of the Guardians and Wards Act, and not by personal law. If minor’s
ordinary residence is within the jurisdiction of the court, the district court has the jurisdiction over the matter.1

The Guardians and Wards Act expressly saves the jurisdiction of:

(a) the court of wards, and

(b) the inherent or special jurisdiction of the High Courts.2

4. Personal Law

The outstanding feature of the Act is that the Act does not affect the right and obligations of guardians under
the personal law to which a minor is subject.1 When an application is made to the court for the appointment or
declaration of a person as guardian, the court is required to take into consideration the personal law of the
minor.2 But once a person is appointed or declared as guardian of a minor, irrespective of the fact whether the
minor is Hindu, Muslim or subject to any other personal law, such guardian will be subject to the provisions of
the Act. In other words, once a certificated guardian is appointed or declared, the powers of natural or
testamentary guardian under the personal law stands suspended.3 But if personal law is not in conflict with any
provision of the Act, the personal, law will apply.4 In short, the scheme of the Act is such as to leave unaffected
the personal law. Thus rights of the natural guardian under Muslim law and Hindu law and other personal laws
are preserved. Section 19 of the Act specifically lays down that no guardian can be appointed by the court in
the presence of the natural guardian unless he is founded unfit. It is a different matter that in the welfare of the
minor, the courts have disregarded this provision. Section 13 of the Hindu Minority and Guardianship Act
specifically lays down that the minor’s welfare is the paramount consideration. The natural guardian still does
not need prior permission of the court for dealing with minor’s property. In respect of Hindu children this position
stands changed by the Hindu Minority and Guardianships Act under which for alienation of minor’s property,
natural guardian needs the prior permission of the court.5 Similarly, no certificated guardian can be appointed
in the presence of a testamentary guardian unless the latter has been removed in the proceedings under the
Act.6

But once a certificated guardian is appointed his powers are regulated by the Act and he cannot alienate the
minor’s property by invoking personal law of the minor.
5. Scope of the Act

The Act has been enacted with a view to protecting the person and property of the minor. When a guardian is
appointed under the Act, the control of the person and property (when guardian is appointed for both) is vested
in the court; the guardian being its nominee.7

The Guardians and Wards Act deals only with the guardians of the person and property of the minor. All other
guardians are outside the scope of the Act.

Following the English law doctrine of parens patriae, the responsibility of which is entrusted on the courts, the
Act invests this power on the district court or any subordinate court on whom power has been specifically
conferred,1 to look after the child once its jurisdiction is invoked. In fact, a certificated guardian acts under the
superintendence and supervision of the court. A certificated guardian always acts under the advice, control and
supervision of the court. The court is vested with very wide disciplinary powers over the certificated guardian so
that all orders passed by the court in regard to child whose guardian it has appointed are carried out.2
6. Other Matters Concerning the Minor Children

The Act deals with the guardianship of the person and property of minor children. It does not deal with any
other matter. Thus, when we say that the Act is a complete code, we say so in respect of only two matters,
guardianship of person and property of the minor. Thus enforcement of rights or claims by or against the minor
is left to be determined by the ordinary proceeding by regular suits or other proceedings. The minor has a right
to sue and, in the converse, he can be sued. At best, the court may direct the guardian to take appropriate
proceedings.
Page 3 of 3
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER I PRELIMINARY

2.
[Repealed by the Repealing Act, 1938 (1 of 1938), sec. 2 and Schedule].
PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER I PRELIMINARY

3. Saving of jurisdiction of Courts of Wards and Chartered High Courts.—

This Act shall be read subject to every enactment heretofore or hereafter passed relating to any Court of Wards
by *[any competent Legislature, authority or person in **[any State to which this Act extends]]; and nothing in
this Act shall be construed to effect or in any way derogate from, the jurisdiction or authority of any Court of
Wards, or to take away any power possessed by ***[any High Court @[***]].

Comments

1. Scope

This section saves the jurisdiction of:

(a) Courts of Wards and

(b) Special jurisdiction of the High Court in regard to guardianship and custody of the person and property
of the minors.

(a) Courts of Wards

Prior to independence, India abounded in princely states, jamindaris and jagirdars. The administration of the
estate of princes, jamindars and jagirdars at times, presented some difficulties. These difficulties arose on
account of the fact that the holder of the estate was minor, a person of unsound minor or a spendthrift or for any
other reason was not able to manage the estate properly. It was in such a situation that estate of such a person
was brought under the Courts of Wards. Sometime his person was also brought under the Court of Wards.
Thus minority was not the only reason for which estate was brought under Court of Wards. The estate of an
adult landholder could also be brought under the management of Court of Wards. Since under the statutes of
Page 2 of 9
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed

the then provinces, the matter was regulated, the jurisdiction of the courts under the Guardians and Wards Act
was ousted.

This section expressly saves the jurisdiction of Courts of Wards.

With the abolition of princely states jagiradaris and jamindaris the jurisdiction of the Court of Wards has become
redundant.

Practically every British Indian province had enacted a Courts of Wards statute. While jurisdiction under the
Guardians and Wards Act extends only over minors, under the Courts of Wards Act jurisdiction extends over
the both minor as well as adult landholders. The outstanding feature of the statutes was that the landholder
himself could pray that his estate and person be brought under Courts of Wards or the Government may decide
to do so. Thus the estate of any landowner who was unable to manage his estate due to minority, insanity,
incompetency or any other reason could be brought under Courts of Wards. On an estate being brought under
the superintendence of a Court of Wards, the guardian appointed under the Guardians and Wards Act ceased
to have any jurisdiction.1 Similarly no guardian can be appointed of the property of a minor whose estate is
under the superintendence of a Court of Wards.2
(b) Special Jurisdiction of the High Court

The High Courts are included in the definition of District Court under clause (4) of section 4 of the Act, and the
High Court is free to exercise the jurisdiction, but it would do so only in some exceptional circumstances. While
the jurisdiction of the district courts is exercisable only on the basis of ordinary residence of the minor, the High
Courts under their inherent or special jurisdiction can exercise the jurisdiction on the basis of minor’s presence
with the jurisdiction.

The High Courts have also some special jurisdiction, either under the Letters Patent or under the High Courts
Act, 1861. From this aspect, the High Courts fall under the following three categories:

(i) The High Courts in Presidency towns of Bombay, Calcutta and Madras.
(ii) The non-Presidency High Courts, i.e., the High Courts that existed in the former British India, other
than the Presidency High Courts, and
(iii) The High Courts of former Indian States (or former Part B States).

2. The Presidency High Courts

In the Presidency towns of Bombay, Calcutta and Madras, originally, Supreme Courts were established under
their respective Charters. The Regulating Act of 1773, authorised the Crown to establish Supreme Court of
Judicature at Fort William, by Royal Charter. The Supreme Court at Calcutta was established by the Royal
Charter of March 26, 1774. By an Act passed in 1823, during the reign of George IV, the Crown was authorised
to establish a Supreme Court of judicature at Bombay. The Letters Patent granting a Charter of Justice to the
Supreme Court of Judicature at Bombay was issued on December 8, 1923.

The British Parliament passed an Act in 1800 authorizing the Crown to establish a Supreme Court of judicature
at Madras and the Letter patent establishing such a court was issued on December 26, 1801. Under this Act
and the Act of 1823, the Supreme Courts at Bombay and Madras were, inter alia, to exercise the same powers
and jurisdiction, subject to the same restrictions, limitations and control as the Supreme Court of Judicature at
Fort William.

Clause 37 of the Charter of the Supreme Court of Bombay, clause 25 of the Charter of the Calcutta Supreme
Court authorized the court to appoint guardians and keepers for infants and their estates, according to the order
and course observed in that part of Great Britain called England. In the same terms jurisdiction was conferred
on the Supreme Court of Madras.

The respective charters, it seems, do not fix any territorial limits in respect of the appointment of guardians and
keepers of minors. The Supreme Courts were given the same powers and jurisdiction that was exercised by the
Court of Chancery. The Court of Chancery exercised jurisdiction in respect of all children which were within the
realm and in respect to children who owned allegiance to the Crown, irrespective of the fact whether they were
within the jurisdiction or not. In our submission it was this jurisdiction which was conferred on the Supreme
Courts.
Page 3 of 9
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed

The British Parliament passed the Indian High Court Act in 1861, authorising Her Majesty to establish High
Courts in India. Section 1 of the Act authorized the Crown to create High Courts of Judicature at Fort William,
Bombay and Madras. The Letters Patent of 1862 established the High Court of Judicature at Calcutta. Clause
16 of the Letters Patent provided that the High Court shall have the like jurisdiction over infants and lunatics as
that vested in the Supreme Court. An amended Letters Patent was issued in 1865. Clause 17 of the Letters
Patent of 1865 confers on the High Court of Calcutta such powers and authority with respect to the persons and
estate of infants, idiots and lunatics within the Bengal Division of the Presidency of Fort William as that which
was vested in the said High Court immediately before the publication of these presents.

The Letters Patent came for consideration before the Calcutta High Court in several cases.

In the matter of Shrish Chandra Singh,1 the question before the court was whether it could appoint a guardian
of the person and property of a non-European-British subject outside the ordinary original jurisdiction of the
court. No application was made for the removal of the existing testamentary guardian of the minor. The court
declined to exercise the jurisdiction. Sale, J., felt that there was no precedent for doing so and there was no
imperative need for the administration of the minor’s property which was well managed.1 The Letters Patent
Jurisdiction was not taken into consideration. In In re, Hari Narayan Das,2 the court, in exercise of its inherent
jurisdiction, appointed the father of a minor governed by the Mitakshara school as guardian. The court followed
the decision of the Bombay High Court in In the matter of Manilal Hurgovan.3 There was no discussion. In In re,
Taruchandra Ghose,4 the guardian of the person and property of a minor governed by the Dayabhaga law was
appointed; both the minor and property were outside the jurisdiction of the court. In In the matter of Phamindra
Chandra Set,5 the court declined to exercise jurisdiction over the person and property of a lunatic who was
outside the ordinary original jurisdiction of the court. On the basis of section 14 of 13 Geo. II, C. 63 the court
said that the jurisdiction was limited within the area of Fort William. In our submission the provision was not fully
looked into; the clause conferring the same jurisdiction as that of the Chancery Division was overlooked. In In
re, Bijakumar Singh6 the court exercised jurisdiction in respect to the person and property of a minor governed
by the Mitakshara law.

In In re, Lovejoy Patel, the court examined in detail the Letters Patent Jurisdiction in respect to minors. Das, J.,
after considering all the relevant provisions of the Letters Patent and after reviewing leading authorities said
that clause 17, the Letters Patent of 1865 read with clause 16, the Letters Patent, 1862, by conferring on the
courts power and authority with respect to the persons and estates of the minors, idiots and lunatics within the
Bengal Division of the Presidency of Fort William, conferred upon the High Court jurisdiction more extensive, in
the territorial sense, than that which the Supreme Court had possessed. The learned Judge said that the words,
‘British subjects’ in the Letters Patent 1862, did not mean the subjects of the British birth alone; after the
assumption of direct control by the Crown under the statutes 21 and 22, Vict. c. 106, every native of British
India ipso facto became a ‘British subject’.

In In the matter of Kamal Rudra,1the court, after considering the relevant clauses of the Letters Patent, said
that like the Court of Chancery it has powers to appoint guardians as well as keepers and in deciding all
questions relating to children, it considers welfare of children as paramount consideration. The court further
said that though under the Guardians and Wards Act the court has no power to appoint a mere custodian yet
under its inherent jurisdiction it can do so.

Two Letters Patents were issued in 1862,2 establishing the High Courts of judicature at Bombay and Madras.
Both the Letters Patents were amended in 1865.3 These were worded and modelled on the basis of the
Charter of the Calcutta High Court and conferred the same powers and jurisdiction and the same limitations.

The earliest reported case on the matter is In re, Jairam Luxman,4 where Farran, J., without giving much
arguments, appointed a guardian of the undivided interest of a Mitakshara minor. The court exercised similar
jurisdiction in a number of cases.5

In In re, Meakin,6 the court appointed the mother as the guardian of her three children, two of which were in
Poona and the third was in England. The court said that it has the same jurisdiction which the Court of
Chancery possessed in England. In In re, Ratanji Ramji,7 a Special Bench considered the question whether the
court has jurisdiction over minors in the Presidency of Bombay. Beaumount, C.J., said that the jurisdiction of
the court was the same as that of the Court of Chancery and there were no territorial limits. The court’s
jurisdiction extends over the entire Presidency of Bombay. In Tarbhai Cursetji v. Terbai Harmaji,8the court said
that it has inherent jurisdiction to hear an appeal from orders passed under the Guardians and Wards Act.9
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The Madras High Court has also taken the same view. Under clause 17 of the Letters Patent of 1865, it is
stated that the court’s jurisdiction in regard to infants within the Presidency of the Madras is the same as vested
in it under the Letters Patent of 1862. Clause 16 of the Letters Patent declared that the jurisdiction of the court
is the same which is now vested in the said Supreme Court at Madras. Clause 32 of the Charter of 1800 runs
as under:

We do hereby authorize the said Supreme Court of Judicature at Madras to appoint guardians and keepers of infants
and their estate according to the order and course observed in that part of Great Britain called England.

Speaking of his provision, Venkatasubba Rao, O.C.J., in Rajah Vizianagram v. Secretary of State,1 said that
the jurisdiction over infants is plenary. In clause 32 there is no restriction as to place or person. The court said
that the only restriction was that the minor must be a British subject. Earlier in Annie Besant v. Naryaniah,2 Sir
Arnold White expressed similar views. In In the matter of A.T. Vasudevan,3 the court exercised its inherent
jurisdiction by appointing a guardian of the undivided interest of a minor governed by the Mitakshara school of
Hindu law. In P. Williams v. P.C. Martin,4 the court said that under clause 17 of the Letters Patent the
jurisdiction of the court is all embracing and wide.
3. The Non-Presidency High Courts

Under the Indian High Courts Act, 1861, various other High Courts were established.5 But these High Courts
were not given any ordinary original jurisdiction. They had appellate and extraordinary original jurisdiction.
However, Letter Patents of these High Courts also contain a specific provision conferring jurisdiction in respect
to the minors, idiots and lunatics and their estate. Take for instance, clause 12 of the Letters Patent of the
Allahabad High Court which runs as under:

And we do further ordain that the said High Court of judicature for the North-Western Provinces shall have like powers
and authority with respect to the person and estates of infants, idiots and lunatics within the North-Western Provinces
as that which is exercised in the Bengal Division of the Presidency of Fort William, by the High Court of Judicature at
Fort William in Bengal but subject to the provisions of any law or regulation now in force.

In Ellen Ram v. Charlos Spencer,1 the court exercised its inherent jurisdiction. In In re, Govind Pd,2 the court
said that it has inherent jurisdiction to appoint a guardian in respect to the undivided interest of a minor
coparcener in the Hindu joint family, but, it added, it would exercise it very sparingly. In Mst. Haidari Begum v.
Jawad Ali,3 the jurisdiction was exercised by giving custody of a minor child aged five years to the mother. The
court also repelled the contention that it should not exercise the jurisdiction when an alternative remedy was
available. Although, the court added, it might not exercise the jurisdiction if a complicated question of facts was
involved. There cannot be, in our submission, any doubt that the jurisdiction of the Allahabad High Court is the
same as that of the Calcutta High Court.

The High Courts of Patna and Nagpur were also given a similar jurisdiction in respect to minors under their
Letters Patents.

The Chief Court of Punjab constituted by Act No. 14 of 1865, was transformed into a High Court by the Letters
Patent dated March 21, 1919. Clause 12 of the Letters Patent runs as under:

And we do further ordain that the High Court of Judicature at Lahore shall have like power and authority with respect to
the persons and estates of infants, idiots and lunatics within the Province of the Punjab and Delhi as that which was
vested in the Chief Court of Punjab immediately before the publication of these presents.

The clause conferring extraordinary original jurisdiction on the court runs as under:

And we do further ordain that the High Court of judicature at Lahore shall have power to remove, and to try and
determine as a court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any court
subject to its superintendence, when the said High Court may think proper to do so, either on the agreement of the
parties to that effect, or for purposes of justice, the reason for so doing being recorded in the proceedings of the said
High Courts.4

Difficulty has arisen in the interpretation of clause 12 as it cannot be traced back to the law establishing the
Chief Court of Punjab. Act of 1865 constituting the Chief Court did not contain any such provision.5
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The Act of 1865 was superseded by the Act of 1866 which in turn was superseded by the Act of 1877. This was
followed by the Punjab Courts Act, 1884. None of these enactments contain any provision conferring power or
jurisdiction in respect to minors. All the enactments repeat the provision relating to the extraordinary jurisdiction
of the court in the same terms as clause 9 of the Letters Patent. Unless the provision is traced back, it seems,
the court cannot exercise its jurisdiction under clause 12 as its ambit is the same as that of the Chief Court, and
if Chief Court had no jurisdiction, the High Court too has none.

This was precisely the question that arose in Satbir Singh v. Rajbir Singh.1Falshaw, J., after considering all the
relevant provisions said that the Guardians and Wards Act does not confer any ordinary original jurisdiction on
the High Court in respect to minors and there is nothing in the various Acts relating to Chief Court or the Letters
Patent of the High Court conferring such jurisdiction on the court. The extraordinary jurisdiction, can be
exercised only as laid down under clause 9 of the Letters Patent.

The result is that clause 12 of the Letters Patent is a meaningless provision. There seems to have been a slip.
It seems that when the Letters Patent was drafted, the drafters thought that just as the other High Courts had,
the Chief Court also had original jurisdiction in respect to minors. But in fact it had none. Thus, the Punjab High
Court has no inherent jurisdiction in respect to minors.

The inherent jurisdiction of the High Courts as it existed prior to the coming into force of the Indian Constitution
has been preserved. Article 225 runs as under:

Subject to the provisions of the Constitution and to the provisions of any law of the appropriate legislature made by
virtue of powers conferred on that legislature by this Constitution, the jurisdiction of, and the law administered in, any
existing High Courts, and the respective powers of the judges thereof in relation of justice in court, including any power
to make rules of court and to regulate the sittings of the court and of members thereof sitting alone or in Division
Courts, shall be the same as immediately before the commencement of this Constitution.

4. High Courts of Former Indian States

Part B States under the Indian Constitution were constituted by uniting the territories of a group of former Indian
States.2Article 238 of the Constitution of India runs as under:

The provisions of Part IV shall apply in relation to the States specified in Part B of the First Schedule as they apply in
relation to the States specified in Part A...........

Article 225 of the Constitution which applies to High Courts of Part A States also applies to the High Courts of
Part B States. The High Courts in the former Indian States were constituted by local laws. All the High Courts of
Princely States falling in one state of Part B were unified into one. For instance, the Rajasthan High Court
having its seats at Jodhpur and a permanent Bench at Jaipur (which had now been abolished) was constituted
by the Rajasthan High Court Ordinance, 1949. In the same manner the High Courts of other Part B States were
constituted. The question of High Courts of princely states having the same jurisdiction as the Court of
Chancery could have hardly arisen. In some States High Courts enjoyed special jurisdiction in respect to
minors. The laws of some of the Part B States confer special jurisdiction on the High Court in respect to minors.
Section 30 of the Rajasthan High Court Ordinance runs as under:

The High Court shall have power and authority with respect to the person and estates of infants, idiots and lunatics
within the state subject to the provisions of any law for time being in force.

The provision came for interpretation in Keshvanand v. Afroza Begum.1The main argument on behalf of the
respondent was that section 30 was subject to the provisions of sections 9 and 25 of the Guardians and Wards
Act, and therefore, the High Court had no wider powers than conferred by the Guardians and Wards Act.
Wanchoo, C.J., said that the words, “subject to the provision of any law.” in section 30 of the Rajasthan High
Court Ordinance imply one restriction, namely that if it is possibly under any law for the time being in force to
apply to any other court in India for guardianship or custody of the minor, the jurisdiction of the High Court
under section 30 is ousted.

The Mysore High Court was originally established by the Regulation No. 1 of 1884. The Regulation was
subsequently amended in the years, 1890, 1903, 1905, 1909, 1911 and 1930. In any of the Regulations or
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subsequent Act, there is no ordinary or extraordinary original jurisdiction conferred on the Mysore High Court in
respect of minors.2

The State Reorganisation Act, 1956,3 has reorganized the States and all the Part B High Courts. All High
Courts, except the High Court of Jammu and Kashmir, have been abolished.4 Section 52 which deals with the
jurisdiction of the High Courts of newly organized States, runs as under:

The High Court for a new state shall have, in respect of any part of territories included in that new State, all such
original, appellate and other jurisdiction, as under the law in force immediately before the appointed day, is exercisable
in respect on that part of the said territories by any High Court or judicial Commissioners’ Court for an existing State.

This provision ensures continuity in the jurisdiction of the High Courts even after reorganisation of States.
5. Inherent Jurisdiction Over the Hindu Joint Family Property

It has been seen above that the High Courts have exercised their inherent jurisdiction in appointing guardian of
the undivided interest of the minor coparcener in the Hindu Joint Family.1The jurisdiction has been preserved
by the Hindu Minority and Guardianship Act, 1956. Proviso to section 12 runs as under:

Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in
respect of such interest.

The Bombay High Court in In re, Jairam Luxman2 appointed the father as guardian of the undivided interest of
the minor in the Mitakshara joint family property to enable the father to raise money by a mortgage of his
ancestral immovable property, as the court felt that by so appointing the father as guardian, it is very likely that
better terms would be procured, and thus to that extent minor would also be benefited. It may be recalled that
the father as karta can otherwise alienate the joint family property including the share of the minor coparcener
for legal necessity or benefit of estate. A Full Bench of the Bombay High Court in In re, Manilal Hargovan,3 said
that such powers are to be exercised with great caution: the court cannot think of appointing any other person
except the karta as guardian and also sanctioned the proposed sale as it would be for the benefit of the minor.
In re, Dattatraya Govind Haldankar,4 Kania, J., considered: In re, Hurgovan5 as an exceptional case and
refused to take upon himself the burden of sanctioning a transaction merely on the ground that it would be for
the welfare of the minor. However, in In re, Mahadeo Krishna Bupji,6 the court’s power was re-affirmed and
exercised. The Bombay High Court has exercised the power in a later case also.7

Following In re, Hurgovan5 the Calcutta High Court appointed the karta as the guardian of the undivided share
of the minor.8 This was followed in In re, Bijayakumar Singh,9 The Allahabad High Court also exercised a
similar power in In re, Govind Pd.10

Thus, the High Courts in the exercise of their inherent jurisdiction have appointed the karta as guardian of the
minor’s undivided share in the Hindu joint family, with a view to enabling the karta to alienate the joint family
property with more confidence and to enable him to have a better deal. In fact such an appointment is merely
an appointment for a particular purpose, viz., for alienation of the joint family property. However, there is
nothing to prevent the court to appoint a guardian with general powers.

Another question that arises is: is it necessary for the court in such a case to appoint a guardian or can it simply
sanction an alienation of the property without appointing a guardian? The Bombay High Court in Shamrao v.
Shashikant,1 said that the purpose of the jurisdiction is to remove the disability of minority, to sanction the
transaction as being for the benefit of the minor and to provide a mode in which the consent of somebody is
provided on behalf of the minor in a manner binding on the minor. The only way in which this disability can be
removed and incapacity cured by the law is the appointment of guardian of his property. A guardian is
necessary to render accounts of the sale proceeds and he is needed to carry out the instructions of the court.
Thus, the court was of the opinion that appointment of guardian is necessary. With this the present writer is in
respectful agreement.

The utility of the inherent jurisdiction of the High Court cannot be denied. In many a hard and pressing case,
only forum that may be able to determine the question of guardianship and custody would be the High Court. In
our submission, all High Courts should be uniformly invested with such powers. A section like section 30 of the
Rajasthan High Court Ordinance can be enacted in the statutes where the High Courts do not have any
inherent jurisdiction.
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In several cases justice could be done only because the High Court exercises its inherent and special
jurisdiction over the minor present within the jurisdiction.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

* For Statement of Objects and Reasons, see Gazette of India, 1886, Pt. V, p. 77; for Report of the Select Committee,
see Gazette of India., 1890, Pt. V, p. 77; and for Debates in Council, see Gazette of India, 1886, Supplement, pp. 419
and 666, and Gazette of India, 1890, Pt.VI, pp. 33 and 45.
This Act has been declared to be in force in the Sonthal Parganas by the Sonthal Parganas Settlement Regulation (3 of
1872), sec. 3; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), Sec. 3 and Schedule;
and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), Sec. 3 and Schedule.
It has been declared not to be in force in the scheduled districts in Ganjam and Vizagapatam by notification under sec. 3(b)
of the Scheduled Districts Act, 1874 (14 of 1874), see Gazette of India, 1898, Pt. I, p. 872.
It has been extended to the portions of the partially excluded areas in the Madras State, in which the provisions of this Act
are not in force by the Madras (Partially Excluded Areas) Guardians and Wards Regulation, 1940 (Mad. Reg. 6 of
1940), to Berar by the Berar Laws Act, 1941 (4 of 1941).
It has also been extended, with modifications, to the district of Koraput by the Koraput Guardians and Wards Regulation,
1943 (Orissa Reg. 7 of 1943).
It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
* Subs. by the A.O., 1937 for “the Governor-General in Council or by a Governor or Lieutenant-Governor in Council”.
** Subs. by Act 3 of 1951, sec. 3 and Sch., for “Part A States and Part C States”.
*** Subs. by the A.O., 1937, for “any High Court established under the Statutes 24 and 25 Victoria, Chapter 104 (an Act for
establishing High Courts of Judicature in India)”.
@ The words “established in Part A States and Part C States’’, omitted by Act 3 of 1951, sec. 3 and Sch.
1 Section 41.
2 Gulab Singh v. Gokuldas, ILR (1913) 40 Cal 784 (PC); Kulpati v. Ram Baran Singh, AIR 1932 All 494 (FB). The entire
joint family property could be brought under Court of Wards.
1 ILR (1894) 21 Cal 206 .
2 ILR (1923) 50 Cal 141 .
3 ILR (1900) 25 Bom 353 .
4 ILR (1930) 57 Cal 533 .
5 ILR (1931) 58 Cal 919 .
6 ILR (1932) 59 Cal 141 .
1 AIR 1944 Cal 433 .
2 ILR (1949) 2 Cal 375 .
3 Clause 16 of the Letters Patent of 1862 runs “.............the High Court of judicature at Bombay shall have the like powers
and authority with respect to the person and estates of infants, idiots and lunatics whether within or without the
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Presidency of Bombay, as that which is now vested in the said Supreme Court at Bombay.” Clause 17 of the 1865
Letters Patent runs: “The High Court of Judicature at Bombay shall have the like powers and authority with respect to
the persons and estates of infants, idiots and lunatics within the Bombay Presidency at that which was vested in the
said High Court immediately before the publication of these presents”.
4 ILR (1892) 16 Bom 634 .
5 In re, Jagannathji Ramji, ILR (1893) 19 Bom 96 ; In re, Manilal Hargovan, ILR (1901) 25 Bom 353 (FB); Narsi Tokersey
& Co. v. Sachindranath, AIR 1929 Bom 475 : ILR (1930) 54 Bom 39; In re, Mahadeo, 1937 Bom 475; In re, Ratanji
Ramji, AIR 1941 Bom 397 .
6 ILR (1987) 21 Bom 137 .
7 AIR 1941 Bom 397 .
8 AIR 1931 Bom 193 .
9 See also Naman v. Nagesh, AIR 1940 Bom 216 .
1 AIR 1937 Mad 51 .
2 AIR 1915 Mad 157 .
3 AIR 1949 Mad 260 .
4 AIR 1970 Mad 427 [LNIND 1969 MAD 192].
5 The Allahabad High Court was constituted by a Charter issued on March 3, 1866, with its seat at Agra. It was shifted to
Allahabad in 1875.
The Patna High Court was established by a Letters Patent of February 9, 1916.
The Chief Court of Punjab was constituted by an Act of Indian Legislature in 1865, (Act No. 16 of 1865) and was
transformed into the High Court of Lahore by Letters Patent issued on March 21, 1919.
The Nagpur High Court was constituted by a Letters Patent issued by George V. on January 2, 1936.
1 (1903) 2 ALJ 81.
2 AIR 1928 All 709 .
3 AIR 1934 All 722 .
4 Clause 9.
5 Section 13 of the Act made the Chief Court as the ultimate court of appeal from all civil and criminal courts and section
14 conferred extraordinary original jurisdiction in similar matters which is in the same terms as clause 9 of the Letters
Patent.
1 AIR 1954 Punj 274 .
2 Part B States were: Hyderabad, Jammu & Kashmir, Madhya Bharat, Mysore, Pepsu, Rajasthan, Saurashtra,
Travancore, Cochin, and Vindhya Pradesh.
1 AIR 1959 Raj 221 .
2 Govindappa v. Doddathayappa, AIR 1968 Mys 174, held that Mysore High Court has no inherent jurisdiction in respect
of the children.
3 Act No. 37 of 1956.
4 The Act has abolished Judicial Commissioner’s Courts of Ajmer, Bhopal, Kutch and Vindhya Pradesh. New High Courts
have come into existence in the reorganised states of Kerala, Mysore, Rajasthan, Madhya Pradesh, Gujarat. The
Bombay High Court becomes the High Court of reorganized State of Punjab and now it is the High Court of both Punjab
and Haryana.
1 In ILR 25 Bom 353, the court said that there is a list of 19 cases decided during the course of last eleven years.
2 ILR (1892) 16 Bom 634 .
3 ILR (1901) 25 Bom 353 .
4 (1932) ILR 36 Bom 519.
5 AIR 1949 Mad 260 .
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6 AIR 1937 Bom 98 .

7 See Narsi Takersey & Co. v. Sachindranath, AIR 1929 Bom 475 : ILR (1930) 54 Bom 39; In re, Ratanji Ramji, AIR 1941
Bom 397 .
8 In re, Hari Narayan Dass, ILR (1922) 50 Cal 141 .
9 ILR (1932) 59 Cal 570 .
10 ILR (1928) 50 All 709 .
1 AIR 1948 Bom 15 ; see also In the matter of Govind Pd., ILR (1928) 50 All 709 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER I PRELIMINARY

4. Definitions.—
In this Act, unless there is something repugnant in the subject or context,—
(1) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be
deemed not to have attained his majority;
(2) “guardian” means a person having the care of the person of a minor or of his property or of both his
person and property;
(3) “ward” means a minor for whose person or property or both there is a guardian;
(4) “District Court” has the meaning assigned to that expression in the Code of Civil Procedure, 1882 (14
of 1882)*, and includes a High Court in the exercise of its ordinary original civil jurisdiction;
**[(5) “the Court” means—
(a) the District Court having jurisdiction to entertain an application under this Act for an order
appointing or declaring a person to be a guardian; or
(b) where a guardian has been appointed or declared in pursuance of any such application—
(i) the Court which, or the Court of the officer who, appointed or declared the guardian or is under
this Act deemed to have appointed or declared the guardian; or
(ii) in any matter relating to the person of the ward the District Court having jurisdiction in the
place where the ward for the time being ordinarily resides; or
(c) in respect of any proceeding transferred under section 4A, the Court of the officer to whom such
proceeding has been transferred;]
(6) “Collector” means the chief officer in charge of the revenue-administration of a district and includes any
officer whom the State Government, by notification in the Official Gazette may, by name or in virtue of
his office, appoint to be a Collector in any local area or with respect to any class of persons, for all or
any of the purposes of this Act;
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*[***]; and
(8) “prescribed” means prescribed by rules made by the High Court under this Act.

Comments

1. Scope

This section contains the definition of seven “terms” used at various places and in different contexts under the
Act. These terms are: “Minor”, “Guardian”, “Ward”, “District Court”, “The Court”, “Collector”, and “Prescribed”.
Clause (7) contained the definition of the term “European British Subject” which was repealed by Act III of 1951.
The original clause (6) contained the expressions “Provincial Government”, “Local Gazette.” These expressions
were replaced by the “State Government” and “Official Gazette” by the Adoption of Laws Order, 1950.
2. Clause (1): Minor

The term “minor” is defined in reference to the Indian Majority Act, 1875. Clause (a) lays down negative
definition of the term; a person is minor if he has not attained the age of majority. There is a reason for the
negative definition. Section 3 of the Indian Majority Act lays down that ordinarily a person domiciled in India
attains the age of majority on his completion of the age of eighteen years. But in the following two cases the
age of minority is extended by three years,i.e., a person attains majority on the completion of the age of twenty-
one years:

(a) a person, guardian of whose person or property has been appointed by a court before he attained the
age of eighteen years, and
(b) a person, the superintendence of whose estate has been assumed by a Court of Wards before he
attained the age of eighteen years.

The consequence of extending the age of minority of a person whose guardian has been appointed by the court
is that for the purpose of legal actions he continues to be minor even on his attaining the age of eighteen years,
till he attains the age of twenty-one years. For instance, an execution petition for maintenance of minor filed by
the guardian even after minor attaining the age of eighteen years is maintainable.1

On the other hand, clause (a) of section 4 of the Hindu Minority and Guardianship Act defines the term minor
directly, i.e., a person who has not completed the age of eighteen years.

The age when a person acquires a capacity to do certain things is not uniform in India. For some purposes
capacity may be acquired before one attains the age of 18 years, while for some purposes he may not acquire
capacity even on attaining the age of eighteen years. In social legislations for the purpose of providing
protection to, what may compendiously be called, “Childhood” various ages upto which protection is available
vary. Reference should be made to paras 3, 4 and 5 of our commentary on section 4, the Hindu Minority and
Guardianship Act. Reference should also be made to footnote (2 at next page) of our commentary on the same
section where meaning of the term “child” as used in various statutes, including social legislation has been
stated.
3. Clause (2): Guardian

The term “guardian” has been defined to mean a person having the care of the person of a minor or his
property or both of his person and property. Clause (b) of section 4 of the Hindu Minority and Guardianship Act,
1956 contains identical words, but, then, clause (6) in its inclusive clause says that the term “guardian” includes
a natural guardian, testamentary guardian and certificated guardian. In our submission, though inclusive clause
is not found in clause (2) of this section, it has the same meaning. In our submission “de facto guardian” too
would fall under this definition as the words are “a person having the care of”, and if a de facto guardian has the
care of the person or property of the minor he should be included so that the court could exercise control over
him in the welfare of the child.

In case coming under the Guardians and Wards Act the courts have held that the clause is wide enough to
include all kinds of guardians except where the term has been used in reference to a particular type of
guardian.1
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Thus in Md. Shafi v. Shamim Banoo,2 the Bombay High Court held that a person who is having the care of a
child for the time being could apply for custody even though he was not a legal guardian.3 Also refer to our
commentary on section 25. Reference should also be made to note 1 at next page of our commentary on
section 4, Hindu Minority and Guardianship Act where we have discussed all of these guardians.
4. Effect of Appointment of Guardian under the Act

The effect of appointment of a guardian of a child is that his age of minority is extended to 21 years, and the
extension of this age is not affected by the resignation, removal, discharge or death of the guardian. Once a
guardian is appointed of the child, the age of minority stands extended.

The burden of proof that a person was a minor when he entered into the contract, is on one who asserts it.4
5. Clause (3): Ward

The term “ward” is defined as a minor for whose person or property or both there is a guardian. The words
“there is a guardian” should be noticed. The definition does not say that the guardian of whose person or
property is appointed, and thus it will mean any child who has a guardian, natural, testamentary or certificated
guardian.1

The term “ward” is used in contradistinction to a minor who has no guardian. A minor who has a guardian is
called “ward”.

The term “ward” under the Act should be distinguished from the expression “Ward of the Court”, which is a
technical term of English law. Under English law a child can be made a ward of the court on an application
made to the court for that purpose.
6. Clause (4): District Court

Clause (4) defines “District Court” in reference to the Code of Civil Procedure XIV of 1882 and then the clause
adds that District Court includes a High Court on its original side. The Code of Civil Procedure XIV of 1882
defines the District Court as the principal Civil Court of original jurisdiction including the High Court on its
original side. Thus under the clause, the District Court means:

(a) Principal Civil Court of original jurisdiction, and

(b) High Court on its original side.

In West Bengal, the words “the High Court on its original side” have been replaced with the words “City Civil
Courts established under City Civil Court Act, 1953.”2This definition may be contrasted with the definition of
District Court contained in the Hindu Marriage Act, 1955.3

The definition of “District Court” contained in this clause should be read along with section 4A for the purpose of
the jurisdiction under the Act. Section 4A confers on the High Courts power to empower, by general or special
order, any officer exercising original civil jurisdiction, subordinate to a District Court, or authorize any such
officer subordinate to him, to dispose of any proceedings under the Act transferred to him. Sub-section (2) of
section 4A, empowers the District Judge to transfer by order in writing, any proceedings under the Act pending
in the court for disposal to any officer subordinate to him. Thus, the District Judge can assign a case to the
Additional District Judge.4

It may be recalled that the court of District and Sessions Judge is the principal court in Civil and Criminal
matters. But when the District Judge exercises jurisdiction under the Guardians and Wards Act he acts as a
guardian judge and in that sense be exercises a different sort of jurisdiction than as a principal civil court of
Original Jurisdiction, though it is the same person who exercises both the jurisdiction. As a guardian judge he
enjoys a very wide discretion and is required to act in the best interests of the minor.5 He is not bound by the
technicalities and formalities of law when he acts as a guardian judge, while he is bound by them when he acts
as the district and Sessions Judge.

In short, he is not required to act exactly in the same way he tries a suit involving dispute of property. Thus, for
instance, when an application for appointment of a guardian is made to the guardian court and at the hearing
the applicant is absent, the guardian court should not pass an ex parte order in favour of the opposite party.1
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When the District Court acts as the Guardian Court, it has to act within the limits of the powers conferred on him
by the Guardians and Wards Act.2

The outstanding feature of the jurisdiction under the Act is that the jurisdiction of the Guardian Court which
appoints or declares a guardian for a minor does not terminate with such appointment but continue till the minor
attains majority.3
7. Clause (5): The Court

Clause (5) of the section defines the court. The significance of this definition lies in the fact that the Guardians
and Wards Act in some of its sections uses the expression “Court” without defining it.4 Hence, it becomes
necessary to lay down as to what the expression “court” means.

The expression court means:

(a) The District Court having jurisdiction to entertain an application under the Act for an order appointing or
declaring a person to be a guardian.
(b) Where the guardian has been appointed or declared in an application made to the District Court, the
court would mean:
(i) The court or the court of the officer who appointed or declared the guardian or is under the Act
deemed to have appointed or declared the guardian, or
(ii) In any matter relating to the person of the ward the District Court having jurisdiction in the place
where the ward for the time being ordinary resides.

In other words, the court means (a) the District court having jurisdiction to entertain an application under the
Act, or a court subordinate to him exercising jurisdiction by virtue of section 4A: (b) where a certificated
guardian has been appointed, it means that court which made the appointment; and (c) when the question
arises in a matter pertaining to the person of the minor, then it means the District Court of the place where for
the time being the minor is ordinarily residing and not the District Court which appointed or declared the
guardian.5
8. Ordinary Residence

We have discussed the meaning of the expression “ordinary residence” in para 3 of our commentary on section
9, reference may please be made to the same.
9. Clause (6): Collector

Clause (6) defines Collector as the Chief Officer in Charge of the revenue administration of a district, and
includes any officer whom the State Government by notification in the Official Gazette, may by name or in virtue
of his office, appoints to be Collector in any Local area, or with respect to any class of persons for all any of the
purposes of the Act. Today such Officers are designated by different names in different states. Some states still
call him Collector, while some, such as Punjab and Haryana, call him Deputy Commissioner.
10. Clause (7): European-British Subject

Clause (7) defined the term “European-British subject.” This clause was repealed by Act III of 1951.
11. Clause (8): Prescribed

The expression prescribed has significance in respect of section 50 of the Act which empowers the High Court
to make rules. The expression “prescribed” means prescribed under the Rules of the High Courts. These Rules
regulate several matters under the Act and provide guidelines to the guardian judge in several matters.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

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* For Statement of Objects and Reasons, see Gazette of India, 1886, Pt. V, p. 77; for Report of the Select Committee,
see Gazette of India., 1890, Pt. V, p. 77; and for Debates in Council, see Gazette of India, 1886, Supplement, pp. 419
and 666, and Gazette of India, 1890, Pt.VI, pp. 33 and 45.
This Act has been declared to be in force in the Sonthal Parganas by the Sonthal Parganas Settlement Regulation (3 of
1872), sec. 3; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), Sec. 3 and Schedule;
and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), Sec. 3 and Schedule.
It has been declared not to be in force in the scheduled districts in Ganjam and Vizagapatam by notification under sec. 3(b)
of the Scheduled Districts Act, 1874 (14 of 1874), see Gazette of India, 1898, Pt. I, p. 872.
It has been extended to the portions of the partially excluded areas in the Madras State, in which the provisions of this Act
are not in force by the Madras (Partially Excluded Areas) Guardians and Wards Regulation, 1940 (Mad. Reg. 6 of
1940), to Berar by the Berar Laws Act, 1941 (4 of 1941).
It has also been extended, with modifications, to the district of Koraput by the Koraput Guardians and Wards Regulation,
1943 (Orissa Reg. 7 of 1943).
It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
* See now the Code of Civil Procedure, 1908 (5 of 1908).
** Subs. by Act 4 of 1926, sec. 2, for the original clause (5).
* Clause (7) omitted by Act 3 of 1951, sec. 3 and Schedule.
1 Santha Ram v. S. Ramanuja Reddiar, (1966) 2 MLJ 546 [LNIND 1966 MAD 250].
1 Siddiq-un-nissa v. Nizamuddin, AIR 1932 All 215 ; Hasmat Ali v. Suraya Begum, AIR 1971 All 260 ; Great American
Insurance Co. v. Madan Lal, ILR 59 Bom 656; Noshirwan v. Sharesh Banu, AIR 1934 Bom 311 ; Md. Shafi v. Shamim
Banon, AIR 1979 Bom 156 [LNIND 1978 BOM 171]; Jiban Krishna v. Satindranath, AIR 1946 Cal 272 ; Rajeshwari v.
Sankaranarayana, AIR 1948 Mad 155 [LNIND 1947 MAD 70]; Parmelo v. Patric Cyril Marlin, AIR 1970 Mad 92
[LNIND 1968 MAD 173]; on facts the decision of the case was reversed in AIR 1970 Mad 427 [LNIND 1969 MAD 192]
as the court held that mother even though living abroad could be given custody of the child. (The court said all kinds of
guardians are included in the definition; case law has been reviewed). Kasturi Bai v. Tikam Chand, ILR (1956) Nag 742;
Abaji v. Damodar, AIR 1938 Nag 399 ; Ghuran v. Riaz, AIR 1935 Oudh 492 (FB); Prem Kaur v. Banarsi Dass, AIR
1934 Lah 1003 : ILR (1934) 15 Lah 630.
2 AIR 1979 Bom 156 [LNIND 1978 BOM 171].
3 See also Ram Shankar v. Shyamo, AIR 1954 All 690 [LNIND 1954 ALL 7]; D.C. Gouda v. Nizamuddin, AIR 1934 Oudh
390 ; Narsidas v. Hemraj, AIR 1934 Lah 323 ; Zynab Bi v. Md. Ghous Moideen, AIR 1952 Mad 284 [LNIND 1951 MAD
146].
4 Naima Khatun v. Besant Singh, AIR 1934 All 406 (FB).
1 Ghuran v. Riaz, 1935 Oudh 492 (FB).
2 This is by virtue of the West Bengal Act, XXI of 1953, section 22 and Schedule.
3 Section 3(b).
4 Baldev Raj v. Somesh, (1982) All LR 400.
5 Somakka v. Ramaih, ILR (1911) 36 Mad 39 .
1 Khundi Devi v. Chhotelal, ILR (1922) 44 All 587 .
2 Banu v. Bhimaji, 26 IC 709; Annie Besant v. G. Narayaniah, AIR 1914 PC 41 .
3 Talaram v. E, AIR 1927 Nag 184 .
4 Thus, for instance, see sections 7 and 11 to 19.
5 Nazir Begum v. Ghulam Qadir, AIR 1938 Lah 313 .
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End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER I PRELIMINARY

*[4A.Power to confer jurisdiction on subordinate judicial officers and to

transfer proceedings to such officers.—

(1) The High Court may, by general or special order, empower any officer exercising original civil
jurisdiction subordinate to a district court, or authorize the Judge of any District Court to empower any
such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer
under the provisions of this section.
(2) The Judge of a district court may, by order in writing, transfer at any stage any proceeding under this
Act pending in his Court for disposal to any officer subordinate to him empowered under sub-section
(1).
(3) The Judge of a district court may at any stage transfer to his own Court or to any officer subordinate to
him empowered under sub-section (1) any proceeding under this Act pending in the Court of any other
such officer.
(4) When any proceedings are transferred under this section in any case in which a guardian has been
appointed or declared, the Judge of the District Court may, by order in writing, declare that the Court of
the Judge or officer to whom they are transferred shall, for all or any of the purposes of this Act, be
deemed to be the Court which appointed or declared the guardian.]

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

This Act has been declared to be in force in the Sonthal Parganas by the Sonthal Parganas Settlement Regulation (3 of
1872), sec. 3; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), Sec. 3 and Schedule;
and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), Sec. 3 and Schedule.
It has been declared not to be in force in the scheduled districts in Ganjam and Vizagapatam by notification under sec. 3(b)
of the Scheduled Districts Act, 1874 (14 of 1874), see Gazette of India, 1898, Pt. I, p. 872.
It has been extended to the portions of the partially excluded areas in the Madras State, in which the provisions of this Act
are not in force by the Madras (Partially Excluded Areas) Guardians and Wards Regulation, 1940 (Mad. Reg. 6 of
1940), to Berar by the Berar Laws Act, 1941 (4 of 1941).
It has also been extended, with modifications, to the district of Koraput by the Koraput Guardians and Wards Regulation,
1943 (Orissa Reg. 7 of 1943).
It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
* Ins. by Act 4 of 1936, sec. 3.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER II APPOINTMENT AND DECLARATION OF GUARDIANS
This chapter of the Act, as the title clearly indicates, deals with the appointment and declaration of guardians by the
Courts. A guardian appointed or declared by the court is known as certificated guardian.
From sections 5 to 19 this chapter deals with various matters, such as jurisdiction of the court, the person who can
apply, form of application, procedure on admission of application, court’s power to pass interlocutory orders,
hearing of evidence, joint guardians, matters to be considered in the appointment of guardian and cases when court
could not appoint a guardian.

5. Power of parents to appoint in case of European British subjects.—

[Rep. by the Part B States (Laws) Act, 1951 (3 of 1951), sec. 3 and Schedule].
PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
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Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

6. Saving of power to appoint in other cases.—

In the case of a minor *[***], 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.

Comments

1. Scope

The Guardians and Wards Act, as we have seen earlier, is not the exclusive law relating to guardianship. It
deals only with the certificated guardians.

This section preserves the power of appointment of guardians under the personal laws. Thus, any person can
still appoint a guardian of the person or property of his minor children under his personal law. This mostly
relates to testamentary guardian as recognized from the date of permanent settlement. This section preserves
the power of any person governed by any personal law to appoint a guardian. Section 28 of the Guardians and
Wards Act relates to testamentary guardian but that section is subject to personal law of the minor.
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A testamentary guardian can be appointed by a Will or any other testamentary document.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

* The words “who is not an European British subject”, omitted by Act 3 of 1951, sec. 3 and Sch.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

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.

Comments

1. Scope

This section deals with the power of the court to appoint or declare a person as guardian. Whenever the court,
on the application of a person, comes to the conclusion that it would be for the welfare of the child to appoint a
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guardian of the person or property or both of the minor, it can appoint a guardian. Section 17 lays own various
factors which would help the court in finding out the welfare of the child.

Sub-section (1) contains the cardinal rule in the matter of guardianship and custody of minor children, i.e.
welfare of children is the paramount consideration. Once the court comes to the conclusion that it would be for
the welfare of the child to appoint or declare a person as guardian, it makes the appointment. Wherever a
natural guardian exists, the court would not ordinarily replace him as there is a presumption in favour of the
natural guardian that he would act in the welfare of the minor. At one time this was considered to be an
unrebuttable presumption, the ramification of which we find in section 19 which lays down that a father or
husband cannot be removed from guardianship unless he is found unfit. Under the modern law there is no such
rule, as welfare of the child is the paramount consideration.

Rulings of various High Court and Supreme Court has laid some guidelines for determining custody of minor
children. In Shiela B. Das v. P.R. Sugasree,1 the minor girl was at the age of puberty and was highly intelligent
and capable of taking sound decision. Father was claiming custody as against mother. The minor was living
with father and her paternal aunt who was taking care of her. The minor wanted to stay with father. Taking in
view welfare and wishes of minor custody was granted to father.

However in Gaurav Nagpal v. Sumedha Nagpal,2 it has been held by the Supreme Court that while deciding
upon custody of minor along with legalistic issues human angle is also very relevant. No doubt the Court should
exercise its jurisdiction while keeping welfare of child as its main aim. The Court further stressed that nothing
can come in the way of Court exercising its parens patriae jurisdiction. In the instant case father was managing
to retain the custody of child by flouting court orders and child was living with him all along. Father cannot be
allowed to take benefit of his own wrong. Custody was granted to mother.

Custody granted to uncle in case of 17½ year old boy.3 Remarriage of a parent per se is no bar to be granted
custody of minor.4 It has also been observed that a person other than natural guardian should only be
appointed when natural guardian is found to be totally unfit and has interests against that of a minor and in
exceptional circumstances.5

Sub-section (2) lays down that whenever a guardian is appointed under sub-section (1), it would imply the
removal of an existing guardian (who may be a natural guardian or de facto guardian) other than the
testamentary or certificated guardian. The real impact of sub-section (2) would be understood when we look at
the provision of sub-section (3) which lays down that no guardian can be appointed in the presence of a
testamentary or certificated guardian unless such a guardian has been removed or discharged.

A new dimension has been added to this section, vis-a-vis inter-country adoptions (which has been discussed
in detail in Part I of this work). In KarnatakaState Council for Child Welfare v. Society of Sisters of Charity, St.
Gerosa Convent,1 it was held that in view of guidelines laid in judgments, Laxmi Kant Pandey v. Union of
India2; Lakshmi Kant Pandey v. Union of India3, though they are not final or conclusive, must be given great
weight. The guideline that before giving the child to foreign couples, Indian parents or Indian foster homes
should be tried to be found as Indian children should grow in Indian culture. This observation cannot be set
aside.

GUARDIAN OF THE PERSON

2. Sub-section (1): Minor children

Under the sub-section the jurisdiction of the court exists only in respect of children who are minors. The courts
have very rightly taken the view that a guardian should not be appointed of a minor who is about to attain
majority, particularly under the Indian law where an appointment of guardian the minority of the child is
extended by a period of three years.4 But in a case where it is shown that appointment is absolutely necessary,
for instance, where the child is shown to be of very weak mind or health, a guardian will be appointed.5
3. Sub-section (1): Application for Appointment

The court acting, proprio motu, cannot appoint a guardian; an application is necessary.6 In some cases7 it has
been held that only that person can be appointed who had put in an application. In our submission what is
necessary is that some one should move the court, and once the court is seized of the matter any person may
be appointed guardian.8 In In the matter of Mrs. Lilly Mescarnehas,9 the minors’ parents had died intestate and
minors had no guardian to look after them and to manage their estate. The petitioner was minors’ paternal aunt
and volunteered to be appointed as their guardian. She was looking after them out of natural love and affection
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and was ready to render full accounts. In welfare of minors she was appointed as their guardian. The Calcutta
High Court said that an objection petition can be treated as an application, and the court, if it thinks fit, can
appoint the objector or any other person as guardian.10Appointment of a person who had not applied as
guardian will not affect the validity of the order.11 Rather section 42 contemplates such appointments.12
However, the consent of the person appointed as guardian is necessary.13

Any person who is interested in the welfare of the child may apply,1 provided he has a cause of action.2 An
application can be made at any time.3 As to who can put in an application for appointment of guardian; please
see our commentary on section 8.
4. Procedure for Admission

No application for the appointment of guardian can be registered merely by virtue of the fact that it has been
handed over to the court. Section 11 imposes an obligation on the court to be satisfied that there is a ground for
proceedings on the application.4 No application can be registered as a matter of course, the court must be
satisfied, prima facie, as to the need for appointment of a guardian, then alone it would issue notice to the other
parties.5 Please also see for details our commentary on section 11.
5. Sub-section (1): Appointment should be made only when Necessary

Section 7(1) clearly lays down that court should appoint a guardian only when it is satisfied that the
appointment of guardian is necessary in the welfare of the child.

It may be emphasised that the question of court’s satisfaction is a separate question, and is not the same thing
as the welfare of the child.6 It has been seen earlier that the court has not deemed it necessary to appoint
guardians of a child who is about to attain majority.7

In Chandrawati v. Jaganath,8 a minor widow inherited considerable properties and business from her husband,
the court said that it was necessary to appoint a guardian. In Fatima v. Darwez,9 the court rejected an
application for appointment of guardian of a child who was living well in his mother’s custody. In Mohammed
Yakub v. Radhibai,10 on conversion of husband to Islam, the court appointed mother as interim guardian, but,
while the proceedings were pending the parents reconciled, the court said it was not necessary to pass any
order. In Hyat Khan v. Sharam Khatum,11 the Punjab Chief Court said that it would not appoint a guardian if it
amounted to interference with the family arrangements which were quite satisfactory. In Khazen Singh v. Laxmi
Das,12 the main question was concerning the validity of the marriage of the child, the court said that it would be
better to refer it to the parties to get it settled in a civil suit. Similarly, in Sahadra v. Ramdeen,13 where the child
was well looked after and had no property, the court said that an appointment of guardian was not necessary.
In Khunda Baksh v. Lal,1 the applicant got his claim of guardianship decided by suit in his favour, but the court
refused to give him custody. The court said such tactics could not be permitted to succeed.

Where it has not been alleged that the mother is unfit or incompetent, it is not proper to appoint the elder
brother of minor children as a guardian.2 If a mother is fit and competent there is no need to formally appoint
her as guardian since she is the natural guardian.3

Thus, the courts would not pass an unnecessary, premature, or infructuous order. This matter is treated as
separate from the welfare of children. But, in our submission, in the broader view of welfare of children, in all
the above cases children did not require an appointment of guardian.
6. Sub-section (1): Welfare of Minor

The sub-section lays down that in appointing or declaring a guardian of the person or property of a child, the
court should be satisfied that ‘if it for the welfare’ of the child. Under section 17 also ‘welfare of the minor’ is an
important matter to be considered. Sub-section (1) of section 17, Guardians and Wards Act, 1890 runs:

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, appear in the circumstances to be for
the welfare of the minor.

On the plain reading of the sub-section it appears that the consideration of welfare of children is conditioned by
(1) the personal law of the child, and (2) by the other provisions of the section, i.e., sub-sections (2), (3) and (5).

Sub-section (5) provides that no person can be appointed guardian against his Will.
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Thus, on combined reading of sections 7 and 17 it cannot be said that under our law the welfare of children is
‘the first and paramount consideration’. It is one of the considerations, may be an important one, but not
paramount. Sub-sections (2) and (3) run as under:—

(2) In considering what will be 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 the deceased parent, and any existing or previous relations of the
proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the court may consider that preference.

However, it goes to the credit of our judiciary that it has retrieved the welfare principle and has almost said that
the welfare of the children is the paramount consideration. Only difficulty they have felt is about the provision
relating to the personal law of the minor, which, at times, they have found difficult to subordinate to the welfare
principle. (Reference may be made to para 9 of our commentary on section 17). In our submission, reference to
personal law should be deleted from the provision. It is salutary on part of Kerala High Court that it has held that
even personal law cannot override the welfare principle. In the instant case the grand mother claimed custody
on the ground that father is not entitled to custody according to the personal law of the parties. The grand-
mother as diabetic and pendant on her other daughter. The child’s mother had committed suicide and father
had remarried. Considering welfare of child custody was given to father.1 The consideration laid down in sub-
sections (2) and (3) are considerations which a court would take into account to find out what is for the welfare
of the child, and in that sense they are subordinate considerations; only welfare is the paramount consideration.
All these considerations have been examined in our commentary on section 17, from paras 1 to 15.

The principle of welfare had been furthered by holding that custody cannot be decided on legal rights of the
parties but as to who would best serve the interests of the minor. Further question of custody cannot be settled
by agreement between the partes. Welfare of the child is sole consideration.2 If welfare of child so demands
custody can be given to a person other then father or mother.3

Our courts are more and more veering towards welfare principle. In Athar Hussain v. Syed Siraj Ahmed4
parties were Muslims and personal law applied to them. Father had married again, though this fact in itself is
not a disqualification, is an important factor in deciding custody. Foreign judgments cannot override this
principle.5 The children were living with father for 17 years. Younger child could not even recall mother’s name.
Forcibly putting them in mother’s custody would traumatize them. Mother, however, given visitation rights.6
Parties were estranged. The children were living with mother. Elder child ill disposed towards father, younger
was happy to see him. Father given visitation rights vis-à-vis the younger son.7 The children were living with
maternal grandfather since long. Mother was dead and father had remarried within a year of mother’s death
and had another son. Though the father was held to be the guardian custody was allowed to be retained with
maternal grandfather till the child was 12 years old. On his attaining 12 years a fresh application may be made
by father.8

GUARDIAN OF PROPERTY

The court can, broadly speaking, appoint guardian of any property of the minor children, except in the case of
his share in the Hindu Joint family property. A Full Bench of the Andhra High Court said that the word ‘property’
is a term of far reaching conception. It is comprehensive enough to include all types of proprietary rights. The
court observed:

In our judgment, the term ‘property’ in section 7 of the Guardian and Wards Act is used in a generic sense. It has a
wide connotation and is not restricted to the kind of property in which the minor has a beneficial enjoyment.9
We do not think that the enjoyment is an essential element to constitute ‘property’ within the purview of the Act. He
need not own it, or hold any interest therein by virtue of title.

7. Must the Child have Property

The Court of Chancery has taken the view that it has jurisdiction to appoint a guardian even if the minor has no
property, but in that case it rarely exercises the jurisdiction.1 Our courts have expressed conflicting opinion on
this matter. A Full Bench of Bombay High Court said that the Act does not contemplate the appointment of a
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guardian of the property of a child unless the child is possessed of property capable of being taken care of by a
guardian.2 The Lahore High Court also took the same view in Hasan Bai v. Nek Alam.3

The Bombay High Court in re, Gulabi Lilabai,4 appointed two persons as guardian of the person of two minor
girls on the condition that they would deposit an amount of Rs. 4,000 for the marriage of girls and appointed
another person as guardian of this amount. Earlier Jagannathji v. Ramji2 the Bombay High Court said that it
possessed the same power as possessed by the Court of Chancery, and existence of property is not a
condition precedent for appointment of guardian. The Oudh Chief Court also took this view.5

In our submission, the court has power to appoint guardians, irrespective of the fact whether the minor has
property or not, though in exercise of its discretion, it may refuse to appoint a guardian.
8. Trust Properties and Beneficial Interest

In Venkatachalapathi v. Pandara,6 where a minor was a dharamkartra of a mutt, the Madras High Court held
that a guardian cannot be appointed of the mutt properties, which are trust properties in which minor has no
ownership. The case was followed in Vardhachariar v. Raja Ramakrishmba,7 and Alagathai v. Magathai.8 The
same view was taken by the Patna High Court.9 These cases were reviewed by a Full Bench of the Andhra
Pradesh High Court.10 The Bench came to the conclusion that these cases were bad in law. The office of the
hereditary trusteeship is recognized as property for certain purposes in Hindu law and, therefore, a guardian
could be appointed in respect to it. This, in our submission, seems to be the correct view.

In Ashraf v. Narayan,11 the Allahabad High Court observed that where an estate is in actual possession of
trustees on behalf of a minor child, the minor only having a beneficial interest till it comes of age, the court has
no jurisdiction to appoint a guardian. In Ezaz Ahmed v. Khatun Begum,12 where a minor child became a
Mutavalli of a wakf for alal aulad and where a minor was beneficiary, the court said that a guardian could be
appointed in respect to minor’s interest.

The Madras High Court in Anwar Ammal v. Narayana,1 expressly dissented from Ashraf v. Narayan,2 and held
that it was permissible to appoint a guardian of the minor’s estate which was not in his possession, though
executor’s possession would not be disturbed.3 In Ganga Prasad v. Heri Kanta,4 the Calcutta High Court held
that if the properties to which the child is entitled to, were in the hands of the executor, no guardian could be
appointed, as they cannot be considered as minor’s properties until the office of the executor terminates. But in
Lalit Kumar v. Dasrathi,5 the court held that a guardian could be appointed of the properties of a minor which
were in the hands of an administrator of his father’s properties.

In our submission, to use the expression of Sanderson J., a beneficial interest of the minor in any property is
sufficient to invest the court with jurisdiction. And in all cases where the court deems it necessary in the welfare
of the child, it would exercise the jurisdiction.
9. Disputed Claim

In Banmali v. Arjun Sen,6 the Calcutta High Court said that it cannot be for the welfare of the minor child to
appoint a guardian of property until the court is satisfied that the child has some separate properties, otherwise
it may involve the child in frivolous litigation. In Trirwenkatasani v. Ranganathan,7 a debtor deposited a sum of
money in the court in favour of a child and prayed for the appointment of guardian. Another person disputed
minor’s claim in respect to this sum. The Madras High Court said that the mere fact that minor’s claim is
disputed is no ground for refusing to appoint a guardian, rather it is necessary so that the minor, if necessary,
may establish his claim by a suit. The Lahore and Bombay High Courts and the Oudh Chief Court8 took a
similar view.

In our submission if a prima facie case is established that the minor has a claim to some properties, then a
guardian may be appointed, but if no prima facie case is established, the court may refuse to appoint a
guardian and leave the parties to pursue a remedy by an ordinary suit, as the guardian court cannot make
lengthy enquiry.9
10. Minor’s Undivided Interest in the HUF Property

Section 12 of the Hindu Minority and Guardianship Act, 1956 runs as under:

Where a Minor has an undivided interest in joint family property and the property is under the management of an adult
member of the family, no guardian shall be appointed for the minor in respect of such undivided interest:
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Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in
respect of such interest.

This section codifies the law-existing,1 immediately before the passing of the Act. The Privy Council thus
explained the reason:

It has been well-settled by a long series of decisions in India that a guardian of the property of an infant cannot properly
be appointed in respect of the infant’s interest in the property of an undivided Mitakshara family. And in their Lordship’s
opinion those decisions are clearly right, on the plain ground that the interest of a member of such a family is not
individual property at all, and that if therefore a guardian is appointed, he would have nothing to do with the family
property.2

The father or Karta of the joint family cannot appoint by his Will a guardian in respect to the undivided share of
a minor son or coparcener.3
11. When all Members are Minors

When all the members of a Hindu joint family are minors, the court has jurisdiction to appoint a guardian in
respect to entire joint family property. The reason is that in such a case the properties are well specified, they
include the entire joint family property.4 But, will the existence of an adult female sharer be a bar to the
appointment of guardian by the court? The question became important after the Hindu Women’s Right to
Property Act, 1937, under which the widow of a coparcener becomes entitled to a share on the death of her
husband. The courts have taken the view that guardian of the entire joint family property could still be
appointed.1 Dixit, J., of the Bombay High Court said that she is not entitled to management, all that she is
entitled to claim is an interest in the joint family property by partition. Since she cannot be manager, there is
nothing to prevent the court from making an appointment.2

The Nagpur High Court has taken the view that mother can be a karta of joint family,3 and, it seems, therefore
that if the mother is the karta then no guardian could be appointed. But the Supreme Court,4 had held that
mother, not being a coparcener, could not be the karta of the joint family.5 In view of this, if members of the
joint Hindu family are minors, a guardian can be appointed of the entire Hindu joint family property.

The guardianship of the certificated guardian comes to an end as soon as one of the male members becomes
adult.6 In Dina Nath v. Chandrabhaga Bai,7 the court in entrusting back the properties to one of the
coparceners who had come of age ordered that he should furnish security and give an undertaking that he
would not alienate the properties till all minor coparceners attained majority. The Madras High Court said ‘such
an order is bad, as no such conditions can be imposed; he acts not as a certificated guardian, but as a natural
guardian.8 In our submission he acts as karta and as such the court has no jurisdiction to impose any
conditions.
12. Guardian of the Person of Minor Coparcener

The court has jurisdiction to appoint guardian of the person of a minor coparcener, irrespective of the fact
whether other members are major or minor,9 and for the entire period of minority if necessary.10
13. Directions in Respect of Collateral Matters

The question often arises can the court make arrangement for collateral matters such as maintenance of the
minor or access to the child, while appointing a guardian or thereafter. In Mansa Ram v. Naurati,11 the court
appointed a collateral of the father of the minor as her guardian and directed the step-mother who had
succeeded to her father’s properties to pay Rs. 10 per month to the minor, and by an order made the
maintenance and the marriage of the minor as first charge on the property. The Lahore High Court said that
there is nothing in the Act which entitled the court to order a third person to pay for the maintenance of the
child.1 The Allahabad High Court also said that, while appointing a guardian, the court cannot issue directions
to the rival party to deposit minor’s property in the court which is in his possession.2 In Mehant v. Madho,3 it
was held that, while rejecting an application, the court should not assume uncalled for jurisdiction in other
matters, like declaring an alleged marriage of the minor void, or calling for security from a third person. In
Chandrika v. Shrikant,4 it was held that the court had no jurisdiction to pass an order against a person who was
in possession of minor’s properties prior to such appointment, even if such a person was a trespasser.5 The
court has power to pass orders for access, for security, and other collateral matters. In Kalippa v. Vallioammal,6
while appointing mother as guardian, the court also passed an order that the father should be allowed to take
the child for three days in a quarter and should have access at all reasonable times. Similarly, in In re,
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Harvenssa,7 the court appointed a person as guardian and ordered him to keep a female attendant for the
minor child, and to allow, at all reasonable times, the female relatives to visit the child.

In our submission the court can pass all consequential orders which are necessary in the welfare of minor
children.
14. Order for Security

It has been submitted here that under section 7 the court can pass all such orders which it deems necessary in
the welfare of the children. Section 34 empowers the court to require a party to deposit securities.8 However,
an order under section 7 is appealable while an order under section 34 is not. A question therefore has been
mooted whether the order for securities passed by a court while appointing guardians is an order under section
7 or section 34?

The Calcutta High Court said that such an order is under section 7 which is in the widest possible terms and
entitles the court to impose such conditions as it may deem necessary for the protection of the person or
property of children and not under section 34 which merely defines the obligation of the guardian of property.9
On the other hand, the Madras High Court said that such an order can be passed only under section 34,1 and
security cannot be called for until a guardian is appointed.2 This view has been expressly differed from by the
Bombay High Court.3 Divatia, J., said that the court may or may not order for securities, but there is nothing in
the Act to say that the power can be exercised only after the appointment of the guardian.

In our submission the Madras High Court’s difficulty was this that it thought that guardian is appointed under
section 34. In that view, what the court said was logical.

It may be noted that the court is not bound to ask for security. Under section 7 the court has very wide powers.
If the court asks for security at the time of making an order, or as a condition for making an order, it can do so
under section 7. But in case, the court has not asked for security at the time of the making of the order, but
subsequently it deems some security, then it may pass an order; but then, such an order can be passed only
under section 34.

An order appointing a guardian may be in any one of the three forms: (a) a simple order where no security is
asked for, (b) an order appointing a person guardian and asking him to furnish security within specified time,
and (c) an order appointing a guardian on the condition that he should furnish security. In the first two cases,
the order is effective from the date it is made, though in the second case, if security is not furnished within the
time allowed, the order would stand cancelled. In the third case, the order would be effective only when the
security is furnished. In Shamdas v. Umardeen,4 a guardian was appointed subject to his furnishing security
but, he died before he could furnish security. The court said that the order did not become effective. Similarly, in
Jay Sing v. Pratap Singh,5 father was appointed guardian of his minor child, on the condition of his furnishing
security; the father did not furnish security and the order was cancelled. The court said that the order appointing
guardian did never become effective.

For an order to become effective it is not necessary that the certificate should be issued immediately.6 The
order is effective as soon as it is made, certificate may be issued at any time subsequently.6

This has a very important bearing: if an effective order is passed the child would become major at the age of
twenty-one, but if such an order is not effective, he would become major on the completion of eighteen years.
15. Declaration of a Person as Guardian

Under section 7 the court can also declare the applicant or any other person as a guardian of the person or
property or both of a minor child. This means if a person has already assumed guardianship of a child, such as
a de facto guardian, then the court may declare him as guardian; nothing more is necessary. Similarly, a
testamentary guardian, or a guardian under a deed or instrument may be declared as a guardian—lest the
validity of their appointment or some such matter may be disputed. But the question of declaring a natural
guardian does not arise,1 even if it is disputed. Declaration of a person as guardian means judicial recognition
of his status as such.2 Considerations for declaring a person as a guardian are the same as for appointment of
a person as a guardian.
16. Sub-section (2): Consequence of Appointment of Guardian

In the terms of the sub-section an order appointing a person guardian under section 7 amounts to the
termination of the guardianship of all persons who have the care of the child, his person or property, as the
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case may be, except the guardian appointed or declared by the court or a guardian appointed by Will or any
other instrument. This means that a testamentary guardian and a certificated guardian can only be removed
under the provisions of the Act, and before their removal no other person can be appointed or declared as
guardian.

Thus, by an appointment or declaration of a guardian under section 7, the natural guardianship,3 or de facto
guardianship,4 would come to an end. Any dealing by a natural guardian after the appointment of a guardian by
a court is null and void and the child cannot ratify it on attaining majority.5 Even on the death of a certificated
guardian the authority of the natural guardian does not revive.6

A guardian aggrieved by his removal under this sub-section has no remedy by way of appeal or revision.7

An order under section 7 or under section 10 is not a final order in the sense that it cannot be changed or
altered or revoked. On a change of circumstances being shown, the order can be changed.8 But such an order
cannot be called a decree,9 and a judgment passed thereunder is not a judgment in rem.10
17. Sub-section (3): Bars to Appointment of the Guardian

Under the Guardians and Wards Act, 1890, there are two bars for the appointment or declaration of a guardian.
First, no guardian can be appointed unless the father is found unfit, and secondly no guardian can be appointed
if there exists a testamentary guardian or a certificated guardian unless he has ceased to exist as such under
the Act.1

The second bar is contained in sub-section (3) of section 7 which runs as under:

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.1

If there exists a Will, the court is bound to take notice of it,2 even if no probate has been obtained.3 It has been
held that it is not necessary for a testamentary guardian to obtain probate.4 In any case the court may defer the
question of appointment of guardianship till probate is obtained, and may give custody to another person, but it
cannot altogether ignore a will.5 In some cases a view has been taken that the Will should be in writing.6

Thus, unless the authority of a testamentary guardian comes to an end a guardian cannot be appointed. A
person cannot be appointed a guardian just because he happens to be a relative. The testamentary guardian
must first be removed.7 Even the High Court cannot appoint another person a guardian under its inherent
jurisdiction, unless the testamentary guardian is removed.8

However, a guardian can be appointed of the person of a child if the testamentary guardian’s authority extends
only over the property.9 Similarly, if the appointment of testamentary guardian is invalid, the court can appoint
another person as guardian.10 An application for removal of a testamentary guardian and for appointment of a
guardian can be made simultaneously.10

In our submission one fails to appreciate the logic of having a provision like the one we have in sub-section (3).
No court would appoint a guardian unless an existing guardian is removed. It should make no difference
whether the existing guardian is a testamentary guardian, certificated guardian, or a natural guardian. One
wonders why natural guardian should have been excluded from the purview of the sub-section, i.e., in case
such a provision was necessary. If the court has appointed a guardian, it means that it has found the existing
guardian incompetent or unfit, or appointment of another guardian was necessary in the welfare of the child,
otherwise, no court would appoint a guardian when a de jure guardian already exists. Therefore, an
appointment of a guardian, would necessarily imply the removal of an existing one.
18. Commencement of Guardianship

The guardianship of a person appointed as guardian commences from the date of the appointment unless the
order is conditional. In such a case the guardianship would commence on the fulfilment of the condition. But the
commencement of guardianship is not dependent on the issuance of certificate. The certificate of guardianship
may be issued later on.

When an order appointing a guardian is subject to the condition that guardian should furnish security, then
guardianship commences from the date the guardian furnishes security.1
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19. Appeal

An order appointing or declaring or refusing to appoint or declare is appealable under section 47(a). But if a
guardian is deemed to have been removed under sub-section (2), no appeal or revision lies in such a case.2
No appeal lies against an interlocutory orders.3 An appeal also does not lie when the court acting under section
42 appoints or declares or refuses to appoint or declare a guardian as successor to a guardian who had died or
had been removed or discharged.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

* For Statement of Objects and Reasons, see Gazette of India, 1886, Pt. V, p. 77; for Report of the Select Committee,
see Gazette of India., 1890, Pt. V, p. 77; and for Debates in Council, see Gazette of India, 1886, Supplement, pp. 419
and 666, and Gazette of India, 1890, Pt.VI, pp. 33 and 45.
This Act has been declared to be in force in the Sonthal Parganas by the Sonthal Parganas Settlement Regulation (3 of
1872), sec. 3; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), Sec. 3 and Schedule;
and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), Sec. 3 and Schedule.
It has been declared not to be in force in the scheduled districts in Ganjam and Vizagapatam by notification under sec. 3(b)
of the Scheduled Districts Act, 1874 (14 of 1874), see Gazette of India, 1898, Pt. I, p. 872.
It has been extended to the portions of the partially excluded areas in the Madras State, in which the provisions of this Act
are not in force by the Madras (Partially Excluded Areas) Guardians and Wards Regulation, 1940 (Mad. Reg. 6 of
1940), to Berar by the Berar Laws Act, 1941 (4 of 1941).
It has also been extended, with modifications, to the district of Koraput by the Koraput Guardians and Wards Regulation,
1943 (Orissa Reg. 7 of 1943).
It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
1 AIR 2006 SC 1343 .
2 AIR 2009 SC 557 [LNIND 2008 SC 2272].
3 Rajendra Kumar Shukla v. Vishnu Kumar Shukla, AIR 2006 All 173, Also See M/s. M.M. Accessories v. U.P. Financial
Corporation, AIR 2002 Raj 96 ; Ram Kawal Yadav v. Smt. Pratibha Yadav, AIR 2002 MP 44 ; Moel Joshwa v.
Gorakhpur Development Authority, AIR 2003 Raj 51 ; Jayant Rajan v. Dr. S. Lakshmanan, AIR 2004 Mad 298 ; Ram
Kishore Sing v. Narmala Devi Kushwaha, AIR 2006 MP 224 ; Mahendra Modi v. Gobardhan Lal, AIR 2006 Jhar 124
[LNIND 2004 JHAR 192].
4 Chetnaben v. Natwar Lal Foolchand Joshi, AIR 2004 Guj 329 ; Bal Krishna Pandey v. Sanjeev Bajpayee, AIR 2004
Uttranchal 1; Keshav Ganpatrao Hedau v. Damodhar Udramji Kandrikar, AIR 2005 Bom 118 [LNIND 2004 NGP 247];
T. Kochappi v. R. Sadasivam Pillai, AIR 2006 Mad 330 [LNIND 2006 BMM 23].
5 Ashok Shankarrao Ghatage v. Mahipali Yashwant Khutale, AIR 2006 Bom 347 [LNIND 2006 BOM 366].
1 AIR 1994 SC 658 .
2 AIR 1984 SC 469 [LNIND 1984 SC 30].
3 AIR 1986 SC 272 [LNIND 1978 SC 285].
4 K.P. Apagappa Ayyangar v. Mangthai Ammanagar, ILR (1917) 40 Mad 672 . This also applies to a child who completes
eighteen years during the guardianship proceedings; Chandan v. Nirmal, 1900 PLR 419; Bhagwanti v. Ram Chandra,
(1911) 11 IC 478; Vishvanath v. Karan Devi, AIR 1939 Lah 221 .
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5 In the matter of Petition of Nazrudin, ILR (1860) 6 Cal 19 ; Ahmad Ali v. Raisunissa, (1913) 18 IC 985 : 17 CWN 429;
Mst. Kundan Begun v. Mst. Aisa Begun, AIR 1939 All 15 .
6 Johardad v. Hashim Khan, AIR 1931 Lah 212 ; Badar Baksh v. Jagbaz Khan, 135 PR 1893; Salima v. Mohammed, AIR
1928 Lah 456 .
7 Jaiwanti v. Gajadhar, ILR 38 Cal 788; Raloo v. Lal, 177 IC 901.
8 Narotam v. Mt. Tapersa, AIR 1934 All 849 ; Islaman v. Maqbulan, AIR 1924 Oudh 126 .
9 AIR 2004 Bom 313 [LNIND 2004 BOM 452].
10 Sundarmani v. Gokuldas, 18 CWN 160, the court distinguished Jaiwanti v. Gajadhar, ILR 38 Cal 783; See also
Narshingdas v. Hemraj, AIR 1933 Lah 220, the court distinguished Salima v. Mohammed, AIR 1928 Lah 456 .
11 Narotam v. Mst. Tapersa, AIR 1934 All 849 : ILR (1934) 57 All 208.
12 Haji Hirji v. Kashim Kirji, 41 IC 603 (Sind).
13 See section 17(5) Narotam v. Topeshra, ILR (1934) 57 All 208 .
1 Section 8.
2 Section 10(i)(k) of the Guardians and Wards Act, 1890.
3 Puromasoonduree v. Tarasundaree, 9 WR 342.
4 Bhai Suvhet Singh v. Collector of Amritsar, 6 IC 645.
5 Bhadar Baksh v. Zangabaz Khan, 1935 PR 1893; In re, Govind Prasad, ILR 50 All 705.
6 Paqruddin v. Biro, AIR 1926 Lah 397 .
7 See cases referred to in footnote 2 at previous page.
8 AIR 1925 Lah 489 .
9 AIR 1936 Pesh 63 ; see also Alagappa Ayyangar v. Mangathai Ammangar, ILR (1916) 40 Mad 672 .
10 47 IC 817.
11 26 IC 524; See also Fatima v. Rani, 33 IC 507; Mahant v. Madho, 31 IC 237; Totaram v. Ram Charan, ILR 33 All 222;
Makan v. Sudhia, 84 IC 418.
12 42 IC 191.
13 43 IC 898.
1 2 LLJ 509.
2 Venkatarayappa v. Venkatashamiab, ILR (1955) Mys 535 [LNIND 1955 KANT 39].
3 Alagappa Ayyangar v. Mangathai Ammangar, (1916) ILR 40 Mad 672.
1 Poolakkal Ayiskutty v. Parat Abdul Samat, AIR 2005 Ker 68 [LNIND 2004 KER 517].
2 C. Chenna Basappa v. Lingamma, AIR 2007 Kant 130 [LNIND 2007 KANT 251].
3 Ramakrishna Balasubramanian v. Priya Ganesan, AIR 2007 Mad 210 [LNIND 2007 MAD 996].
4 AIR 2010 SC 1417 [LNIND 2010 SC 6].
5 Padi Trigunsen Reddy v. Jyothi Reddy, AIR 2010 AP 119 [LNIND 2009 AP 877].
6 Vishnu v. Jaya, AIR 2010 SC 2092 [LNIND 2010 SC 373].
7 Suman Bhasin v. Neeraj Bhasin, AIR 2010 SC 1372 [LNIND 2010 SC 255].
8 Shyamrao Maroti Korwate v. Deepak Kishanrao Tekam, (2010) 10 SCC 314 [LNIND 2010 SC 871]; Also see Bholaram
v. Parwati, AIR 2011 Chh 38 .
9 Kenteti Sastrulu v. Mandupalli Venkateshwara, AIR 1959 AP 232 [LNIND 1958 AP 121].
1 Wellesley v. Duke of Beauford, (1827) 2 Russ I, Per Lord Eldon L.C.
2 In re, Jagannathji Ramji, ILR (1893) 19 Bom 96 .
3 AIR 1940 Lah 9 .
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4 ILR 32 Bom 50.

5 Ram Narayan v. Mt. Goura, AIR 1927 Oudh 68 ; The Calcutta High Court took a similar view in Walter v. Walter, AIR
1928 Cal 600 .
6 AIR 1917 Mad 9 .
7 AIR 1923 Mad 498 .
8 42 IC 273.
9 Kilby v. Bahuria, ILR (1922) 1 Pat 432 .
10 Kanteti Sasturulu v. Mdupalli Venkateswara, AIR 1959 AP 232 [LNIND 1958 AP 121].
11 (1910) 6 IC 862.
12 ILR (1917) 39 All 288 .
1 AIR 1921 Mad 328 .
2 (1910) 6 IC 862.
3 Ashraf Ali is based on In re, Marquis of Salisbury, 20 Eq cases 527.
4 7 IC 234.
5 ILR 48 Cal 802.
6 AIR 1932 Cal 730 .
7 AIR 1934 Mad 496 [LNIND 1933 MAD 236].
8 Mirimal v. Kashi Prasad, (1926) 93 IC 328; Ram Narayan v. Mst. Goura, AIR 1927 Oudh 68 ; Garuppa Shiegenappa v.
Tayawa Sidappa, ILR (1916) 40 Bom 513 .
9 Bassan Bibi v. Nek Alam, AIR 1940 Lah 9 ; Garuppa Shiegenappa v. Tayawa Shiddappa, ILR (1916) 40 Bom 513 .
1 This was also that view taken before 1890; Sheo Nandan v. Mt. Ghunsam, 21 Cal WR 143; Lakshmibai v. Govind,
(1874) PJ 143; Shivji Hasan v. Datu Mavji, 1 Bom HCR 281; Gorasharya v. Savimirayacharya, ILR 30 Bom 431;
Narshing Rao v. Venk Ji, ILR 8 Bom 395; Durga Pd. v. Kesho, Pd. 9 IA 27. This was also the view taken after 1890:
Viruppakshappa v. Nilgangava, ILR (1895) 19 Bom 309 (FB); Binaji Laxman v. Mathrunonrabai, ILR (1906) Bom 152;
Gurja v. Mohar Singh, (1896) WN 30; Jhabha Singh v. Ganga Bishan, ILR 17 All 529; Bandhu Prashad v. Dhiraji, ILR
(1968) 20 All 400 ; Rattan Chand v. Ram Kishan, AIR 1928 All 447 ; Shyam Kumar v. Mohansundra, ILR (1891) 19 Cal
301 ; Mulukh Raj v. Dhanabanta, AIR 1957 Cal 322 [LNIND 1956 CAL 159]; Banmali v. Arjan Sen, AIR 1932 Cal 730 ;
Kanakasabai v. Ponnusani Mualiar, (1913) 21 IC 848; Appana v. Appanna Mikatrao, (1917) 40 IC 145; Chandambara
Pillai v. Veerappa Chettiar, (1918) 43 IC 865; Chandambara Pillai v. Rangaswami, ILR (1918) 41 Mad 561 ;
Jambagathachi v. Rajamannaswami, AIR 1920 Mad 661 ; Balbir v. Cheddi Lal, AIR 1925 Oudh 642 ; Mahanand v.
Dasrath, (1918) 46 IC 815 (Pat); Nathu Mishra v. Mahesh Mishra, AIR 1963 Pat 146 ; Duni Chand v. Bhagwandas, AIR
1937 Pesh 44 ; Asha Ram v. Ratan Singh, AIR 1915 Nag 52 (Nagpur Chief Court); Sugan Chand v. Ladhuram, AIR
1941 Nag 105 ; Kangathi v. Venkatshamish, AIR 1955 Mys 146 . This principle was also applied to Aliyasanthana
family; Kajikar v. Meri Devia, ILR 32 Mad 139.
2 Gharib Ullah v. Khalak Singh, ILR (1903) 25 All 407 (PC); See also Viruppakashappa v. Nilgangava, ILR (1895) 19
Bom 309, where the court has fully explained and discussed the matter.
3 K.P. Alagappa v. Mangethi Ammarngar, ILR (1916) 40 Mad 672 ; Chandambara Pillai v. Rangaswami, ILR (1918) 41
Mad 561 (F.B.).
4 Binaji Laxman v. Mathrunonrabai, ILR (1906) 30 Bom 152 ; Shaminath v. Lalit, ILR 35 All 150; Ram Chandra v. Krishna
Deva, ILR (1908) 32 Bom 250 .
1 Rakshma Bai v. Sitabai, AIR 1952 Bom 160 [LNIND 1951 BOM 95].
2 Nagappa v. Makambe, AIR 1951 Bom 309 [LNIND 1950 BOM 90].
3 Pandurang v. Pandurang, ILR (1948) Nag 299; Commissioner of Income Tax v. Luxminarayan, ILR (1948) Nag 777.
Other High Courts have expressly dissented from this view: Radhe v. ITC, AIR 1950 Mad 538 [LNIND 1949 MAD 334];
Rakshmbai v. Sitabai, AIR 1952 Bom 160 [LNIND 1951 BOM 95]; Panddano v. Lakkanidhi, AIR 1956 Ori 1 .
4 Commissioner of Income Tax v. Seth Govind Ram Sugar Mills, AIR 1966 SC 24 [LNIND 1965 SC 572].
5 The other High Courts differ from the Nagpur High Court. The latest pronouncement is of the Orissa High Court; Hadu
v. Sana, AIR 1970 Ori 32 [LNIND 1969 ORI 63].
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6 Virupaksheppa v. Niligangave, ILR 19 Bom 309 (FB); Bhindeyji v. Mothurabai, ILR 30 Bom 152; Ramchandra v.
Krishna, ILR 32 Bom 259; Chandra v. Sarvjeet, AIR 1935 Oudh 334 ; Raja Yenumuler v. Chitrapu, AIR 1951 Mad 792 ;
Dina Nath v. Chandra, AIR 1958 Mys 92 .
7 AIR 1958 Mys 92 .
8 Jamagathachari v. Rajmannasami, 57 IC 678.
9 Virupakshappa v. Nilgangava, ILR 19 Bom 309 (FB); Ramkishan v. Beliram, 5 IC 678; Alagappa Ayyangar v.
Mangathai Ammanger, (1916) ILR 40 Mad 672; Jambagathachi v. Rajamannasai, 57 IC 678; Jahabu Singh v. Ganga,
ILR 17 All 529; Bandhu Prashad v. Dhiraji, ILR (1968) 20 All 400 .
10 Jambagathachi v. Rajamannasami, 57 IC 678.
11 AIR 1925 Lah 427 .
1 Kundanlal v. Bhagwati Saran, AIR 1934 All 1043 .
2 Mohan Lal v. Amar Kaur, 24 IC 518.
3 31 IC 237.
4 AIR 1929 All 529 .
5 Harbans v. Rajindra, AIR 1925 All 227 .
6 AIR 1949 Mad 608 .
7 27 IC 74.
8 The marginal note to section 34 runs, “Obligations on guardian of property appointed or declared by the court.”
9 Harendranath v. Ardhendra Kumar, 24 IC 202.
1 Gopammal v. Sreenivasa, 34 IC 432: 30 MLJ 508.
2 In re, Venkatesh Perumal, ILR (1925) 49 Mad 809 (FB).
3 Jay Singh v. Pratap Singh, AIR 1945 Bom 243 .
4 AIR 1945 Bom 312 .
5 ILR (1930) 11 Lah 312 (FB).
6 Mungniaram v. Mohunt, ILR 17 Cal 347; (this was under old law) Gopal Chandra Bose v. Ganesh Chandra, (1905) 4
Cal LJ 112.
1 See our commentary on section 13, the Hindu Minority and Guardianship Act, where almost the entire case law has
been discussed.
2 Thiruvengandamier v. Perisami, 9 MLJ 24; Nanu Bhai v. Sakhubai, 2 IC 484.
3 Arumugam v. Duraising, ILR 37 Mad 38; Wallace v. Wallace, AIR 1919 Mad 189 ; Thakur Hanuman Singh v. Ganesh,
50 IC 580.
4 Sita Bai v. Radha Bai, AIR 1919 Mad 189 ; In re, Salilha Bai, AIR 1961 Mad 153 [LNIND 1960 MAD 255].
5 Arumugam v. Duraiswami, ILR 37 Mad 38.
6 Jiwan v. Sailendra, AIR 1946 Cal 272 ; Satya Dev v. Triveni Prasad, AIR 1936 Pat 153 ; Thakur Hanuman v. Ganesh,
50 IC 580.
7 Nar Singh v. Hem Raj, AIR 1934 Lah 323 ; Wallace v. Wallace, AIR 1919 Mad 189 .
8 Winifred Mcquillan v. Mrs. Winfred Chapman, 57 IC 13.
9 Wahid v. Juveda, AIR 1952 Nag 190 .
10 Muktipada v. Aklemama Khatun, AIR 1950 Cal 533 .
1 Section 19.
2 Sayad Shahu v. Hajrabegum, ILR (1882) 27 Bom 560 .
3 Sarla v. Hazari, ILR (1910) 42 Cal 953 ; Sayed Shahu v. Hafiza Begum, ILR (1893) 16 Mad 380 ; Chinnaswamy v.
Hariharbhadra, ILR (1894) 29 Bom 832 ; Pathan Ali Khan v. Bai Pan Bai, AIR 1936 All 368 .
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4 Akhoy Kumari v. Hazari, AIR 1916 Cal 324 .

5 Amiratnavalli v. Sironmani, AIR 1938 Mad 757 [LNIND 1938 MAD 284]; Ganeshji v. Mst. Bhagirathi, ILR (1894) 19
Bom 832 ; In re, Dukley, AIR 1927 Cal 389 .
6 Parvathi Ammal v. Elayaperummal, AIR 1922 Mad 70 .
7 Lakshim Chand v. Ganda Mal, ILR 39 PR 1892; Manubai v. Sakhuba, 2 IC 484.
8 In re, Sarish Chandra, ILR 21 Cal 206.
9 Etwaree v. Ram Narayan, 13 WR 230.
10 Venkayya v. Venkata, ILR 21 Mad 401; Dhanpatram v. Prem Sukh, (1911) 12 IC 452; Najadar Ali v. Bivi, 6 IC 734;
Narsingh v. Hem, AIR 1933 Lah 220 .
1 Sham Das v. Amer Din, AIR 1930 Lah 497 .
2 Md. Akbar v. Hussein Bibi, 96 IC 173; Wallance v. Wallance, AIR 1919 Mad 189 ; Nar Singh v. Hemraj, AIR 1934 Lah
323 ; Sharbati Devi v. Kaliparshad, AIR 1942 Lah 119 .
3 Mir Ali Md. v. Abu Nasar, AIR 1935 Cal 223 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

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.

Comments

1. Scope

The Indian courts were considered to be the supreme guardians of all minors during the Raj. Under various
Regulations they were entrusted to exercise the same power as the Court of Chancery did in England in
respect to infants. Now under the Guardians and Wards Act, 1890, this power is exercised by the District Court.
The High Court exercise this power under various Letters Patent, or under its inherent jurisdiction. The courts
as supreme guardians, exercise parental jurisdiction in respect of all children, Muslim, Hindus, Christians and
others. In Babu Gyan v. Sudan,1 the court said that in default of de jure guardian the duty of appointing
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guardian of the protection and preservation of infant’s property devolves on the guardian judge as the
representative of the sovereign. Similarly in Premji Kanji v. Mst. Jiwani,2 the court said that it is well-settled that
under its delegated power of the sovereign as parens patriae of infants, the court is competent to restrain by an
injunction an undesirable marriage of an infant whether or not he or she be the ward of the court and the rule
equally applies to all, Hindus as well as Muslims.

Thus, under the Indian law the guardian court acts as a supreme guardian of all children.

The power of appointing or declaring or removing a person as guardian is conferred on the District Court under
the Guardians and Wards Act, 1890.

When a matter relating to guardianship or custody is brought before the court, it assumes the charge of the
child and endeavours to see that the child is brought up in the same manner as his natural parent would have
done. This function is usually discharged by the guardian court by appointing a suitable person as guardian of
the child,1 though it is not the only method. The court may merely commit custody to one person, while the de
jure guardianship, may continue to be vested in the existing guardian. The court may settle a scheme for the
maintenance or education of the child; it may approve or refuse to approve the marriage of the child; it may
grant access to one of the parents or may refuse to grant; and may decide upon any matter relating to the child.
In short, the guardian court exercises very wide powers with respect to children. However, there are certain
limitations on the powers of the guardian judge. The court, for instance, cannot pass bare orders for
maintenance of the child under the Guardians and Wards Act.

On the one hand, the guardian court exercises very wide powers and very broad discretion in respect of
children, it has, on the other, great responsibilities to discharge. No court, after assuming the charge of the
person or property of a child, has to grudge the worry and trouble that must necessarily occur in respect of
children brought before it, as all matters relating to children are matters of trouble and worry.

The court may be called upon to appoint a guardian of the person of the minor or of his property or both.
Broadly speaking the rules relating to appointment and declaration of guardians of the person and property are
the same, with some minor differences.
2. The Child should be a Minor

The jurisdiction of the court under the Guardians and Wards Act extends only over children who are minors.2
The courts have very rightly taken the view that a guardian should not be appointed of a minor who is about to
attain majority; particularly under Indian law where the age of minority on appointment of a guardian, is
extended to twenty one years.3 However, in a case where it is shown that appointment is necessary, for
instance, where the child is shown to be of a very weak mind the appointment will be made.4 The court would
also not appoint a guardian of a child who when application was made was below eighteen years, but
completed eighteen year during the proceedings.5 In Vishvanath v. Mst. Karan Devi,6 the court observed:

It is not for the courts to moralize on the advantage of keeping a youth under tutelage for a longer period than the law
ordinarily contemplates.

3. Application for Appoint of Guardian

For the appointment of a guardian by the court an application is necessary. The court action, proprio motu,
cannot appoint a guardian. In some cases,1 a view was taken that only that person can be appointed a
guardian who had made an application. In our submission what is necessary is that some one should move the
court, and once the court is seized of the matter it can appoint any person as guardian. In Narotam v. Mst.
Tapesra,2 Iqbal Ahmd, J., observed:

It is true that a judge is not authorized by law in the absence of an application for appointment of a guardian to pass an
order appointing the guardian of a minor. But once an application has been filed in accordance with the provisions of
section 10, the jurisdiction of the judge under the Guardians and Wards Act comes into play and it is open to the judge,
as a result of the enquiry initiated on the application to appoint a person other than the applicant as the guardian of the
minor.

In Sundar Mani v. Gokuldass,3 the Calcutta High Court, distinguishing Jaiwanti v. Gajadhar,4 said that an
objection petition can be treated as an application and if the court thinks fit, the objector or any other person
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can be appointed guardian.5 The Calcutta High Court has taken the view that the absence of the application by
the person appointed guardian by the court is not a defect affecting the validity or legality of the order of the
court.6 Rather, section 12 contemplates such an appointment.7

According to the Oudh Judicial Commissioner’s court, any person who has neither applied nor proposed can be
appointed as guardian, as sections 7 and 8 do not require that once proceedings have begun, an application
should be taken from a person whom the court appoints a guardian.8 However, the consent of the person to be
appointed as guardian is necessary.9

Any person who is interested in the welfare of the minor may apply provided he has a cause of action.1 An
application can be made at any time.2 Section 8 contemplates three sets of persons who may apply for the
appointment of guardian to the person and property of a minor. They are:

(a) Any person who claims to be the guardian of the minor, or

(b) Any person who desires to become guardian of the minor.
(c) Any person who is relative or friend of the minor who is not himself desirous of becoming a guardian,
or
(d) the Collector.

4. Father or Mother as Applicants

Under the first head any person, other than the father, who claims to be the guardian can apply.—Leach,
C.J., in T. Sivasankara v. Radhabai Ammal,3said that the father is not entitled to apply under the Guardians
and Wards Act for an order appointing him guardian of the person or property of his minor child, as under Hindu
law the father is the lawful guardian of his child and a declaration by the court cannot increase his
powers.4Similarly, it has been held that a Muslim father who is a legal guardian of his minor children cannot
apply under the Guardians and Wards Act for his appointment as guardian.5

The Madras High Court has taken the view that the testamentary guardian can apply for a declaration that he is
the guardian of the minor under sections 7 and 8.6 For taking a certificate of guardianship under the Act, it is
not necessary for the testamentary guardian to obtain a probate of the Will.7

When mother is natural guardian of her child, it is not necessary, that she should be formally appointed
guardian under the Act.8 But if she is not the natural guardian of her children she can apply for appointment of
guardian. Under Muslim law, mother is not the natural guardian of her children, and therefore whenever the
court thinks it necessary she could be appointed guardian.9

However in Rosy Jacob v. Jacob A. Chakramakkal,10the Madras High Court took a contrary view. In this case
father applied under section 7 and relying on sections 8, 10, 17, 19 and 25 for (i) being declared guardian of the
minor, and (ii) and for custody of the child. The court said: “It may be that such an application for appointment
as a guardian may not be necessary by virtue of his status. But as far we could see there is nothing in the Act
disabling the father from making such an application and claiming to be the guardian. Under the Guardians and
Wards Act.”1 In our submission this is not the correct view. But, as the Rajasthan High Court said in Sunehlata
v. Mahendra Narayan,2that in proceedings under the Guardians and Wards Act involving the administration of
the affairs of the child, the guardian cannot exercises parental jurisdiction and therefore it should not be overtly
concerned with the strict observance of the technicalities of law of pleadings. The courts have treated father’s
application for appointment as guardian as an application for custody under section 25.3

In Shoba v. Janki,4 the Madhya Pradesh High Court has summed up the position thus:

(i) A Hindu father or mother in his or her capacity as natural guardian of the child, has not to make an
application under the Guardians and Wards Act to the court for a declaration as guardian of the child
for its person or property; the only relief he or she can claim is that provided by section 25, the
Guardians and Wards Act.
(ii) It is not obligatory on the part of the guardianship court to make any appointment or affirmative
declaration under section 7, the Guardians and Wards Act whether there is one or more contenders for
guardianship, unless and until the court is satisfied that it is necessary to make such an order for the
welfare of the minor in all cases, including that of a Hindu minor.
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(iii) Whenever the contenders to guardianship seek declaration on the basis of an appointment made in the
Will, it shall be well within the jurisdiction of the guardianship court not to decide the question of
guardianship and allow them to obtain a probate of the will so that the successful contender can make
a fresh application. In case the guardianship proceedings are stayed, hearing of the application of the
successful contender may then be resumed, but it shall be open to the unsuccessful contender,
indeed, in all cases, to contest the application and invoke court’s power under section 39, the
Guardians and Wards Act, in the same proceedings itself. The fact that the testator or the minor is a
Hindu will not affect court’s jurisdiction in this matter.

5. A Society or Organization as an Applicant

A charitable society or association cannot apply for appointment of guardian as the word ‘person’ used in
section 4(2) of the Guardians and Wards Act does not include an association or society.1 In Sydney Hugh
Mersweeney v. Margaret Arbuthnot,2 the court said that neither the society for the Protection of Children in
India or its Secretary in his capacity as Secretary could be appointed as guardian as the provisions of Act
contemplated appointment of an individual, though the Secretary in his individual capacity might be appointed.
But in Lakshman Singh v. Mohila Ashram, Rewa,3the court said that the word ‘person’ in section 4(2) should be
interpreted in the light of the definition of that word given in the General Clauses Act, so interpreted there was
nothing the Guardians and Wards Act to prevent a registered society from being appointed guardian. The
reason why a society or institution could not be appointed as guardian were stated by Guha, J., thus: ‘for the
proper management of property the character, capacity and the fitness of the individual to be appointed have to
be taken into consideration. It is for this reason that an individual only is appointed by the court as guardian.
The provisions relating to appointment of guardian as contained in the Guardians and Wards Act are based on
this principle which has been accepted by court in this country and in England.4 Again in Patubala Dasi v.
Kundalini,5the court said the definition of the ‘person’ contained in the General Clauses Act would not apply in
view of section 3 of the Guardians and Wards Act.6 However, a society or association can be a party to the
proceedings and it can bring the machinery of the Act into operation by making an application to the court as a
next friend of the minor under section 8(b).7

In our submission not merely can a society or association file proceedings under section 7 of the Act, but it can
also be appointed as guardian. The Act itself contemplates appointment of Collector as guardian. There cannot
be any objection on the appointment of a society or association as guardian as provided it has the ‘capacity’
and the fitness for such appointment. Just as the court supervises and controls an individual guardian under
sections 43 and 45 of the Act so it can control and supervise an association-guardian. The present writer is in
respectful agreement with the following observation of Jagatnarayan, J.C.

In many cases it is desirable to appoint such registered society as guardian of minors who are orphans and there is no
one else who would be willing to look after them.8

In our submission a well-managed Children’s Home or Orphanage may, in certain cases, be a much better
place for a child than an individual, and if that is so there should be no difficulty in the appointment of a society
as guardian, at the word ‘person’ in section 4(2) can be interpreted to include a society in the light of the
meaning given to the word in the General Clauses Act.
6. A Relative or Friend as Applicant

Any person who desires to be the guardian or any person who claims to be a relative or next friend of the minor
may apply. In P.R.M. Thirwenkasami Naidu v. K.R.P.R.A.L. Ranganathan Chettar,1 a person made an
application with the averment that he was holding a certain sum of money for the benefit of the minor which he
was depositing in the court and prayed that one of the respondents might be appointed as a guardian. One of
the respondents contended that the petitioner has no locus standi to prefer the application. The court observed:

As regards the first objection, we think that the petitioner may be deemed to have filed this petition as friend of the
minor, within the meaning of section 8(b) of the Act. The word ‘friend’ in this clause is not defined. In the present case
the petitioner representing this fund to be the minor’s property has filed the petition in order to have a guardian
appointed for the minor who would take charge of the fund. The appellant admits in his counter reply that this money
was deposited with the petitioner in minor’s own name though he disputes the right of the minor in this fund. Prima
facie this petition must be deemed to have been put in by the petitioner in the minor’s interest, and we can treat this
petition as having been filed by one who is friend of the minor.
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In Keshavlal v. Ambalal,2 a religious head of a community applied for the appointment of himself as the
guardian of a minor girl on the ground that the girl was only four years old and as the father was contemplating
her marriage which would be, considering her age, detrimental to her. The court refused to appoint him as
guardian as it felt that such marriages were very common in the community. It may be noted that the application
was rejected not on the ground that the applicant could not apply but on the ground there was no need of
removing the father from the guardianship.2

In our submission under clauses (a) and (b), any person who is interested in the minor may apply, under
section 8, an application for the appointment of himself as guardian or appointment of any other person as
guardian.3
7. Collector as an Applicant

Under clauses (c) and (d), the Collector has capacity to make an application. Apart from these clauses, the
Collector can, as well, apply under clause (b) as next friend of the minor. But it seems that realizing the
responsibility of the state towards children, a specific provision has been enacted under which the collector has
been specifically empowered to make an application. In our submission he can apply for the appointment of
guardian of himself or any other person. The Collector has been defined in section 4(6) and includes a Deputy
Commissioner of a non-regulation district.1 The appointment of the Collector as guardian is in his official
capacity. Section 18 makes it clear and lays down the person who is for the time, holding the office of collector
is entitled to guardian.2

The Collector whenever he feels that an appointment of guardian is necessary, can apply to the court under
section 8. In our submission when some other person makes an application, the court should be able to appoint
the Collector as guardian either at the instance of the applicant or some other person or at its own instance. In
the Act there is no specific provision under which the court can appoint Collector as guardian at its own
instance. But in our submission the court should be able to do so under section 8. The Collector, representative
of the executive authority of the State, should be deemed to be duty bound to act as guardian of those persons
for whom no other suitable guardian could be provided. If necessary, a provision to this effect may be inserted
in the Act.

Since section 17(5) provides that no person can be appointed guardian against his Will, and it seems that the
court cannot appoint Collector as guardian if he refuses to act as such. In our submission, whenever the court
appoints a Collector as guardian there should be a specific provision in the Act whereby the Collector is not
permitted to refuse the appointment. The Act recognized special position of the Collector by laying down that
provisions of sections 29, 32, 34 and 43 do not apply to him. In view of this special position of the Collector, the
Act should clearly lay down that whenever the Collector in appointed guardian he cannot refuse. The only
control of the court over guardian that the Act permits is that the Collector may be removed from guardianship
under the provisions of section 39. The Collector himself may move for his discharge under section 40.

In our submission, the provisions relating to the appointment of the Collector as guardian and court’s control
over him need amendment. It is true that the Collector represents the executive authority of the State, but then
it is the court who exercises the power of the State as parens patriae to regulate, control and supervise all
guardians and when Collector acts as guardian he too should be directly under the control of the court.
8. Application by the Minor himself

Under English law a child possessed of property, whose both parents are dead and who had no other de jure
guardian can, after attaining the age of fourteen in case of a male and of twelve in case of the female, himself
apply for appointment of a guardian for himself and his property.3Under the Guardians and Wards Act or any
other law there is no such provision.

Ordinarily, a child who has property would not lack a ‘next friend’, but in our submission in some cases there
may not be any person who is willing to come forward to make an application on his behalf. In our submission a
provision in the Act under which a minor of the age of discretion should be able to apply himself or herself is
necessary, and this should be irrespective of the fact whether the minor has property or not.
9. Application should be bona fide; no two Applications can be made on the same Cause of Action

Section 10(k) contemplates a cause of action for making an application if one application is rejected no fresh
application can be made on the same cause of action.1 If an application for the appointment of the applicant as
guardian is rejected by the court on the ground that the applicant is not a suitable person for such appointment,
another application for the appointment of some other person can be maintained.2 Similarly, if one application
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is rejected on technical grounds, and not on merits, a second application by some other person is maintainable
on the same cause of action.3 But if an application is rejected in default, the same applicant cannot make
another application.4

The application must be made bona fide and not for any ulterior purpose. In Asi Bai v. Girdhari,5 a husband
made an application for the appointment of himself as the guardian of his minor wife. He had made an
application earlier for restitution of conjugal rights which was rejected. The court said that the provision of the
Act cannot be used in order to enable the husband to get possession of the person of his wife.6 Similarly in
Bhagwava v. Ramchandra,7 the court refused to appoint a husband as guardian of his minor wife as he had
already failed to obtain the custody of his wife in a civil suit. In both the cases the application were not bona
fide, the real purpose being to obtain possession of the person of the minor wife. In Sarat Chandra v. Girindra
Chandra,8 where the petitioner husband has retained the ornaments of his minor wife and then applied to be
appointed guardian of the person of his wife, it was held that the application was not bona fide. In Sahadra v.
Ramdin,9 a master moved an application for the appointment of guardian of the person of his apprentice, the
real purpose being to marry her to her son. The court rejected the application as being mala fide.10

In Mahton v. Ramraj,1 a person obtained an order for appointment of himself as guardian by concealing real
facts as to the existence of other near relations of the minor, the court held that not merely the application was
not bona fide but the order was obtained by fraud and therefore could be set aside.
10. Appointment should be made only if Necessary

Under section 7 the court would appoint a guardian only if it is satisfied that the appointment of the guardian is
necessary in the welfare of the child. If the appointment is not deemed necessary, the court will not proceed
further with the matter. Sub-section (1) of section 7 runs as under:

(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.

The plain reading of the sub-section indicates that the order should be made only if the court is satisfied. The
question of court’s satisfaction is separate from the question of the welfare of the minor. Thus, the requirements
are two: satisfaction of the court, and the welfare of the minor.2 In Chandrawati v. Jagannath Singh,3 where the
husband died leaving behind a commission agency business and landed property, the court finding that his
widow was too young and inexperienced, considered it necessary to appoint a guardian. It has already been
seen that the court has considered it unnecessary to appoint a guardian of the minor who is about to come of
age.4

In Mst. Fatima v. Darwez,5 the court, rejecting the application of the grandfather for the guardianship of a minor
who was in the custody of the mother, said that the court was not bound to entertain every application and on
scrutiny if it found that there was no necessity for appointing a guardian, it would refuse to do so. In Mohammed
Yakub v. Radhi Bai,6 on account of the change of religion by the father, the mother separated from him and
applied for appointment of herself as guardian of the minor children. She was appointed guardian, but while the
case was before the appellate court, the mother reconciliated with her husband, the court, reversing the order,
said:

I think we should allow the family to resume its normal life and should refrain from passing any order which might
disturb the harmony of the family by impairing the authority of the father as head of the family.

The court would not appoint a guardian if the real purpose of applicant is just to secure possession of the
minor.7 In Hayat Khatun v. Sharam Khataun,8 the Punjab Chief Court said that a court should refuse to take
proceedings under the Act if they involve an unnecessary interference with the family arrangements which are
quite satisfactory. In Fatima v. Rani,1 the court said that it is not for the court to accept each and every
application made for he appointment of the guardian. If it is not necessary to disturb the status quo, the court
should reject the application.2 In Khazana v. Lakshmi Das,3 the court said that when the dispute is confined to
the validity of the marriage of the minor, and the matter is not free from difficulty, the court instead of
proceeding with an application under section 7 should refer the parties to a regular suit. In Usaf Ali v. Alibhoy
Manoonji,4 the Lahore High Court said that an appointment of a guardian is not necessary when the previous
family arrangements are quite satisfactory.5
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The Madras High Court said if the mother of a minor is competent it is not necessary that a guardian should be
appointed.6 It is not necessary to appoint a father who is a natural guardian of his minor children as guardian
as it would not add anything to his rights.7 In Sahadra v. Ramadin,8 where no guardian was needed for the
protection of the person of the minor who was being properly looked after and minor had no property of which a
guardian could take charge of, the court held that no appointment was necessary.

In Khuda Baksh v. Lal,9 two persons claiming to be the guardian of a minor girl filed a suit for declaration as
guardian of the person of the minor, the court decided the case in favour of the one of them but directed that he
would get custody on her attaining majority. The one in whose favour the suit was decided filed an application
for appointment of guardian under section 7. The court rejecting the application said that such tactics are not to
be encouraged.

Thus, the court would not pass an unnecessary, premature or infructuous or superfluous order. Though the
courts have taken the view that an order which is unnecessary shall not be passed, in our submission it is one
link in the chain of the process of finding out whether in a given case appointment of guardian would be for the
welfare of the minor. Whether an appointment of a guardian is necessary or not can be, in some cases,
determined even by a preliminary enquiry. And if in that enquiry the court comes to the conclusion that such an
appointment is not necessary, the application can be dismissed forthwith. But then, in such a case the
appointment of guardian will also not be for the welfare of the minor.

An appointment or declaration of a guardian under section 7 can be made only if the court comes to the
conclusion that such appointment is for the welfare of the minor.
11. Welfare of the Minor

Sub-section (1) of section 7 lays down that in appointing or declaring a guardian of the person or property of the
minor the court should be satisfied that ‘it is for the welfare of the minor’. Section 17 of the Act deals with
‘matters to be considered by the court in appointing guardian.’ Sub-section (1) of section 17 runs:

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.

On a plain reading of this sub-section, it seems that the consideration of the welfare of the minor is conditioned
by (a) the personal law of the minor, and (b) by the other provisions of the section, i.e. sub-sections (2), (3) and
(5). Sub-section (5) contains a general provision which should not have been placed along with other matters
under section 17. That sub-section provides that the court ‘shall not appoint or declare any person to be a
guardian against his Will.’ This is the basic principle that the guardian appointed by the court must accept his
appointment, if he does not, however, suitable and proper he may be, the court cannot saddle him with any
responsibility. It is the other provisions which have given some real difficulties to the court in saying that the
welfare of the minor is paramount consideration. As the section stands, the welfare of the minor is only one of
the several considerations. Sub-section (1) clearly lays down that the welfare of the minor should be consistent
with the personal law of the minor. The court have some real difficulty in getting over this provision.1 Then the
provisions of sub-sections (2) and (3) are also to be taken into consideration. Sub-sections (2) and (3) run as
under:

(2) In considering what will be 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 the deceased parent, and any existing or previous relations of the
proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the court may consider that preference.

While consideration of age, sex, and religion of minor can have relevance only in reference of appointment of
guardian of the person of the minor, the character and capacity of the proposed guardian is a matter which the
guardian court could have always to take into account in every case. The nearness of kin and the wishes of the
deceased parent may help the court to find out what is for the welfare of the minor, but there is nothing
sacrosanct about them. Being a relation of the minor is no qualification per se, though it may be an important
consideration before the court. Sub-section (3) provides that the wishes of the minor may be taken into
consideration.
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It is heartening that the courts by interpretation have almost succeeded in subordinating all these
considerations to the consideration of the welfare of the minor,1 though courts still finds it difficult to get over
the provision that the welfare of the minor should be consistent with the personal law of the minor. In our
submission, reference to minor’s personal law should be deleted from the section. It is submitted that the law
relating to guardianship and minority is one of the branches of law which is ripe for providing a uniform law to all
children. Section 17 should lay down that in appointing or declaring the guardian of the minor the welfare is the
foremost and paramount consideration, though the court may take into consideration other factors which may
help it to find out what is for the welfare of the child in a given case. In our submission the amended section 17
may run as under:

(1) In appointing or declaring guardian to the person or property of a minor, the court shall consider the
welfare of the minor as the paramount consideration.
(2) In considering what is for the welfare of the minor, the court may, subject to the provisions of sub-
section (1), take into consideration the right of guardianship of any person, the character and capacity
of the proposed guardian and his nearness of kin to the minor, the wishes if any, of the deceased
parent and any existing or previous relationship of the proposed guardian with the minor or his
property.
(3) In appointing the guardian of the person of the minor, the court may, also subject to the provisions of
sub-section (1), take into consideration the age, sex, religion and the wishes of the minor.

12. Need Minor have Property

Is it necessary for the appointment of guardian that minor should have some property? In In re, Jagannathji
Ramji,2 Sterlin, J., said that the Court of Chancery always had power of appointing guardians to infants on a
proper case being made out, whether such infants have property or not. And this power is possessed by the
High Courts.3 This case was followed by the Calcutta High Court in Walter v. Walter.4 The Bombay High Court
in Virupakshappa v. Nilgangava,5 and that the ‘Act does not contemplate the appointment of a guardian of the
property of a minor unless the minor is possessed of property capable of being taken care of by an appointed
guardian.’ This was a Full Bench judgment. However, the main issue before the court was whether it has power
to appoint a guardian to the minor’s share in the Mitakshara property. Again, in Sharma Rao v. Shashikant, the
court considered the question and referring to the judgment in In re, Jagannathji Ramji,1 the court observed:

There is no doubt that the Court of Chancery has always had the power of appointing guardians to infants on a proper
case being made out whether such infants have property or not.......though it is ordinarily not necessary for a court to
interfere in cases where there is no property.

The Oudh Chief Court considered the question in Ram Narayan v Mst. Goura,2 and said that it is not an
essential preliminary to taking proceedings under the Act for the appointment of a guardian that the minor
should be shown to be possessed of property and it is not necessary that the applicant as next friend of the
minor should at first establish the right of the minor to the property in dispute. But in Hasan Bi v. Nek Alam,3 the
Lahore High Court took a different view. According to it, before appointing a guardian of the property of a minor,
an enquiry, however, summary on the question whether the minor has any property and if so, what, must be
made and a person should not be appointed guardian of property without specifying what it is. On the other
hand, in re, Gulbai and Lilabai,4 the court appointed two persons as joint guardians of two minors who had no
property of their own on the condition that they would deposit a sum of Rs. 4000 for the marriage of the two
minor girls and appointed another person as the guardian of the property (i.e., in respect of the sum of Rs. 4000
to be deposited by the joint guardians) of the minors.

In our submission the court has power to appoint a guardian of the person of the minor even if the minor has no
property. The court has also power to appoint a guardian of the property of the minor, even if the minor has no
property, but then in such a case the court would decline to exercise its jurisdiction. But if minor has some
property or there is a real expectancy of his getting some property, the court may appoint a guardian if it thinks
it necessary in the welfare of the minor. Each case has to be decided on its own facts.
13. Guardianship of Property

In appointing the guardian of the property of a minor, the welfare of the minor is paramount consideration. Just
as in the case of guardian of the minor’s person, the court would appoint a guardian of the property of the
minor, only when it considers such an appointment necessary.
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The court can, broadly speaking, appoint the guardian of any property of the minor, except in the case of a
Hindu minor his interest in the joint family property. A Full Bench of the Andhra Pradesh High Court in Kanteti
Sasturulu v. Mdupalli Venkateswara,5 observed that the word ‘property’ is a term of far-reaching conception. It
is comprehensive enough to include all types of proprietary rights. The court said:

In our judgment, the term ‘property’ in section 7 of the Guardians and Wards Act is used in a generic sense. It has a
wide connotation and is not restricted to the kind of property in which the minor has a beneficial enjoyment. A guardian
could be appointed to the property of a minor, irrespective to the nature of the property. The section seems to
contemplate appointment of guardians in respect to all types of property.

We do not think that the enjoyment is an essential element to constitute ‘property’ within the purview of the Act.
He need not own it or hold any interest therein by virtue of title.

In our submission the aforesaid observations give a correct meaning to property.

14. Trust Properties and Beneficial Interest

The Madras High Court in Venkatchasapathi v. Pandora,1 where a minor was a Dharamkarta of a Muth, held
that a guardian cannot be appointed of the muth properties which are trust properties, as in such properties,
minor has no ownership. This case was followed in Vardhachariar v. Raja Ramkrishnamba,2 and Alagathai v.
Magathai.3The former case, Spencer, J. said that the Guardians and Wards Act contains no provision
empowering the court to appoint a guardian in respect to trust properties. The same view was taken by the
Patna High Court.4 These cases were considered by a Full Bench of the Andhra Pradesh High Court and the
Bench observed that these cases did not embody the correct law and said that the office of the hereditary
trusteeship was recognized as property for certain purposes in Hindu law and therefore a guardian could be
appointed in respect of it.5 The present writer is in respectful agreement with this view.

The same position operates in respect to the properties in which the minor merely has a beneficial interest until
he comes of age. However, the Allahabad High Court in Ashraf v. Jai Narayanan,6 said that where the estate is
in actual possession of trustees on behalf of the minor, the minor having only a beneficial interest until he
comes of age, the court has no jurisdiction to appoint a guardian in respect to such property. On the other hand,
the court in Ezaz Ahmed v. Khatum Begum,7 where minor became a Mutawali of a wakf which was partly for
the benefit of the minor (for alal aulad) and partly for a public purposes, said that a guardian could be appointed
in respect to the interest of the minor so that the benefit thereof is secured to the minor.8

The Madras High Court in Alwar Ammal v. Narayana,1 dissenting from the decision in Ashraf v. Jai Narayan,2
said that it was permissible to appoint a guardian of minor’s estate which was not in possession of the minor but
in that of an executor, though executor’s possession cannot be disturbed. The court did not follow the English
case, In re, Marquis of Salisbury,3 where contrary view was taken. In Ashraf v. Jai Narayan,2 the court followed
In re, Marquis of Salisbury.3 In Lalit Kumar v. Dasrath,4 the Calcutta High Court also said that a guardian can
be validly appointed of the properties of a minor which are in the hands of an administrator to his father’s
estate, because the appointment of administrator does not mean that the minor has no properties. Earlier in
Ganga Prasad v. Hari Kanta,5 the court took a different view. The court held that if the properties to which
minor is entitled to, are in the hand of the executor no guardian can be appointed as they cannot be considered
to be the properties of the minor until the office of the executor terminates.

In our submission the prime consideration for appointment of guardian of property of minor being welfare of the
minor, the court should appoint a guardian whenever the minor’ interests and need protection. Mukerjee, J., in
Lalit Kumar v. Dasrath,4 said that the executor or administrator holds the estate only in a representative
capacity and takes no beneficial interest, therefore, such properties belong to the minor, even though they may
not be in his present possession. Sanderson, C.J., put in more succinctly by saying that a beneficial interest
was sufficient to give court jurisdiction to appoint a guardian of minor’s property.
15. Disputed claim

Can a guardian be appointed in respect to a property over which the claim of minor is disputed? In Banmali v.
Arjun Sen,6 the Calcutta High Court said that it cannot be for the welfare of the minor to appoint a guardian of
his property until the court, is satisfied that there is some separate property to which the minor is entitled, for, to
hold otherwise would be to encourage frivolous litigation resulting in a state of thing highly detrimental to the
minor’s interest. In this case the dispute was whether the property of the deceased father of the minor in
respect to which the appointment of guardian was sought, was his separate property or Mitakshara joint family
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property. In Thiruvenkatasami Naidu, v. Ranganathan,7 where a debtor of a minor deposited a sum of money in
the court and prayed for the appointment of a guardian in respect to this amount; minor’s claim in respect to this
amount was disputed. The court said that it has jurisdiction to appoint a guardian; the mere fact that the claim is
disputed is not enough to oust the jurisdiction of the court. Rather, to enable the minor to establish his claim in a
regular suit, appointment of a guardian is necessary. The Lahore High Court in Mirimal v. Kanshi Prasad,1 on
almost the same fact took the same view. The court observed that it was sufficient for the appointment of
guardian of minor’s property if the minor has a prima facie claim to it. In Ram Narayan v. Mst. Goura,2 the court
said that if someone disputes the claim of the minor to property that is no reason for not appointing guardian of
minor’s property; under the Act it is not necessary that the minor should be shown possessed of property. In
Garuppa Shiegenappa v. Tayawa Shiddappa,3 the Bombay High Court seems to lay down that a guardian of
minor’s property may be appointed if it is shown that the minor is entitled to some property.4

In our submission if it is prima facie established that a minor is entitled to the property, the court should exercise
jurisdiction under section 7 of the Act and appoint a guardian of the property of the minor. But if no prima facie
case is made out the guardian should not be appointed, and the minor should be left to ordinary remedy of a
suit, as the guardian court cannot make a lengthy enquiry5 which such a case would involve.
16. Nature of the Order under section 7

In passing order under section 7 appointing a guardian of the person or property or both of a minor, can the
court order, or issue directions, in respect to collateral matters?

In Mansa Ram v. Naurati,6 the guardian court appointed a collateral of minor’s father as her guardian and
directed that the step-mother, who had succeeded to the property of minor’s father, should pay Rs. 10 p.m. for
the maintenance of the minor and that the maintenance and marriage expenses of the minor were to be the first
charge on property, the Lahore High Court held that there was nothing in the Act which entitled the court to
order a third person to pay for the maintenance of the minor.7 In Mohan Lal v. Anah Kaur,8 the Allahabad High
Court said that while appointing a guardian of a minor, the court cannot issue directions to the rival party for
depositing minor’s money in his possession in the court. In Mehant Devi v. Madho,9 the High Court said that
while coming to the conclusion that the applicant is not a suitable person for appointment of guardian, the court
should not assume uncalled for jurisdiction in other matter, like declaring an alleged marriage of the minor void,
or calling for security from a third person. In such cases the court should simply dismiss the application. In
Chandsika v. Shrikanta,10 the court said that it has no jurisdiction, to pass an order against a person who was
in possession of minor’s property prior to the appointment of the guardian even if such a person is a trespasser.
However, the court may direct the guardian to file a suit against the trespasser for the recovery of property.1

On the other hand, the court has jurisdiction of passing orders or issuing directions in respect to such matters
as access to the other party or other relations of the minor, for deposit of securities and expenses. In Kaliappa
v. Valliammak,2 while appointing the mother as guardian of the minor, the court also ordered that the father
should be allowed to take the minor for three days in a quarter and that he should have access to the child at all
reasonable time. In In the matter of Harunessa,3 a guardian was appointed of a minor married girl with the
direction to the guardian that he should appoint a female attendant to her and should allow at all reasonable
times the female relatives of the minor to have access to her.
17. Court can Order to Furnish Security

Section 7 of the Act gives wide powers to the court in making an order on terms which it may deem necessary
in the interest of the minor. Section 34 also empowers the court to ask for security from the guardian of property
of the minor. A question has arisen whether the order asking for security comes under section 7 or section 34?
An order under section 7 is appealable while an order under section 34 is not.

In Harendranath v. Ardhendu Kumar,4 the court appointed guardian of two minors and asked for security.
Whether the order was under section 7 or section 34 came for consideration before the Calcutta High Court.
The court observed:

The order has been made under section 7 of the Guardians and Wards Act, which in widest possible terms entitled the
court to impose such conditions as may be necessary for the protection of the person or property of the infant. Section
34 obviously has no application. That section merely defines the obligations of the guardians of property appointed or
declared by the court.

The Madras High Court, on the other hand, took a different view in Gopammal v. Sreenivasa,5 and said that an
order for security is under section 34 of the Act.6 Following this judgment, a Full Bench of the Madras High
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Court in In re, Venkatesh Perumal,7 held that no security could be called for, till a guardian is appointed.
Divatia, J., of the Bombay High Court in Jaya Sing v. Pratap Sing,8 differing from the view of the Madras High
Court, observed:

The court may not make an order of security at all, and the legislature could not have intended that if the order is to be
made, it can only be made after appointment. With great respect to learned Judges of the Madras High Court it is
difficult to appreciate the reasoning of the Full Bench decision in In re, Venkatesh Parumal that the court has no power
to impose a condition of security upon a person who is merely an aspirant to the office of guardianship before it
actually appoints him. The condition, in my opinion, cannot be called a suspensor condition unwarranted by the Act. To
call it suspensory is to assume that there must always be first an order of appointment which is to be suspended by the
condition. The condition does not suspend the order but makes it operative only on the fulfilment of the condition.

With this observation the present writer is in respectful agreement. In our submission the difficulty that Madras
High Court seems to have felt in the above cases was that it took the view that an order of appointment of
guardian is made under section 7 and security is asked for under section 34. In that view an order of
appointment should precede the order asking for furnishing of security, as section 34 can come into operation
only when there exists a guardian duly appointed. The court could not think that security can also be asked
under section 7, as in its view that section 34 would lose all significance. In our submission, first, the court is not
bound to ask for security in every case; secondly, the relative position of section 7 and section 34 is that under
the former section the court can ask security at the time of appointment of guardian, while if the court has not
asked for security under section 7 at the time of appointment, but later on it feels it necessary then the court
can ask for it under section 34 (as then it cannot do so under section 7); and thirdly section 7 is wide enough to
empower the court to pass any order in the welfare of the child and for that it can pass a conditional order of
appointing a guardian. The appointment then comes into effect on furnishing security.

Another question that arises is; from which date the order appointing guardian is effective? An order appointing
a guardian may take three steps: first, a simple order when no security is asked for; second, the court may
appoint a person guardian, and may give him time to furnish security; and third, the appointment may be
conditional on his furnishing security. In the first two cases the order is effective from the date it is made, though
in the second case if security is not furnished within the time, the order would stand cancelled. In the third case,
the order will be effective only on the furnishing of the security.

In Sham Dass v. Umar Din,1 the court appointed a guardian subject to his furnishing security. The proposed
guardian died without furnishing any security. The court held that order did not become effective, as the
condition precedent to the appointment of guardian was not fulfilled; the order never took effect and the child
did not become ward. In Jay Sing v. Pratap Sing,2 the father of a minor was appointed guardian on the
condition of his furnishing security.

The father did not furnish security and the order was cancelled. Stone, C.J., observed:

But I prefer to approach it upon the basis that as no security was given, and it remained unimplemented by any
subsequent order of certificate, the original order never become operative and the minor never become a ward before
completing his eighteenth year.

But for the order becoming effective, it is not necessary that certificate must be issued. If an unconditional order
appointing a person a guardian is passed, then the order becomes effective immediately, and it is immaterial
that the certificate was issued after some time.1
18. Consequences of Appointment of Guardian: Sub-section (2)

Sub-section (2) runs as under:

An order under this section shall imply the removal of any guardian who had not been appointed by Will or other
instrument or appointed or declared by the court.

The sub-section provides that an order appointing a guardian under section 7 would by implication terminate
the guardianship of all persons who had the care of the minor before the order was made except a
testamentary guardian, guardian appointed by an instrument, and a guardian appointed by the court. The
guardianship of these latter guardians can be terminated only by removing them under the provision of the Act.
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In Sita Bai v. Radha Rai,2 the court said that appointment of a statutory guardian under section 7 ipso facto
removes a de facto guardian.

The result is same in respect to a natural guardian.3 In Arumugam v. Duraising,4 the court said that where a
guardian of property is appointed under the Act, no person other than such a guardian can deal with minor’s
property; his powers are exclusive. In this case after the appointment of a guardian by the court the natural
guardian purporting to act as such mortgaged some of minor’s properties, the court held that the mortgage was
null and void and even the minor could not ratify it on attaining majority. In Jivan v. Sallendra,5 the court said
that once a guardian is appointed by the court it implies removal of the natural or de facto guardian and such
removal results in a permanent cessation of his powers. Even after the death of the certificated guardian such
guardian cannot be clothed with the capacity of acting as guardian over again.6

An order passed on an application under section 7 or section 10 cannot be called a decree.7 A judgment
passed under the Act is not a judgment in rem and a certificate or guardianship is not admissible in evidence to
prove the minority of a person.1

Even a final order under section 7 or section 10 is not final in the sense that it cannot be revoked. On a change
of circumstances shown, the order can be changed.2
19. Declaration of Guardian

Under section 7 of the Act the court can appoint a person a guardian of the person or property or both of a
minor, and it can as well declare a person to be the guardian of the person or property or both of a minor. That
is to say, if a person is already in de facto guardianship of a major, the court can declare such a person as
guardian. Under this section a testamentary guardian or a guardian under a deed or instrument can also be
declared as such, but not a natural guardian.3 A declaration of a guardian amounts to recognition of a person
as guardian of the minor.4 Considerations for declaring a person guardian are the same as for the appointment
of a guardian.
20. Bars to Appointment: Section 7(3) and section 19

Section 7(3) and section 19 lay down bars to the appointment or declaration of guardian by the court. Under
sub-section (2) of section 7 appointment of a guardian by the court results in the removal of a guardian other
than a guardian appointed by a Will or other instrument. A testamentary guardian or a guardian appointed
under a deed should first be removed under section 39 or section 41 then only the court can exercise its
powers under section 7. Under section 19 the court cannot appoint a guardian in respect to the person of a
minor unless it comes to the finding that the natural guardian is unfit. Similarly it cannot appoint a guardian in
respect of a minor who is a ward under the Court of Wards law.
21. Sub-section (3)

It has been opined in some cases5 that the sub-section would apply only if the Will is in writing otherwise the
sub-section has no application. This view has been taken on the basis that the word ‘Will’ in section 7(3) is in
such intimate collocation with the words, ‘other instrument’ that by Will the Legislature intended a written Will. In
our submission, if under any law an oral Will can be validly made (for instance in some cases under Muslim law
and the Indian Succession Act), the court cannot exercise its power under section 7

The Bombay High Court in Sayad Shahu v. Hafija Begam,6 said that whenever a person claims to be appointed
a guardian under a Will, the court cannot disregard his claim and appoint another without ascertaining that in
fact there is no valid Will. In Sarla Sundri v. Hazari Dari,1 the Calcutta High Court said that the court is bound to
take notice of a Will even if no probate of it has been obtained.2 The fact that no probate was taken may induce
a court in deferring the question of guardianship until the question of probate has been determined, but it
cannot refuse to take notice of the Will.3 It may pass an interim order granting custody to someone, but it
cannot disregard the Will just because no probate has been taken.4 In Pathan Ali Khan v. Bai Pan Bai,5 the
court said it is not incumbent upon a testamentary guardian to obtain a probate.6

So long as there is a testamentary guardian existing and he has not been removed by the court, the court
cannot appoint another person just because he is a near relation of the child.7 In Manubai v. Sakhuba,8 a
person applied for the appointment of guardian of the property of the minor. There were already two
testamentary guardian. The trial court appointed one of the testamentary guardians as the guardian of the
person of the minor and appointed court nazir as the guardian of the property. The High Court held that this
cannot be done unless the testamentary guardian was found incompetent and removed. In in re, Dunkley9 the
court took the same view.10
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Even the High Court cannot appoint a person as guardian of the person or property of the minor under its
inherent powers if there exists a testamentary guardian or guardian appointed under a deed who has not been
removed.11

However, if there exists a testamentary guardian of the person of the minor, there is no bar for the appointment
of a guardian of the property of the minor.12Similarly, if the appointment under the Will is invalid, there is
nothing to prevent the court from appointing a guardian. Thus, where a Hindu mother having no power to
appoint a testamentary guardian (this was the position before the Hindu Minority and Guardianship Act, 1956)
of her children, appoints a guardian, the court can disregard the testamentary guardian and appoint another
person as guardian of minor.13 In Dhanpatram v. Prem Singh,14 an uncle having no power of appointing a
guardian to his nephew under Hindu law appointed a testamentary guardian, it was held that the court has
power to appoint a guardian without removing the testamentary guardian.

Sub-section (3) cannot be interpreted so as to mean that before an application for appointment of guardian is
made, the testamentary guardian must be removed. An application for appointment of a guardian can be made
with a prayer that the testamentary guardian be removed.

In our submission the limitation laid down in sub-section (2) is not necessary. This sub-section, it may be
recalled, lays down that an order appointing or declaring a person as guardian implies removal of the existing
guardian except a guardian appointed by a Will or other instrument. If there exists a testamentary guardian or a
guardian under any deed, then the court must first remove, and then only it can appoint or declare another
person as guardian. This would mean that unless a case of removal is made out under any of the clauses of
section 39 against the testamentary guardian or he ceases to be guardian under section 41, the court has no
power to appoint or declare any other person as guardian. And the court cannot appoint another person as
guardian in such cases even if under section 7 of the Act it considers such appointment is in the welfare of the
minor. In our submission the purpose of removal of a guardian under section 39 is that follow-up action against
the guardian for the acts of his omission or commission, such as for losses caused to the minor on account of
his mismanagement, misappropriation, negligence, etc., can be taken. But suppose no case can or need be
made out against the testamentary guardian and the court feels that it is necessary in the welfare of the minor
that another person should be appointed a guardian. The court cannot do so, till the testamentary guardian is
removed. In our submission any law relating to guardian should not deny this power to the guardian court. The
fundamental purpose of law of guardianship is the protection, preservation and promotion of the interest of the
minor. The fundamental basis of the law of guardianship is the welfare of the minor—the social interest involved
in the protection in infancy. If that is so, the guardian court should have power to appoint a guardian whenever it
deems it necessary in the welfare of the minor and whenever the guardian court appoints a guardian it should
amount to removal of the existing guardian, de jure or de facto testamentary, natural or any other. It need not
be emphasised that when the guardian court appoints a guardian in the presence of an existing natural
guardian, or testamentary guardian it would need a very strong case of welfare being made out for the
appointment of another person as guardian.

In view of the above in our submission sub-section (3) of section 7 should be deleted from the section, and sub-
section (2) should be remodelled as under:

“(2) An order under this section shall imply removal of any guardian, de jure or de facto.

22. Section 19(c): Courts of Wards

In the statement of Objects and Reasons to the Guardians and Wards Bill it was stated:

The jurisdiction and authority of the Court of Wards are expressly saved and will not be in any way affected by the
proposed law.”

This has been implemented by a provision in section 3 which provides that the Guardians and Wards Act shall
be read subject to every enactment heretofore or hereafter passed relating to any Court of Wards by any
competent legislature, authority or person in any State to which this Act extends. Section 19 provides that
‘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 of a minor whose natural guardian, (father or husband) is not unfit.
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The object of this provision is to avoid conflict of jurisdiction. In clear and unequivocal terms, the provision lays
down that if the property of a minor is under the superintendence of the Courts of Wards, the guardian court
has no jurisdiction to appoint a guardian to the property of the minor. Similarly, if the property of a minor is
under the superintendence of the Court of Wards and if under the law relating to Court of Wards, the Court of
Wards have power to appoint a guardian of the person of the minor, the guardian court will not appoint a
guardian of the person of the minor. But if the Court of Wards has no such power, the guardian court can
appoint a guardian of the person of the minor. Thus in Nagawa v. Collector,1 it was held that since under
section 77 of the Bombay Courts of Wards Act, the Courts of Wards had power to appoint a guardian of the
person of the minor only when the person of the minor was also under the superintendence of the Court of
Wards, the guardian court has the jurisdiction to appoint a guardian of the person of the minor. While in In re,
Haji Mahomed,2 where the Court of Wards under the Sindh Court of Wards Act had the jurisdiction to appoint a
guardian of the person of the minor, the court on the application of a husband of a minor for appointment of
guardian whose property was under the court of Wards, held that it has no jurisdiction to entertain the
application.

The guardian court will have no jurisdiction to appoint a guardian of the minor, if minor’s property is under the
Court of Wards, but and if the property of his father or grandfather is under the Courts of Wards, the guardian
court can appoint a guardian of the person or property or both of the minor.
23. Abatement of Application

One of the view held by the court is that an application under section 8 is personal in nature and the right to sue
does not survive the applicant. On the death of the applicant the court has no power to proceed further. The
legal representative of the applicant cannot be brought on record for continuing proceedings.3On the other
hand, a view has been also expressed that right to sue survives the legal representative and an application for
substitution is maintainable under Order XXII, rules 1 and 2 of the C.P.C.

In Gangabai v. Kashibai, a person contested the application for appointment of guardian on the ground that she
was a testamentary guardian. But she died pending the proceedings. The Bombay High Court held that since
her action was purely of a personal nature it will not survive to her legal representative on the other hand, in
Samichelly v. Adarkalam, a paternal uncle claimed guardianship of the minor on the basis of his superior claim.
He died pending the appeal. It was held that his son could continue the proceedings.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
1 AIR 1955 Nag 193 .
2 AIR 1928 Sind 129 .
1 See Manmohan Devi v. Hari Prasad, AIR 1924 Pat 755 .
2 Section 7(1) of the Act.
3 K.P. Apagappa Ayyangar v. Manganthai Ammanagar, ILR (1917) 40 Mad 672 .
4 In the matter of petition of Nazirun, ILR (1860) 6 Cal 19 ; Ahmad Ali v. Raisunissa, (1913) 18 IC 985 : 17 CWN 429;
Mst. Kundan Begum v. Mst. Aisa Begum, ILR (1939) All 15.
5 Chandan v. Miramal, 1900 PLR 419; Bhagwanti v. Ram Chandra, (1911) 11 IC 478.
6 AIR 1939 Lah 221 .
1 Jaiwanti v. Gajadhar, ILR 38 Cal 738 (A Nazir of the court was appointed guardian by the district Judge The High Court
held the appointment ultra vires; ‘A court has no power to make an order appointing a guardian of a minor except on a
substantive application’. In this case the District Court did not hold any enquiry. See also Raloo v. Lal, 117 IC 901.
2 AIR 1939 Lah 221 .
3 AIR 1934 All 849 .
4 ILR 38 Cal 783.
5 See also Narsinghdas v. Hem Raj, AIR 1933 Lah 220, the court distinguished Salima v. Mohomed, AIR 1928 Lah 456 .
6 Patubala Dasi v. Kundalinidassi, 1955 NUC 813 (Cal); See also Norotam v. Mst. Tapersa, AIR 1934 All 849 : ILR
(1934) 57 All 208.
7 Hazi Hirji v. Kashim Kirji, 4 IC 603.
8 Islaman v. Maqbulan, AIR 1924 Oudh 126 ; Abbasi v. Sultan Hamid Khan, AIR 1955 (NOC) 3697 (MB). The cases,
Jalwanti v. Gajadhar, 38, Badar Baksh v. Jangbaz Khan, 135 PR 1893 and Johandad Khan v. Hasim, AIR 1931 Lah
212 taking the contrary view are not good law.
9 See section 17(5) which lays down that no person can appointed guardian against his will. See also, Narotam v.
Tapesra, ILR (1934) 57 All 208, where the court said that intimation of willingness is necessary though no singed
declaration as provided under section 10(3) is necessary.
1 Section 10(i)(k).
2 Puromasoondusee v. Tarasunderee, 9 WR 342.
3 AIR 1939 Mad 611 .
4 The Chief Justice followed his earlier view taken in Venkateswaran v. Saradambal, AIR 1936 Rang 67 .
5 Ulfat Bibi v. Bafati, AIR 1927 All 581 ; Seeyali Veettil v. Ovikanath, AIR 1946 Mad 110 [LNIND 1945 MAD 216]; T.
Sivasankara v. Radhabai Ammal, AIR 1939 Mad 611 followed in re, Dekohinamurti Mudaliar, (1969) MLJ 345; Saddiq
v. Wafati, AIR 1948 Oudh 51 .
6 Maria v. Michel, 3 MLJ 182.
7 Sarla v. Hazari, ILR 42 Cal 959; Ganesh v. Mst. Bhagirath, AIR 1936 All 368 .
8 Alagappa Ayyangar v. Mangathai Ammangar, (1916) ILR 40 Mad 672; Kaliappa v. Valliammal, AIR 1949 Mad 608 ; see
also Laxmibai v. Abdul Kadir, AIR 1923 Nag 129 .
9 Tahan v. Sadi, AIR 1923 Lah 601 ; in last case certain debts of the minor were to be discharged for which alienation of
property was necessary. The mother of the minor applied for appointment of herself as guardian of the person and
property of the minor, and the court granted her prayer.
10 (1975) 2 MLJ 95.
1 Earlier in this case the Supreme Court has ordered the custody of the eldest of the three minor children to the father
and of the other two to the mother, and left it open for the father to make any application under the Guardians and
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Wards Act at any time later on when children grew up:Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090
[LNIND 1973 SC 118].
2 AIR 1981 Raj 64 .
3 Rasulan v. Dilawar, AIR 1971 All 248 .
4 AIR 1987 MP 145 [LNIND 1987 MP 246].
1 Asha Lata Ray v. Society for the Protection of Children in India, ILR (1930) 58 Cal 15 .
2 AIR 1931 Cal 563 .
3 AIR 1955 VP 3, per Jagat Narayan, JC.
4 AIR 1930 Cal 391 .
5 ILR (1952) 1 Cal 46 .
6 The court relied on Turner v. Corney, 49 ER 677; De Mazar v. Phybus, 31 ER 332. The court held that it was not
competent for the court to appoint either an association or an incorporated body or even the holder of an office as
guardian of an minor.
7 Abdul Rehman v. Jagannath, AIR 1930 All 36, where Hindu Mahasabha was permitted to make an application.
8 Lakshman Singh v. Mahila Ashram, AIR 1955 VP 3 .
1 AIR 1934 Mad 496 [LNIND 1933 MAD 236].
2 AIR 1922 Bom 278 .
3 See K.R. Thangapandian v. Kachu Bomma Naider, AIR 1965 Mad 368 [LNIND 1965 MAD 1].
1 Kushobati v. Satya Narayan, ILR 34 Cal 569: when the office of the Deputy Commissioner and District Judge are held
by the same person, he in his capacity as District Judge can appoint himself a guardian in his capacity as Deputy
Commissioner.
2 Section 18 runs as under:
When a collector is appointed or declared by the court by virtue of his office to be the guardian of the person or property, or
both of a minor, the order appointing or declaring him shall be deemed to be to authorize 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.
3 See Halsbury’s Laws of England, 3rd Edn., Vol. 21.
1 Gopal Rao v. Shrawan, AIR 1923 Nag 36 .
2 Samad v. Dussandhi, 137 PR 1883.
3 Nahalo v. Nawat, ILR 1 All 428.
4 Ahmed Ali v. Raisunissa, (1913) 18 IC 985 : 17 CWN 429; See also Gopal Rao v. Shrawan, AIR 1923 Nag 36 .
5 AIR 1921 Lah 68 .
6 See also Mst. Mukabar and Fatima v. Karim, AIR 1923 Lah 283 where a father who has failed to pay maintenance to
his child in whose favour of a maintenance order under section 488, Cr. P.C. was passed, was held not entitled to the
appointment as guardian.
7 (1911) 11 IC 478.
8 (1910) 7 IC 702.
9 13 IC 898.
10 See also Sudha v. Makka, 54 IC 418; Ramai v. Rai Dutta, AIR 1940 All 314 .
1 AIR 1957 Pat 720 .
2 See Fakhruddin v. Biro, AIR 1926 Lah 393 .
3 AIR 1925 Lah 489 .
4 See para 2 of the commentary of this section.
5 AIR 1936 Pesh 63 .
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6 47 IC 817.
7 Bhagwana v. Ram Chandra, (1911) 11 IC 478.
8 (1915) 26 IC 524.
1 (1915) 38 IC 507.
2 See also Mahant Dass v. Madho, (1915) 31 IC 237; Totaram v. Ram Charan, ILR (1911) 33 All 222 ; Maka v. Sudhia,
(1920) 54 IC 418.
3 (1917) 42 IC 191.
4 AIR 1927 Lah 789 .
5 See Hyat Khatun v. Sharim Bhatum, 92 PR 1914.
6 K.P. Alagappa v. Mangathai Ammagar, ILR (1917) 40 Mad 672 ; see also Yeshwant v. Shivappa, AIR 1923 Nag 129 .
7 Sivashankar v. Radhabai, AIR 1939 Mad 611 (under Hindu law); Seeyati Vittal v. Owiknath, AIR 1944 Mad 110 (under
Muslim law).
8 13 IC 898.
9 2 LLJ 509.
1 Section 12.
2 ILR (1893) 19 Bom 96 (98).
3 24 & 25 Vict. C. 134. See also section 9 of the Guardians and Wards Act.
4 AIR 1928 Cal 600 .
5 ILR (1895) 19 Bom 309 .
1 ILR (1893) 19 Bom 96 .
2 AIR 1927 Oudh 68 .
3 AIR 1940 Lah 9 .
4 ILR 32 Bom 50.
5 AIR 1959 AP 232 [LNIND 1958 AP 121].
1 AIR 1917 Mad 9 .
2 AIR 1923 Mad 498 .
3 42 IC 273.
4 Kilby v. Mt. Bahuria, ILR (1922) 1 Pat 432 .
5 Kanteti Sasturulu v. Mdupalli Venkateswara, AIR 1959 AP 232 [LNIND 1958 AP 121].
6 (1910) 6 IC 862.
7 ILR (1917) 39 All 288 .
8 The appointment was made by the court either till the coming of age of the minor or till the institution of a regular suit by
some person interested in the wakf.
1 AIR 1921 Mad 328 .
2 (1910) 6 IC 862.
3 20 Eq Cases 527.
4 ILR 48 Cal 802.
5 7 IC 234.
6 AIR 1932 Cal 730 .
7 AIR 1934 Mad 496 [LNIND 1933 MAD 236].
1 (1926) 93 IC 328.
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3 ILR (1916) 40 Bom 513 .

4 This view is expressly dissented in Banmali v. Arjun, AIR 1932 Cal 730 .
5 See Hasan Bai v. Nek Alam, AIR 1940 Lah 9 ; Garuppa Shiegenappa v. Tayawa Shiddappa, ILR (1916) 40 Bom 513 .
6 AIR 1925 Lah 427 .
7 See also Kundanlal v. Bhagwati Saran, AIR 1939 All 1043 .
8 24 IC 518.
9 31 IC 237.
10 AIR 1929 All 597 .
1 See also Harbans v. Rajindra, AIR 1925 All 277 .
2 AIR 1949 Mad 608 .
3 27 IC 74.
4 24 IC 202.
5 34 IC 432.
6 It is interesting to note that judgments of both the judges, Sadashiva Aiyar and Moore, JJ., differs on many points from
Aiyar, J.
7 ILR (1925) 49 Mad 809 .
8 ILR (1945) Bom 449.
1 ILR (1930) 11 Lah 312 (FB).
2 AIR 1945 Bom 449 .
1 Mungniram v. Mohunt Gur Sahai, ILR 17 Cal 347 (This was the case under the old Act): Gopal Chandra Bose v.
Ganesh Chandra, (1905) 4 Cal LJ 112.
2 AIR 1919 Mad 189 .
3 Arumugam v. Duraising, ILR 37 Mad 38; Wallace v. Wallace, AIR 1919 Mad 189 ; Thakur Hanuman v. Ganesh, 50 IC
580.
4 ILR 37 Mad 38.
5 AIR 1946 Cal 272 .
6 Satya Dev v. Trieveni Persad, AIR 1936 Pat 153 ; Jivan Krishna Datta v. Salidenra, AIR 1946 Cal 272 ; Thakur
Hanuman v. Ganesh, 50 IC 580.
7 Wahid v. Juveda, AIR 1952 Nag 190 .
1 Muktipada v. Aklemama Khatun, AIR 1950 Cal 533 .
2 Mrs. Winifred Mcquillan v. Mrs. Winfred Chapman, (1920) 57 IC 13. See also Gajraj Singh v. Mt. Deohlu, AIR 1952 All
331 [LNIND 1950 ALL 102].
3 See section 19 of the Guardian and Wards Act, 1890.
4 Thiruvengadamier v. Perisami, 9 MLJ 24; Nanubai v. Sakhubhai, 2 IC 484.
5 Parvathi Ammal v. Elayaperummal, AIR 1922 Mad 70 .
6 ILR (1882) 27 Bom 560 .
1 ILR (1910) 42 Cal 953 .
2 Sayed Shahu v. Haphija Begum, ILR (1893) 16 Mad 380 ; Chinnasswamy v. Hariharbhadra, ILR (1894) 29 Bom 832 ;
Pathan Ali Khan v. Bai Pan Bai, AIR 1936 All 368 .
3 Amirathavakku v. Suribanabu, AIR 1938 Mad 757 [LNIND 1938 MAD 284].
4 Amirathavakku v. Suribanabu, AIR 1938 Mad 757 [LNIND 1938 MAD 284]. See also Ganeshji v. Mst. Bhagirathi, ILR
(1894) 19 Bom 832 ; In re, Dukley AIR 1927 Cal 389 .
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5 AIR 1936 All 368 .

6 This case was followed in Sarla Devi v. Hazari Dass, AIR 1916 Cal 324 .
7 Lalkhmichand v. Genda Mal, 39 PR 1892.
8 2 IC 484.
9 AIR 1927 Cal 389 .
10 See also Mule v. Dropadi, AIR 1952 MB 93 .
11 In re, Srish Chandra Singh ILR 21 Cal 206.
12 Etwaree v. Ram Narayan, 13 WR 230.
13 Venkayya v. Venkata, ILR 21 Mad 401.
14 (1911) 12 IC 452.
1 AIR 1924 Bom 157 .
2 (1914) 14 IC 944.
3 Badr Baksh v. Jangboz, 135 PR 1893; Gangabai v. Kashibai, ILR (1899) 23 Bom 719 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

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.

Comments

1. Scope

This section deals with the general jurisdiction of the court. It is the District Court which has been entrusted with
the jurisdiction to entertain all applications under the Act. The jurisdiction is on the basis of minor’s ordinary
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residence. This jurisdiction is apart from the special jurisdiction of the High Court which is preserved under
section 3. Please refer to our commentary on section 3.

Apart from this, section 4A empowers the High Court to confer jurisdiction on any officer exercising original
jurisdiction subordinate to a District Court. It also authorizes the judge of any District Court to empower any
such officer subordinate to him, to dispose of any proceedings under the Act transferred to such officer.

An application for custody of a minor child under section 25 of the Act has to be made to the district court within
the local limits of whose jurisdiction the minor child was ordinarily residing before he left or was removed from
the lawful custody.

The question of jurisdiction is determined by law and not by consideration of expediency or convenience or
choice of parties.1

The word “person” in expression of person of minor must be read to refer to minor as person and not
necessarily and exclusively the person of minor so as to include both guardianship of person of minor as well
as guardianship of property of minor.2
2. District Court

Section 4(4), the Guardians and Wards Act states that the District Court “has the meaning assigned to that
expression in the Code of Civil Procedure and includes a High Court in exercise of its ordinary original civil
jurisdiction.”3Section 2(4) of the Code of Civil Procedure lays down that “District” means ‘the local limits of the
jurisdiction of a Principal Civil Court of original jurisdiction (hereinafter called a District Court) and includes local
limits of the ordinary original civil jurisdiction of a High Court’. Thus, under the Guardians and Wards Act,
District Court means:

(i) High Courts on their original side in the presidency towns,

(ii) City Civil Court where it exists.4
(iii) The Court of District, and
(iv) A Court subordinate to a District Court on which jurisdiction has been conferred by the High Court, or
the District Judge.5

Unless a subordinate court has been specifically conferred jurisdiction, it cannot exercise jurisdiction under the
Act. Thus in Bapu v. Bhiwaji,6a civil judge in Berar who was invested with power to try original suits exceeding
Rs. 5,000 in value without any upward limit, passed an order appointing a guardian. It was held that he might
have been clothed with powers of a District Judge so far as the trial of original suits was concerned, but he
could not pass any order under the Guardians and Wards Act, 1890. In Chakrapanu v. Verahalamma,7 it was
held the agent of Agency Tracts could not pass any orders under the Act. This case was dissented in
Babubalendruni v. Chandrasekhara,8 where it was held that the agent, being the principal judge of the original
civil jurisdiction, had power to pass orders under the Act.9
3. Ordinary Residence

The term, ‘residence’ is an elastic word, of which no exhaustive definition can be given. It is differently
construed according to the purpose for which enquiry is made into the meaning of the term and the sense in
which it is used is controlled by reference to the object.10 The word “residence” has been construed to mean,
‘the abiding or dwelling’ in a place for some continuous time.1Interpreting the word ‘residence’ in Order V, rules
9 and 17, the Civil Procedure Code, Mukhherjee and Teunon, JJ. said that it means ‘the place where a person
eats, drinks, and sleeps or here his family or servants eat, drink and sleep’2 A residence is different from a
temporary stay or halt. These words mean normal regular settled home and not temporary or forced stay. If a
child is forcibly kept at a place it would not be ordinary residence.3 Thus, the word residence has essentially a
time element in it. Similarly, the words ‘to reside’ have been the subject of judicial consideration on diverse
occasions and in relation to variety of circumstances. It signifies ‘to dwell permanently or for a considerable
time,’ ‘to have settled abode for time,’ ‘to remain for a long time.’4

Under section 19 of the Guardians and Wards Act, it is not mere residence of the minor which gives the court
jurisdiction but it is ‘ordinary residence’. There is still no precise definition of the expression ordinary residence.’

In Mst. Lalita v. Parmatma Pd.,5 the mother of minor children removed them to Shadiabad where her parents
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resided. Before that they were living at Benares with the putative father. The Allahabad High Court held that
Benares was the place where the children should be deemed to have their ordinary residence. Ganganath, J.,
said, “The fact that a minor is found actually residing at a place at the time the application is made does not
determine the jurisdiction.” in Ramswaroop v. Chamanlal,6the mother removed the children from Chandausi,
where she along with the children was living with her husband, to Hathras a few days before the presentation of
petition by the father of children under section 7, the Guardians and Wards Act. The court said that when a
person leaves his place of residence for good and goes to another place without an intention of returning to his
place then it is the latter place which becomes his residence. It was observed, “The question of residence is
largely a question of intention. In the case of minors, no question of intention arises. But the court would take
into consideration their actual residence at the time of the application and regard that as their actual residence.”
Thus, the court held that the children were residing at Hathras. It seems that in the mind of the judges the
change of residence by the mother with an intention not to return to Chandausi weighed heavily and the learned
Judges therefore felt that it implied change of residence of children. But if that be true, in the presence of the
father, the mother has no authority to change the residence of the child by removing him to another place
without his permission. Then, at another place the learned Judges have equated ordinary residence with actual
residence. In fact it is on this basis that jurisdiction was assumed in the case. Mukherji, J., in Chandrakishore v.
Hemlata,7 seems to agree with the view taken in Ramswaroop but was of the view that as between father and
mother, it is the father who has the right to change the residence of the child. On the other hand, the learned
Judge expressly dissented from the observation in Ramswaroop that ordinary residence is equivalent to actual
residence and referring to Mst. Lalita said that ordinary residence has to be of some performance. Reliance
was placed on the observation of Madholkar, J., in Vimlabai v. Baburao,1 where the court said “When a man
has no permanent abode he must be deemed to reside where he actually resides. It follows that his children
must also be deemed to reside at the place where he happens to reside.” In this case the court took the
position that the residence of the child is the residence of the legal guardian, whether the minor is actually
residing there or not is immaterial. Thus residence is equated to domicile. In this case on account of some
difference with her husband, the mother left his house and went to her mother’s house at Nagpur. The father
got a job at Amrohi and was residing there since then. Sometime before the petition was filed, the father got the
children removed to Amrohi. The mother filed the petition at Nagpur District Judge’s Court. The court held that it
had no jurisdiction.

Where mother is dead the ordinary residence of minor would be where father lives.2 The child was living with
maternal grandfather. Jurisdiction would be at the place where child resided with father prior to his removal.3

The question again came for consideration before the Allahabad High Court in Kamla v. Bhanumal.4 Minors
were living with their parents at Gonda. After the death of the father, the mother left Gonda for good and settled
down at Roorkee for the education of her children. The paternal grandfather filed an application for appointment
of himself as guardian of children at Gonda, while the mother filed a similar application at Saharanpur District
Judge’s Court. The matter was referred to High Court, Bhargava, J., approved of the decisions in Ramswaroop
and Vimla and said that the question of ordinary residence depends upon the intention and after the death of
the father, the mother, being the natural guardian, has right to speak for the children. it was held that the District
Judge of Saharanpur had jurisdiction. This view was reiterated by the learned Judge in Jamuna Pd. v. Mst.
Panna.5

On the other hand, there is a long line of cases which takes the view that minor ordinarily resides at the place
where he is found. The Bombay High Court considered the matter in Robert Ward v. Velchand,6where after the
death of parents, a minor along with his brother, Laloo embraced Christianity and lived for three years in an
American Mission at Baroda. Laloo left the Mission and came to Ahmedabad to which place he removed his
minor brother from the Mission. Subsequently the child was brought back to the Mission at Baroda. Whereupon
Laloo put in an application under section 7, Guardians and Wards Act in the District Court at Ahmedabad.
Scott, CJ., said that the minor’s ordinary residence was Baroda where he lived for three years with the
exception of twenty-eight days that he lived at Ahmedabad.7

In those cases where minor has in fact not lived at any one place with any permanence and has lived for short
duration at two places, the Bombay High Court in Lakshman v. Gangaram,1said that of the two places where
minor lived longest may be taken to be his place of ordinary residence. In this case the child lived at Ratanagiri
with his mother and also lived for short duration at Poona with his father. On some disputes arising between the
parents, mother filed an application under section 7, the Guardians and Wards Act at Ratanagiri and a similar
application was filed by the father at Poona. At the time of filing of petition the child was with his mother at
Ratanagiri. The court said that residence is a matter of fact and not of presumption and if the minor was found
residing at two places, the place where he lived longest was the place of his ordinary residence.
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The test that minor ordinarily resides at a place where he is found was taken to its logical end in Chimanlal v.
Rajaram,2where after the death of her parents a minor girl was living with her paternal uncle at Kolhapur. She
was later on taken away to Poona by a maternal uncle who refused to return her and in this manner the girl
lived at Poona for eight months. The paternal uncle made an application under sections 7 and 25, the
Guardians and Wards Act at Poona. The court said that prior to the date of making of the application the minor
had been living at Poona for eight months, the minor’s ordinary residence was at Poona. Thus, the ordinary
residence was equated with the present residence. In Amrit Pal Singh v. Jasmit Kaur,3 the children were taken
out of matrimonial home at a place D. it was a case of inter parent kidnapping. This would not deprive the court
at place D of jurisdiction.

The Lahore High Court has taken a more realistic and rational view, viz., the place where a minor lives normally
in an ordinary way is his ordinary residence. In Nazir Begum v. Ghulam Qadir,4a minor was residing at Multan
with her parents till the death of her father, when with the consent of the mother, she was removed to
Bhawalpur State by one Mehin Bibi. On being not returned, the mother applied under sections 7 and 25, the
Guardians and Wards Act, 1890, in the court of District Judge, Multan. The Lahore High Court said that the
Multan Court has jurisdiction as the minor had all along lived there with the exception of a few weeks
immediately before the presentation of the petition.5 Similarly, in Goman v. Munsiram,6 under a separation
agreement, custody of minor children was entrusted to the father who was living at Rohtak. After leaving the
husband the mother was living at Ferozepur. The mother applied for the appointment of herself as guardian in
the court of District Judge, Ferozepur. Skempt, J., said that both the children were living at Rohtak and the
separation agreement was indicated that both the parents intended the ordinary residence of the children to be
at Rohtak, where the father resided. In Harbans Singh v. Vidhyawanti,7 under an agreement, the child was
entrusted to the custody of the mother and for six year the child resided at Moradabad where the mother was
living with her brother. The father was living at Amritsar. Both the parents remarried. The child was living at
Moradabad with his maternal uncle where he was put into a school and was well looked after. The Punjab High
Court said that the ordinary residence of the child was at Moradabad.

The Saurashtra High Court considered the question in Jhala Harpal Singh v. Bau Arunkunwar,1 where the
minor was residing with her mother at Bandanwara after the separation of her parents. The father, who living at
Jhalawad, made an application under section 25 in the court of District Judge, Jhalawad, Chhatpar, J., said that
mere factual residence at a place at the time of the presentation of the petition is not sufficient to give to court
jurisdiction. All the circumstances should be taken into consideration. On a Letters Patent Appeal, Shah, C.J.,
and Baxi, J., agreed with the observation of Chhatpar. J. The learned Judges said that the residence of the
legal guardian alone was not the determining factor. At the time of the application the ordinary residence of the
minor was at Bandanwara. An application made merely on the basis of the residence of legal guardian cannot
amount to ordinary residence of the child.

The Patna High Court also took the same view in Bholenath v. Sharda Devi,2where the mother, on account of
her ill-treatment by her husband, left with her child her husband’s home at Benares to her parent’s house at
Buxar. The father stealthily removed the child from Buxar to Benares. The mother made an application under
section 7, the Guardians and Wards Act in the District Court, Shahbad, (in which District Buxar was situated.).
Sinha, J., after a review of certain authorities,3 said that ordinary residence mean ‘the place where the minor
generally resides and would be expected to reside but for a special circumstances.’ The Punjab and Haryana
High Court has held that the place where mother resides would be the place where child shall be deemed to
ordinarily reside. It would not be possible for a hapless woman (mother) to prosecute the case from any other
place.4 The Rangoon High Court on almost similar facts took the same view in Maung Bathein v. Ma Than
Kin.5 In Lakshmi Devi v. Chandrakala Sarogi,6 the Patna High Court said that ordinary residence of a minor
should be understood independently of the properties of the minor including a family dwelling-house which the
minor might have never visited. The ordinary residence need not be the place where his house is situated. If
minor is living in a rented house, the place where the house is would be his ordinary residence. Where the
mother along with her minor children was living at her father’s house for more than a year having no intention to
return to her husband’s house, the court held that it was mother’s father place where the minor ordinarily
resides.1 In Harbans Singh v. Vidhyawanti,2 the Punjab High Court took the view that the place where the
mother sent her children for better schooling might be the place of ordinary residence of the minor. In Harihar
Prasad v. Suresh Jaiswal,3 the Andhra Pradesh High Court expressed the view that actual residence of the
minor was his ordinary residence and not the place where his natural guardian lived.

In Sarla Nayar v. Yoyanka,4 the child was living at Trichur with his father’s sister, where he was sent for
schooling. The father died. After father’s death the mother applied for custody in the district Court at Trichur.
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Sometimes nearabout the filing of the petition the child was removed by another sister to Bombay. Sankaran,
J., said that the ordinary residence means where the minor was ordinarily residing and would have continued to
reside but for the recent removal of the minor to a different place, and therefore, the place to which a minor is
removed near about the presentation of the petition cannot be said to be the ordinary residence of the minor.

In K.C. Sashidhar v. Roopa,5 the term “minor ordinarily resides” was held to mean that since the mother is the
legal guardian of minor of tender age her place of residence is the place where minor ordinarily resides. If the
child is forcibly removed from mother, the place of residence of mother would have jurisdiction to try the suit.

This is also the view of the Calcutta and Rajasthan High Courts. In In re, Lovejoy Patel,6 minors were residing
and attending school in the town of Calcutta, thereafter they were sent to Darjeeling for education and lived
there upto November, 1942 when on account of annual vacations they came to Calcutta and lived there upto
January, 1943 when they were removed by the opposite party to Circus Avenue, Calcutta which was outside
the ordinary original jurisdiction of the Calcutta High Court. The Calcutta High Court said that the removal of the
children near about the presentation of the petition cannot change the ordinary residence of the children. In
Keshwanand. v. Afroza Begum,7 the applicant was a resident of the State of Jammu and Kashmir and was
residing at the time of presentation of the petition at Lucknow, while respondents husband and wife, were
Pakistani nationals who were confined in the Central Jail at Jaipur. The minor in question Vinod Kumar alias
Ismail was with the respondents. The applicant alleging to be the father of the minor applied for its custody
under section 25, the Guardians and Wards Act in the court of District Judge, Jaipur. Wanchoo, C.J., had no
difficulty in saving that by no stretch of imagination minor could be said to be ordinarily residing within
jurisdiction of the district judge, Jaipur.

In Annie Beasant v. Naryaniah,1 where two minors were residing in Chingleput district with their father. The
father entrusted their custody to Mrs. Annie Beasant for the purpose of their education. Mrs. Beasant sent them
to the Oxford University. Subsequently the father filed an application under section 25 for the recovery of their
custody. The Privy Council said that it is impossible to hold that the children who had months before the
presentation of the petition left India with a view to being educated in England and were going to the university
in England could be said to be ordinarily residing in Chingleput.

Casual visit or a transitory stay does not amount to ordinary residence.2 The ordinary residence is not
equivalent to domicile3 though most of the cases in the Allahabad High Court seem to give this meaning to
‘ordinary residence’.4 In our submission it is not largely a question of intention.5 Nor is in every case the
residence of the father the ordinary residence of children.6 Ordinary residence is also not the same thing as
present residence.7 Similarly, if prior to the presentation of the petition, if the minor resided at two places, it
cannot be said the place where the minor resided longest is the place where he ordinarily resided.8 The place
to which the minor is removed a short while ago can, obviously, not be the place where the minor ordinarily
resided.9
4. Ordinary Residence is a Question of Fact and not of Presumption

“Ordinary residence” in every case is a question of fact and not a matter of presumption.10 In determining
ordinary residence, the court may take into consideration several matters, such as, duration, the character and
purpose of residence, and circumstances in which the minor is residing and any other relevant fact and
circumstance. Sometimes animus revertendi may also be taken into account.

In Badal v. Krishna Dhar,11 and Vimla Devi v. Maya Devi,12 the Calcutta and Rajasthan High Courts held that
the place where matrimonial home was situated was the ordinary residence of the minor though at the time of
the petition the child was residing elsewhere. The Rajasthan High Court observed that factual residence is not
ordinary residence. If the mother removes the child to another place without abandoning the matrimonial home
than place to which minor was removed would not be the place of the ordinary residence of the minor.1 The
residence has to be genuine.2 Obviously transitory is not ordinary residence.1

Ordinary residence is more than temporary residence, even though the period of temporary residence may be
considerable.3 In Mubarik Shah v. Wajeh-ul-nisa,4 the father of the minor child lived in Delhi as well as at Khan
Koda (Rohtak District). The child was born in Khan Koda but was brought to Delhi by her mother. The mother
died sometimes thereafter at Delhi at her relative’s house. The court held that ordinary residence of the minor
was not Delhi but Khan Koda. In another case where, the minor was residing with the mother for a period of
three years, it was held that the place where minor was residing with his mother was his place of ordinary
residence.5
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In our submission the question of ordinary residence is a question of fact, depending upon the circumstances
and facts of each case.6 It is the place where the minor ordinarily and normally resides. In the words of Sinha,
J., the place where the minor generally resides and would be expected to reside but for a special
circumstance.7 It is not equivalent to permanent residence, but ordinary residence must have some
permanence as distinguished from casual visit or transitory stay.

In an exceptional case where a minor may have two residence, it may not be easy to say at which place the
minor ordinarily resides. The Bombay High Court held that the place where the minor reside longest is the place
of his ordinary residence. In our submission it is too arbitrary a test. The Lahore High Court said that in such a
case he will be residing at place where his property is also situated. In our submission, that may be an
additional factor for consideration, but cannot be determining factor. In such a case it is submitted that minor’s
ordinary residence will be at both places though for the purpose of jurisdiction under section,8 it will be place
where minor is residing at the time when application is presented to the court.

In our submission the place where the minor resides in normal and ordinary way is the ordinary residence of the
minor. As Lord Denning9 said: so long as the parents are living together in the matrimonial home, the child’s
ordinary residence is the matrimonial home, and it is still his ordinary residence, even while he is away at the
boarding school.10 It is his base, from where he goes out and to which he returns. When the parents are at
variance and living separate and apart and by arrangement the child resides in the house of one of them, then
that home is his ordinary residence. A child’s residence cannot be changed by one parent without the consent
of the other. It may be changed only if the other parent acquiesces in the change—acquiescence may be
inferred, if the other parents does not bring an action within three to six months. No parent can change the
residence of the child by ‘Kidnapping’ it. In Ruchi Majoo v. Sanjeev Majoo,1 children were born of NRI parents.
Mother had brought them to Delhi and they were going to school there for the last 3 years. The father was
claiming coercion and duress but not ready to prove the same. The Court observed that living depends on
intention to make a particular place ones ordinary residence.
5. Guardianship of Minor’ Property

It is an internationally recognized principle that lex situs is the basis of jurisdiction in respect of immovable
property. Under section 9(2), the Guardian and Wards, Act, 1890, the jurisdiction to appoint a guardian of the
property of the minor is given to the District court (i) within whose jurisdiction the property of the minor is
situated, or (ii) within whose jurisdiction the minor ordinarily resides.

When the ordinary residence of a child is not known, the only basis of the jurisdiction would be the situs of the
property. In Md. Tripathi Kuwar v. Mst. Partapi, the minor was kidnapped and his whereabouts were not known,
the court entertained the petition on the basis of situs of property and appointed mother as guardian of property.
In a case, where the minor’s residence is at a different place and the property is situated at a different place,
then an application for the appointment of guardian of the person as well as of property can be made only at the
place where the minor has his ordinary residence. In such a case if the application is made to the court within
whose jurisdiction the property is situated, then the court may either appoint the guardian of the property alone,
or may return the petition for the presentation to the proper court.2 But in a case where the petition is made for
the appointment of guardian of both person and property in the court within whose jurisdiction the minor has his
ordinary residence then the petition cannot be returned. No petition can be entertained on the basis of the
residence of the petitioner or of the proposed guardian.3 Residence of the applicant is immaterial. Nor is it
necessary that the applicant or the proposed guardian should also be residing within the jurisdiction of the
court.4
6. Return of Application for Disposal to the Court having Jurisdiction

Sub-section (3) of the section lays down that if an application with respect to the guardianship of the property of
a minor is made to a District Court other than 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 and
conveniently by any other district court having jurisdiction. This sub-section related to application for
guardianship of the property of the minor and not of the person. This sub-section visualises two situations:

(a) When the application is made at the palace where the minor ordinarily resides or where his property is
situate; and
(b) When minor’s property is situated in more than one district and an application is made in one of these
districts.
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The sub-section visualizes the transfer of such an application to a forum which is most convenient. Thus an
application presented to a District Court having jurisdiction because the former court feels that it can be
disposed of more justly and conveniently by the latter. This also means that if an application is made to a
District Court which has no jurisdiction, then the question of transfer of the application does not arise. Such an
application is not be dismissed.1

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

* For Statement of Objects and Reasons, see Gazette of India, 1886, Pt. V, p. 77; for Report of the Select Committee,
see Gazette of India., 1890, Pt. V, p. 77; and for Debates in Council, see Gazette of India, 1886, Supplement, pp. 419
and 666, and Gazette of India, 1890, Pt.VI, pp. 33 and 45.
This Act has been declared to be in force in the Sonthal Parganas by the Sonthal Parganas Settlement Regulation (3 of
1872), sec. 3; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), Sec. 3 and Schedule;
and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), Sec. 3 and Schedule.
It has been declared not to be in force in the scheduled districts in Ganjam and Vizagapatam by notification under sec. 3(b)
of the Scheduled Districts Act, 1874 (14 of 1874), see Gazette of India, 1898, Pt. I, p. 872.
It has been extended to the portions of the partially excluded areas in the Madras State, in which the provisions of this Act
are not in force by the Madras (Partially Excluded Areas) Guardians and Wards Regulation, 1940 (Mad. Reg. 6 of
1940), to Berar by the Berar Laws Act, 1941 (4 of 1941).
It has also been extended, with modifications, to the district of Koraput by the Koraput Guardians and Wards Regulation,
1943 (Orissa Reg. 7 of 1943).
It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
1 Abraham G. Karimpanal v. Nil, AIR 2004 Kant 321 . But also see Smt. Sarabjit v. Sh Piara Lal, AIR 2005 P&H 237 .
2 Tarun Chandra Deka v. Jamini Mahanta, AIR 2010 Gau 46 .
3 Under section 3(15), the General Clauses Act, a District Court is defined as a court presided by a District Judge.
4 Where a City Civil Court exists, the High Court in its original side will have no jurisdiction.
5 Section 4A.
6 26 IC 709.
7 ILR 18 Mad 227.
8 ILR 31 Mad 362.
9 In Hazara v. Suleiman, 59 IC 562 it was held that the Lower Burma Chief Court has the power of the District Court. See
also K.R. Thangapadian v. Kuchur Bomma, AIR 1965 Mad 368 [LNIND 1965 MAD 1].
10 Anil Bala v. Dhirendra, ILR (1921) 48 Cal 577 ; See also Mohammed v. Laldin, ILR (1873) 3 Bom 227 ; Goswami v.
Govardhan Lalji, ILR (1890) 14 Bom 541 .
1 Anil Bala v. Dhirendra, ILR (1921) 48 Cal 577 (585).
2 Kumud Nath v. Jotindranath, ILR (1911) 38 Cal 394 . This observation is based on R. v. North Country, 107 RR 1313.
3 Parshant Chanana v. Seema @ Priya, AIR 2010 P&H 99 .
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4 Anil Bala v. Dhirendra, ILR (1921) 48 Cal 577 .

5 AIR 1940 All 329 ; Also see Amrit Pal Singh v. Jasmit Kaur, AIR 2006 Del 213 [LNIND 2006 DEL 475]; Acharya Shri
Kundan Maharaj v. Smt. Indira, AIR 2004 Raj 90 .
6 AIR 1952 All 79 [LNIND 1951 ALL 154].
7 AIR 1955 All 611 [LNIND 1955 ALL 18].
1 AIR 1951 Nag 179 .
2 V. Vasu v. Murlidharan, AIR 2009 Ker 128 .
3 Hariom Ram Pratap v. Sunil, AIR 2011 Raj 138 [LNIND 2011 RAJ 100].
4 AIR 1956 All 328 [LNIND 1955 ALL 243].
5 AIR 1960 All 285 ; Acharya Sri Kundan Maharaj v. India, AIR 2004 Raj 90 .
6 ILR (1909) 34 Bom 121 .
7 The trial court equated ordinary residence with domicile, Scott C.J. said that domicile was wholly irrelevant to the
question of ordinary residence under section 9.
1 AIR 1932 Bom 592 .
2 AIR 1937 Bom 160 .
3 AIR 2006 Del 213 [LNIND 2006 DEL 475].
4 AIR 1938 Lah 313 .
5 The court relied on Lakhman v. Gangaram, AIR 1932 Bom 592 and on its own judgment in Mubarik v. Wajebulnisa,
(1902) 53 PR 1902.
6 (1938) 40 PLR 708.
7 AIR 1960 Punj 372 ; See also Virabala v. Shah Harichand, AIR 1973 Guj 1 [LNIND 1972 GUJ 141].
1 AIR 1954 Saurashtra 13; See also Mst. Firoza v. Akhtaruddin, AIR 1963 Assam 193 .
2 AIR 1954 Pat 489 .
3 The court considered the following decisions: Rev. Robert Ward v. Velchand Umedchand, ILR (1909) 34 Bom 121 ;
Lakshman v. Ganga Ram, AIR 1932 Bom 592 : 34 Bom LR 1293; Chimanlal Ganpat v. Rajaram Maganchand Oswal,
AIR 1937 Bom 158 ; Vimlabai v. Baburao, AIR 1951 Nag 179 .
4 Sarabjit v. Piara Lal, AIR 2005 P&H 237 .
5 1929 Rang 129.
6 AIR 1957 Ker 158 [LNIND 1957 KER 98].
1 Firoza Begum v. Akhtaruddin, ILR (1961) MP 968.
2 AIR 1960 Punj 372 .
3 AIR 1978 AP 13 [LNIND 1977 AP 173].
4 ILR (1957) Ker 500.
5 AIR 1993 Kant 120 [LNIND 1992 KANT 184].
6 AIR 1944 Cal 438 .
7 AIR 1958 Raj 221 [LNIND 1957 RAJ 116]
1 AIR 1914 PC 41 .
2 Keshvananda v. Afroza Begum, AIR 1958 Raj 221 [LNIND 1957 RAJ 116].
3 Robert Ward v. Velchand, ILR 34 Bom 121.
4 Ramswaroop v. Chamanlal, AIR 1952 All 79 [LNIND 1951 ALL 154]; Chandrakishore v. Hemlata, AIR 1955 All 611
[LNIND 1955 ALL 18]; Makla v. Bhanumal, AIR 1956 All 328 [LNIND 1955 ALL 243]; Vimlabai v. Baburao, AIR 1951
Nag 179 .
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5 Ramswaroop v. Chiman Lal, AIR 1952 All 79 [LNIND 1951 ALL 154].
6 Kamla v. Bhanumal, AIR 1956 All 328 [LNIND 1955 ALL 243].
7 Lalita v. Parmatma Prasad, AIR 1940 All 329 ; Jamuna Pd. v. Panna, AIR 1960 All 285 .
8 Robert Ward v. Velchand, ILR 34 Bom 121; Lakshman v. Gangaram, AIR 1932 Bom 592 .
9 Nazir v. Ghulam, AIR 1937 Lah 793 ; Mubarik v. Wajehunissa, 53 PR 1902; Sarda v. Vayanka Amma, AIR 1977 Ker
158 .
10 Lakshman v. Gangaram, 34 Bom LR 1293; Badal v. Krishna Dhar, 79 CWN 784.
11 79 CWN 784.
12 AIR 1981 Raj 211 . The court has referred to most of the case law.
1 Bhagyalakshmi v. K. Naranyana Rao, AIR 1983 Mad 9 [LNIND 1981 MAD 319].
2 In re, Dr. Giovanni Muzza AIR 1983 Bom 242 [LNIND 1982 BOM 192].
3 Mubarik v. Wajeh-ul-nisa, 53 PLR 1962; Chandra Kishore v. Hemlata, AIR 1950 All 611 [LNIND 1950 ALL 120].
4 53 PLR 1902.
5 Firoza v. Akhtaruddin, AIR 1963 Assam 193 .
7 AIR 1944 Cal 433 .
8 AIR 1958 Raj 221 [LNIND 1957 RAJ 116].
9 AIR 1914 PC 41 .
10 (1909) IC 465.
1 (2011) 6 SCC 479 [LNIND 2011 SC 541]: AIR 2011 SC 1952 [LNIND 2011 SC 541].
2 Lalit Kumar v. Dasarathi, ILR (1921) 48 Cal 802 .
3 Beni Pd. v. Parvati, AIR 1933 All 780 .
4 Our courts have taken conflicting view: Agar Ali v. Hamid Ali, ILR (1914) 38 All 280 ; Jamuna Pd. v. Mst. Panna, AIR
1960 All 285 (ordinarily such a person should not be appointed); Mutu Verrappa v. Ponunswami, AIR 1931 Mad 478
[LNIND 1931 MAD 256]; Subbarathanammal v. Seshachala, ILR (1912) 13 IC 16 (should not be outside British India);
Chimanlal v. Rajaram, AIR 1937 Bom 158 (court would be reluctant to appoint such a person) Mst. Lachhmi v.
Nanakchand, AIR 1928 Lah 716 (should be within the jurisdiction) take the view that he should be within the jurisdiction.
While in Mst. Nazir Begum v. Ghulam Qadir, AIR 1937 Lah 797 ; Beni Pd. v. Parvati, AIR 1933 All 780, it was held that
it was not necessary. See also clause (h) of section 39, the Guardians and Wards Act, 1890. Under the clause the court
can remove a person from guardianship who is outside the jurisdiction. The main objection against the appointment of a
person outside the jurisdiction is that he would not be amenable to court’s control. But this position can be avoided by
taking adequate security from him.
1 But see Beni Prasad v. Parvati, AIR 1933 All 740 ; where application was made to a court having no jurisdiction yet the
court ordered its transfer to the court having jurisdiction.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

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)*, 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;
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(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.

Comments

1. Scope

Every application should comply with the provision of this section. The section itself makes it clear that the
particulars required under it should be given as far as ‘can be ascertained’ by the applicant. The counter-
petition is not covered by the provisions of the section. Thus in Azimulla v. Zainab,1 an uncle of the minor
applied for appointment of himself as guardian of the minor complying with the requirements of the section. The
mother of the minor opposed the application praying that she should be appointed a guardian. Granting
mother’s application, the Punjab High Court observed that proceedings were not invalid as there was no
requirement that counter application should be made complying all the requirements of section 10. The petition
should disclose cause of action otherwise it would be dismissed.2
2. Particulars and Affidavit

The petition should be supported by an affidavit, as without an affidavit the court cannot act.3 If an application is
made in respect of guardian of property of a minor who is a member of the Mitakshara joint family then it must
be shown that the minor has or is entitled to separate property.4

The particulars laid down in the section are not exhaustive and they can never be exhaustive. Whenever the
court feels that it is necessary for deciding a case that more information should be given to it, it can call for
more particulars. Although the provisions of the section do not apply to a Collector but in case a Collector
makes an application, sub-section (2) makes it clear that he should comply with sub-section (1) as far as
possible. Mr. Justice Shah Din observed in Bhai Sucjet Singh v. Collector of Amritsar,5 that the particulars
mentioned in sub-section (1) of section 10 should, as far as possible, have been stated by the Collector’s
application, but no attempt was made to satisfy that requirement, with the result that the minor’s age was not,
and could not be ascertained with any certainty nor did the court know anything about the nature, situation and
approximate value of the property of the minor. The difficulty would have been avoided if the Collector had,
before making his application ascertained the age of the minor and had also made some attempt to find out
other particulars mentioned in sub-section (1) of section 10. The court set aside the order of the District Judge
appointing the Collector as guardian.5 Thus, the omission to give particulars as required under the section is a
grave irregularity vitiating the proceedings.1 All particulars laid down in the section should be given in the
application (so far as these can be ascertained) even when the applicant is a Collector, though sub-section (2)
says that when 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. It should be noticed that last clause of the sub-
section lays down that when an application is by the Collector ‘he shall state as far as possible the particulars
mentioned in sub-section (1).”
3. Clause (a): Age of the Minor

Since a guardian can be appointed only of a minor, it is necessary that the age of the child is stated in the
application, since the court can exercise jurisdiction only if the child is a minor. The age of the child, is also
relevant for the purpose of ascertaining its wishes. The requirement of section is that the date of birth should be
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given in the application,2 and not just the age of child in years. Ordinarily, the court would not appoint guardian
of a minor who is on the threshold of majority as the appointment of the guardian by the court prolongs the age
of majority by three years. But if the court considers it necessary to do so in the particular and peculiar
circumstance of the case it can do so.3 However, no court has power to appoint a guardian if the child has
attained the age of majority.4 Thus even when the child was not minor when application was made but
becomes a major during the course of proceedings, the court has no jurisdiction to appoint a guardian.5

Obviously, the age of a minor stated in the application can be controverted.6

4. Clause (a): Ordinary Jurisdiction

Since under section 9 only that District Court will have jurisdiction within whose jurisdiction the minor has his
ordinary residence, it is necessary to state in the application the place of the ordinary residence of the minor.
This is particularly so if the appointment of guardian of the person of the minor is sought where the appointment
of the guardian of the property of the minor is sought the application can be made in the District Court within
whose jurisdiction the minor either has his residence or where his property is situate.7
5. Clause (b): When Minor is a Female

When minor child is a female, it is necessary to state whether she is married or unmarried, and if she is married
the name and age of her husband should also be stated.
6. Clause (c): Statement of Minor’s Property

When an application is made for the appointment of guardian of the property of the minor, the location, value,
etc., of the property has to be stated. This clause requires that in every case (even where the application is only
for the appointment of guardian of the person), the nature, situation and approximate value of the property
should be stated, in case minor has property.
7. Clause (d): Statement Regarding the Person having Custody of the Minor or Possession of his
Person or Property

Clause (d) requires that in the application the name and residence of the person having the custody or
possession of the person or property of the minor should be stated.
8. Clause (e): Statement about Near Relations

Relationship exists by blood as well as by marriage. This clause requires that the name and addresses of the
near relations of the minor should be stated in the application. This would mean whichever near relations exist
at the time of the application. If first degree near relation do not exist, the next degree relations should be
mentioned and so on. But one need not mention remote relations of the minor.
9. Clause (f): Statement about the Existence of a Testamentary or Certificated Guardian

Section 7(2) lays down that the existence of a testamentary or certificated guardian bars the appointment of
another guardian by the court till the testamentary guardian or certificated has ceased to exist in accordance
with the provisions of the Guardians and Wards Act. It is in this background that the provision of this clause is to
be looked at. This clause requires that the application under this section should mention whether or not a
testamentary or certificated guardian exists.
10. Clause (g): Statement Regarding Previous Application

This clause requires that the application for appointment of guardian should state whether prior to this
application, any other application for appointment of declaration of guardian of the person or property or both of
the minor has been made to any court. If such an application has been made, then it should be stated as to
when and to which court and with what result the application was made.
11. Clause (h): Statement Regarding Appointment of the Person or Property

This clause requires that an application under this section should clearly state whether the application is made
for the appointment or declaration of guardian of the person or property or both of the minor.
12. Clause (i): Statement Regarding the Qualifications of the Proposed Guardian

Since the character and qualifications of the proposed guardian is an important consideration for the
appointment of a person as guardian, this clause requires that the application should contain a statement
regarding the qualifications of the proposed guardian.
13. Clause (j): Application for Declaration as Guardian
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This clause relates to a case when a person seeks to be declared as a guardian as distinct from seeking
appointment of guardian. This clause lays down that in such an application grounds on which the applicant
seeks to be declared as guardian should be stated. Ordinarily, an application for declaration of a person as
guardian pre-supposes a pre-existing right. Thus a testamentary guardian can seek for such a declaration.1 An
order of the court acknowledging a person as guardian of a minor is a declaration of him as guardian under
section 7.2 However, an order refusing to remove a testamentary guardian is not tantamount to declaring him
as guardian.3

An application for a declaration of a person as guardian is different from an application for appointment of
guardian. Therefore, the dismissal of the former does not bar an application by the same person for his
appointment as guardian, as in such a case doctrine of res judicata does not apply.4

The court can declare a person appointed under the Will of a parent as guardian of the minor.5 But since a
natural guardian derives his status from his personal law, he need not apply. See our commentary on section 7.
14. Clause (k): Causes for Making the Application

In the application under this section not merely the cause of action should be stated but causes for making the
application should also be stated.
15. Clause (l): Other Particulars

The High Court Rules may require a statement of other matters in the application and if it is so, such particulars
should also be given in the application. The clause also requires that applicant may give any other particulars
as may be necessary in his case. Since facts and circumstances for making an application can be numerous
and varied, and in some cases peculiar, a statement regarding them in the application will help the court in
passing a proper order.
16. Sub-section (2): Application by the Collector

The sub-section lays down that when an application under this section is made by the Collector it has to be in
the form of a letter addressed to the court and forwarded by mail or in such other manner as found convenient.
But such an application should comply with the requirements of sub-section (1) as far as possible.
17. Application against a Statutory Body

In Om Prakash v. Child Welfare Board,6 the Delhi High Court held that an application against a statutory body
is not maintainable under this section. In this case an abandoned boy aged 13 years was taken into custody by
the Child Welfare Board, constituted under the Children Act, 1960. The Board placed the child in the care of
foster parents, one Mr. & Mrs. M. After the death of Mr. and Mrs. M, the Board took back the child under its
custody and placed in the care of an institution. O, a brother of M applied for guardianship under this section.
The court found him unfit for guardianship. But even then the court made the aforesaid observation. In our
submission, this is not a correct view. An application under this section is an application for appointment or
declaration of a person as guardian. The opposite parties can be an individual, institution or a Government
body.
18. Sub-section (3): Declaration of Willingness by the Proposed Guardian

Sub-section (5) of section 17 lays down that the guardian court shall not appoint or declare any person as a
guardian against his Will. This sub-section lays down that the proposed guardian should file a declaration of his
willingness at the foot of, or annexed to, or exhibited with the application which should be signed by him and
attested at least by two witnesses.

An application which has not been signed by the proposed guardian or is not attested by two witnesses or is
attested only by one witness is not a proper application and deserves to be dismissed.1 But in Satyendranath
Maitra v. Balram Chakraborty,2 the Calcutta High Court took the view that such defects are not fatal to the
application. These are procedural defects capable of being cured. In Aisha v. Bashir Ahmed,3 the Jammu and
Kashmir High Court observed that it is within the competence of the Trial Court to dismiss in limine an
application which had not been properly attested. But after the Trial Court had entertained the application and
recorded the evidences, it could not be dismissed in limine. If no objection is taken at the Trial Court about non-
attestation of application, and Trial Court has rendered a decision on merit, the judgment of the Trial Court
cannot be questioned on that ground.
19. Non-Compliance with the Section
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It appears that compliance to all the requirements of the section is obligatory. Any omission made as to any
particulars required to be given under the clauses of sub-section (1) and non-fulfilment of the requirements of
sub-sections (2) and (3) are grave irregularities vitiating whole proceedings.4 Even if the applicant is a
Collector, substantial compliance with the section is necessary. In Mulukh Raj v. Dhanabanta,5 it was held that
omission to mention the names of near relations is an irregularity. If it is a contumacious disregard of the
provisions of the section, it would be fatal to the application.6
20. Addition or Substitution of Parties

The provisions of Order I, rule 10, the Civil Procedure Code are applicable to proceedings under the Act and
addition and substitution of parties can be made thereunder.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

6 Braja Krishna v. Benimadhab, AIR 1918 Cal 476

7 Sub-section (2) of section 9.
1 Pamela Williams v. Patrie Cyril Martin, AIR 1970 Mad 92 [LNIND 1968 MAD 173].
2 Trivengadamier v. Periabami, 9 MLJ 24.
3 Kosthalathammal v. Thangaswamy, AIR 1924 Mad 327 : ILR (1923) 46 Mad 873.
4 Johera Khatun v. Amina Bibi, AIR 1958 Cal 545 [LNIND 1957 CAL 194].
5 Maria Susai v. Michael Mudatli, 3 MLJ 192.
6 AIR 1980 Del 137 [LNIND 1980 DEL 27].
1 Rabindra Nath Mukherji v. Abinaschandera Chaterjee, AIR 1972 Cal 143 [LNIND 1971 CAL 102].
2 AIR 1981 Cal 701 : ILR (1980) 1 Cal 727.
3 AIR 1987 J&K 68 .
4 Bhai Suchet Singh v. Collector of Amritsar, G IC 645.
5 AIR 1957 Cal 322 [LNIND 1956 CAL 159].
6 Antu Mahton v. Ramraj, AIR 1957 Pat 720 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

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)* on—
(i) the parents of the minor if they are residing in **[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 application 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
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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).

Comments

1. Scope

Section 10 of the Act sets out particulars which an applicant is required to give in his application. This section
imposes an obligation on the court to be satisfied that there is a ground for proceedings on the application. This
implies that an application under section 10 for the appointment of guardian is not an ordinary application and
cannot be registered as a matter of course.
2. Sub-section (1): Satisfaction of the Court

Until the court is satisfied that there was a ground for proceedings, the court should not serve any person with
notices of the application. The Calcutta High Court observed in Sarat Chandra v. Girindra Chandra.1

Section 11 renders it obligatory upon the court to be satisfied that there is a ground for proceeding on the application
before a date is fixed for hearing thereof, and notice is serviced as contemplated by the Act.2In other words, an
application presented under the Guardians and Wards Act ought not to be registered as a matter of course and without
examination and before the judge is satisfied that there is a ground for proceeding on the basis thereof.

The courts have taken the view that the procedure prescribed by section 11 must be strictly followed and no
guardian should be appointed unless notices are served and a day is fixed for hearing. Non-observance of the
procedure laid down in the section vitiates the proceedings.3

It is necessary that notices to all the persons concerned are served. The husband of a minor girl is interested
person to be served with the notice in the matter of appointment of a guardian of his wife. If no notices are
served upon him nor he is a party to the proceedings, the entire proceedings will be quashed.1 But failure to
serve notice on a remote relation is not an irregularity.2
3. Sub-section (2) of section 11

In the Statement of Objects and Reasons of the Guardians and Wards Bill, the explanation for the existence of
the sub-section was given as under:

This sub-section follows an order made by the High Court of Judicature for the North Western Provinces with a view to
facilitating the discharge by Collector of their duty of ascertaining and reporting to the Court of Wards from time to time
what properties may come within the description of disqualified landlords.

Under sub-section (2) the notice is to be served to the Collector when some of the properties described are
land, and not otherwise. When an application is made for the appointment of guardian of the person of the
minor no notice need be served on the Collector even if the minor holds land.3

The purpose of the sub-section is that every one concerned in the minor and in the appointment of a guardian
may be brought before the court, so that all material facts are known to the court to enable it to determine the
question of appointment of guardian in the best interest of the minor.

On an application made under section 10, notices of the application are served on all the interested parties. All
persons are given full opportunity of putting their case. The court also gets the opportunity to consider the best
interest of the minor from all aspects.
4. Procedure under the section and Hearing of Evidence

The Guardians and Wards Act does not prescribe any definite procedure for deciding application and petitions.
Here and there references are made to the Civil Procedure Code. However, the guardian court is not required
to follow the elaborate procedure laid down in the Civil Procedure Code for ordinary civil cases. At the same
time the proceedings under the Act are not summary proceedings.
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The Allahabad High Court in Kundi Devi v. Chote Lal,4 said the proceedings under the Act cannot be attached
on the ground that all the formality and precision of procedure which the Code of Civil Procedure laid down for
the trial of a suit properly so called, had not been followed. “The exercise of parental jurisdiction in guardianship
matters, by a District Judge is not to be weighed in golden scales like the ordinary trial of a suit between parties
for money or land, and if the order passed is on the whole a reasonable one, it will not be interfered with an
appeal merely because the judge has to some extent failed to observe the rule of procedure and evidence.1

In Fatima v. Bakr Shah,2 the court said that procedure under the Act need not be elaborate and judge may
make such enquiry as he thinks fit and necessary to satisfy himself, and has got unfettered discretion in the
number of witnesses to be examined, and the length of cross-examination and like matters.1

On the other hand, the court cannot dispose of an application summarily without investigating into the truth or
otherwise of the allegations contained in the application or in the objection filed by the opponent.3 Thus, where
a District Judge in appointing a particular person as guardian totally ignored to follow any procedure, even did
not consider the fitness or otherwise of the appointee, the entire proceedings were held to be vitiated.4 The
court is bound to hear all the evidence adduced by the parties and there should be a proper enquiry before the
court proceeds to appoint a person as guardian.5 Similarly, an order passed without giving parties any
opportunity to produce evidence is a bad order and should be set aside.6 An opportunity should be given to the
person in whose custody the child is to show that the applicant is unfit or that welfare of the minor does not
require that he (applicant) should be appointed guardian.7 But if the court has already come to the conclusion
that the applicant should not be appointed guardian as his interest is averse to the minor, and then appoints
another person as guardian without giving the applicant an opportunity to show the unfitness or otherwise of the
person, then the order is not bad.8 In recording evidence the court should follow the provision of the Code of
Civil Procedure.9

Section 13 makes it abundantly clear that the court is bound to hear all evidence adduced by the parties.10

Can evidence be given by affidavits? Certain High Courts have laid down in the Rules that in uncontested
cases evidence may be given by affidavit.1 But the consensus of opinion is that on certain matters such as
examination of the applicant and of the proposed guardian, age of the minor, fitness of guardian, necessity for
appointment, and welfare of the minor, evidence should be by direct examination of parties and their witnesses.
5. The Court has No Power to Delegate its Functions

The enquiry on the application under the Act has to be conducted by the court itself and it cannot delegate this
function to any one else. In Subhag Singh v. Raghunandan Singh,2 the trial Judge asked the Collector whether
he would take over the estate of the minor under Court of Wards and also asked him to suggest who would be
the fit person for the appointment of the guardian of the minor. On the Collector’s recommendations, one of the
applicants was appointed guardian. It was held by the Allahabad High Court that appointment was bad and the
order was set aside.3 However, in Khundi Devi v. Chote Lal,4 the court justified the consideration of a report
from Tehsildar called for by the trial Judge. In our submission the court is competent to consider such reports,
but the findings must not be based on such report, alone; it should be corroborated by some independent
evidence adduced by the parties. However, section 4A of the Act empowers the High Court and the District
Judge to transfer the entire case to a subordinate court for the disposal of the case. This is not delegation. The
District Judge himself wants to pass final order, he must again transfer the case to himself and then pass the
order.
6. Report from the Collector

Section 46 of the Act specifically permits the court to ask for a report from the Collector or from a subordinate
court. The section runs:

(1) The court may call upon the Collector, or upon any court subordinate to the court, for a report of any
matter arising in any proceedings under this Act and treat the report as evidence.
(2) For the purpose of preparing the report the Collector or the Judge of the subordinate court, as the case
may be, shall make such enquiry as he deems necessary, and may for the purpose of the enquiry
exercise any power of compelling the attendance of a witness to give evidence or produce a document
which is conferred on a Court by the Code of Civil Procedure.
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It is the court which can call for a report.5 In Premsukhdas v. Lakshmi Tiwari,6 where the guardian prayed for
permission to sell certain property and the court asked the Munsif to send a report as to its value, it was held
that the reference was competent under the Act.1 However, under section 46 the Court can refer some of the
matter for enquiry and not the entire case. If the District Judge asks the subordinate court to enquire into the
entire matter and then passes the order on such report, then the order is illegal.2 But if report is asked upon
some particular matter in the case, then an order based on such report would not be bad.3
7. Arbitration or Compromise

The question of guardianship cannot be left to be determined by arbitration or compromise. In Mahadeo Prasad
v. Bindeshwari Prasad,4 on the request of the parties the court referred the question of guardianship to
arbitration and appointed a guardian on the basis of the award. The Allahabad High Court on appeal said:

In my opinion the intention of the law is that the question as to who is the best guardian of the minor’s interest is one to
be decided by the court and that a court cannot delegate its functions to any arbitrator however competent and above
suspicion that arbitrator may, if rival claimants to a certificate of guardianship are allowed to refer the dispute between
them to an arbitrator, a door would be open to collusion and the interest of the minor might suffer.

8. Guardianship is not a Question of Private Civil Right

The question of guardianship is not a question between individuals alone. It stands on a different footing.5 The
guiding principle in deciding the question is the welfare of the minor. And this question can be decided by the
court alone.5 In Me Nagwe v. Ma Thwe,6 the court said that the State is the guardian of all minors within its
jurisdiction, and the question of guardianship is not one of the private civil rights of any private person, which he
is allowed to submit to arbitration; moreover, the law allows arbitration only where all parties interested agree
whereas in the guardianship proceedings the party most interested is the minor and he cannot agree to a
reference.

That is also the rationale for not appointing a guardian on the terms of a compromise entered into between
parties. The Lahore High Court said that in appointing a guardian7 what the court is required to consider is the
welfare of the minor on the evidence produced before it and not to pass judgment in accordance with the terms
of a compromise entered into by the parties. In any event the court must consider whether the compromise is
for the welfare of the minor. Thus, where one of the parties to a proceedings agrees to the appointment of the
other party as guardian of the person of the minor and withdraws the case relying on this compromise, it is not
open to the party to appeal against the order.1 In every case the court must consider the welfare of the minor.
9. Sub-section (2): Notice to Collector

Sub-section (2) requires that in some cases notice should be given to the Collector in respect of land of a minor
property-holder which could be assumed under superintendence of the Court of Wards. This section lays down
that the State Government may, by general or special order, require that, when any part of the property
described in a petition under section 10(i), is land of which a Court of Wards could assume the
superintendence, the court shall cause a notice to be served on the Collector in whose jurisdiction the minor
ordinarily resides, 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.
10. Service of Notice and Manner of Service

This section requires that service of notice should be made on all concerned persons, so that the matter of
guardianship is decided in the best interest of the child. Notices of the application is to be served in accordance
with the procedure for summons to defendant laid down in Order IV, rules 9 to 30 of the Civil Procedure Code,
1908. When the applicant is Collector or a non-relation of the minor, notice should also be served by publication
of the notice in newspapers as per directions of the court.2

The purpose for service of the notice is that all the concerned persons should be before the court. If all those
persons who are interested in the appointment of guardian are before the court, the proceedings would not
stand vitiated on account of non-service of the notice in accordance with the procedure prescribed in the
section 34. But if a guardian is appointed without serving any notice on the person having the custody of the
minor, then the order making such appointment is vitiated, and can be quashed.3
11. Persons to be Served with the Notice

Clause (a) of sub-section (1) of this section lays down that the service of notice is to be effected on the
following persons:
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(a) The parents of the minor if they are residing in any state to which the Act extends,
(b) The person, if any, named in the petition or letter of the Collector as having the custody or possession
of the person or property of the minor,
(c) The person proposed to be guardian in case he is other than the applicant, and
(d) Any other person to whom a special notice is in the opinion of the court, necessary.

Where an application for guardianship of a minor married girl is made notices has to be served on her husband
as well as on the person having the custody of the minor. An appointment of guardian without the service of
such notices is bad and can be set aside.1 However, non-service of the notice on the person remotely
interested in the appointment of the guardian would not vitiate the proceedings.2 Similarly, an ad interim in
junction issued for preventing a person from giving the minor girl in marriage should not be confirmed or made
absolute without the service of notice on the person against whom ad interim injunction was issued.3
12. When Notice is not Served: Remedy

When a notice is not served on any person listed in clause (a ) of sub-section (1) and he is also not a party to
the proceedings, then he can file a revision against such order under section 48, but he has no fright of appeal
under section 47.4
13. Effect of Death of the Applicant or Opposite Party on the Proceedings

When an applicant himself has applied for guardianship, the application abates on his death, since in such a
case the application is based on trust and cannot survive to the legal representative5. But in no other case, the
proceedings would abate and the cause of action would survive to the legal representatives. A guardianship
application is not a suit inter partes.6 It is a proceeding designed to satisfy the court that it is for the welfare of
the minor that a guardian should be appointed and a most suitable person should be appointed. In such
proceedings the welfare of the minor is the paramount consideration, and therefore death of the applicant or the
opposite party or of the proposed guardian would not abate the proceedings.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
* See now the Code of Civil Procedure, 1908 (5 of 1908).
** Subs. by Act 3 of 1951, sec. 3 and Sch., for “a Part A State or a Part C State”.
1 7 CWN 429.
2 Section 11.
3 Jugudumba v. Mircha, 17 WR 269; Tulikraj v. Choolachooa, 20 IC 578; Suchet Singh v. Collector, 6 IC 645. If all the
parties are present before the court non-service of notice is immaterial: Sunder Mani v. Gokulananda, 18 CWN 160:
(1912) 16 IC 900.
1 Ballu Mal v. Hardwari, 79 IC 459; Jhandeshwari v. Bajinath, 27 IC 171; Harendra v. Brindra Rani, 2 CWN 521, where it
was held that an ad interim injunction should not be made absolute unless the opposite party has been heard.
2 Islamian v. Maqbulan, AIR 1929 Oudh 126 .
3 Nagawa Gwalignaya v. Collector of Belgam, AIR 1924 Bom 157 .
4 AIR 1922 All 338 .
1 See also Sarat Chandra v. Girindra Chandra, 7 IC 702.
2 AIR 1921 Sind 45 .
3 Savad Shahu v. Hafija, ILR (1892) 17 Bom 560 ; Jiwan v. Jero, (1917) 41 IC 976; Sajjan Singh v. Girjan, AIR 1928 Lah
108 ; Jaiwanti v. Gajadhar, ILR 38 Cal 783.
4 Gopalrao v. Sarawan, AIR 1923 Nag 36 .
5 Jaiwanti v. Gajadhar, ILR 38 Cal 783.
6 Sheo Shankar v. Khub Chand, AIR 1925 Nag 233 ; Tirhu v. Lachhman, (1912) 15 IC 195; Yusuf v. Ahbhoy, AIR 1925
Lah 567 ; Kanthalathammal v. Thangaswamy, AIR 1924 Mad 327 ; Lachhi v. Nanak, AIR 1928 Lah 716 .
7 Talukraj v. Choolachooa, 21 IC 578.
8 Haji Hirji v. Kashim Kirji, 4 IC 603 (8a); Gaya Bai v. Narayan Dutt, (1905) AWN 104.
9 Section 13.
10 Rule 399 of the Calcutta High Court runs: “In unconstested proceedings under the Guardians and Wards Act, 1890, it
shall be competent to permit or direct, except when otherwise provided by any law or rule for the time being in force,
that any particular fact or facts may be proved or evidence upon any application may be given by affidavit.”
Rule 4 of the Mysore High Court Rules is to the same effect.
Rule 4 of the Bombay High Court Rules does not give such wide latitude. It runs: “Where the application is not opposed, the
court may, in its discretion proceed upon affidavits but shall in all cases, except for reasons to be recorded, examine
the applicant and the proposed guardian if the latter is not the applicant as to the age of the minor and the competency
and fitness of the proposed guardian and as to the necessary of the proposed appointment.”
1 Md. Shafi v. Shamim Banom, AIR 1979 Bom 156 [LNIND 1978 BOM 171].
2 ILR 36 All 282.
3 Under certain provincial Act, such as under section 7 of Act XX of 1864 in Bombay, section 8 of the Act XL of 1858 in
Bengal the court could call upon the collector or magistrate for a report of any matter.
5 Nagawa Gwalignaya v. Collector of Belgam, AIR 1924 Bom 157 .
6 (1918) 46 IC 542.
1 Similarly in Salubai v. Kesshay, AIR 1932 Bom 156 upon an application of the guardian for permission to marry the
minor, the judge called upon the sub-judge to submit his report on the selection of the bridegroom and accepting the
report accorded permission for marriage to the guardian.
2 Ganesh Vital v. Kusabai, ILR 23 Bom 698; Narayan Shridhar Dharve v. Ram Chandra, ILR (1902) 26 Bom 716 .
3 Janekraj Kuari v. Popesshri Pratap Narayana Singh, 6 IC 656.
4 ILR (1908) 30 All 137 .
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5 Mahadeo Prasad v. Bindeshwari Prasad, ILR (1908) 30 All 137, per Karamat Hussain, J. See also Palaminandi Chetty
v. Adaikalam Chetty, AIR 1924 Mad 484 [LNIND 1923 MAD 312].
6 AIR 1928 Rang 137 .
7 Mst. Huran Bi v. Alam, AIR 1940 Lah 609, see also Surejdevi v. Prabhashankar, AIR 1951 Sau 620 .
1 Mst. Sathi v. Mst. Saida, AIR 1936 Lah 1019 .
2 Sunder Mani v. Gokulananda, 18 CWN 160: (1912) 16 IC 900.
3 Tilukraj v. Choolachooa, 20 IC 578.
1 Jhandeshur v. Bajinath, 27 IC 121.
2 Islaman v. Maqbuilan, AIR 1924 Oudh 126 .
3 Harendra v. Brindra Rani, 2 CWN 521.
4 Jhandeshur v. Baijnath, 27 IC 121; Islaman v. Maqbulan, AIR 1924 Oudh 126 ; Balhe Mal v. Hardwari Lal, AIR 1924
Lah 570 .
5 Gangabai v. Kashibai, ILR (1899) 23 Bom 719 .
6 Arjan v. Gujri, 42 IC 410; Palaniandi v. Adaikalam, ILR 47 Mad 419.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

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 section 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.
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Comments

1. Scope

This section stipulates for interlocutory orders pending proceedings before the court for the interim custody of
minor and protection of minor’s property and person. Under this section the court has also power to ask for the
production of minor before the court.
2. Interlocutory Orders during the Pendency of Proceedings and thereafter

As the marginal title of the section indicates, under this section the court is empowered to make temporary
provisions for the custody and protection of

minor’s property and person. In our submission this section is available for making interim orders during the
pendency of the proceedings, and is not available after their termination.1 The decisions taking a contrary view,
in our submission, do not represent correct view.2 Under this section court has power to pass following orders:

(a) The person, having the custody or care and control of the child can be ordered to produce the child
before the court at such place, time and before such person as the court appoints, and
(b) Orders for the temporary custody of the minor and for protection of the person and property of the
minor.

PROTECTION OF THE PERSON

3. Sub-section (1): Production of the Minor

This sub-section empowers the court to order the person having the custody of the child to produce the child
before the court or before any other person appointed by it at such time and place as the court directs. Such an
order can be passed only against a person who is not a guardian of the minor yet is having the custody or care
and control of the child. If there already exists a de jure guardian of the minor, then no such order can be
passed against him. Since the guardian cannot be validly asked to produce the child and if he disobeys the
order of the court he cannot be punished under section 45 of the Guardians and Wards Act.3 Similarly, where a
certificated guardian exists, a third person cannot be ordered to produce the child before the court.4
4. Sub-section (2): When Minor is a Female

Section 132 of the Civil Procedure Code lays down that “Women who according to the customs and manners of
the country ought not be compelled to appear in public shall be exempt from personal appearance in court.”
This sub-section embodies this principle. Thus if the minor is a pardanashin lady, she should not be compelled
to appear in public and the court should not order for her production in the court.5
5. Interim Custody and Temporary Guardian

Under the section the court has power to pass order committing custody to any suitable person pending the
proceedings. In Walter v. Walter,6 the contest for guardianship was between the parents. The grand-mother
was having the custody of the child. The court passed an order for interim custody in favour of the grand-
mother pending proceedings and allowed access to the child to both parents. Under section 12, interlocutory
orders for custody can be made in guardianship proceedings.1

Under this section or under any other provision of the Act no power is conferred on the court to appoint
temporary guardian pendente lite.2 The person to whom interim custody is committed is some times
erroneously called temporary guardian.2
6. Interim Order about the Marriage of the Minor

The marginal title of the section is fairly wide as it lays down that the court has power to pass any interlocutory
order for protection of the person and property of the minor. In some cases a wide interpretation has been given
to the word “protection”, and it has been held that the court can pass interim orders as to the marriage of the
minor. In Murarilal v. Saraswati,3 the Lahore High Court said that the court can pass any order that it considers
necessary and proper in the interest of the child. But in our submission, the court under this section cannot
pass an order sanctioning marriage of the minor. Obviously such an order does not relate to protection of minor
or his temporary custody.4 However, pending the proceeding for guardianship of a minor, the court has power
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to pass an order restraining any person from performing the marriage of the minor or allowing it to be performed
since such an order is for the protection of minor.5 In some cases, particularly in a case where the parent is
keen to perform the marriage of the minor against its interest an interim injunction may be the only immediate
remedy available.6 Such an injunction can also be issued against a person who is residing outside the
jurisdiction as the protection of minor’s interest is the paramount consideration.7Such an order can also be
passed under Order XXXIX, rule 2 of the Civil Procedure Code.8 Of course, such order can be passed under
the Child Marriages Restraint Act, 1929.
7. Orders under sections 91 and 100 Cr. P.C. and Injunction under this Section

Under sections 91 and 100 of the Code of Criminal Procedure, the Magistrate is competent to take certain
proceedings including issuance of a search warrant. Section 12 does not empower the guardian court to issue
an injunction against the Magistrate’s order under which a search warrant was issued.9
PROTECTION OF PROPERTY

8. Sub-section (1): Protection of Property

Under the sub-section the court has power to pass such order for the protection of the property of minor as it
thinks fit. But then such orders can be passed in respect of that property in which the minor admittedly has the
right of ownership. Where the ownership of minor is disputed and no prima facie case is established, the court
is not competent to pass an order in respect of such property. Thus in Ponnchbai v. Dayaram,1 the application
was for the appointment of guardian of a minor adopted child. The so-called adoptive mother was in possession
of the property on the demise of her husband. She denied the adoption. The trial court issued an order asking
the widow (the so-called adoptive mother) to file an inventory of the estate of her deceased husband and to
furnish security for not disposing of the property to the detriment of the minor. The High Court, on appeal, held
that such an order was bad; since the adoption was denied. It was for the minor to establish his title by a suit
and till he did so, the court was not competent to pass such an order.2

An order passed in favour of a person for the temporary custody or for the protection of minor’s property does
not entitle such a person from dispossessing a person having the possession of the property save in due
course of law.3 Similarly, the guardian court is not competent to pass an order against a person who is in
possession of minor’s property and who is not appointed by him as guardian.4

In case a person is having the money of minor with him, then court can order him to deposit the money in the
court pending further order, if it considers that necessary for the protection of minor’s property.5
9. Orders as to Disputed Claim and Succession

Whenever a person is possession of the property of minor, denies minor’s claim in the property, the court has
no power to order adjudication of the disputed claim. It can also not take such property in its possession. Such
an order will be illegal and the court must give back the property to the person from who it took it.6 In such a
situation the court should leave the parties to get the disputed claim adjudicated upon and settled from a civil
court by proper proceedings. Similarly, the guardian court cannot decide disputed claim of succession.6
10. Appointment of Receiver

Under section 12 read with Order XL, the Civil Procedure Code the guardian court has power to appoint a
receiver for the protection of minor’s property. Section 141, the Civil Procedure Code lays down that the
procedure provided in the Code in regards to suits shall be followed, as far as it can be made applicable, in all
proceedings in any court of civil jurisdiction. Thus the guardian court can appoint a receiver if it considers that
the property was in danger in the hands of the person having possession of property.1 Since the guardian
court’s powers are very wide, it can permit the receiver to sell the property where such a course is deemed
necessary for the protection of the minor’s interest. In Jyoti Prasad v. Pearelal,2 the Guardian Court directed
the receiver to sell certain properties of the minor and apply sale proceeds towards the payment of the debt due
from the minor’s estate. On appeal, the Calcutta High Court observed that the guardian court, has such a power
under this section and it is a matter of discretion of court, and the High Court would not be justified in interfering
with such an order.3

There is some controversy among our High Courts as to whether an order for appointment of Receiver or an
order issuing injunction is made under section 12 or under the provisions of the Code of Civil Procedure read
with the provisions of the Specific Relief Act.

The Calcutta High Court holds the view that section 12 of the Act is wide enough and entitles the courts to pass
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any order.4 The Lahore High Court reiterating that the Guardian Court had wide power thought that the power
is exercised under the Code of Civil Procedure.5The Nagpur High Court seems to have supported the Lahore
High Court when it said that an ‘application under section 12 is a proceeding in court of civil jurisdiction, it is
competent to the Guardian court to appoint a Receiver under Order XLI, rule 1 of the Civil Procedure Code.6

But if the property is subject to disputed claims, the guardian court would not be justified in appointing a
Receiver.7

A person who resides at a place beyond the jurisdiction of the court should not ordinarily be appointed a
guardian. In case such an appointment is necessary or justified, the court should take adequate security from
such person otherwise the guardian would not be under the control of the court.5

Obviously, if minor has no property, then appointment of a receiver cannot be justified.

11. Order under section 12 is Subject to Revision and not Appeal

An order passed under this section being of interlocutory nature is not appealable but revision lies against such
an order.8
12. Section 144, the Code of Civil Procedure and Restitution

Section 144, the Code of Civil Procedure relates to restitution of property and not human beings and therefore
the section is not applicable to proceeding under section 12 of the Act.1
13. Injunction

Under this section guardian court can issue injunction.2

14. Section 12: Orders during the Pendency of the Proceedings

Under section 12 interlocutory orders for the protection of the person or property can be passed at any time
during the pendency of the proceedings. A proceeding is considered to be pending in the court from the time of
filing of an application or petition till the time of passing a final order whether accepting or dismissing the
application. But since no order passed in respect to guardianship or custody is final in the sense that it is not an
irrevocable order, a conflict of opinion has arisen among our courts.

Rule 12 of the Madras High Court Rules under the Guardians and Wards Act provides that every application
under the Act, subsequent to the determination of the original petition under which a guardian of the minor was
appointed or declared, by the court shall be by interlocutory application. Rule 12 of the Mysore High Court
Rules lays down that ‘cases are not to be considered and disposed of as soon as a guardian appointed. They
are to be pending of the purpose of receiving the accounts of the guardian till the guardian is discharged or
ceases to act.’ Rule 20 of the Bombay High Court Rules runs: ‘Until the ward attains majority all subsequent
applications relating to his guardianship and the orders thereon shall form part of the record of the original
application.3 In our submission none of these rules can be interpreted to mean that once the proceedings are
filed they would be considered pending till the child attains majority, even if a final order has been passed. What
these rules lay down is that all proceedings subsequent to the final order form part of the record of the same
case.

The question has arisen before the courts under the following circumstances: the court appoints a person
guardian of the minor, the guardian is not able to obtain custody and he consequently applies to the court for
custody. The question that arise is: whether an application made for custody under these circumstances is an
application under section 12 or section 25, the Guardians and Wards Act?

In Wadhawa v. Mst. Malan,4 the court said that since it cannot be the intention of the legislature that the court
should not have power to make the minor over to the guardian appointed by it, there is no reason why the
provisions of section 12 should not be applicable after as well as before a guardian is appointed. This view was
followed in other cases.5 The Allahabad High Court in Uma Kant Kuar v. Mst. Bhagwanta Kaur,1 said that it is
true that section 12 provides for the temporary custody of a minor child in the interim period between
application being made to the court and the final conclusion of the proceedings for the appointment of guardian,
but since those proceedings are not really complete until the guardian has obtained the custody of the child, it is
still, open to the court to take action under section 12.

On the other hand, the Madras High Court said that when a guardian for the first time applies for the custody of
the child, he can do so under section 25 of the Guardian and Wards Act and not under section 12.2
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In our submission the court, while appointing a person guardian may also commit him with custody of the child
or the court may appoint him merely guardian and custody may be allowed to some other person. In the former
case, if the guardian fails to get the custody, he does not apply for custody but for the execution of the order
passed by the court. In the latter case, when guardian applies for custody, he applies under section 25, the
Guardians and Wards Act, 1890 for custody and his application would be decided under that section. In any
case, once a final order has been passed, the provisions of section 12 cannot be utilized. The provisions of
section 12 are applicable only during the period which commences with the filing of the application and
terminates with the passing of a final order, whether rejecting the application or accepting it.
15. Orders for Interim Custody in an Application for Custody under section 25

The question whether interim orders can be made under section 12, in an application for custody under section
25 has arisen before our courts which have expressed divergent views. On the basis of the location of section
12 in Chapter II of the Act, the Lahore and Bombay High Courts take the view that the section applies only to
the guardianship proceedings and does not apply to proceedings for custody under section 25;3 the court has
to fall back on its inherent powers. The Gujarat High Court also expressed the same view in Ruxmaniben
Tribhovandas Jethabhai v. Minor Nermada.4 The court said that the power to make an interlocutory order for
production of a minor and interim protection of his person or for interim custody can be exercised only in
proceedings for appointment or declaration of a guardian provided under Chapter II, section 12, which is in
Chapter II, provides for making an order for interim protection of the person and property and must, therefore,
necessarily be held to be available only in proceeding for declaration and appointment of guardian. Since
section 25 is in Chapter III of the Act, which deals with duties, rights and liabilities, section 12 cannot be invoked
for obtaining orders for interim custody in proceeding under section 25. When faced with the question as to
whether the court has no power whatsoever to pass interim orders for custody of the child in proceedings under
section 25, the court had to fall back on the inherent power of the court to make such orders. The court
observed:

If the court can under section 25 order that the minor should be returned to the custody of the guardian on the ground
that it is for the welfare of the minor to return to such custody, I do not understand why the court cannot do so as an
interim measure. It may take considerable time before a petition under section 25 may be disposed of by the court and
if the court has no power to make interlocutory order for interim custody of the minor, considerable injury may be
caused to the interests of the minor during the period that it may take to dispose of the petition. Surely the court is not
so powerless as to prevent any injury being caused to the welfare of the minor during the period that the petition is not
disposed of by it. I am of the opinion that the court has inherent powers to make interlocutory order for interim custody
of a minor in a petition under section 25.

This case was considered by the Allahabad High Court in Khurshid Gauhar v. Siddiqunnisa,1and the court
expressly dissented from this view. The court said that it must be borne in mind that the Guardians and Wards
Act has been enacted primarily for the welfare of minor children. Consequently in constituting the provisions of
the enactment that interpretation ought to be accepted which subserves the welfare of the minor in preference
to one which might prove detrimental to his interest. The court added, intrinsically there is nothing in section 12
which might indicate that the power of the court to make interlocutory order for production of a minor and
interim protection of his person or property is available only in proceedings for appointment or declaration of a
guardian. The words used in the statute ‘the court may direct the person, if any having the custody of the minor
shall produce him at such place and time.............and make such order for the temporary custody and protection
of the person and property of the minor as it thinks proper’ are words of wide amplitude and in so far as the
plain language of the section goes there is nothing to suggest that section 12 should be read down and be
restricted in its application only in respect of proceedings for appointment or declaration of a guardian. Section
12 is part of the same statute of which section 25 is. Except, therefore, that section 12 appears in the chapter in
which sections 15 and 16 dealing with the power and procedure for appointment or declaration of guardian
appears, there does not exist any valid ground for limiting its application only to the proceedings initiated under
Chapter II of the Act, section 12 itself does not state that this power to make interlocutory order is exercisable
pending the disposal of an application under sections 15 to 19 of the Act.

In our submission this is the correct view. The Gujarat High Court has been guided by the rules of mechanical
jurisprudence. The court has taken too technical a view merely on the basis of juxtaposition of the section in
Chapter II which deals with the appointment or declaration of guardians. But if we look at the language of
section 12, it explicitly and unambiguously indicates that the section is not limited to any particular type of
proceedings. In the words of Amarendra Nath Verma, J., of the Allahabad High Court:
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To deny the power to make such an order for interim production or protection of the child in a petition filed under
section 25 would undeniably result in irreparable harm to the child and be destructive of the very purpose of the
enactment. It is not difficult to imagine a case where an infant or a child of tender years being removed from the
custody of a guardian of his person in circumstances which may warrant immediate restoration of the child to the
custody of the lawful guardian of his person.

The learned Judge then said that, suppose, a child of tender years may be seriously ill requiring immediate
attention by his mother. If in such circumstances the mother makes an application under section 25 and it is
held that the court totally lacks any power to give immediate relief to the child, it would be undeniably
destructive of the very purpose of the entire enactment. Surely a person who is already recognized as a
guardian of a minor applying to the court for an order for the return of the ward under section 25 illegally
removed from his custody cannot be legitimately held to be in a less advantaged position than one who is still to
be appointed or declared a guardian in so far as the right to apply for an order for production of the minor is
concerned.

In our submission this is the correct formulation and the provision of section 12 is available in all applications
under the Act, including proceedings under section 25.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

5 Mohesh Chander v. Manick Lal, ILR (1899) 26 Cal 650 ; Chamattar Mohiney v. Mohesh Chandra, ILR (1899) 26 Cal
651 .
6 AIR 1928 Cal 600 .
1 Ruxmaniben v. Nermada, AIR 1962 Guj 227 [LNIND 1961 GUJ 49].
2 Laxminarayan v. Parvatibai, ILR (1920) 44 Bom 690 .
3 AIR 1925 Lah 358 .
4 Harendra v. Brinda Rani, 2 CWN 521; the Calcutta High Court said that the court has very wide power of both refusing
and according sanction to minor’s marriage.
5 Harendra v. Brinda Ram, 2 CWN 521; Murarilal v. Saraswati, AIR 1925 Lah 358 ; In re, Kashi Chander, ILR (1881) 8
Cal 266 .
6 In the matter of Kashi Chander ILR (1881) 8 Cal 266 .
7 Harendra v. Brindra Rani, 2 CWN 521.
8 Deo Krishan v. Asaram, AIR 1933 Nag 62 ; In the matter of Kashi Chander Sen, ILR (1881) 8 Cal 266 .
9 Robindra Nath Mukherji v. Abinesh Chandra, AIR 1972 Cal 143 [LNIND 1971 CAL 102].
1 2 IC 369.
2 But see Ram Narayan v. Goura, AIR 1927 Oudh 68 for a contrary view.
3 Chandrika v. Srikant, AIR 1929 All 597 ; Daman Singh v. Maktul, AIR 1955 Punj 137 .
4 Chandrika v. Srikant, AIR 1929 All 597 .
5 In re, Bai Jamnabai, ILR (1911) 36 Bom 20 .
6 Daman Singh v. Maktul, AIR 1955 Punj 137 .
1 In re, Bai Jamnabai, ILR (1911) 36 Bom 20 ; Jyoti Prasad v. Pearelal, AIR 1930 Cal 384 .
2 AIR 1930 Cal 384 .
3 Kali Kumari v. Bachhan, 17 CWN 974; Chandrawati v. Jagannath, AIR 1925 Lah 489 .
4 Jyoti Prasad v. Pearelal, AIR 1930 Cal 384 .
5 Chandrawati v. Jagannath, AIR 1925 Lah 489 .
6 Godo Rai v. Janabai, AIR 1929 Nag 119 .
7 Daman Singh v. Maktul, AIR 1955 Punj 137 .
8 Daman Singh v. Maktul, AIR 1955 Punj 137 ; Nathuram v. Karmon, 1912 DLR 40; Utma Kaur v. Bhagwan Kaur, ILR
(1915) 37 All 515 : AIR 1915 All 199 . But see Chandrawati v. Jagannath, AIR 1925 Lah 989 .
1 Om Parkash v. Pushpa, 1975 Rajdhani LR 29.
2 Kali Kumari v. Bachman, 17 CWN 974; Jyoti Prasad v. Pearelal, AIR 1930 Cal 384 ; Godo Bai v. Janabai, AIR 1929
Nag 119 ; Chandrawati v. Jagannath, AIR 1925 Lah 489 .
3 The Rules of other High Courts are also to the same effect.
4 13 PR 1897.
5 Mst. Nasir Begum v. Gulam Qadir Khan, ILR (1937) Lah 426; Inder Singh v. Kartar Kaur, AIR 1929 Lah 487 .
1 ILR (1915) 37 All 515 .
2 Ibrahim Nachi v. Ibrahim Sahib, ILR (1916) 39 Mad 608 .
3 Inder Singh v. Kartar Kaur, AIR 1929 Lah 487 ; Achratlal v. Chiman Lal, ILR (1916) 40 Bom 600 .
4 AIR 1962 Guj 227 [LNIND 1961 GUJ 49].
1 AIR 1986 All 314 [LNIND 1986 ALL 31].

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

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.

Comments

1. Scope

This section provides that the guardian court will hear all the evidence as the parties choose to adduce. If the
parties agree to give evidences by affidavits, the court will receive the same, but once parties agree, they
cannot later on make any grievance about it.1

The procedure that the guardian court should follow has not been prescribed in the Act, and section 11
specifically lays down that the court may prescribe and follow its own procedure. While doing so it may adopt
the procedure laid down in the Code of Civil Procedure, but it does not mean that any other procedure which
would be equally conducive to meet the ends of justice cannot be followed.
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Since guardianship proceedings are also adversial proceedings, the parties have to prove their case and rebut
the case of the other parties, and this cannot be done without adducing evidence.
2. Procedure laid down in Code of Civil Procedure

The guardian court can follow the procedure laid down in the Code of Civil Procedure. In terms of section 141,
Code of Civil Procedure, the provisions of the Code apply as far as may be to the proceedings under the Act.1
The procedure in respect of suit laid down in the Code of Civil Procedure will apply to proceedings under the
Act, though proceedings under the Act are not required to have the formality and precision of the procedure laid
down in the Code.2 It should not be over looked that the guardian court’s main concern is the welfare of the
child. It exercises a parental jurisdiction, and therefore the guardian judge is not required to weigh in golden
scales like the ordinary trial of a money or property suit. In short, the guardian court is not bound to follow the
adversial procedure totally. In view of this, even if the guardian court has disregarded some rules of procedure
and evidence, its order will not upset if it is a reasonable order.3 But the order of the guardian court will be
vitiated if it has passed it in total disregard of the provisions of sections 11 and 13 and did not consider properly
the character and capacity of the proposed guardian and the welfare of the minor.4
3. Proceedings are Not Summary

Though the guardian court is not bound to follow all the technicalities of the rules of procedure and evidence,
yet proceedings before it are not summary.5 The guardian court should not reject the application for
guardianship summarily.6 It is bound to bear such evidence as may be adduced before it by the parties.7
4. Hearing of Evidence

When it is said that the guardian court is free to evolve its own procedure, it does not mean that the court has
power to dispose of the application for guardianship without inquiry.8 This section makes it clear that the
guardian court would dispose of the application only after due appreciation of the evidence adduced by the
parties. The applicant has to be given due opportunity to establish its case, so as the opposite party to rebut it.
If this is not done, the order stand vitiated and the High Court will quash it.1 Mere recording of the statement of
parties is not enough.2 It is the duty of the court to hold a proper inquiry and to hear evidence adduced by the
parties. It is also the duty of the court to ask the parties whether they would like to produce evidence, in case
parties are not coming forth to give evidence. Then alone the compliance with the section will be made.3 It may
be emphasised that the procedure of trial at the guardian court need not be elaborate and judge is free to
devise such procedure as he thinks proper for disposing the case. Thus the court has the discretion as to how
witnesses are to be examined, what is to be the length of the cross-examination and like matters.4 In Kundi
Devi v. Chote Lal,5 where the applicant was admittedly the person having the right of guardianship and there
were no serious allegations of his unfitness, it was held that elaborate procedure as laid down in the Code of
Civil Procedure need not be followed. In Sarat Chandra v. Girindra,6where the minor wife had left the husband
on account of his cruelty (which was established) and the husband sought to use the provision of the Guardians
and Wards Act to get back wife’s custody, it was held that the court was justified in not holding a detailed
inquiry. Where the courts appointed a suitable third person as the guardian of the minor of its own and did not
consider applicant as suitable person, it was held that it was not necessary for the court to give an opportunity
to the applicant to show that the person chosen by the court was unsuitable. To such proceedings section 13
does not apply as it provides for taking evidence inter parties.7

On the other hand, in Tilak Raj v. Choolachooa,8 the Calcutta High Court held that the order of the guardian
court was bad as the court did not fix any date the hearing nor did cause any notice to be served on opposite
parties and the person having the custody of child; it did not provide any opportunity to the opposite parties to
adduce evidence either.
5. Report from the Collector

Can the guardian court seek a report from the Collector or Tehsildar about the suitability of the persons
claiming guardianship of the minor? In Subhag Singh v. Raghunandan Singh,9 the guardian court sought report
from the Collector as to the suitability of three persons who sought to be appointed as guardian of the minor.
The Collector in turn sought a report from the Kanungo who found one of them to be suitable person. On the
basis of this report, the guardian court appointed that person as guardian. On appeal, the Allabahad High Court
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held that the report of the Kanungo could not be considered as evidence and quashed the order. In Khundi Devi
v. Chhotelal,5 the guardian court sought a report from the Tehsildar and in deciding the question gave
consideration to the report. In this case the court did not decide the application solely on the basis of the report
of the Tehsildar. It considered as one of the relevant piece of evidence. In view of this the Allahabad High Court
held that the guardian court was competent to consider the report of Tehsildar who was a responsible officer
under the Collector.

The Guardian Court should record the evidence and it is not enough just to make a summary of the evidence. If
court does not record the evidence of witnesses examined by the parties in the language in which it was given
but merely makes notes of statements of witnesses, the Allahabad High Court held that the case was not tried
in accordance with law and remanded the case.1
6. Report from the Collector or Subordinate Court

Under section 46 of the Guardians and Wards Act, the Guardian Court has power to call for a report on any
matter arising under the Act from the Collector or subordinate court, and such a report can be treated as
evidence. But this does not mean that the guardian court can dispense with the hearing of evidence by himself
and transfer the investigation of the case to the Collector or subordinate court entirely. He can also not consider
the evidence recorded by the Collector or subordinate court in connection with the report as part of the record
of the case. An order passed on the basis of such report and evidence is bad and can be quashed.2 But if the
guardian court acts on the report of the Collector or subordinate court on any particular matter, such as on the
fitness of the proposed guardian, after considering other evidence then an order passed on that basis cannot
be faulted.3 This aspect of the matter should not be mixed up with the proceedings under section 4A, when the
entire case is transferred to the subordinate court. The subordinate court itself then decides the case as it
becomes the guardian court on the transfer of case to it.
7. Selection of Guardian made by Arbitrators

The guardian court can also not refer the matter of appointment of guardian to arbitration, and the guardian
court cannot validly appoint a guardian on the basis of recommendation or arbitrator. It is not a private matter
between the parties. Herein is involved the welfare of the minor, and minor obviously cannot agree to such a
reference.4 The matter of guardianship is not a private right of any party to proceedings and thus they cannot
submit the question of appointment of guardian to arbitration.5 The entire matter of appointment of the guardian
has to be considered by the guardian court after the appreciation of the evidence adduced before it and on the
basis of welfare of the child and it cannot get the matter revolved by reference to arbitration.6
8. Selection of Guardian on the Basis of Compromise between the Parties

What has been stated in the preceding para should make it evident that just as no guardian can be appointed
on the basis of the recommendation of arbitrators, no guardian can be appointed on the basis of compromise
between the parties. Since in all guardianship proceedings, welfare of the minor is the paramount
consideration, it is for the court to determine as to who is the best person for the appointment of guardian of the
minor and the matter cannot be left to any agency or on the compromise between the parties.1 If parties have
entered into a compromise as to the person to be appointed as guardian, then the court must apply its mind on
the suitability of be proposed guardian, and it may, after the application of its mind, appoint that person as
guardian. In Manjula v. Dilip,2 Mrs. Manohar, J. of the Bombay High Court said:

By expressly sanctioning the compromise as being for the benefit of the minor, the court protects not merely the minor
but also his next friend or guardian as well as the third party who enters into compromise with the minor......... It is true
that that court should satisfy itself even in such a case whether the consent order will be for the welfare of the minor or
not. But no sanction of the court is required for entering into the compromise.

9. Application: Can it be Withdrawn

Like any other application, an application for guardianship can also be withdrawn before any orders are passed.
But once an order appointing a person as guardian has been made, the application cannot be withdrawn. Even
when, at the appellate stage, both the parties agree to withdraw the application, the application cannot be
withdrawn. Nor can the guardian’s withdrawal be recorded as part of the compromise to withdraw the
application, since this would be detrimental to the welfare of the minor. Once a guardian is appointed the
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provisions of section 40 would come into operation and as guardian can be discharged only in accordance with
the provisions of that section. No certificated guardian can withdraw without the court’s order. The provision of
section 42 would also come into operation, as on the discharge of a guardian, it is the duty of the court to
appoint another guardian if the child is still a minor.3
10. Doctrine of res judicata

The doctrine of res judicata as embodied in section 11 of the Code of Civil Procedure applies to miscellaneous
proceedings, such as guardianship proceedings, just as it applies to suits.4 Thus reopening of a question
determined by the guardian court at an earlier stage of proceedings is barred.5 Once an order of guardianship
is passed, the court cannot entertain another application on the same facts.5

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

1 Md. Shafi v. Shamim Banon, AIR 1979 Bom 156 [LNIND 1978 BOM 171].

1 Pano Bibi v. Mahala, AIR 1928 Lah 488 ; Shiv Saran v. Satbirawan Trust, AIR 1961 Punj 17 .

2 Thakur Prasad v. Fakirulla, ILR (1895) 17 All 106 (PC).

3 Khundi Devi v. Chotey Lal, ILR (1922) 44 All 587 ; Sarat Chandra v. Girindra, 15 CWN 457.

4 Gopal Rao v. Shrawan, AIR 1923 Nag 36 ; Ram Sahai v. Chottey Lal, AIR 1921 All 256 .

5 Savad Shahu v. Hafija, ILR (1892) 17 Bom 560 ; Gopal Rao v. Shrawan, AIR 1923 Nag 36 ; Antu Mahton v. Ramraj
Singh, AIR 1957 Pat 720 .

6 Jiwan v. Zabo, 63 PLR 1917; Sajjan Singh v. Gujri, AIR 1928 Lah 108 ; Jaiwanti v. Gajadhar, ILR (1911) 38 Cal 783 .

7 Ratan Amol Singh v. Kamaljit, AIR 1961 Punj 17 .

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8 Jaiwanti v. Gajadhar, ILR (1911) 38 Cal 783 .

1 Yusuf Ali v. Alibhoy, AIR 1925 Lah 567 .

2 Shiv Saran v. Satbirawan, Trust AIR 1961 Punj 17 .

3 Sho Shankar v. Khub Chand, AIR 1925 Nag 233 .

4 Bibi Fatima v. Baikar Shah, AIR 1921 Sind 45 .

5 AIR 1922 All 288 .

6 15 CWN 457.

7 Haji Hirji v. Kashim Kirji, 4 IC 603.

8 20 IC 578.

9 ILR 36 All 282.

1 Gangabai v. Narain Dutt, (1905) AWN 105.

2 Ganesh Vithal v. Kusa Bai, ILR (1899) 23 Bom 698 ; Narayan Shridhar Dharve v. Ram Chandra, ILR (1902) 26 Bom
716 .

3 Janak Raj v. Pateshri, 7 ALJ 328.

4 Palaniandi v. Adai Kalam, AIR 1924 Mad 484 [LNIND 1923 MAD 312].

5 Mahadeo Prasad v. Bindeshwari Prasad, ILR (1908) 30 All 137 .

6 Ma Ngwe v. Ma Thwe, AIR 1928 Raj 137 .

1 Sattan v. Saidan, AIR 1936 Lah 1019 .

2 AIR 1980 Bom 235 [LNIND 1979 BOM 30].

3 Mahomed Yakub v. Radhabai, 41 IC 817.

4 Hook v. Administrator General of Bengal, AIR 1921 PC 11 ; Ram Kirpal v. Rup Kumari, ILR (1884) 6 All 769 (PC).

5 Jagannath v. Lal, AIR 1936 Pat 447 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

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.
*[(3)In any other case in which proceedings are stayed under sub-section (1), the Courts shall report the
case to and be guided by such orders as they may receive from their respective State Governments.]

Comments

1. Scope

Section 9 lays down jurisdictional rule for the appointment of guardian of the person or property of the minor.
Under sub-section (1) of section 7, application for the appointment of guardian of the person of the minor can
be made only to the District Court within whose jurisdiction the minor’s ordinary residence is situate. Under sub-
section (2) of section 7, an application for the appointment of guardian of the property can be made to the
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District Court within whose jurisdiction minor ordinarily resides or where the minor’s property is situate. When
minor’s property is situate within more than one jurisdictions, it is possible that applications may be made in two
or more courts. When applications are made in more than one jurisdictions—all having jurisdiction over the
matter—this section provides a solution.
2. Simultaneous Proceedings before the District Court and High Court

This section relates to the jurisdiction of the District Judge’s Court. It does not apply to High Court’s ordinary
original jurisdiction. Thus where proceedings are filed in the District Court as well as on the original side of the
High Court, the latter is not bound to stay the proceedings pending before it, though the District Judge is bound
to do so.1
3. Sub-section (1): Stay of Proceedings

When the several District Courts are apprised of simultaneous proceedings being filed in their courts at the first
step, this sub-section lays down that all such proceedings pending before them should be stayed.
4. Sub-section (2): Directions from the High Court

If all the District Courts are subordinate to the same High Court, then the second step is that all the District
Courts would report the matter to the High Court. On the receipts of such reports, it is for the High Court to
decide as to which of these courts should try the case. The High Court would obviously render the decision on
the basis of best convenient forum.1 The powers of the High Court under the sub-section are very wide, but the
court decides the matter in a judicial manner after considering all facts and circumstances. Due consideration
would be given to the ordinary residence of the minor, but this is not the sole consideration.2 In short, the court
decides the matter on the basis of best convenient forum.3
5. Sub-section (3): When the Courts are not Subordinate to the same High Court

Where the courts in which several cases have been filed simultaneously are not subordinate to the same High
Court, the matter is to be referred to the respective State Governments and the courts would be guided by the
orders received by them from their respective State Governments.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

* Subs. by the A.O. 1937, for the original sub-section (3).

1 In the matter of Fakaruddin, ILR (1898) 26 Cal 133 .
1 Lakshman v. Gangaram, AIR 1932 Bom 592 .
2 Ramswarup v. Chiman Lal, AIR 1952 All 79 [LNIND 1951 ALL 154]; But see Kamla v. Bhanumal, AIR 1956 All 328
[LNIND 1955 ALL 243], where a different view has been propounded.
3 Md. Aftaz v. Abdul Hakim, AIR 1934 Lah 208 ; Narendra Singh v. General Public, (1968) 70 PLR 221.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

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.

*[***]
(2) Separate guardians may be appointed or declared of the person and of the property of a minor.
(3) 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.

Comments

1. Scope

This section deals with the power of the court to appoint joint guardians. The court may appoint joint guardians
if the following two conditions laid down in section 15(1) are satisfied:

(a) the personal law of the minor should permit appointment of joint guardian, and
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(b) the court should consider it necessary.

2. Personal Law and Appointment of Joint Guardians

It seems that the court cannot appoint joint guardian of the person or property of the minor if such appointment
is not permitted by the personal law of the minor. And it seems that the court cannot do so even if the welfare of
the minor requires it, if the personal law is opposed to the appointment of joint guardians.

Under Hindu Law there does not seem to be any bar on the appointment of joint guardians. In Dwijapada
Karmaker v. Miss Baibeen,1 where the mother was about to be converted to Christianity, and the child was of
tender age, the court appointed mother and another person as joint guardians. An undertaking was taken from
the mother that she would bring up the child as a Hindu child and the joint guardian was to see that the
undertaking was fulfilled. In our submission this could have been done simply by giving custody to the mother
and by appointing another person as guardian. But as has been submitted later in this work, the Guardianship
and Wards Act does not contemplate that guardianship and custody can be separated.

The court in Chironji v. Puran Chand,2 appointed two persons as joint guardians of the person of a minor girl,
who were required to find a husband for the girl. The girl was given option to live with either of the guardian. In
Kosthalathammal v. Thangasamy,3 the court took the view that under Hindu Law joint guardians of the property
of the minor could not be appointed.

Mohammedan Law seems to be against the appointment of joint guardians. But under the Guardians and
Wards Act, 1890, the court has power to appoint joint guardian in respect to a Muslim minor also.

English law specifically contemplated appointment of joint guardians.4

Even if the law permits appointment of joint guardians, if there exists a proper guardian and there is no need for
appointing another as joint guardian the court should not appoint joint guardians, as in every case it is
necessary for the court to come to the finding that appointment of joint guardians is desirable.1 Take for
instance, when property is small, the appointment of more than one guardian would lead to unnecessary
burden of administration on the property.2

In our submission reference to personal law in the matter of appointment of joint guardians should be deleted
from section 15. Whether the personal law permits or does not permit, the court should, whenever it thinks
necessary and desirable, should have power to appoint joint guardians.
3. Natural Guardian and Joint Guardians

In the presence of the natural guardian, the court has no power to appoint another guardian to act as a joint
guardian with him. Under section 7(2), the appointment of a guardian by the court implies the removal of the
natural guardian. Thus unless the court removes the natural guardian under the provisions of the Act, no joint
guardian can be appointed with the natural guardian.
4. Testamentary or Certificated Guardian and Joint Guardian

Sub-section (3) of section 7 lays down that a testamentary or certificated guardian cannot be replaced by
another unless the former has been removed or has ceased to exist under the provisions of the Act. The
guardian court has no power to appoint another person to act as joint guardian with the testamentary guardian
or certificated guardian under this section.
5. Joint Certificated Guardians

Under the provisions of this section, the court can appoint joint guardians at the first instance. Thus when the
court passes an order for appointment of guardian, it is free to appoint two or more persons as joint guardians
of the minor’s person or property.
6. Surviving Joint Guardian

When the court has appointed two or more persons as joint guardians, and if any one of them dies, the
guardianship continues to vest in the surviving guardian or guardians till additional appointments are made.
This is made abundantly clear by section 38. That section lays down that on the death of one or two or more
joint guardians, the guardianship continue to survivor or survivors until a further appointment is made by the
court.
7. Sub-section (4): Separate Guardians of the Person and Property of the Minor
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This sub-section empowers the court to appoint one person as guardian of the person and another as guardian
of the property of the minor. It appears that under Hindu law there cannot be more than one guardian of the
same property, but there is no bar in the appointment of one guardian for person and one for the property of the
minor.1

The court has also power to appoint successive guardians, and different guardians for different purposes.
8. Sub-section (5): Separate Guardians for Separate Properties

This sub-section contemplated appointment of separate guardians for separate properties. The court may
appoint as many guardians as are properties. It may as well appoint joint guardians. But if the property of the
minor is small appoint of two separate guardians would not be justified, as it would unnecessary add to the
administrative costs.2

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

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.

Comments

1. Scope

This section provides a solution to the situation where the property is situated in several jurisdictions and
guardian of property is appointed in one jurisdiction. In such a case, on production of the order of the
appointment of guardian, all the courts within whose jurisdiction the property is situate would respect that order.

Under section 9(2), an application for appointment of guardian of the property may be made at the District Court
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within whose jurisdiction the minor has his ordinary residence or at any place where property or any portion
thereof is situate. Thus if a guardian of the property of a minor is appointed by the court within whose
jurisdiction the minor has his ordinary residence or by the court where some property of the minor is situate,
then in such cases, this section lays down that 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 guardian and give effect to the order.

Obviously, the object of the section is to avoid conflict of jurisdiction and multiplicity of the proceedings.
2. Guardian of Property having Control of all Properties of the Minor wherever Situate

By virtue of this section guardian of minor’s property appointed by any court having jurisdiction would be able to
take under his control and management minor’s property situated anywhere in India. Such an order will not be
effective outside India, as in such case the rule is that it is lex sites of the property which will determine the
matter.

The result of this section is that the certificated guardian of minor’s property appointed by the court having
jurisdiction will become certificated guardian of all properties of the minor once the court where property is
situate gives it effect. Thereby he becomes responsible for the management of all properties of the minor until
he is discharged.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

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.

*[***]
(4) The Court shall not appoint or declare any person to be a guardian against his will.

Comments

1. Scope
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Section 17 lays down various factors that the court would consider in appointing or declaring a person as
guardian of a minor. The interesting aspect of these factors is that though the letter of section 17 stands as it
was in the Guardians and Wards Act, 1890, by interpretation, the courts have updated it, by broadly or
narrowly, depending upon the social purposes to be served, interpreting its various provisions. This has been
done mostly by taking recourse to English precedents. Such ultimate objective of any inquiry regarding minor
children is to find out the welfare of the child, the courts have, by and large, discharged this task well; keeping
in view that welfare of the child is the paramount consideration and all other factors are subservient to it. It has
been held in Jai Prakash Kadria v. Shyam Sunder Agarwalla,1 that order under this section is not final and can
modified.

It may be recalled that under section 7, the District Court has power to appoint or declare a person as guardian
of minor’s person or property and once it decides to make such an appointment of declaration, section 17
comes into operation, as the court would appoint a guardian after considering these factors. It should be noted
that these factors assist the court in finding out what is for the welfare of the child. This is made clear by sub-
section (1) of the section which lays down, “...........subject to the provision of this section be guided by what,
consistently with law to which minor as subject, appear in the circumstances to be for the welfare of the minor”.
Although the sub-section does not say that the welfare of the minor child is the paramount consideration, that it
is so, is the implication of these words or, at least, the courts have held so.

The various factors that the court would take into consideration are the following:

(a) Wishes of the child.

(b) The age of the child.
(c) The sex of the child.
(d) Misconduct, immorality, delinquency, etc., of the parent or the guardian.
(e) Abandonment or abdication of parental right.
(f) Remarriage of the parent.
(g) Change of religion by the parent.
(h) Parent or guardian going out of jurisdiction.
(i) Nearness of kin.
(j) Existing and previous relationship of the proposed guardian or custodian.
(k) The character and capacity of the proposed guardian or custodian.
(l) Wishes of the parent.
(m) Willingness of the proposed guardian or custodian, and
(n) Personal law of the child.

2. Wishes of the Child

It is now a well-established principle in almost all countries of the world that in matters of appointment of
guardian and committing of custody of minor children, their wishes should be taken into consideration if they
have attained the age of discretion, though it is equally well-established principle that in their welfare the wishes
of the children may be disregarded.

The English courts have consistently taken the view that wishes of a male child of fourteen years and a female
child of sixteen are to be given effect to. The courts have said that the age of discretion is not dependent on the
intellectual precocity or otherwise of the child but on attainment of certain age.1 Below that age the children
have no option but to remain with their parents. Brett, M.R., said that up to a certain age children cannot
consent or withhold consent. Upto the age of fourteen in the case of a boy and up to the age of sixteen in the
case of a girl, the court will not enquire, upon a habeas corpus, as between the father and the child, as to the
consent of the child to the place where it may go. But above that age, the court will enquire whether the child
consents to be where it is, or whether he wants to go to some other place.2
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Although the courts are bound to consult the wishes of a male child of fourteen years and of female child of
sixteen years, it does not mean that they cannot consult the wishes of the child below that age. In fact the
courts have consulted the wishes of children capable of expressing them, and have often given effect to them.
In Ward v. Laverty,1 where the wishes of an eleven years of old girl were consulted and given effect to,
Viscount Cave said ‘that in view of that fact that the child acquired, settled, or, at all events strong convictions in
favour of the Protestant faith,’ she should remain where she was.

On the other hand, the English courts also take the view that they are not bound to abide by the wishes of the
child even if the child is above the age of discretion. If they feel that it would not be in the welfare of children to
give effect to their wishes, the courts disregard them. It is welfare which is paramount consideration.2 In In re,
S.3 the court gave effect to the wishes of a thirteen years old child as the court came to the conclusion that they
were the child’s considered wishes.

In Indian law there is a specific provision in this regard. Section 17(3) of the Guardians and Wards Act provides,
“if the minor is old enough to form an intelligent preference, the court may consider that preference.”

What is the age of discretion under Indian law? Hindu law considers it to be the completion of fifteenth or
sixteenth year, while Mohammedan law considers it the completion of fifteen years. Section 363 of the Indian
Penal Code makes it a criminal offence to entice away a minor, who is, if male, under fourteen years, or if
female under sixteen years. This coincides with the age of discretion under English law. However, Indian
courts, have not accepted this view, being “too artificial to be applicable in India.”4 Indian law takes flexible
view: if the child, whatever be his age, is mature enough his wishes may be consulted and respected, otherwise
the court may not consult them.

In Sarat Chandra v. Foreman,5 the court ascertained and gave effect to the wishes of a child of sixteen years
by whose intelligence the court felt impressed. It refused to return the custody to the guardian. In Queen v.
Nisbet,6 where the child was below the age of twelve years, the court refused to consult his wishes. In Skinner
v. Order,7 the court consulted the wishes of a child of sixteen years. In Sundamoni v. Bansidhar,8 and
Fulkumari v. Budh Singh.9 the wishes of children of fifteen years were considered and given effect to. In
Asalata v. Society for the Protection of Children,10 wishes of a female child of twelve years old were consulted
and given effect to. Similarly, in Barkhudar v. Gulam Fatima,11 and Bhagwana v. Ram Chandra,1 the wishes of
children under thirteen were consulted and given effect to. On the other hand, in Reade v. Krishan,2 the court
refused to give effect to the wishes of a child of sixteen. Similarly, in Mohideen Ibrahim v. Mohammed Ibrahim,3
the court declined to abide by the wishes of a child of fifteen years.4 In Konthalathammal v. Thangaswamy,5
the court said that it was not obligatory on its part to ascertain the wishes of the child.

In cases coming after 1925 the Indian courts have taken a definite view that the wishes of the children are an
important consideration, but whether the child expressing a wish is mature enough or not is to be judged not by
age, but by the mental development. In Murarilal v. Saraswati,6 the two children aged sixteen years and
fourteen years, in Prem Kaur v. Banarsi Dass,7 the two children aged twelve and ten years respectively, in
Baldeo v. Dhanna Mal,8 a girl of fourteen years and In re, Ghulam Mohammed,9 a girl of fourteen years and In
the matter of Lovejoy Patel,10 a girl of about sixteen years were considered to be intelligent enough to express
their wishes.11 In In re, Kamal Rudra,12 a child of the age of four years and in Rama Iyer v. Natraja Iyer,13 a
child aged ten years and in Bedd v. Kadaun,14 a child aged nine years were considered not incapable of
expressing any intelligent preference.15

Thus Indian courts take flexible view. In some cases they have given effect to the wishes of children of ten
years old, in other they have declined to give them effect. On the other hand, in a very few cases the court has
gone against the wishes of a child of sixteen years. That wishes of the child is only one of the factors has been
succinctly expressed by the Manipur Judicial Commissioner’s Court16 thus:

The wish of the minor is no doubt, a relevant consideration, but it is not the sole factor to be taken into account in
adjudging the proper custody of the minor.

The Madras High Court has also expressed the same view.17

In Ayesha v. Vijay,1 the Delhi High Court said that wishes of the child wherever possible particularly when the
child is old enough to make an intelligent preference should be taken into consideration, though in the welfare
of the minor these may be disregarded. However, the wishes of a child of less than six years cannot be
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considered to be expression of the wishes of a person capable of giving intelligent preference. In Md. Ramzan
v. Teja,2 the Jammu and Kashmir High Court did consider the wishes of a child of about five years and but
declined to give effect to them in the welfare of the child. In Aisha v. Bashir Ahmed,3 since the trial court did not
consider the wishes of a child of seven years, the Jammu and Kashmir High Court remanded the case to the
trial court for ascertaining the wishes of the child.
3. Age of the Child

Although the court has power to appoint a guardian of a minor who has not attained the age of majority, for
instance, the court may appoint the guardian of a child of seventeen years and 364 days, usually the court does
not appoint the guardian of a child who is about to attain majority. In our submission, we may consider the
matter in relation to (a) children of mature age, and (b) children of tender age. In between these ages, the
question of wishes of the child also arises.
(a) Child of Mature Age

Should a court of law go against the wishes of mature children? In theory the court’s jurisdiction exists during
the entire period of minority. But as we have seen in the preceding part of this chapter, the English common law
courts refused to exercise jurisdiction over a male child of fourteen years and a female child of sixteen years.
The common law courts in habeas corpus petitions took the view that a mature child cannot be, and should not
be, detained against his wishes. This was, probably, a practical view. But the Court of Chancery, which
exercises parental jurisdiction, did not quite agree with this view.4

In Indian law, the orthodox view is represented by cases like Reade v. Krishan.5 These cases take the view
that father’s right of custody being an absolute right is enforceable against the wishes of the children whatever
be their age. The court was of the view that ‘minor though fourteen is not at liberty to choose his own custody
as against the father’.

Reade v. Krishan,5 does not represent the current law. In Sarat Chandra v. Foreman,6 the Allahabad High
Court said that neither the Legislature nor any rule of justice, equity and good conscience would require the
court to force a child to subject himself to guardianship which he detests or to go into the custody of a person
whose kindness he does not admit, whose religion he abhors, whose way of thinking does not suit him. The
Madras High Court took a different view in Pollard v. Rouse.1 It said that a male child above the age of fourteen
and female child above the age of sixteen would not ordinarily be compelled to remain in custody to which they
object. The Lahore High Court2 said that it is not proper to appoint a guardian of the person of a minor who is
over seventeen years old.3

Not merely the court respects the wishes of children above fourteen-sixteen years, but it takes into
consideration the wishes of younger children who are old enough to form an intelligent preference. The Madras
High Court said that if a child “capable of forming an intelligent opinion expresses its views, the courts is bound
to take them into consideration”4 Of course, it added, each case must be decided with reference to the interest
and welfare of the child. This means that court is free to disregard the wishes of a child old enough to express
an intelligent preference if the welfare of the child so requires.5 In Iyer v. Iyer,6Venkatarmma v. Tulsai,7 and
Nazir Khan v. Ganesh,8 the court did not give effect to the wishes of children between thirteen-fourteen as it felt
that they were induced by ‘unwholesome persuasion or were tutored’.

The view taken by the Indian courts accords will with the social conditions of our society. Our courts have
refrained from taking any rigid view. Ordinarily the court would respect the wishes of a child who is mature
enough to express an intelligent preference. Intellectual maturity is a question of fact to be determined in each
case, though children between fourteen-sixteen may be presumed to be mature. The wishes of the children
would be given effect only if they are consistent with the welfare of children which is the paramount
consideration.
(b) Child of Tender Age

At the time when English law was wedded to principle of the supremacy of paternal right, the tender age of the
child was of no consideration and the court did not hesitate to handover a child at the breast of his mother to
the father.9 With the evolution of the welfare principle, the tender age became one of the considerations. We
find that in 1958 the Chancery Court has no hesitation in saying that that it is prima facie rule of law that a child
of tender years should be committed to the custody of the mother,10 though more recently the Court of Appeal
has dissented from this view.11

The Talford’s Act, 1839, was the first statutory modification which recognised the mother’s preferential claim to
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the custody (or in any event of access) of children up to the age of seven. The Custody of Infants Act, 1873,
raised the age of child to sixteen. Then the Guardianship of Infants Act, 1886, popularly known as Mother’s Act,
gave statutory recognition to the rule.

However, it was only after 1886 that the English courts gave some serious considerations to the tender age of
children. In In re, A. and B.,1 there were three children of marriage of the age of ten, seven and four years. The
father did not dispute about the third child, but claimed the custody of the first two. Granting the custody to both
the parents, each having it for six months, Chitty, J., said “It is important for children that they should be brought
up in their tender age on terms of affection with one another, and also that they should know both their
parents’”. In 1926 Lord Merrivale, P. Made the following observation without any hesitation:

Balancing as well as I can the relative advantages which are offered here, it seems to me that the well-being of the
child while it is of tender age requires pre-emptorily that the child should remain ordinarily in the care in which since its
birth it has been.2

In Allen v. Allen,3 the trial court gave custody of a child of eight years to the father as against the mother who
was found guilty of adultery. In the Court of appeal, Evershed, M.R., said it would not be right to snatch this
female child of eight from her mother and force her to make a new start with her father and step-mother. The
court gave care and control to the mother. The same view was taken in Willoughby v. Willoughby,4 in respect of
a child of two years.

In re, S.,5 where the child was about five years old, Roxenburg, J., said that the prima facie rule (which is now
quite settled) is that, other things being equal, children of the tender age should be with their mother, and where
a court gives custody of a child of this tender age to the father it is incumbent on it to make sure that there are
really sufficient reasons to exclude the prima facie rule. The Court of Appeal disagreed with Roxenburg. J., that
there was such rule. However, Lord Evershed, M.R. Said:

..........as a matter of human sense a young child is better with its mother and needs a mother’s care.6

Herman, L.J., said that though there was no rule of law, yet the Chancery judges and judges in the Divorce
Division have in past years taken the view ‘that so long as child is young enough to need the day-to-day care of
his or her mother, it is better to leave the child with the mother unless mother is entirely unsuitable person.’ The
main objection of the learned Judges of the Court of Appeal in calling it a rule of law is, as Herman, L.J. put it:
mother would be ‘one up’ with the father which cannot be, as the Guardianship of Infants Acts, 1925,
establishes equality between mother and father.

It seems that the Indian courts from the beginning have no difficulty in propounding this principle, and it has
been accorded statutory recognition by the Hindu Minority and Guardianship Act, 1956. Proviso to section 6(a)
provides, ‘the custody of a minor who has not completed the age of five years shall ordinarily be with the
mother’. Muslim law has always recognized this principle as a rule of law: under the Hanafi law, custody of a
boy upto the age of seven and of girl up to the age of puberty rests with the mother.1

The Punjab Chief Court in 1917 said that a child of tender years should be committed in the custody of the
mother even if she had remarried.2

The Bombay High Court in Tara Bai v. Mohan Lal,3 said that a boy of seven years would be much better off
living with his mother than with his father. Beaumont, C.J., in Saraswathibai v. Sripad,4 said:

“............if mother is a suitable person to take charge of the child it is quite impossible to find an adequate substitute for
her for the custody of a child of tender years.”

Das J., of Calcutta High Court, in In re, Kamal Rudra,5 said:

I have no doubt in my mind that the mother’s lap is God’s own cradle for a child of this age, and that as between father
and mother, other things being equal, a child of such tender age should remain with mother.

The conversion of mother,6 or her being outcasted7 did not matter. Sinha and Mathur, JJ., of the Allahabad
High Court, said that for children of tender years, ‘mother is the only proper custody’.8 The Madras High Court
said, ‘It is impossible to find out an adequate substitute for her for the custody of a child of tender years, whose
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interest should be the paramount consideration’.9 In these cases children were between two and five years. In
Samual v. Stella,10 the court again reaffirmed its view by saying that since it is the mother who would have the
interest of the minor most at heart, the tender years of the child needing the care, protection and guidance of
the most interested person, i.e., the mother, who has come to be preferred to others. The court gave custody of
a female child of thirteen who was delicate in health to the mother.

The Patna High Court in Bhola Nath v. Sharda Devi,11 said ‘the affection, love and sympathy which the child
requires cannot be given by the father in the same measure as can be given by the mother, especially when the
child is aged only about two years or little more.1 Recently, in Mohammad Khalid v. Zeenat Parveen,2 where
the contest for the custody of a child of about three years was between the father and mother. The mother was
a teacher drawing a salary of about Rs. 1000 and the father was having a second wife and two children, the
Allahabad High Court held that welfare of the child would be better served if custody was committed to the
mother.

In some cases we still hear the echo of the supremacy of paternal right. The Bilaspur Judicial Commissioner’s
Court3 said that unless there was a very strong reason to the contrary, the father, as natural guardian, has
preferential right of custody of his minor son. The two children aged seven and a half years and six and a half
years were given in the father’s custody. But then the court also said that at that age the children could not be
considered of tender age. The most distressing recent judgment4 is that of Koshi, C.J., and Vaidialingam, J., of
the Kerala High Court where the mother’s application for the custody of a child of two years and a half was
refused on the ground that the father being the natural guardian is entitled to the custody unless he was found
unfit. The proviso to section 6(a) of the Hindu Minority and Guardianship Act also did not impress the court.

On the whole one can say that Indian courts have taken a fairly correct view. One or two decisions expressing
the dissenting note merely echo the age which is dead and gone. There is also a scope for difference in opinion
as to what is tender age.5

Whether or not this principle i.e., the child of tender years should be with the mother, may be called6 a rule of
law, it is a very sound principle and helps the court in finding out what is for the welfare of the child. It certainly
does not put mother ‘one up’ or father ‘one down’; it is nothing but the ramification of the principle that welfare
of children is the paramount consideration. Mother is given custody of a child of tender age, because it is felt
that her’s the most proper custody. If the court will feel otherwise, mother may not be given custody. Donovan,
L.J., in his dissenting opinion very aptly summed up the law thus:

Prima facie a child of this age ought to remain with his mother and strong grounds are required to justify taking him
away. I agree that there is no rule of law to that effect, but it is certainly the natural law and one that should, if possible,
prevail.7

In sum, the Indian courts have now settled down to the view that the wishes of the children are an important
consideration and at what age the child is capable of expressing its intelligent preference depends upon the
mental development of the child, the court have also held the view that the wishes of child is a relevant
consideration, but welfare of the child is paramount consideration to with wishes of the child, howsoever mature
the child may be, would be subordinated. It also emerges as a sound principle that children of tender grass
should ordinarily remain with the mother and the wishes of children of mature age should ordinarily be
respected.
4. Sex of the Child

The English and Indian decisions are replete with the following statements:

(i) children of tender years should be committed to the custody of the mother,
(ii) older boys should be in the custody of the father, and
(iii) older girls should be in the custody of the mother.

But there are statements of general nature and there is no hard and fast rule. This section lays down that sex of
the child is one of the factors to be taken into consideration when the court appoints or declares guardian of a
minor child.

At common law, in appointing a guardian of a child, the sex of the child was generally taken into consideration.
A female child above the age of eight or ten was usually given into the guardianship and custody of the mother.
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The modern English law does not take any rigid view in the matter, and the question is decided mainly on the
basis of welfare of children. Herman, LJ., observed:

It is not, I think, really in dispute that in all cases the paramount consideration is the welfare of the child........... What
you look at is the whole background of the child’s life.1

But the echo of the old view could be heard as late as 1968 and that, too, in the words of Lord Denning M.R.,
who observed:

I feel it is right to be guided by the general principle that a boy of this age, some eight years of age, is on the whole,
other things being equal, better to be with his father.2

The view was expressly dissented to, two years later, in In re, C.3 Herman, LJ., said:

I do not at all agree with expression of opinion which have fallen perhaps per incuriam, from judges that a boy should,
as a matter of ‘principle’ be with the father—just as much as I disagree with the other ‘principle’, which has altogether
been abandoned that a girl of under three should, as a matter of principle be with her mother.

Edmund Davies, LJ., another Judge of the Bench said that with that principle ‘with profound respect, I cannot
agree’.4

It is submitted that this is the correct view. In fact what a court does in these matters, is, in the words of
Herman, LJ., ‘to look at the whole background of child’s life.’1

The Indian personal laws are still some what rigid in the matter of the sex of the child, though in the welfare of
the minor, the courts have not felt their hands tied down by the rule of personal law.

Muslim law takes a very positive view. The Hanafi school permits a boy to be with the mother up to the age of
seven and Shia school up to the age of two, while custody of a girl is permitted up to puberty under the former
school and up to the seven years under the latter. A male child above the aforesaid ages in both the schools
must be in the custody of the father, and if the child refuses to go, or mother refuses to hand him over, Muslim
law permits use of force.

Since the matter of appointment of guardianship of Muslim children falls with the purview of the Guardians and
Wards Act, 1890, the courts are not bound to follow the rule of Muslim law or any other personal law if the rule
is not consistent with the welfare of the child.

Under section 17 of the Guardians and Wards Act, sex is one of the considerations the court is required to take
into account, in appointing a guardian of the person of the minor. The courts have not taken a very rigid view of
the provision. It has not been considered necessary to appoint only a female as a guardian of a female child,2
though ordinarily the custody of a female child is not committed to a male who is very distantly related to the
child. The paramount consideration being the welfare of the child, sex has not been regarded as of much
importance in determining the question of guardianship and custody. Vaidya, J., of the Andhra High Court said
that the law lays down that ‘the welfare of the child is the paramount consideration and in determining the
welfare of the child, sex of the child will necessarily have to be taken into consideration.3 In our submission it is
the whole background of the child’s life, sex being only one of the factors, which is to be taken into
consideration for coming to the conclusion as to what is for the welfare of the child.
5. Nearness of Kin

In ancient societies nearess in blood relationship was a great and, in some cases, the only basis on which
human relationship was founded. In the early Roman law only nearest agnates were entitled to tutorship.
Mohammedan law lays down a fairly exhaustive list of relatives who are entitled to custody of a minor child,
though only four persons are recognised as guardians of the property. Hindu sages have also enjoined to prefer
relations by blood in the appointment of guardians, first agnates then cognates. Under English common law
also relatives were preferred. At that time it was natural to think that blood relations were the only persons who
could take care and look after the interest of the minor children.

The modern society continues to subscribe to the idea that closer the blood relationship with the child, better it
would be in the interest of the child. Such is the human nature. However, modern law does not subscribe to that
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notion rigidly, and does not take the view that no other person can look after the up bringing and welfare of the
child. Yet, it is one of the several factors which the court takes into consideration and like other considerations
this is also subordinate to the welfare of children.

In English law nearness of kin is one of the factors that the court takes into account and would preferably select
a nearest relation, provided it is in the welfare of the child.1

Should a prospective heir to a minor be preferred? Under Roman law it was so, but then he was mainly
concerned with the guardianship of property of the child. At common law in tenure by knights service the lord
was the guardian, while if the land was held in socage and it descended to an heir under fourteen, then the next
of blood on whom inheritance could not descent was the guardian. Under Hindu law on the death of parents
guardianship vested in nearest agnates, on their failure on the nearest cognates.

In Amin Chandra v. Phagmal,2 and Imam Bux v. Phagmal,3 it was held that a prospective heir of a child would
be particularly interested in the proper management of the property and as such he would be the best person to
be the guardian of minor’s property. On the other hand, he has been considered to be the worst person for
appointment of guardian of the person. The reason is that ordinarily he would be interested in the acceleration
of succession and he might starve the child to death. In Sami Row Jagdab v. Eliavatha,4 and Krishnaswami v.
Cottah Magannath,5 the court said that it was usually undesirable to appoint a presumptive heir as guardian of
the person of the minor child. This view was dissented from in Sharafan v. Bholi.6 The court said that merely
because a person would be entitled to a share in the property on the death of the child, it is not necessary that
he would murder the child.

The preponderance of authority is against the appointment of a presumptive heir as guardian of the person.7

However, in the modern law, the nearness of kin is an important consideration in selecting a guardian. In
Bhikuo v. Chamela,8 the Calcutta High Court said that in finding out whether proposed appointment would be in
the welfare of the child or not, the court might take into consideration the nearness of relationship of the
applicant to the child, as he was likely to look after the child and his interest is a better way than a stranger.1 In
Laxmi Narayan v. Balram,2 the court said that when relations of the child, other than the parents, are agitating
the question of guardianship, then if the relationship with the child is the only circumstances for consideration,
the court would prefer the nearest relation of child, though the court is in the welfare of the child, free to choose
a remoter relation also. The court in Akima Bibee v. Azeem,3 very aptly and succinctly said that the court has to
look as much to this fitness as to his propinquity, and when two persons claim guardianship the court is free to
disregard the latter in the welfare of the child. This seems to be the consistent view of Indian courts.4 However,
in Satyendranath Maitra v. Balram Chakraborty,5 the Calcutta High Court said that there is no rule under which
paternal relations are to be preferred over maternal relations in the absence of the parents. The matter has to
be decided on the basis of the welfare of the child.
6. Existing and Previous Relationship

The expression “existing and previous relation” of the proposed guardian with the minor or his property used in
sub-section (2) of the section has not been defined in the Act. Its meaning has also not been clearly laid down
in the judicial pronouncements. It seems to mean the entire conduct of the proposed guardian towards the child
from the time he knew of the child, viz., how he has behaved towards the child, how he has treated him, what
are his feelings towards him and in what relationship he stands with the child at the time when his appointment
as guardian has come for consideration.

In Lakshmibai v. Shridhar,6 the court refused to appoint the natural father of the child in the presence of the
adoptive mother. The court said that the adoptive mother was the natural guardian and unless charges of some
serious nature was made against her, she could not be deprived of her guardianship. In Ganga Prasad v. Hari
Kanta,7on the other hand, the court appointed a natural father of a child as guardian since both the adoptive
parents were dead and the custody was claimed by the brother and three sisters of the adoptive mother. The
court said that under section 17 of the Guardians and Wards Act the natural father comes within the expression
‘any existing or previous relationship’.

In Chandrawati v. Jagannath,8 the guardianship of minor children was claimed by a cousin of the father, with
whom the latter was on very good terms and who in fact entrusted to him the management of the properties,
and by step-mother who was too young and had ill-treated the children. Appointing the cousin as guardian,
Bhinde, J., said that the cousin ‘is a near relative of the deceased and the evidence on the record shows that
his relations with the deceased were amicable.’ In Islaman v. Mst. Maqbulan,1 an aunt of a child whose father
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was dead applied for custody. The application was opposed by the mother who had remarried, had mortgaged
the entire properties of her late husband and had shown no interest in the child. The court appointed the aunt
as guardian.2

The Calcutta High Court in Nirode Barani v. Bholenath,3 said that the paternal uncle who was an applicant for
appointment of guardian, could not be appointed a guardian because during the life-time of the father of the
child he lived separate from him, and was not on friendly terms with him and after the death of his brother he
even did not go to attend his sradha ceremony, nor did he take any interest in the child. The court appointed the
maternal uncle, the other contestant, as guardian, who was on very friendly terms with the father and was well
disposed of towards his sister, the mother of the child, and had all along taken interest in the child.4

Thus, the Indian courts seem to have taken the view that if a person is not in good relationship with the child or
child’s deceased parent or has not cared for the child, then he cannot be appointed a guardian howsoever near
might be his kinship with the child.
7. Character and Capacity

“Character and capacity” of the guardian is mentioned as one of the factors in sub-section (2) of this section to
be taken into account in appointing guardian of a minor child. This is obvious and no court would appoint a
characterless or incapacitated person as guardian of the minor child. Section 8 of the Act which deals with
“persons entitled to apply” and section 10 to the Act which deals with the “form of application” lay down that the
qualifications of the proposed guardian should be mentioned in the application.5

The guardians and Wards Act require that the due enquiry should be made as to the character, capacity and
qualifications of the proposed guardian. But the function is that of the court itself and it cannot be delegated to
any other authority. In Subhag Singh v. Raghunandan Singh,6 where the trial court relied on the report of the
Collector as to the character and capacity of the proposed guardian, the Allahabad High Court said that it was
incumbent on the court to have made enquiries itself. This is a duty imposed by the law on the court and failure
to make the enquiries is material irregularity.7

It is not enough to disqualify a person being appointed a guardian just because charges are made against
him.1 In Kaulesra v. Jorai Kasundhan,2 a paternal grandfather opposed the application of the mother for
appointment of guardian on the allegation that she was leading an immoral life and that she was an out-caste.
He could not substantiate the former charge, and, as to the latter, it was found that he had a hand in it. The
judge said, “a man who does not hesitate to foul the reputation of his own kindred without cause and follow it up
by an outcasting is not the man that I should select to be a guardian of an infant child”. In Tumina Khatun v.
Goharjan Bibi,3 the court said that a proposed guardian, who was fit for appointment under personal law is not
disqualified just because she was only twenty-one years old and had two children of her own to look after and
might have more.

The court would weigh the merits of proposed guardians and appoint the one who is best suited in the welfare
of the child. In Winifred Mcquillan v. Mrs. Winfred Chapman,4 the court said that the mother is unable to earn
more than a small and possibly a precarious income is in itself no reason for depriving her of her child, though
the fact that the grandmother, another claimant of guardianship, is able to keep the child in a very suitable
physical surroundings is a very weighty consideration in her favour. In Suharabi v. D. Muhammed,5 the Kerala
High Court said that merely because the father is economically better placed and mother is in indigent condition
are not enough facts to deny the mother custody of her female child of tender age.

In Haliman Khatoon v. Ahmadi Begum,6 a mother and an aunt of child applied for custody, both had remarried
strangers. In between them, the court naturally preferred the mother. Aggarwal. J., explained the principle thus:
One has to see who out of several applicants has a preferential claim to be appointed guardian. If the person
having a preferential claim is unfit he would be passed over. Even if that person is not unfit, yet there are
weighty considerations against his appointment in comparison to another person, then he would not be
appointed and the other may be appointed guardian. But if considerations are not very weighty and there is only
slight preference in favour of the other party, then the person having preferential claim will be appointed.

If the applicant’s interest is adverse to the minor he cannot be appointed a guardian, even if he has a
preferential claim to guardianship under personal law.7

Thus under this factor the court is required to consider the character and capacity, positively and negatively, of
a proposed guardian. The matter is finally to be determined on the basis of the welfare of the child. It is
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incumbent on the court to make enquiry as to character and capacity of proposed guardian. Under the modern
English law, the court may assign this task to Welfare Officers of the courts. The singular merit of this provision
is that the Welfare Officer can make enquiries on the spot while no court of law can do so. Under section 46 of
the Guardians and Wards Act, the guardian court has the power to seek a report from the Collector or a
subordinate court on any matter arising in any proceeding under the Act. The character and capacity of a
proposed guardian is one of such matter. For details, please refer to our commentary on section 46.
8. Wishes of the Parent

Sub-section (2) of the section lays down that the court would also take into consideration the wishes, if any, of
the deceased parent. The sub-section does not seek anything about the wishes of the living parent. But wishes
of the parent who is alive may also be taken into consideration, though the Nagpur High Court has observed
that no weight is to be attached to the wishes of the living parent.1 At English Common Law when absolute
rights of the parent were recognized and enforced, parental wishes, during his life-time as well as after his
death, were paramount in all matters relating to custody, upbringing the education of his children. If a father
died without making an appointment of a guardian, though clearly expressing his wishes, then the person in
whose favour the father expressed the wishes was appointed guardian. In in ex-parte, Mountford,2 the court
said that in appointing a guardian it would pay great attention to the wishes of a parent. This was the view
common law courts took consistently.3 The most forceful exposition of the principle in our modern times is
found in In re, Thain,4 Eve, J., said the rule that welfare of the child is the paramount consideration does not
“state that the welfare of the infant is to be the sole consideration; it necessarily contemplates the existence of
other considerations, and among these the wishes of an impeachable parent undoubtedly stand first.5

Today the wishes of parent are an important factor, but it is not his wishes but the welfare of the child which is
the paramount consideration.

The Indian law closely follows English law.

In Fulkumari v. Budh Singh,6 the court said that though the wishes of the parent are not conclusive, but still
considerable weight is to be attached to them. Even if the parent or legal guardian has died expressing a wish
in some document or orally, due weight will be given to his wish.7 But it would be disregarded if giving effect to
it would be injurious to the child, or the person in whose favour the wish is expressed is unfit or unsuitable.1

That the wishes of a parent and especially if he is an unimpeachable parent are of great importance and due
weight is to be attached to them is the principle no one would doubt. But then they can be given effect to only if
they are consistent with the welfare of the children.
9. Personal Law of the Child

The Guardians and Wards Act applies to all children irrespective of the fact as to which personal law they
belong. Since in India, personal law differs from community to community and substantive law of guardian (so
far as it has not been modified by the Act) is still personal law. Section 17(1) lays down that in appointing or
declaring a person as guardian of a minor, the court shall, subject to the provisions of this section, make an
order which is consistent to the personal law of the minor. The full wordings of the last clause of sub-section (1)
are: “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”. Then does it mean
that welfare of the minor has to be consistent with the personal law of the minor?

In cases coming under Muslim law which provides a long list of guardians, the courts have expressed the
divergent views. In Ulfat Bibi v. Bafati,2Siddiqunissa v. Nizamuddin,3 and Kundan Begum v. Mst. Aisha
Begum,4the court gave effect to the personal law. In the latter case the court said, ‘the Guardians and Wards
Act, 1890, does not permit the court to subordinate the law to which the minor is subject to the consideration of
what will be for the minor’s welfare. On the other hand, in Samiunnisa v. Saida Khatun,5 and Mst. Haliman
Katoon v. Mst. Ahmadi Begum,6the court has taken a milder view: a person who has a preferential claim under
personal law can be disregarded if he is unfit and there are some weightly considerations against him. But if
there is nothing against him he should be appointed. Earlier the court observed that under section 7 of the
Guardians and Wards Act 1890, a much wider discretion is vested in the court.

The Oudh Judicial Commissioner’s court said that when personal law definitely lays down that certain persons
should not be appointed guardian then it is not proper for the court to disregard the law, even in the interest of
the minor.7 In Ganna v. Dargahi,8 however the court said that if no other suitable person is available, then the
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court can appoint that person as guardian who has lost her right, as powers of the court cannot be fettered by
any rule of Muslim law.1

In an early case,2 the Calcutta High Court took the view that personal law cannot be disregarded even in the
welfare of the child.3 But in Tuminra Khatun v. Gaharyan Bibi,4 the court said that though section 17 provided
that the appointment of a guardian should be made consistent with the personal law of the minor, but this
cannot fetter the powers of the court, and if the welfare of the child requires the court can appoint a stranger as
guardian; and if court can appoint a stranger as guardian it can as well appoint a relation as guardian who has
lost his right under the personal law.5

The Madras High Court said that the welfare of the minor child should be, as far as possible, consistent with the
personal law of the child, and the claim of preferential guardian cannot be disregarded. However, the judgment
on its facts is sound. The court said, ‘the mother who had married a second husband is not at all the person to
whom the child of the first marriage should be entrusted. It would be impossible for her under her changed
circumstances to look after and care for the child’.6

The Jammu and Kashmir High Court7 has unequivocally said that welfare of the child is paramount
consideration and personal law has to be subordinated to it. Fazl Ali, J., said that it is true that in appointing a
guardian the court will be guided by the personal law of the parties, but then the primary consideration is the
welfare of child, and if court considers it to be in the welfare of child, it could appoint even a total stranger as
guardian, irrespective of the personal law of the child.8

In Md. Ramzan v. Taja,7 A.S. Anand, J., rightly observed that in the appointment of the guardian, the court is
charged with a duty of appointing the most suitable person amongst the rival claimants for guardianship. Under
section 17 normally a person who under the personal law would be entitled to the custody of the child of the
minor in preference to any one else should be appointed as the guardian. This is, however, a flexible rule. The
scope of sub-section (1) of section 17 of the Act is that the court has to see who out of the several applicants
has a preferential right to be appointed guardian of the minor under personal law of the minor keeping in view
the welfare of the minor. Should, however, that person be found unfit., he will not be appointed the guardian
and even where he is found fit enough if there exist weighty considerations against his appointment in
comparison to the rival claimant. He will still not be appointed if that course is found necessary for the welfare of
the minor. The welfare of the minor thus has been given greater significance in deciding the question of custody
and guardianship under the Act.

The same was expressed by the Patna High Court in Bholanath v. Sharda Devi.1 The Privy Council in a case
where personal law applicable was Hindu law, said: The Principal matter to be considered in these cases is the
welfare of the infant.2

With the above observation, the present writer is in respectful agreement. In our submission this clause should
be deleted from our law.

We would now pass on to the factors which go to defeat the claim of guardianship and custody of a person who
is otherwise entitled to the guardianship or custody of the child.
10. Misconduct, Unfitness, Immorality or Delinquency

At common law, the courts deprived a parent of the guardianship of the child if they found him guilty of some
misconduct, immorality or delinquency or otherwise unfit. All the expressions are covered under one term
“gross misconduct” at English law and “unfitness” under the Indian law. However what amounts to “gross
misconduct” under English law and “unfitness” under Indian law have so far not been defined with any
precision, and, in our submission, they are not capable of any precise formulation. What amount to misconduct
would vary from case to case upon the circumstances of each case. A parent guilty of gross misconduct has
been considered at common law to be unfit to have the custody of her children. The same position was taken
under the Indian law in some early cases. It was considered as a sort of punishment to the parent.

The modern law looks at it from a different angle. The parent is denied custody or guardianship not because of
his unfitness, but because it is considered not to be in the welfare of the child. But if the welfare of the child
requires otherwise, the custody will, nonetheless, be entrusted to the delinquent parent. Thus, for instance, a
mother is leading the life of a prostitute, or a marriage is dissolved on the ground of adultery of mother and
there is a child of marriage, say, aged six months. Despite the misconduct of the mother, custody could still be
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committed to her because to deprive the child of such tender age of the custody of the mother would not be in
the welfare of the child.

Immorality and cruelty are two obvious instances of gross misconduct which makes a person unfit to have the
guardianship and custody of the child. At the early English law, a view was taken that a parent guilty of any
matrimonial offence was not entitled to have the custody.
(a) Immorality

If one were to keep the historical perspective in view, one would not be surprised that at common law and in
most early systems of law a distinction was maintained between the immorality of the father and immorality of
the mother. At that time an immoral mother was considered to be totally unfit to have the custody of her
children, while this was not so necessarily in the case of the father. Thus, simple adultery of the father was not
an act of gross immorality at common law. Many acts in the case of the father were not considered immoral at
all, while they were in the case of mother.1

At that time, such were the social ideas that even the Talford’s Act, which purported to grant access and give
custody to the mother of her children below the age of seven, contained a specific provision precluding a court
from passing any order for access to or custody of children, in favour of a mother who was guilty of adultery.2
Such was the impact of social notions, that the divorce court which exercised much wider powers and
jurisdiction under the Matrimonial Causes Act, recognized and enforced this disability of the mother. In Seddon
v. Seddon,3 the court without any hesitation proclaimed:

It will probably have salutary effect on the interests of public morality, that it should be known that a woman, if found
guilty of adultery, will forfeit, as far as this court is concerned, all rights to the custody of, or access to, her children.

A year earlier in Clout v. Clout,4 and Bent v. Bent,5 access was refused to a mother found guilty of adultery. On
the other hand, in Hyde v. Hyde,6 the guilty father was granted custody.7

This position prevailed till 1870 when section 4 of the Talford’s Act was repealed by the Custody of Infants Act.

In 1875, the question came for consideration before the House of Lords in a Scot case, Symington v.
Symington,8 their Lordships said that the divorce court possessed ‘widest and most general discretion:’ the
court looks to the misconduct of the parties, but the primary duty was ‘to look to the interest of children.’

But the position did not change materially.9 Even in 1891 the court merely asserted to say that it was not
precluded from making an order granting custody to a divorced wife, though as a general rule such an order
should not be made.10

It is in 1910 that a marked change is noticed.

In Starke v. Starke,1 the Court of Appeal said the aim of jurisdiction of the court is not to punish the guilty
spouse but to consider the welfare of children. But still the court was reluctant to follow this principle. And till
1923 the court persisted to say that the guilty wife could not be given custody of, or access to, her children, if
the husband objected.2

In 1924 the principle laid down in Starke v. Starke, was re-affirmed in B v. B,3 Pollock, M.R. said:

Then Master of Rolls very aptly and succinctly said:

Although her mother has fallen, she remains her mother.

Since then the court has stuck to that view. Wrottesley, L.J., reiterated the same principle in the following
words:

It was impossible to say, because a woman had once committed adultery she was not a fit person, vis-a-vis one who
had not, to look after her child.4
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Evershed, L.J., said “it was not merely ‘moral welfare’ but ‘welfare generally’ that has to be considered.”

It would appear that English law has settled down to this view of morality.5 If the welfare of children so requires
an immoral parent can be given custody.

Hindu law lays great emphasis on chastity of women. Mohammedan law specifically lays down that a female
entitled to custody of her children shall forfeit her right if found leading an immoral life.

The Indian courts have, in a series of cases, taken the view that a mother leading an immoral life is not entitled
to the custody of her children.6 A woman who was living openly in immorality with a man,7 and a woman who
squandered away her child’s money in delivering an illegitimate child,8 were not given custody. The Allahabad
High Court preferred a putative father over the mother who was leading the life of a prostitute.9

On the other hand, the Indian courts have not hesitated to give custody to an immoral father. The most
interesting argument in favour of the father is found in Sukhdeo v. Ram Chandra.1 An immoral father has just
as good a right to his own children, as a moral man, and in many cases he is just as likely to see that his
children are properly brought up even if he himself does not live properly.

That immorality per se is no ground to deprive a parent of the custody of children is a sound principle. But it
should not lead to the doctrine that an immoral father cannot, and an immoral mother can, be deprived of the
custody of his children.

However, there is another current of opinion also.

In Kaulesra v. Joral,2 the custody of child of tender years was given to an immoral mother. But among the other
claimants there was no suitable person. In Jannatunessa v. Hafizuddin,3 a divorced mother was leading a
respectable life, the court said that she could not be deprived of the custody of her children even if she was the
cause of divorce. In Ganga v. Kongsi,4 the court said that the mere fact that the mother has given birth to an
illegitimate child two years after the divorce is no ground for depriving her of custody. Obviously mere charge of
immorality is not sufficient to deprive a mother of the custody of her children.5

Similarly, the court has not stuck to the view that an immoral father cannot be deprived of the custody of his
children.

In Baldeo Prasad v. Dhannaram,6 the father had given the custody of his children to their maternal-uncle after
the death of the mother. He was found leading an immoral life and keeping a mistress.7 The court held that he
was not entitled to the custody of his children. In Sydney v. Margaret,8 where court found some charges of ‘the
most loathsome character’ against the father, the custody was not given to him. A father of dissolute habit may
not be considered fit to have guardianship and custody of his minor daughter, but the mere fact that some years
ago he had gone to prostitutes does not make him unfit for guardianship.9 The individual cases do give some
scope for criticism. But in our submission the principle that is discernible is sound one: Immorality of a parent
(of father or mother) is a factor which the court would take into consideration and which may disentitle a parent
from the guardianship and custody of children. But the law does not aim to punish a guilty spouse, but decides
the case in the best interest of the child. In Anjali Kapoor v. Rajiv Baijal,10 mother of minor was dead and father
was under debts and had remarried and had another child from his new wife, the maternal grandmother was
allowed to keep the custody of child.
(b) Marital Misconduct, Irreligious Belief and Ill-temper

The early English law took the view that a guilty spouse is not entitled to custody of his children. The principle,
again did not strike the father so hard as it did the mother. In some early cases,1 the common law courts held
that mere immorality of the father was not sufficient to deprive him of his parental rights, unless immorality was
very flagrant,2 or gross or associated with some other habits injurious to the child.3

In Shelly v. Westbrooke,4 the court said that the adoption of irreligious and immoral principle would justify
court’s interference with paternal rights. In Wellesley v. Benuford,5 the father was openly profligate and
adulterous, who deliberately taught them to swear and use obscene language and inculcated bad principle in
them. The court deprived him of the custody of his children. A father found guilty of marital misconduct,6 or
unnatural offence,7 was held not to be entitled to the custody of his children.
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In In re, Curtis,8 the court did not deem it proper to deprive a father of the custody of his children who was a
man of passionate temperament and was in the habit of occasionally giving way to act to severity. In In re,
Spence,9 the court said that merely because a husband’s conduct was such as to make his wife unhappy was
not enough to deprive him of the custody of his children: it must be shown that his misconduct was likely to
contaminate and corrupt the morals of children.

The Indian law has not taken very stringent view of marital misconduct. Thus it was held that a divorced mother,
otherwise of good character is not disentitled from custody or guardianship of her minor child.10 Similarly in
Haidri Begam v. Jawwad Ali,11 the Allahabad High Court observed that the mere fact that mother has been
divorced does not disentitle her to have custody of her minor child to which she was entitled under the personal
law, particularly when there were no allegations of immorality or any other misconduct against her. But,
following some early English decisions in Beatrice v. Phillip,12 it was held that a mother who had been divorced
on account of her adultery was not entitled to the guardianship of her minor children. In Madhu Bala v. Arun
Khanna,13 allegations of adultery were made against the mother to deny her custody. The Delhi High Court
held that standard of proof of adultery in guardianship proceedings in the same as that in matrimonial cases. In
this case adultery of the mother was not established. The court held that mother was a better person than the
father to have the custody of a child of tender years.

In Walter v. Walter,1 it was held that an un-balanced hysterical and incompetent mother was not entitled to the
guardianship of her minor child. In Gulam Hyder v. Atdal,2 it was held that an inexperienced youngman is not
qualified to be the guardian of the property of his minor child particularly when minor’s property is large
requiring managerial capacity. But litigious disposition of a person by itself does not bar him from the
guardianship of a minor, particularly when minor had been living with him almost from its birth.3
(c) Cruelty

A parent guilty of cruelty towards the child is obviously not a fit person for custody. In English decision R. v.
Greenhill,4 the father was found guilty of cruelty towards his children and there was also apprehension of
contamination of children, and In re, Thomas Kakeswill5 the father was found guilty of extreme harshness
towards his children. In both cases he was refused custody. However, in In ex Parte Warner,6 the court said
that father cannot be deprived of custody merely because of his cruelty towards the child or its mother. In re,
Curtis7 mere cruelty towards the mother was held as not sufficient to deprive a father of the custody of his
children.8

The Indian law represents the same tendency. In Sarat v. Girindra Chandra,9 a husband who was found guilty
of cruelty towards his minor wife was not given custody of her person.10 But the mere fact that the father
treated the deceased mother of the child with cruelty was considered not enough to deprive a father of the
custody of his children.11 There is no direct case where the court has taken the view that cruelty towards
children would disentitle a parent from his right of custody, though we have a rule of Mohammedan law which
lays down that a hazina who ill-treats the child is not entitled to its custody.12

The principle which may be deduced from the above review of cases is: misconduct, used in its wider sense, is
an important factor which the court would take into consideration in finding out what is for the welfare of the
child: ordinarily it would not be in the welfare of the child to commit him in the custody of parent who has
misconducted, but each case has to be decided on its own facts, the aim of the court being not to punish a
guilty parent, but to find out the welfare of the child. Misconduct per se is not a disqualification, though a court
would rarely hand over the child in the custody of a parent who has misconducted towards it.
11. Poverty

It appears to be now a universally recognized rule that a parent cannot be deprived of the custody of his
children merely because he happens to be poor. In In re, Cuits,1 Kindersley, V.C., said that “poverty was no
ground for removing a man’s children from him.” In India also the same view has been taken.2 In Ashalata v.
Society for the Protection of Cruelty to Children,3 the mother was held not to be disentitled to the custody of her
minor child just because she was poor. Similarly, in Winifred v. Winifred,4 the court held that just because
mother’s income was little, it would not be a bar from her being appointed a guardian of her minor child.

However, in between two parents, the court may, if other factors are equal, prefer a parent who is in a position
to provide better material welfare to a child.
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The courts have also considered poverty as a concurring ground with desertion5 or bad character6 depriving a
parent of his rights.

The parent’s refusal to support his child has been considered to amount to abandonment of his parental rights.
In Gifford v. Gifford,7 a father declined to support a child and it was taken care of by a third person. The court
said that the father cannot claim back custody. In India in Marriyuamma v. Boshard,8 and in In re, Saithri,9
where the mother not being able to maintain her child placed it in the custody of a Christian Mission, the court
said that it amounted to abdication of parental right, and the mother could not get back the custody of her
child.10

The English statute, the Children Act, 1948 empowers a local authority to take a child under the age of
seventeen under its care, if the parent or guardian, temporarily or permanently is prevented, for any reason,
from providing it with the proper accommodation, maintenance and upbringing.11Its counterpart in India, the
Children Act, 1960 provides that if a child is found begging or is found without having any home or settled place
or abode or any ostensible means of subsistence or is found destitute whether he is an orphan or not, or a child
whose parent or guardian is unfit to exercise or does not exercise proper care or control over it, then it can be
placed under the care of children’s home.12
12. Illiteracy, Old Age, Pardanasheen Lady or Negligence

Illiteracy of a person,1 or old age2 is by itself not a ground to deprive or deny a person of the custody of his
child. But lack of character has been considered to be such a ground.3

Lack of bona fide, the claimant being a pardanasheen lady or neglect of children are factors which have been
considered in considering the claim of guardianship or custody of the court.

If an application is not made bona fide the court would decline to consider the claim of the applicant. In
Atchayya v. Kosaraju,4 a father, who has not cared for his son since he was one year old, filed an application
for custody of the child. It was established that the uncle with whom the child has been living since then had
filed a suit for partition against the father. The court held that application was not bona fide. In Baldeo Prasad v.
Dhannarayan,5 the father applied for the custody of his daughter aged fourteen years who was all along in the
custody of her maternal uncle. The ulterior purpose of the father was to give away the girl in marriage to a
person who was one eyed and pitted with smallpox. His application was rejected. In Rupa Chinna v. Potepolli,6
the court said that the mere fact that the father did not ask for custody of his child for a long period, showed lack
of bona fides on his part.7 Similarly, the court said that a person who attempted to marry the minor girl during
the pendency of proceedings was not a fit person to be appointed her guardian.8

In Phool Kumari v. Budh Singh,9 the court said that it is incorrect to say that mother is not able to look after the
education of her children just because she is a pardanasheen lady. In Jaiwanti v. Gajadhar,10 the Calcutta
High Court said that a pardanasheen lady could be appointed guardian of person of the minor child, and if
minor’s properties needed an elaborate management, a separate guardian of property could be appointed. But
if she can look after the properties, she can be appointed as guardian of property also.11 Other High Courts
and the Privy Council also took this view.12
13. Abdication and Abandonment

As a manifestation of the supremacy of parental power, a rule came to be laid down that a father has no power
to fetter himself by an agreement in respect to custody of his children. He may delegate his authority, but he
can revoke it any time he desires. It was argued that parental authority is given to him not for his own benefit
but for the benefit of his children. He is, therefore, free to educate them and free to bring them up, the way he
considers it best for his children. Thus, it was asserted that it is against public policy to hold that the father has
relinquished his control over his children or to have abnegated his parental duties. Thus, at common law the
father could always revoke the authority by which he had entrusted the custody of his children to another
person.

However, equity took a different view. The courts of equity said that if an authority has been acted upon in such
a manner as its revocation will prejudice the child, then the parent will not be permitted to revoke it.

In R. v. Edward Smith,1 the father gave away the custody of his child to an uncle under an agreement, and in
Vansittat v. Vansittat,2 he gave the custody of his child to his wife under a separation agreement, the court said
that it is “a stipulation which cannot be enforced by law,” and the father is at liberty to revoke that consent.3
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These cases were decided before the Custody of Infants Act, 1873 came into force. Section 2 lays down that
no agreement contained in any separation deed made between the father and mother of an infant child shall be
held to be invalid by reason only of it providing that the father of such infant child shall give up the custody or
control thereof to the mother.’ The proviso provided that such agreement may not be enforced if found not to be
in the welfare of the child. In Hart v. Hart,4 and Prayor v. Prayor,5 the court gave effect to such agreements.

At equity, yet another argument was advanced: If the father has entrusted the custody of his children to another
person under the circumstances that it amounted to waiver of parental right, then he could not re-assert his
right: This line of argument proved successful,6 Lord Eldon put it thus:

If a fund is provided for the children by a third person and the father permits their maintenance to be supplied from that
source allowing them to be brought up with expectation founded upon a particular species of maintenance and
education, which he himself cannot afford to give them, away from that course.7

In Andrew v. Salt,8 a child was brought up in the religion of the mother to which the father had agreed in his life-
time and to which, after the death of the father, testamentary guardian did not object, the court refused to give
custody to the testamentary guardian. The court held that it amounted to abdication of parental right and it felt
that to remove the child from the present custody would not be in her welfare.

In In re, Beasant,1 the court considered the effect of section 2 of the Custody of Children Act, 1873. Under a
separation agreement the mother had the custody of the child. The court was of the opinion that the child, a
ward of court, should be brought up into her father’s religion, the only exception being the case when the “child
has received and formed other religious impressions and convictions, strong and apparently fixed, the court
shirks from the consequences on its part to disturb them.” The court found that the mother was propagating
athleitical opinion and was not a fit person to have the custody. The court refused to give effect to separation
agreement.

A parent may as well,-abdicate his right by his conduct. The conduct of the parent may be such as amounts to
abandonment of parental right. In Hill v. Hill,2 the father allowed his child to be educated in its mother’s religion
till the girl attained the age of seven. After the death of the father, on a relative’s application for custody, the
court said that father’s conduct during his life-time amounted to renunciation of parental right.3In re, Thain,4
father, after the death of his wife, entrusted the custody of the child to a couple and remarried. Failing to get a
child from his second marriage he applied for the custody of the child. Lord Justice Warrington, allowing his
application, said that no doubt the welfare is ‘the first and the paramount consideration, but it is one among
several other considerations’ of which it is also important that the child should have ‘an opportunity of winning
the affection of its parent and be brought up for that purpose with intimate relation with the parent’.5 This case
seems to lay down that the wishes of an ‘impeachable parent’, as the court put it, are also paramount. This view
has been expressly dissented from by the court of Appeal.6

The Indian law has followed English law.

The leading case of Beasant v. Naranyaih.7 In 1914, the Privy Council said that guardianship being in the
nature of a sacred trust, father cannot in his lifetime substitute another person in his place, though in the
exercise of his discretion he may entrust custody and education of his children to another person. Yet, the
authority thus conferred is essentially a revokable authority, and if the welfare of children requires he can,
notwithstanding any agreement to the contrary, revoke the authority. Then, relying on Lyones v. Blenkins,8 their
Lordships observed:

If, however, the authority has been acted upon in such a way as, in the opinion of the court, exercising the jurisdiction
of the Crown over infants, to create associations or give rise to expectations on the part of the infants which it would be
undesirable in their interest to disturb or disappoint, the court will interfere to prevent its revocation.

In this case the father of two minor children appointed one Mrs. Basant as their guardian and authorized her to
send them to England for education at her expenses. Pursuant to the authority, the children were sent to
England for education. Later on the father changed his mind and claimed custody. The father’s application was
rejected.

The question has come for consideration before our High Courts even before 1914 and they have taken more
or less the same view. In In the matter of Joshy Assam,1 a Chinese couple before leaving for Penang gave
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custody of their child to one Mr. and Mrs. Allen, and also agreed that the child be baptized as Christian and
could be adopted by them. Later on they returned to Penang and claimed the custody. The Calcutta High Court
said the rule that such arrangements are revocable is subject to one very important qualification: “the court will
not allow parents, who have abandoned the custody of their child to third persons, to attempt capriciously to
reassert their right without showing that the welfare of the children warrants or requires such action on their
part.2

In cases coming after 1914 also the same view has been taken, though in some cases the courts have felt
overpowered by section 19 of the Guardians and Wards Act, 1890.

In Satyanarayana v. Venkata Lakshimi,3 where the father had given the custody of the child under a
compromise deed, the Madras High Court said that the authority was revocable. Unless the father was shown
to be unfit. But eleven years later the emphasis was shifted. In Muthuswami v. K.M. Chinna Muthuswami,4 the
court said that the right of the father to revoke the authority can be defeated where it is shown that it would be
in the interest and welfare of the child that it should remain where it is.

On the other hand, in Nazir Khan v. Ganesh,5 the Allahabad High Court tried to distinguish the decision in
Annie Beasant v. Narayaniah.6 The father under an agreement renounced all his rights in his child and handed
it over to a third person. The agreement was in the nature of an adoption deed. The child remained with the
third person for fourteen years. Then father, purporting to revoke his authority, applied for custody. The court
said that father could revoke it and custody was given to him.7 Several other High Courts have given more or
less the same reasons in favour of the father.1 However, in Bindo v. Sham Lal,2 the court took a different view.

The Nagpur Judicial Commissioner’s Court, in Baldeo v. Dhannaram,3 where the father, who had given custody
of his three children to their grandfather under an agreement, applied for their custody after a period of seven
years, said that under those circumstances, ‘the father must be held to have lost his right to the guardianship of
his children’ not merely because he allowed them to be maintained and educated by the grandfather, but also
because at this stage to alter the course of their life would be detrimental to their interest. This case stands in
contrast to Nazir Khan v. Ganesh.4

The Calcutta High Court considered the question in In re, Lovejoy Patel,5where one Raha, a physician, applied
for custody of two children, a boy and a girl. The girl was given to the applicant under an agreement between
her and the parents of the children, where it was stipulated that the girl would be brought up by her as if it was
her child. The boy was given in the custody of the applicant at the age of seven for education, the father
defraying all expenses. The girl lived with her from its birth for fourteen years. As to the girl, the court said, ‘this
long continued acquiescence has given rise to associations and expectations’ in her mind, and therefore not to
frustrate her expectations, she should be continued to be brought up in the way she had been brought up so
far. Das J., also added, by this long acquiescence, ‘they have forfeited their natural rights and in my opinion
have rendered themselves unfit to be the guardian of this female child.’ It seems that the latter part of the
observation was influenced by section 19 of the Guardians and Wards Act, 1890. As to the male child the court
said that the father could revoke his authority as it was a temporary arrangement.6

The question came for consideration before the Bombay High Court in In re, Saithri,7 where the mother left the
child in the custody of a Christian Mission with an authority that the child might be converted to Christianity.
After eight years she applied for custody. Bayley. J., said that the mother by her conduct during last eight years
has precluded herself from demanding the custody back; to grant her request would, under the circumstances,
be ‘manifestly’ detrimental to the welfare of the child.8Since it was mother’s application the case was free from
the inhibition of section 19 of the Guardians and Wards Act, 1890. In 1898, the Calcutta High Court in Manoond
Singh v. Navdeep,9 where the father who had left his child in the custody of his wife before conversion to Islam,
applied for custody of the child. The court said that in the welfare of the child it would not enforce the parental
right of custody and religious upbringing of the child.

The court, in Muthuveerappa v. Ponnuswami,1 rejected the father’s application for custody of his child whom he
had entrusted in the custody of the maternal grandfather from its birth. The court said that it would not be in the
welfare of the child to return it in the custody of the father. The court added that it was in the welfare of the child
that it should be left where it had been for such a long time.2

The Lahore High Court said that when a father had entrusted his daughter in the custody of an aunt when it
was one year old, he was not now entitled to her custody when she was fourteen years old. The court added it
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that would not be in the interest of the child to return her to the father’s custody.3 The same view was taken in
In re, Ghulam Mohammed.4

The Punjab High Court in Isodore Bose v. Brown,5 took the view but gave different reasons. The father had left
the child in the custody of its maternal grandmother almost from its birth and did not take any interest in it.
When the mother, who was living separate, applied for maintenance, the father applied for custody. The court
said that the father had rendered himself unfit for the custody of his child by his conduct and the child should
not be disturbed from its present custody.6

Thus, we find that in some of the Indian cases an orthodox view still persists. Father being the natural guardian
of his children can revoke the authority by which he has given custody of his child to another, unless he is found
unfit. In some cases the courts seem to lay down two tests, the father must be unfit to have the custody and
further it should be in the welfare of the child not to disturb him from his existing custody, while some cases
have been decided solely on the basis of welfare of children. In our submission the correct position has been
brilliantly summed up by the Privy Council judgment in Beasant v. Naryaniah,7 if the authority has been acted
upon so as to create expectations or associations which it would not be in the interest of the children to
frustrate, then the parent cannot claim back the custody. In our submission the question whether it amounts to
abandonment or abdication of parental right is not very material.
14. Remarriage of the Parent

From earliest period English law has taken the view that if a widow had remarried that itself is not enough to
deprive her of the custody of her children.1 If after divorce, one of the parents or both parents remarry, then
which of them should have custody is to be determined on the basis of welfare of children.

In Allen v. Allen,2 both the parents had remarried. Their marriage was dissolved earlier on the ground of wife’s
adultery. In the Court of Appeal, Evershed, L.J., said:

It would not be right to snatch this female child of eight away from her mother and force her to make a new start with
her father and step-mother.

This case was followed in Willoughby v. Willoughby,3 where the facts were almost identical, except that the
child here was only two years and a half old. Cohen, L.J., said:

“We are bound to take into consideration the possibility that both families may have more children, and in those
circumstances it seems to me that the mother is more likely to give the attention to this child that the child needs, then
a step-mother, who, however, anxious to perform her duties, will naturally be more interested in the needs of a child
who is her own child.”

It seems that in those cases where the father has remarried and the child is of tender age, English law prefers
mother to the father.

Under the Indian law, the position cannot yet be clearly stated. Our courts have made a distinction between the
remarriage of the father and the remarriage of the mother.

Muslim law categorically lays down that if mother has married a person not related to the child within the
prohibited degrees, she is not entitled to custody. Other Indian personal laws do not lay down any such rule.
Yet the Indian Courts insist in making a distinction.
(a) Remarriage of the Mother: Hindu Law

Jagannath commenting upon certain texts4 said that after the death of the father, mother is the natural guardian
of her minor children though if she is not skilled in the conduct of affairs, then the King may appoint another
person as guardian of the property of the children. There is nothing in the textual Hindu law which disentitled a
mother on her remarriage from the guardianship or custody of her children.5 However, before 1856, the
position in Hindu law was that a widow was not permitted to remarry except under custom.

The Hindu Widow’s Remarriage Act, 1856, enabled a Hindu widow to remarry, but surprisingly, the statute also
lays down that on an application made by certain relatives of her deceased husband, the court may appoint a
suitable person as guardian of the minor children, who would be entitled to the care and custody of the children
in the absence of the mother. In deciding the question of guardianship, the court is required to assume as if the
children are orphans.1 However, under the Act a Hindu widow does not lose her right of guardianship
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automatically on her remarriage. Only on the application of certain relatives,2 the court will appoint a suitable
person as guardian ‘if it shall think fit’. Further, if the child has no property, a guardian cannot be appointed
except with the consent of the mother.3 The question of appointment of a guardian by the court would arise
only when there is no testamentary guardian.4

The courts have taken the view that if remarriage of a widow is permitted under a custom, then provisions of
section 3 of the Hindu Widows Remarriage Act does not apply.5 It has also been held on true interpretation of
section 3, the court is not bound to remove the mother from the guardianship and in any case, the mother could
be appointed a guardian like any other person.6

The Calcutta High Court in Ganga Prasad v. Jhalo,7 said that the remarriage of a widow not only does not
operate as her physical death but it does not operate even as a civil death for all purposes. The mother could
be appointed as guardian. The courts have said that the effect of section 3 is merely this that the mother loses
her preferential right of guardianship on her remarriage.1

The Allahabad High Court in Kaushali v. Rani,2 said that on remarriage of the mother, ‘a proper male relative of
the deceased father would presumably be the child’s guardian in preference to the remarried mother’s and the
court should appoint him guardian. The Lahore High Court and the Nagpur Judicial Commissioner’s Court also
took a similar view.3 These decisions are no longer valid after coming into force of the Hindu Minority and
Guardianship Act.

Under the Hindu Minority and Guardianship Act, 1956 the mother is a natural guardian of her children after the
death of her husband. As we have seen in our commentary on section 6 of the Hindu Minority and
Guardianship Act, 1950 in Part II of this work, our courts have held that this provision of the Hindu Widows’
Remarriage Act being inconsistent with the former stands abrogated.

Under the modern law, mother’s remarriage ipso facto does not disentitle her from guardianship or custody of
her minor children. The modern trend is that the mother would be entitled to the custody and guardianship of
her minor children, unless it is considered to be not in their welfare. This also applies to a divorced mother.4
(b) Remarriage of the Mother: Muslim Law

Under Muslim law the prohibition of a widowed mother losing her right of custody on her remarriage is not
absolute. She loses it only if she marriages a ghair-maharam, i.e., a person not related to the child within
prohibited degrees of relationship.5 The basis for the rule seems to be that if the mother remarriages a stranger
that person may not have any affection for the child.
(c) Remarriage of the Father: Hindu Law and Muslim Law

In regard to the remarriage of the father there is no distinction between Hindu law and Muslim law. The same
principle applies to both. But it seems that our courts have not been able to propound any clear proposition.
They have been torn between the supremacy of paternal right and welfare of children.

In Bindo v. Shamlal,6 a father who had remarried claimed the custody of a child who was with her grandmother,
the court said that even though there was nothing against the father, yet giving custody to the father would
mean that the girl would have to go in the custody of the step-mother, of whom she knows nothing. The
application was dismissed. On the other hand, the court said in Siddiq-un-nissa Bibi v. Nizamuddin,7 that it is
impossible to hold that the father is unfit to be guardian just because he had remarried; on the contrary “having
regard to the necessity of her being educated properly, it is for the benefit of the minor that she should remain
under the direction and control of the father”. In both the cases the female child was living with her maternal
grand-mother. In the latter case, the court also invoked a rule of Muslim law which lays down that a hazina,
living away from the father, can be deprived of her right of custody. But it seems that it was section 19 of the
Guardians and Wards Act, 1890, which loomed large in the mind of the court.

The Oudh Chief Court has said that the welfare being the paramount consideration, the child’s welfare lies not
with the step-mother but with the mother.1 The Bombay High Court also takes the same view.2 In Saraswati v.
Sripad,3 the court said that a step-mother cannot be a substitute for the mother and the welfare requires that
the child of tender years should continue to be in the custody of the mother. The same is the view of the Jammu
and Kashmir High Court,4 and the Allahabad High Court.5

The Lahore High Court in Mst. Mukadar v. Karim,6 held that a father who remarries renders himself unfit for the
guardianship and custody of his children. The Punjab High Court considered the question in two cases where
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both the parents have remarried. In Shanti Devi v. Gian Chand,7 the court said that it is well-settled that the
second marriage of the father does not per se render him unfit to be the guardians of his children and that a
father can be deprived of his right only when it is shown that he is unfit and the welfare of the minor required
that he should not be allowed to exercise his rights. This view was followed in Samitran Devi v. Suba Ram.8
One may agree readily with the learned Judges that mere remarriage does not make a father unfit, but the
question is: would it be in the welfare of the child to entrust it in the care of a step-mother in preference to a
mother? The learned Judges seem to think that the question of welfare would arise only if the father is found
unfit. In our submissions this view is not in consonance with the modern trend.

The Madras High Court has oscillated between the two views. In some cases9 the court said a father cannot be
deprived of his rights unless he was found unfit and his remarriage did not render him unfit. On the other hand,
in some cases,10 the court said that the welfare of the child was the paramount consideration and the welfare
does not lie with the step-mother and father. In the father’s house the child would be living among the
strangers.11

In Soora Beddi v. Cheema Reddy,1 Govinda Menon and Sayeed, JJ., tried to reconcile two trends by saying
that the mere fact that the father has remarried is no ground for depriving him of his parental right, though it is
also a well-established principle that the prime consideration is the welfare of the child to which natural rights of
parents are subordinate. In G.A. Ayyadorai Pillai v. E.H.B. David,2 the court said that the father’s right is
subordinated only when the court comes to the conclusion that it would be predominantly in the welfare of the
child. It is difficult to generalize that it is not in the interest and welfare of the child that he should be under the
guardianship and custody of the father who had remarried. In a given case the father and his second wife may
bestow great care and affection on the child.

The Patna High Court considered the question in Balram Mandal v. Rajani Mandalain.3The court said that the
joint effect of sections 7 and 17 of the Guardians and Wards Act, 1890, and theHindu Minority and
Guardianship Act, 1956, section 13 is that the welfare of the child is the paramount consideration. The court
said if the boy (who was little more than five years) is kept under the guardianship of the father, for all practical
purposes, the step-mother would have full control over the boy; and it is not unnatural that the mother, if not
otherwise unfit to act as the guardian, will be much better guardian than the step-mother.

In Jaswant Singh v. Manjit Singh,4 contest was between father and maternal grandparents, the mother was
alive but did not express any desire to have the custody. The child lived with grandparents since birth. Father
had remarried. The court, considering the child’s interest in the long run, gave custody to the father. The court
added that the father being a strong man would not allow the child to suffer at the hands of the step-mother.
This is hardly a convincing argument.

The difficulty in Indian law has been many. Apart from the provisions of Hindu law and Muslim law which put the
remarriage of the mother on a different footing than that of the father and section 19 of the Guardians and
Wards Act, 1890, our main difficulty has been that in our law the question of guardianship and custody has
been considered as one question. In our submission the question of guardianship hardly arises in these cases.
The main question is of custody. But invariably, our courts have treated it primarily as a question of
guardianship. It is in this context that the observation of the Patna High Court and other High Courts that if the
child will be kept in the guardianship of the father, for all practical purposes the step-mother will have full control
over the child,5has to be understood. Further if it is looked at as a question of guardianship, section 19 of the
Guardianship and Wards Act, comes into operation; if father is not unfit no one else could be appointed as
guardian. Our difficulty is thus that under Indian law bare question of custody cannot be agitated under the
Guardians and Wards Act.1 In this background it was natural to have such an oscillation in our judicial opinion.

The present writer is in agreement with Vaidya, J., of the Andhra Pradesh High Court when he said that the
mere fact that the father had remarried is no ground to disqualify him from the guardianship of the minor child,
but that is a factor to be taken into consideration while ascertaining whether it will be in the interest of the child
that custody should be handed over to him. The learned Judge added that ordinarily the welfare of a child of
tender years lies much more with the mother than with the father and step-mother.2
15. Change of Religion

Under Indian law the court have, by and large, held that a parent who has changed his religion is not entitled to
custody. The subject-matter of this head we have already discussed under the head “Religion of the child” in
our commentary of section 8. Here we are giving some supplementary material.
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In Shelia v. Soli Phizoshaw,3 the Bombay High Court after considering the observation of the Privy Council in
Skinner v. Order, and cases that follow this decision, observed that these authorities were pronounced decades
ago and observations applied to a by gone era, Mehta, J., added that “in the society in which we live religion is
a matter of one’s personal faith and conversion cannot be regarded as a disqualification for the custody of
minor so long as the guardian is capable of providing congenial, comfortable and a happy home for the minor.”
In this case after the death of her husband, the mother, who belonged to Zoroastrian faith converted to
Hinduism and married a Hindu. The court held that on this ground mother cannot be denied custody on that
basis. This is a welcome decision. This decision has been followed in Sheila v. Jeevan Lal.4 In this case the
mother married a person Christian by faith after six months of her divorce. The Andhra Pradesh High Court said
that the mother has not changed her religion, so long as a guardian is able to provide a congenial, comfortable
and happy home for the minor, her conversion or her marriage with a person of another religion would not
disentitle her from guardianship and custody.

However, the Hindu Minority and Guardianship Act, 1956, specifically enacts that “no person shall be entitled to
act as a natural guardian of a minor” if “he has ceased to be a Hindu”. Under the Guardians and Wards Act,
1890, also the court is required to take into consideration the religion of the child and the wishes of the
parent.5It seems that section 13 of the Hindu Minority and Guardianship Act, 1956, which lays down that the
“welfare of the minor shall be the paramount consideration” and “no person would be entitled to guardianship by
virtue of the provisions of this Act or of any law” may help the court to override this inhibition in the welfare of
the child.

In our submission the Indian law has not yet been able to extricate itself from the social philosophy and legal
concept about the religion of the father. In a country where religion plays such a dominant part, it is
understandable. But in a country which is well set on secularism this is regrettable. It is submitted that like all
other parental rights, this right too should be subordinated to the welfare of children.
16. Parent going out of Jurisdiction

The question under this head is: can custody order be passed in favour of a parent who is going out of
jurisdiction and will take the child with him? Or, can a person be appointed a guardian of the child who is going
out of jurisdiction and will take the child with him? It may be noted that if the parent or guardian is going out of
jurisdiction all alone, the question is hardly of any importance. In fact the court has no power to pass an order
asking the guardian or parent to remain within the jurisdiction1 for a fairly long period, the court has power to
remove him from guardianship.2

The question whether a parent who is living abroad could be given custody of the child came before the court in
Marggarate v. Chacko,3 where an Indian, while studying in West Germany, married a German woman,
domiciled and residing in Germany. Soon difference arose between the parties and their marriage was
dissolved by a German court. They had two children of the marriage. The husband returned to India and
secretly brought the children with him. When the mother came to know about it, she came to India and filed a
writ of habeas corpus for the recovery of children and for an order that custody be committed to her. The
children were of tender age. Nair J., of the Kerala High Court said that if the court as parens patriae come to the
conclusion that it is necessary in the paramount interest of the child to entrust it to the custody and care of one
of the parents who is residing out of jurisdiction, it has full power to pass orders permitting the child to be
removed out of jurisdiction. To ensure that future orders of the court will be complied with, the court ordered the
mother to execute bond for the return of the child whenever required by the court to do so and it also took an
undertaking from German Consulate Authority in Madras that they would render all possible assistance for the
implementation of any order that might be passed by the court later on. The court followed the decision in Re,
Karnot4 where under similar circumstances an English court passed an order in favour of an Indian mother.

In Pamela v. Patrick,5the question was agitated under section 25 of the Guardians and Wards Act by the
mother of an illegitimate minor daughter aged fourteen years. The mother was an Anglo-India. She developed
intimacy with her mother’s husband and had an illegitimate daughter from that intimacy. She and child
continued to live with putative father of the child for eight years, then she left the putative father and went to
England where she got a good job and got married. She came to India and wanted the custody of the child so
that she could take it away to England to live with her. In the opinion of the court the putative father was not at
all a suitable person. Granting custody to the mother, Somasundaram, J., with whom Veeraswami, C.J.,
agreed, said that he was satisfied that the mother who has not in any way disentitled herself either by neglect or
by abandonment, is, as natural guardian the fit and proper person to look after the child. His Lordship were also
satisfied that the tearing off the child from the custody of the respondent and delivering her to the mother, will
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not also have any adverse psychological effect on the mind of the child. The court did not ask for any security,
knowingfull well that the child will be taken out of the jurisdiction.

The question came before the court in same unusual circumstances in In re, Sister Gemma,1 where a five year
old child was taken in a children’s home where it was looked well. When the child was about one year old a
French lady, Madame Basdevant, expressed a wish to take care of the child and take it to France. She
appeared before the Indian Embassy at Paris and gave undertaking that she will bear the cost of passage, to
provide for her during her stay in France and to repatriate her at her cost to India, whenever necessary or called
upon to do so. Under these circumstances a sister of the Home applied for her appointment as guardian for
permission to hand over the child to Madame Basdevant. The court said that normally a court exercising
powers and functions in respect of guardians and minors does not appoint a guardian for the purpose of
transferring the custody of the minor to a third party, that too outside the jurisdiction of the court. The court
agreed that that is not an inflexible rule and exceptions may be made, in the interest of the child. Ismail, J., said
that the most striking feature of this case was that the child was destitute and there was nobody to care for it
and nobody to claim it. Under these circumstances, the learned Judge felt that it would obviously be in the
interest and for the welfare of the child that the petitioner was appointed as guardian and was authorized to
transfer the child to France to be taken care of by Madame Basdevant.

With these decisions the present writer is in respectfully agreement. There is no rule or consideration which
should not give way in the welfare of the child. Reference may be made to our commentary on sections 26 and
44 of the Guardians and Wards Act.
17. Willingness of the Guardian

It is will-established rule of English law that no one can be compelled to act as guardian unless one consents to
do so. This is also the principle under the Indian law. Sub-section (5) of section 17 of the Guardians and Wards
Act, 1890, runs as under:

The court shall not appoint or declare any person a guardian against his Will.

Section 10 of the Act also provides that every application for appointment or declaration of a guardian must be
accompanied by a declaration of the willingness of the proposed guardian. But since it is not necessary for the
court to appoint the applicant or non-applicant, and it is free to appoint a person as guardian who is not before
the court,1 it is laid down in section 17(5) that no person would be appointed guardian against his wishes. The
provision is made to avoid a situation like that which arose in Babai v. Maruthi.2 The estate of the minor child
being in debt, the creditor applied for the appointment of mother of the child as his guardian so that he could file
a suit for the recovery of his debt. Notices were issued to the mother but she did not care to appear. However,
she was appointed guardian, and a certificate was issued in her name. Whereupon the creditor filed the suit for
the recovery of his debt. The suit was contested by the mother and ultimately it was dismissed as the court
came to the finding that she was not properly appointed a guardian. The Bombay High Court on appeal said
that a certificate of administration cannot be enforced on an unwilling person, and that a certificate should not
be issued until it was ascertained that the proposed guardian was willing to act.3

In modern times no one would doubt that no person can be appointed guardian or given custody of a child
against his wishes.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

It has been declared not to be in force in the scheduled districts in Ganjam and Vizagapatam by notification under sec. 3(b)
of the Scheduled Districts Act, 1874 (14 of 1874), see Gazette of India, 1898, Pt. I, p. 872.
It has been extended to the portions of the partially excluded areas in the Madras State, in which the provisions of this Act
are not in force by the Madras (Partially Excluded Areas) Guardians and Wards Regulation, 1940 (Mad. Reg. 6 of
1940), to Berar by the Berar Laws Act, 1941 (4 of 1941).
It has also been extended, with modifications, to the district of Koraput by the Koraput Guardians and Wards Regulation,
1943 (Orissa Reg. 7 of 1943).
It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
* Sub-section (4) omitted by Act 3 of 1951, sec. 3 and Sch.
1 AIR 2000 SC 2172 [LNIND 2000 SC 892].
1 R. v. Howes, (1860) 3 EL&E 332; Cartlidge v. Cartlidge, (1862) SW&TR 567; Mallison v. Mallison, (1866) 1 P&D 221;
R. v. Clarke, (1857) 7 E&B 186; R. v. Greenhill, (1836) 4 Ad&El 624; In re, Andrew, (1882) 8 QB 153; Reg v. Clarke,
(1857) 26 LJ QB 169.
2 In re, Agar Ellis, (1883) 24 Ch D 317.
1 (1925) AC 101.
2 In re, Anon, 2 Ves Sen 374 and in Hall v. Hall, 3 Atk 721, boys over sixteen were ordered to the school against their
wishes. In Todd v. Lynes, (referred to by Simpson on Infants at 145, a boy of seventeen was taken out of the
monastery against his wishes and handed over to the father. Thomassat v. Thomassat, (1894) p. 297; Starke v. Starke,
(1910) p. 190; La Mare v. La Mare, (1960) 2 All ER 280.
3 In re, S., (1967) 1 WLR 296 .
4 Sarswathi Ammal v. Dhankoti Ammal, AIR 1924 Mad 873 [LNIND 1924 MAD 479].
5 ILR (1890) 12 All 213 .
6 Perry’s OC 103.
7 14 MIA 309.
8 (1912) 16 IC 900.
9 18 CWN 1198.
10 ILR 25 Cal 881.
11 84 PR 1894.
1 11 IC 478 (Punj).
2 ILR 9 Mad 393.
3 AIR 1917 Mad 393 .
4 Similarly in Rama v. Natraja, AIR 1948 Mad 294 [LNIND 1947 MAD 224] the court said that a child of the age of 13
years cannot be said to be able to form an intelligent preference.
5 ILR 46 Mad 873.
6 AIR 1925 Lah 375 .
7 AIR 1934 Lah 1003 : ILR (1934) 15 Lah 630.
8 AIR 1927 Nag 314 .
9 AIR 1942 Sind 514 .
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10 AIR 1944 Cal 433 ; See also Mohammad v. Amin, AIR 1963 J&K 32 .
11 Sheela v. Jeevan Lal, AIR 1988 AP 275 [LNIND 1986 AP 332](children aged 12 and 13).
12 ILR (1949) 2 Cal 374 .
13 AIR 1948 Mad 294 [LNIND 1947 MAD 224].
14 AIR 1959 AP 670 [LNIND 1958 AP 81].
15 See also Hasan v. Ghulam, AIR 1961 J&K 5 .
16 Jaswant Kaur v. Chanan Singh, AIR 1962 Manipur 60 .
17 Pamela v. Patrick, AIR 1970 Mad 427 [LNIND 1969 MAD 192]; See also Raichand Nethaji v. Smt. Sayer Bai, AIR 1966
Mad 173 [LNIND 1965 MAD 52] where wishes of a child of 16 years were given effect to.
1 AIR 1986 Del 149 [LNIND 1985 DEL 137].
2 AIR 1983 J&K 70 .
3 AIR 1987 J&K 68 .
4 See cases cited in foot note at p. 428.
5 ILR 9 Mad 393.
6 ILR (1890) 12 All 213 .
1 ILR (1910) 33 Mad 289 .
2 Vishvanath v. Mt. Karam, AIR 1933 Lah 221 .
3 See also Mt. Janak v. Mt. Ganga Bai, AIR 1931 Oudh 326 .
4 Sarswathi Ammal v. Dhankti Ammal, ILR 46 Mad 873.
5 Bandi v. Jamme, AIR 1960 AP 516 [LNIND 1959 AP 182]; Baddi Beddi v. Kadam Sueya Rao, AIR 1959 AP 670
[LNIND 1958 AP 81]; Jaswant v. Chanan, AIR 1962 Manipur 60 .
6 AIR 1948 Mad 294 [LNIND 1947 MAD 224].
7 AIR 1950 Mad 294 [LNIND 1949 MAD 127].
8 AIR 1926 All 687 .

9 King v. De Mannerville, (1804) KB 5 2231.

10 In re, S., (1958) 1 All ER 873.
11 In re, B., (1962) 1 All ER 873.
1 (1897) 1 Ch 786.
2 W v. W, (1926) P. 111 Chitty, J.’s order was approved.
3 (1948) 2 All ER 413.
4 (1951) P 184.
5 (1958) 1 All ER 783.
6 (1962) 1 All ER 872.
1 This is under Hanafi School. Age varies with each school. See Paras Diwan, Muslim law in Modern India (1987), 123-
25.
2 Ahmed v. Rehmatan, (1947) 40 IC 107; See also Zainab Bibi v. Abdul Kereem, All 1926 Lah 117.
3 AIR 1922 Bom 405 .
4 AIR 1941 Bom 103 .
5 ILR (1949) 2 Cal 374 .
6 Budhan v. Bahadur Khan, AIR 1942 Pesh 41 .
7 Kaulessa v. Jorai Kasunundhan, ILR (1905) 28 All 233 .
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8 Mt. Sakina Begum v. Malika Ara Begum, AIR 1948 All 498 .
9 Kadiappa v. Valliammal, AIR 1949 Mad 608 .
10 AIR 1955 Mad 451 [LNIND 1954 MAD 227].
11 AIR 1954 Pat 489 .
1 Sushila v. Kanwar Krishna, AIR 1948 Oudh 266 ; see also Surat v. Nardu, AIR 1953 HP 50 .
2 AIR 1988 All 252 [LNIND 1988 ALL 134].
3 AIR 1933 Bilaspur 26 .
4 Vasudevan v. Vishvallakshmi, AIR 1959 Ker 403 [LNIND 1958 KER 256]. In Reman v. Ayyappan, AIR 1959 Ker 396
[LNIND 1958 KER 277], it took a contrary view.
5 See the Proceedings of the Select Committee on the Hindu Minority and Guardianship Act, 1956.
6 Even under proviso to section 6(a), the Hindu Minority and Guardianship Act, 1956, it cannot be called a rule of law.
7 In re, S., (1962) I All ER 872.
1 In re, O., (1965) Ch 23 (29).
2 W. v. W., (1968) 1 WLR 1310 (1313) Sachs, LJ. agreed with Lord Denning MR.
3 (1970) 1 WLR 288.
4 (1970) 1 WLR (288) 291.
2 In the matter of Mst. Hurunnissa Bibee, 27 IC 74, a maternal uncle was appointed guardian of a minor girl; the court
also ordered him to appoint a governess to the child.
3 Vegesina Venkata Narasiah v. Chintalpati, AIR 1971 AP 134 [LNIND 1970 AP 26].
1 Re, Jones, (1826) 1 Russ 478; Baattie v. Johnstone, (1841) 1 Ph. 17; Re, Neale, (1852) 15 Reav 250; Ex parte
Jackson, (1833) 6 Sim 212.
2 54 PR 1898; Azimulla v. Zainab, 105 PLR 1903.
3 ILR (1883) 9 Cal 599 .
4 16 MLJ 357.
5 1911 MWN 365.
6 AIR 1922 Lah 393 .
7 Sami Row v. Eliavatha, 16 MLJ 357; Kristo Kissor Neoghy v. Kader Moye Dossee, (1878) 2 CLR 583; Narsayya v.
Venkasappa, AIR 1923 Mad 357 ; See also Sunder Mani v. Gokulananda, 18 CWN 160: (1912) 16 IC 900.
8 (1897) 2 CWN 191.
1 In Thayammal v. Kupanna, ILR (1915) 38 Mad 1125, the court said that on the basis of nearness of relationship only
parents have absolute rights; others must owe their appointment from court.
2 2 PLJ 190.
3 9 WR 344, see also Nirode Barani v. Bholenath, 26 IC 300.
4 Baijnath v. E, 25 IC 840; Nirode Barani v. Bholenath, 26 IC 300; Ma Myo v. Maung Kyan, 36 IC 646; Muthuveerappa v.
Ponnuswami, 22 MLJ 68; Narayananyya v. Venkatappa, AIR 1923 Mad 350 [LNIND 1922 MAD 166]; Ambo v. Ganga,
18 IC 141.
5 AIR 1981 Cal 701 : ILR (1980) 1 Cal 727.
6 ILR (1879) 3 Bom 1 .
7 (1910) 7 IC 234.
8 AIR 1925 Lah 489 .
1 AIR 1924 Oudh 126 .
2 See also Tulsai v. Tulsai, AIR 1924 Nag 141 .
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3 (1915) 26 IC 300.
4 See Rajrani v. Bhagwandas, AIR 1922 Nag 232 . Where courts refused to appoint a near relation because he was in
most intimate terms with a debtor of the child.
5 Clause (i) of section 10(1).
6 ILR 36 All 282.
7 Jagannath v. Mahesh, 36 IC 286; Gopal v. Sharwan, 68 IC 291.
1 In re, Hurunessa Bibi, 27 IC 74; Mst. Tripathi v. Mst. Partapi, 1 IC 465; Kaliman v. Ahmadi, AIR 1931 Cal 563 .
2 ILR (1906) 28 All 233 .
3 AIR 1942 Cal 281 .
4 (1920) 57 IC 13.
5 AIR 1988 Ker 30 [LNIND 1987 KER 76]; See also Md. Ramzan v. Taja, AIR 1983 J&K 70 .
6 AIR 1949 All 627 .
7 Rai Chand v. Sayar, AIR 1966 Mad 173 [LNIND 1965 MAD 52].
1 Laxmibai v. Abdul Kadir, AIR 1923 Nag 129 .
2 (1809) 15 Ves 445.
3 Hall v. Storer, (1815) 1 Y&C (Ex) 556; In re, Kaye, (1886) 1 Ch App 387; see also Ward v. Laverty, (1925) AC 101.

4 (1926) 1 Ch 232 .
5 See also in re, O., (1962) 2 All ER 10.
6 (1914) 25 IC 112.
7 Venkata v. Venkata, ILR 21 Mad 401; Laya Singh v. Partap, AIR 1945 Bom 449 .
1 Laxmi v. Balram, 39 IC 662.
2 ILR 49 All 773.
3 AIR 1932 All 215 .
4 AIR 1939 All 15 .
5 AIR 1944 All 202 .
7 Ansar v. Samidan, AIR 1928 Oudh 220 .
8 AIR 1925 Oudh 45 .
1 Sind Judicial Commissioner’s court and the Lahore High Court have also took similar view: Bibi Fatima v. Bakrashah,
AIR 1921 Sind 45 ; In re, Gulam Mahmood, AIR 1942 Sind 154 ; Mst. Lachhi v. Nanak Chand, AIR 1928 Lah 716 ; Mst.
Maharaj Begum v. Yat Mohammed, AIR 1932 Lah 19 ; Ansar v. Samidan, AIR 1928 Oudh 220 .
2 Yakoob v. Nafuran Bibi, 5 IC 571.
3 The Rajasthan High Court also took this view, Rafiq v. Bashiran, AIR 1963 Raj 239 .
4 AIR 1942 Cal 281 .
5 See also Mst. Johra v. Amira, AIR 1958 Cal 545 [LNIND 1957 CAL 194].
6 Mir Sarvarjan v. Mujee Bunnisa Begum, AIR 1952 Mad 280 [LNIND 1951 MAD 33].
7 AIR 1983 J&K 70 .
8 Bholanath v. Sharda Devi, AIR 1954 Pat 489 .
1 AIR 1954 Pat 489 .
2 Bhagwati Devi v. Murlidhar Sahu, AIR 1943 PC 106 .
1 Take for instance, keeping more than one wife was not immoral under Hindu law or Mohammedan law. Keeping a
concubine was fairly normal among Hindus and Romans.
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2 Section 3.
3 (1862) 2 Sw&Tr 640, per Sir Cresswell Cresswell.
4 (1861) 2 Sw&Tr 391.
5 (1861) 2 Sw&Tr 392; see also in re, Wimcom, (1865) 144 RR 257.
6 29 LJ (P&M) 150.
7 Taylor v. Taylor, (1870) 39 LJ (P&M) 23. In this case access was granted to guilty mother, but with the consent of the
father.
8 (1875) LR 2 SC Div 415.

9 See In re, A. & B., (1897) Ch 786 , where the court said that the Act of 1886 has created another milestone in the
road and it extended the right of mother. But, for a quarter century, it did not alter the position.
10 Manders v. Manders, (1890) 63 LT 627; Handley v. Handley, (1891) p. 124.
1 (1910) P 190, per Cozens-Hardly MR.
2 B. v. B., (1923) 37 TLR 868; Clarke v. Clarke, (1913) 37 Sol Jo 644.
3 (1924) P 176.
4 Allen v. Allen, (1948) 2 All ER 413.
5 Willoughby v. Willoughby, (1951) P 184; Wakeham v. Wakeham, (1954) 1 WLR 366; Chipperfield v. Chipperfield,
(1952) 1 All ER 1360; M v. N, (1954) Times Dec 7; Clarke v. Clarke, (1955) Time May 25.
6 Venkamma v. Savitramma, ILR (1889) 12 Mad 67 ; Skinner v. Orde, 14 MIA 309; Winifred Mcquillan v. Mrs. Winfred
Chapman, (1920) 57 IC 13; Mansa Ram v. Naurati, (1925) 87 IC 650; Kuverji v. Motibai, AIR 1936 Pesh 63 .
7 Harnami v. Partapi, (1914) 23 IC 13.
8 Tulsai v. Tulsai, AIR 1924 Mad 141 .
9 Mst. Lalita Tawaif v. Paramata Prasad, AIR 1940 All 329 .
1 AIR 1924 All 622 .
2 ILR 28 All 233.
3 10 IC 904.
4 AIR 1923 Nag 305 .
5 Gajraj Singh v. Deohlu, AIR 1952 All 331 [LNIND 1950 ALL 102].
6 AIR 1927 Nag 314 .
7 In Raginald v. Sarojan, AIR 1969 Mad 365 [LNIND 1968 MAD 120], the Madras High Court took the same view.
8 AIR 1931 Cal 563 .
9 In re, Hanennassa Bibi, 18 CWN 653.
10 AIR 2009 SC 2821 [LNIND 2009 SC 901].
1 Ball v. Ball, (1827) 2 Sim 35; In re, Golworthy, (1876) 2 QBD 75; See also In re, Finn, 2 Russ 1; Wellensley v.
Wellensley, (1927) 31 RR 15; R v. Greenhill, 44 RR 440; In re, Thomas Hakeswell, 92 RR 699.
2 Warde v. Warde, (1849) Ph 786.
3 In re, Goldsmith, (1876) 2 QBD 75.
4 (1817) Jac 266.
5 (1827) 2 Russ I.
6 In ex parte, Bailey, (1839) 49 RR 727.
7 In re, Anon, (1851) 2 Sim (NS) 54.
8 (1859) 28 LJ (NS) Ch 438.
9 (1847) PH 247.
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10 Zanab Bibi v. Abdul Karim, AIR 1926 Lah 117 .

11 AIR 1934 All 722 .
12 ILR 44 Cal 35.
13 AIR 1987 Del 81 [LNIND 1986 DEL 120].
1 ILR 55 Cal 730.
2 23 IC 776.
3 Sarwar-ul-Mulk v. Mirza Wakar Ali, AIR 1925 Oudh 398 .
4 44 RR 440.
5 92 RR 699.
6 (1792) 4 Bro CC 101.
7 118 RR 844.
8 See also in re, Bartlet, (1886) 2 Coll 611.
9 7 IC 702.
10 See also Ashalata v. Society for the Protection of Cruelty to Children, AIR 1930 Cal 397 .
11 Gangarupa v. Pollepalli, AIR 1935 Mad 568 [LNIND 1935 MAD 126]; Atchayaya v. Kosaraju, ILR 1929 Mad 81.
12 Paras Diwan, Muslim Law in Modern India (1987), 128-129. See also IV of their work.
1 (1859) 28 LJ (NS) CJ 458.
2 Suharbi v. D. Muhammed, AIR 1988 Ker 30 [LNIND 1987 KER 76].
3 AIR 1930 Cal 397 .
5 Creuze v. Hunter, (1790) 2 Cox 242.
6 Ex parte Warner, (1792) 4 Bro CC 242.
7 This case is cited in Blisset’s case, (1774) Loft, 748.
8 1 MLT 347.
9 ILR 16 Bom 307.
10 See also the next sub-head, ‘Abdication and abandonment’.
11 Section 1, the Children Act, 1948 (English Statute).
12 The Act at present applies only to the Union Territories.
1 In re, Nakharanissa Bibi, 20 CWN 663.
2 Manmohani v. Hari Prasad, AIR 1925 Pat 444 .
3 Jorai v. Kass Sundhar, ILR 28 All 233; Sydney v. Margaret, AIR 1931 Cal 563 .
4 AIR 1929 Mad 81 ; Ponniah v. Suppiah, AIR 1935 Mad 363 [LNIND 1934 MAD 287].
5 AIR 1927 Mad 314 .
6 AIR 1935 Mad 568 [LNIND 1935 MAD 126]; See also Asi Bai v. Girdhari Lal, AIR 1921 Lah 68, where a husband,
whose petition for restitution was earlier dismissed, applied for custody.
7 See also Seeyati Veettil v. Ovikanath, AIR 1946 Mad 110 [LNIND 1945 MAD 216]; Mule v. Dropati, AIR 1952 MB 93 .
8 Ganga v. Narayan, (1905) AWN 104; See also Empress v. Pran Krishna, ILR (1882) 8 Cal 969 ; Subhadra v.
Dhajadhari, (1912) 13 IC 898, the main purpose was to obtain the custody of the girl with a view to give her in marriage.
10 ILR 38 Cal 783.
11 Deoki v. Bhakhal, 19 IC 783; Jaiwanti v. Gangadhar, ILR (1911) 38 Cal 783 .
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12 Partap v. Jwala, 19 IC 428; Sunder Moni Devi v. Bansidhar, AIR 1914 Cal 875 ; Rajrani v. Bhagwandas, AIR 1932 Nag
232 ; Chandrawati v. Jagannath, AIR 1925 Lah 489 ; Sunder Mani v. Gokulananda, 18 CWN 160: (1912) 16 IC 900;
Bhagwati Devi v. Murlidhar Sahu, AIR 1943 PC 106 .
1 (1853) QB 22 LJ 116.

2 (1858) Ch 2 De G&J 251.

3 See also Hope v. Hope, 102 RR 146.
4 (1881) 18 Ch 671.
5 (1900) P 157.
6 Lynes v. Blenkin, 23 RR 38; Colston v. Morris Jac, 257; Austin v. Austin, 34 Beav 257.
7 Laynes v. Bleinkin, 23 RR 38. 8. (1872)
8 Ch App Cas 622.
1 (1879) 11 Ch 508.
2 10 WR 400.
3 See also Stourton v. Stourton, 8 DM&G 760.
4 (1926) Ch 676.
5 See also Re O., (1962) 2 All ER 10.
6 In re, Adoption Application, 41/61 (1963) 3 WLR 357.
7 Beasant v. Naryaniah, AIR 1914 PC 41 .
8 (1821) Jac 245.
1 ILR (1896) 23 Cal 290 .
2 See also ILR (1910) 33 Mad 288 .
3 AIR 1924 Mad 45 [LNIND 1923 MAD 350].
4 AIR 1935 Mad 195 [LNIND 1934 MAD 290]; See also Ponniah v. Sappiah, AIR 1935 Mad 363 [LNIND 1934 MAD
287].
5 AIR 1926 All 687 .
6 AIR 1914 PC 41 .
7 With this may be contrasted Sivasankara v. Radhabai, AIR 1939 Mad 611, where father wanted to have the custody of
the child after a period of fifteen years the child being entrusted by him to a third person, the court said ‘father is not
fitted to exercise the right of a father’.
1 The Madhya Bharat High Court took this view in Chandra Kant v. Heera Lal, AIR 1954 MB 43 ; and Brijendra v. Chinta
Haran, AIR 1961 MB 173 . In the latter case the court said, “it would be against all principles of law to separate the child
from the parents against their Will when they are not found unfit.” The Lahore and Punjab High Courts took this view in
Wazir Khan v. Abdul Hameed, AIR 1928 Lah 806, and Santi Devi v. Gian Chand, AIR 1956 Punj 239 .
2 (1907) 29 All 210.
3 AIR 1927 Nag 314 .
4 AIR 1926 All 687
5 AIR 1944 Cal 433 .
6 See also Jwala Pd. v. Bachhu Lal, AIR 1942 Cal 215 .
7 ILR (1891) 16 Bom 611 .
8 See also, Marriyuamma v. Boshard, I MLT 347. (The facts were almost the same).
9 ILR (1898) 25 Cal 881 .
1 (1912) IC 16.
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2 The Madras High Court took the same view in S. Pooniah v. Sappiah, AIR 1935 Mad 195 [LNIND 1934 MAD 290] and
Muthuswami v. K.M. Chinna Muthuswami, AIR 1935 Mad 195 [LNIND 1934 MAD 290]. The Rangoon High Court took
the same view in Manoo Ali v. Hawabi, AIR 1936 Rang 63 .
3 Gulam Hasan v. Ida, AIR 1937 Lah 481 .
4 AIR 1942 Sind 154 .
5 AIR 1951 Punj 338 .
6 AIR 1966 MP 189 [LNIND 1965 MP 69].
7 AIR 1914 PC 41 .
1 Villareal v. Mellish, (1737) 2 Swans 533; In re, Gornall, (1839) Beav 347; Jones v. Powe, (1846) 9 Beav 345; In re,
Anonymus, (1837) 8 Simon 346; Potingar v. Weightman, (1817) 3 Mer 67; X v. X, (1899) 1 Ch 526. See also the
Guardianship of Infants Act, 1886.
2 (1948) 2 All ER 413.
3 (1951) P 184 (190).
4 Jagannath’s Digest (text) 453; See Colebrooke’s Digest, Vol. IV, 44.
5 Of the twelve (or thirteen) types of sons, almost all sages mention ‘punnarbhava’ son, or a son begotten on a remarried
woman. This indicates that at some time remarriages of women were recognized. But in later period, probably under
strict Brahaminical influence, remarriages of women came to be prohibited. This was the meaning given to sacramental
marriage in Hindu law. Manu (VIII, 226; V 161-63) and Apastamba (II vi, 14,4) declare that a man may marry only a
virgin and a widow may not remarry. Manu recognizes one exception in the case woman whose husband, dies before
consummation. Such a widow can remarry the brother of her deceased husband. In texts 175-76, Ch. IX, Manu
declared that either a widow or a wife forshaken by her husband may remarry. On the other hand, Narada recognizes
widow remarriages: “there are five cases in which a woman may take another husband: her first husband having
perished, or dead naturally, or gone abroad, or if he be impotent, or have lost his caste.” (XII 97-101). To the same
effect are texts of Devala, Dig. II, 165; Baudhyana, II, 20; Vashishtha, XVII, 13: Katyayana, Dig. II 795. See also
Kautilya’s Arthashasthra.
A Full Bench in Bai Sheo v. Ruttonji, (1851) SDA 103, said that the mother loses her right of guardianship on remarriage.
But the case was not decided on the basis of any text of Hindu law, but on the basis of a caste custom which provided
that on pregnancy a remarried woman lost her right of guardianship and custody of her children.
1 This view has been taken on the basis of section 3 of the Act. But this has been dissented from in Ganga Pd. v. Jhala,
ILR (1911) 38 Cal 803 .
2 The father, grandfather, mother and paternal grandmother of the deceased husband alone can make an application.
But now under the Guardians and Wards Act, 1890 some other persons can also make an application; section 8 of the
Act.
3 Proviso to section 3 of the Widow’s Remarriage Act, 1856.
4 See the opening clause of section 3, Hindu Widows Remarriage Act, 1856.
5 Paresh Ranchor v. Bai Vakhat, ILR (1886) 11 Bom 119 ; Mst. Indu v. Chama, AIR 1919 Lah 40 ; The Allahabad High
Court takes the view that in such a case even section 2 of the Act does not apply: Khuddo v. Durga Prasad, ILR (1906)
29 All 122 ; Ranjeet v. Radha Ram, ILR (1898) 20 All 476 ; Harsaren v. Nandi, (1889) 11 All 330; Dharam Chand v.
Nandlal, (1889) 9 All WN 78. But see for contrary view, Gajadhar v. Kausilla, ILR (1908) 31 All 161 ; Mohanlal v. Bhim,
AIR 1954 All 588 [LNIND 1954 ALL 74]; Mt. Ram Kunwar v. Ochha Danpal, AIR 1951 MB 96 .
6 Similar view has been expressed by the Orissa High Court in Kusa Parida v. Baishnab, AIR 1966 Ori 60 [LNIND 1965
ORI 48].
7 (1911) 38 Cal 803.
1 Basappa v. Parwatiamma, AIR 1952 Hyd 99 ; Thangurchi v. Lakshmi Ammal, AIR 1957 Mad 534 [LNIND 1957 MAD
33].
2 ILR (1882) 4 All 195 .
3 Mst. Charanji v. Punan Chandra, AIR 1918 Nag 162 ; Ram Labhaya v. Durga Dass, AIR 1933 Lah 817 .
4 Sheela v. Jeevenlal, AIR 1988 All 275 .
5 This aspect of the matter we have discussed in Part IV of this work.
6 ILR 29 All 210.
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7 AIR 1932 All 215 .

1 Shushila v. Krishna, AIR 1948 Oudh 266 ; Anjem v. Azam Qadir, 6 IC 1001.
2 Bai Tara v. Mohanlal Lalubhai, AIR 1922 Bom 405 ; Munnibai v. Dhansukh, AIR 1959 Bom 243 [LNIND 1958 BOM 94].
3 AIR 1941 Bom 103 .
4 Biru v. Behari Lal, AIR 1956 J&K 31 .
5 Mohammad Khalid v. Zeenat Parveen, AIR 1988 All 252 [LNIND 1988 ALL 134].
6 AIR 1923 Lah 283 .
7 AIR 1956 Punj 234 .
8 AIR 1961 Punj 161 .
9 Andiappa v. Nallendrani Pillai, ILR (1915) 39 Mad 473 ; Atchayya v. Kosaraju, AIR 1923 Mad 81 .
10 T.N. Mathuverappa v. T.R. Ponnuswami, (1912) 13 IC 16; Gangarapu v. Polepalli, AIR 1955 Mad 568 ; Seeyati Veettil
v. Ovikanath, AIR 1946 Mad 81 .
11 See also Shaik Moideen v. Kunhadevi, AIR 1929 Mad 33 (father and step-mother were busy persons).
1 AIR 1950 Mad 306 [LNIND 1949 MAD 128].
2 AIR 1960 Mad 519 [LNIND 1960 MAD 29].
3 AIR 1964 Pat 505 .
4 AIR 1985 Del 189
5 Balram Mandal v. Rajani Mandalain, AIR 1964 Pat 505 .
1 See our commentary on section 25.
2 Vegesina Venkata Narasiah v. Chintalpati, AIR 1971 AP 134 [LNIND 1970 AP 26].
3 AIR 1981 Bom 173 .
4 AIR 1988 All 275 .
5 Section 17(2).
1 Bundo v. Ramdeen, (1899) AWN 200.
2 Section 39(h), the Guardians and Wards Act, 1890.
3 AIR 1971 Ker 1 .
4 (1964) 2 All ER 339.
5 AIR 1971 Mad 427 .
1 AIR 1971 Mad 262 [LNIND 1969 MAD 106].
1 Narotam v. Mst. Tapsera, AIR 1934 All 849 .
2 ILR 5 Bom 310.
3 See also Fulkumari v. Budh Singh, 25 IC 112.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

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 minor, the order appointing or declaring him shall be deemed to authorize 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.

Comments

1. Scope

Under clauses (c) and (d) of section 8, Collector is entitled to apply for the appointment of himself as guardian.
Section 10(2) lays down the mode by which Collector would put in application to the guardian court for
appointment of himself as guardian. This section lays down that when Collector is appointed as guardian, he is
appointed in virtue of his office. This means that when a Collector is transferred, his successor-in-office
becomes the guardian. No fresh appointment is needed.

When Collector is appointed a guardian he is subject to the control of the Government.4 But if the Collector
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wants to resign as guardian, he must put in an application to the guardian court, and if the State Government
approves of his application for discharge, the court is bound to discharge him.1

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

4 Section 23.

1 Section 40(2).

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

19. Guardian not to be appointed by the Court in certain cases.—

Nothing in this Chapter shall authorize 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)of a minor, other than a married female, whose father or mother 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.

Note.—Please refer to para 3 of our commentary on section 13 of the Hindu Minority and
Guardianship Act, where we have fully discussed the provision of this section.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

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“(b) 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”.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

20. Fiduciary relation of guardian to ward.—

(1) A guardian stands in a fiduciary relation to his ward, and, save as provided by the Will or other
instrument, if any, by which he was appointed, or by his Act, he must not make any profit out of his
office.
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(2) The fiduciary relation of a guardian to his ward extends to and affects purchases by the guardian of the
property of the ward, and by the ward of the property of the guardian, immediately or soon after the
ward has ceased to be a minor and generally all transactions between them while the influence of the
guardian still lasts or is recent.

Comments

1. Scope

This section lays down that the relationship between the guardian and the ward is fiduciary relationship. Sub-
section (1) lays down that the guardian would not make any profit out of his office except as provided by the
instrument or order under which he has been appointed a guardian. Taking the same principle further, sub-
section (2) lays down that no property would be sold or purchased between them. This relationship extends to
all transactions between the two. Under section 27, the guardian is required to deal with minor’s property as if it
were his own, and by clauses (a), (b) and (c) of section 39, he is required to perform the duties of a trustee.

The section lays down that fiduciary relationship exist not merely during the period of guardianship but
thereafter till such period that the guardian is discharged of all his liabilities.
2. Guardianship as Trusteeship

The relationship between the trustee and beneficiary has been regarded as fiduciary relationship. This concept
of fiduciary relationship has been extended to all cases where one person happens to be in a dominating
position over the other. It is in this sense that law of guardianship lays down that relationship between the
guardian and ward is fiduciary relationship. However, it should be emphasised that the guardian is not a
trustee, and his position is not that of the trustee, though sometimes guardian is called trustee. This is
erroneous. The position and status of guardian is different from that of trustee. Section 29 of the Guardians and
Wards Act and section 8 of the Hindu Minority and Guardianship Act restrict the power of alienation of minor’s
property. No guardian can alienate minor’s property except with the prior permission of the court. On the other
hand, the trustee has much wider powers over the property of the beneficiary. Transactions in respect of
minor’s property entered into by the guardian are regulated by the provisions of sections 27, 28 (testamentary
guardian), 29, 32, 33, 34, and 43 of the Act, while there are no such restrictions on trustee’s powers, except
those laid down in section 10, the Trust Act.

The law of trust clearly lays down that the legal ownership of trust properties vest in the trustee, but this is not
so in the case of guardian. Chapter III of the Guardians and Wards Act invests the guardian with certain rights,
duties and powers in respect of administration and management of minor’s properties, but nowhere the
guardian is called a trustee. The fiduciary relationship between the guardian and ward is to be understood in
this sense.1

The relationship between the guardian and ward is not that of agent and principal. In no sense can guardian be
called agent of the minor.2

The guardian can also not claim the benefit of article 10 of the Limitation Act. Further, for the beneficiary’s claim
against trustee for the misuse of his office, there is hardly any period of limitation, but this is not so in the case
of a ward: certain claims of the ward against the guardian would become time-barred after the lapse of the
period of limitation.3
3. Fiduciary Relationship between Guardian and Ward

Lord Brongham, L.C. observed, “If a person standing in these relations to client, ward or cestui que trust, takes
a gift or makes a bargain, the proof lies upon

him that he has dealt with the other party, the client, ward, etc., exactly as a stranger would have done, taking
no advantage of his influence, or knowledge of which he himself knew. In short, the rule rightly considered, is
that the person standing in such relation must, before he can take a gift or even enter into a transaction, place
himself exactly in the same position as stranger would have been, so that he may gain no advantage from his
relation to the other party beyond what may be the natural and unavoidable consequence of kindness arising
out of that relation.”1 Whenever a person on account of his dominating or superior position takes advantage of
his position, he would not be allowed to reap the benefit. The court will not allow such a person to be placed in
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a position in which his interest shall put him one way and his duty the other way. In sum, he would not be
allowed to betray that confidence reposed in him.2

The guardian is required to hold the property of the ward for the benefit of the latter. He must act scrupulously
in the interest of the minor in dealing with minor’s estate. The court will enforce this duty of the guardian and
would not allow him to take undue benefit out of his position. The guardian will not be allowed to commit any
breach of duty. He would be required to compensate the ward for any loss caused to him on account of breach
of this duty. He must deal with minor’s property as a man of ordinary prudence would deal with his own. He
cannot be allowed to make profit out of his office.

It is the duty of the guardian to invest minor’s money in proper securities; he must manage the property well,
and in this regard he can seek the guidance of court under section 33. For all his transactions and dealings with
his ward’s property, he is accountable to the court. He must keep proper accounts. Although the provisions of
the Trust Act do not apply, yet in matter of investments the provisions of Trust Act may be looked at for
guidance. It is often said that the duty of the guardian is primarily to preserve and not to augment the property.3
Yet, certain investments are allowed by the courts so as to ensure some safe income to the minor.

It is the duty of the guardian to abstain from making any arrangement which is beneficial to him but detrimental
to the ward’s estate. Any pecuniary advantage derived by the guardian from the estate of the minor, must be
held by him for the benefit of the minor. He must restore the same to the minor.4 The guardian cannot claim
any property adversely to the minor. Possession by the guardian of minor’s property is possession of the
ward.5
4. Fiduciary Relationship after Minor Attains Majority

The fiduciary relationship does not terminate immediately on minor attaining majority. It continues thereafter till
the influence of the guardian lasts. It is because the office of guardian may terminate legally on the minor’s
attaining majority yet his moral authority may continue to exist. In such a case the guardian court is cautious
and watchful to prevent the guardian from taking advantage of his position immediately after the ward comes of
age or at the time of settling accounts, or delivering of possession of the property, because this is the time
when a guardian is in a position to take advantage of his status to the detriment of the minor. Similarly, a
release executed by a ward soon after attaining majority in favour of the guardian is looked upon with suspicion.
In such matters it is mandatory to show fullest deliberations on the part of the ward and perfect good faith on
the part of guardian.1 The rationale behind the rule is that ward is not presumed to be a free agent capable of
forming an independent judgment so long as he is subject to the influence of his guardian who had derived
material benefit from him. Of course, if no material benefit has been derived from the transaction, the
presumption stands rebutted.1

In sum, the guardian must deal in all dealings and transactions with the minor in good faith.
5. Good Faith: Burden of Proof

It is obvious—as is the case in all transactions where one person is in dominating position over the other—the
burden of proof that he acted in good faith lies on the guardian.2 Similarly, where a transaction has been
entered into by the guardian with the ward after the attainment of majority by the minor, it is for the guardian to
show that his ward has the advantage of independent advice and was no longer in a position of being
influenced by him.3 Similarly, when a third person dealing with the minor has the notice or assumed to have
notice in the circumstances of the case, then it is for the third party to show that he did not derive any unfair
advantage out of the transaction.4
6. Suit by the Guardian against the Ward

A guardian can also file a suit against the minor. He can do so without obtaining an order for the revocation of
guardianship provided the minor is properly represented in the suit by some one who has no interest adverse to
the minor. In Rakhal Mom Dasi v. Adwayta Prasad Ray,5 a widow who was the certificated guardian of the child
adopted by her husband, filed a suit for a declaration that the child was not the adopted son of her husband.
The court held that her suit was maintainable even though the order appointing her guardian subsisted, since
the minor was properly represented in the suit by another person.
7. Limitation and Laches: Suit by Minor

For the recovery of the purchase money from the vendee to whom the guardian had sold the property and who
has further sold it, the period of limitation is three years after minor attains majority.6 The period of limitation for
a suit for cancellation of the deed of release got executed by the guardian in his favour under circumstances
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when it was obviously unfair to the minor, is three years from the date when the facts entitling the minor to have
the instrument cancelled became known to him.1 Guardian cannot take advantage of his own fraud and the
period of limitation would not run out against the minor, during the period that the minor was subject to the fraud
of his guardian.2

Under Article 60, the period of limitation is three years from the date the minor attains majority for setting aside
a transfer of property made by guardian. The period is the same when ward dies within three years from the
date of attaining majority: if the ward dies before attaining majority, then from the date when the ward died.

But if the ward seek relief against an unconscionable transaction, he must act within reasonable time. When the
ward seek equitable relief, laches and acquiescence; would not bar the relief, unless he allowed by his laches
considerable time to elapse after he has known that right to sue has accrued to him and he deliberately or
negligently delays his action beyond reasonable time.3
8. Limitation: Suit by Guardian

A guardian who spends money out of his pocket from time to time for the benefit of the minor and reimburses
himself out of the income of the minor, is not bound to file a suit within three years after the payment of each
amount to the minor. In such a case cause of action arises when the guardian hands over the possession of the
properties to the minor on the order of the court.4
9. Action by Ward

Reference should also be made to our commentary on sections 35, 36 and 37.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

1 Hunter v. Atkins, 3 M&K 113 (135).

2 Lakraj v. Mahtab, (1871) 14 MIA 393; Ram v. Bhag Mal, AIR 1919 Lah 291 .
3 Waghela v. Sheikh Masulideen, (1887) 11 Bom 551 (PC).
4 Dharmadas v. Shama, (1843) 4 MIA 229.
5 Sriamalu v. Andatammal, (1906) 63 Mad 145; Mahalakshmanna v. Surya Narayana, AIR 1928 Mad 1113 [LNIND 1928
MAD 116].
1 Toolseydas v. Premji, (1888) 13 Bom 61; Lakshmidas v. Roop Lal, ILR (1905) 30 Mad 169 .
2 Section 111, the Evidence Act, illustration (b).
3 Lakshmidas v. Roop Lal, ILR (1906) 30 Mad 169 ; Mariam v. Cassim, AIR 1939 Rang 278 .
4 Ram Patter v. Maniikkam, AIR 1935 Mad 726 [LNIND 1934 MAD 223].
5 ILR (1903) 30 Cal 613 .
6 Article 97.
1 Article 59. See Mariam v. Cassim, AIR 1939 Rang 278 .
2 Mariam v. Cassim, AIR 1939 Rang 278 .
3 Lakshmidas v. Roop Lal, ILR (1906) Mad 169.
4 Radhi v. Maindeo, AIR 1939 Bom 394 .

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Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

21. Capacity of minors to act as guardians.—

A minor is incompetent to act as guardian of any minor except his own wife or child or where he is the
managing member of an undivided Hindu family, the wife or child of another minor member of that family.

Comments
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1. Scope

This section embodies the general rule that a minor is not competent to act as guardian of another minor. But
two exceptions to this rule are recognized:

(a) A minor can act as guardian of his minor children and minor wife, and
(b) When the Karta of a Hindu Joint Family is a minor he can act as guardian not merely of his minor
children and wife, but also of the minor children and minor wife of other members of the joint family.

The second exception should be understood in the context of section 7.

2. Section 21 of the Guardians Wards Act and section 10, the Hindu Minority and Guardianship Act

The provision of this section is rather anomalous since it empowers a minor to be the guardian of another
minor’s property. In 1915 in Ibrahim v. Ibrahim.1 Sadsiva Ayyar, J., suggested that this section should be
amended so as to lay down that no minor could be a guardian of minor’s property. Section 10 of the Hindu
Minority and Guardianship Act lays down that a minor is incompetent to act as guardian of property of any
minor. This takes care of Hindu minor children. But as regards other minor children this section still applies.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

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Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

22. Remuneration of guardian.—

(1) A guardian appointed or declared by the Court shall be entitled to such allowance, if any, as the Court
thinks fit for his care and pains in the execution of his duties.
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(2) When an officer of the Government, as such officer, is so appointed or declared to be guardian, such
fees shall be paid to the Government out of the property of the ward as the State Government, by
general or special order, directs.

Comments

1. Scope

Ordinarily a guardian is not entitled to any remuneration. Section 20 lays down that a guardian cannot make
profit out of the office, except as provided by the Act. This section makes a provision for the payment of
remuneration to the guardian, provided the court deems it proper. We have seen that a testamentary guardian
can claim remuneration if it has been allowed to him under the Will. This section deals with the remuneration of
certificated guardian. This section does not apply to any other guardian, such as a natural guardian.
2. Remuneration of Certificated Guardian

Sub-section (1) deals with remuneration of a certificated guardian who is a private person, while sub-section (2)
deals with the fee of a guardian who is a Government servant. In the former case remuneration is fixed by the
court, while in the latter case the fee is to be prescribed by the Government.

Section 22(1) lays down that a certificated guardian will be entitled to an allowance or remuneration as laid
down by the court to be proper for his care and paid in the execution of his duties. Most High Courts Rules lay
down guidelines for the guardian court.

The remuneration or allowance of the guardian may be fixed at the time of his appointment or it may be allowed
later on by the court. The court may grant a special allowance to the guardian on the termination of
guardianship.

Whether a guardian should get an allowance is purely on the discretion of the court. An order of the court not
allowing allowance is not appealable.1 Revision also does not lie against the order.2

When Collector or an officer of the Government is appointed a guardian, then fee is chargeable for the
maintenance of his establishment as they are chargeable in the case of estates under the superintendence of
the court of wards.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
1 Gangadhar v. Shivlinga Rao, ILR (1899) 24 Bom 95 .
2 Suraj Narayan v. Bishambar Singh, AIR 1925 Oudh 260, but see Mina Mal v. Hardian Singh, 48 PR 1901.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
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Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

23. Control of Collector as guardian.—

A Collector appointed or declared by the Court to be guardian of the person or property or both, of a minor
shall, in all matters connected with the guardianship of his ward, be subject to the control of the State
Government or of such authority as that Government, by notification in the Official Gazette, appoints in this
behalf.
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Comments

1. Scope

When Collector is appointed a guardian, he is not subject to the control of the court appointing him, but to the
control of the Government or such authority as the State Government may notify in this behalf.

The Collector has also been exempted from the obligation imposed by section 34 on the certificated guardian of
property.3 Similarly, he is not subject to the control under section 29. This means that alienation of minor’s
property with the sanction of the Government is valid,4 and he need not seek the permission of the court.
2. Delegation of Authority

The Collector can also delegate his authority to the manager of the property of the minor appointed by him.
Thus in Jogeshwar v. Bai Radha,5 where the Collector who was authorized to raise a loan by mortgaging
minor’s property, asked the manager of the minor’s property, to mortgage the property of the minor. It was held
that he could do so.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

3 Para 1 of section 34.

4 Abherj v. Doliatsingji, 28 Bom LR 628.

5 3 CLJ.
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Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

24. Duties of guardian of the person.—

A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health
and education, and such other matters as the law to which the ward is subject requires.
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Comments

1. Scope

This section deals with the duties of the guardian of the person of the minor. These include custody, religion,
education, etc., of the minor. We have discussed these in paras 2, 3, 4, 5, 6 and 7 of our commentary on
section 8 of the Hindu Minority and Guardianship Act, reference may be made to the same.
2. Guardian’s Obligation to Look for Support of the Minor

A guardian (i.e., other than a parent) has no personal obligation to maintain the ward. Section 24 of the
Guardians and Wards Act, 1890, lays down that a guardian of the person of the minor ‘must look for his
support’. This does not mean that the guardian has to maintain his ward out of his own pocket, but it means that
it is the duty of guardian to see that the ward is maintained out of the income of its property and that minor’s
funds are properly utilized for his maintenance. If the child has no property, guardian cannot help. This seems
to be the reason why the Court of Chancery hesitated in appointing a guardian of a child who did not have any
property.1

Indian courts have not hesitated in appointing a guardian of children who have no property. In in re, Gulabi and
Lilabai,2 finding both the contesting to be keen for appointment of guardian, the court made the appointment
subject to the payment of Rs. 4,000 in the court for the marriage of minor girls.3

In every case, the guardian should see that the ward is properly maintained. If he is not a guardian of the
property, he may apply to the court to secure payment of certain amount for the maintenance of the child. When
a child has property, it is the obligation of the guardian to see that the child is properly looked after, maintained
and educated. The obligation can be enforced by the guardian court which can issue all necessary instructions
to the guardian.

In Walter v. Walter,4the court said though the father has an obligation to maintain children, the guardian court,
under the Guardians and Wards Act, 1890, cannot enforce it. In our submission in section 24 the term
‘guardian’ is not confined to certificated guardian, it includes all guardians of the person of the child.1 In this
view the guardian court is competent to enforce the parental obligation to maintain the children.2 However, the
provision is not very clear: there is no specific provision under which it can ask the parent or guardian to pay
specific periodic amounts for the maintenance of the child. Reference should be made to clause (e) of section
34 under which a guardian of property is required to apply to the court for the maintenance, etc. of the ward.
Reference may be made to our commentary on that section.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

1 Wellesley v. Duke of Beauford, 38 ER 236.

2 ILR 32 Bom 50.

3 In re, Jagannathji Ramji, ILR (1893) 19 Bom 96 ; Walter v. Walter, AIR 1928 Cal 600 .

4 AIR 1928 Cal 600 .

1 In re, Lovejoy Patel, AIR 1944 Cal 433 .

2 See Pamela v. Patrick, AIR 1970 Mad 92 [LNIND 1968 MAD 173], Ismail, J., said that the word ‘guardian’ in section
4(2) and section 25 include all guardians de facto and de jure.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
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Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

25. Title of guardian to custody of ward.—

(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion
that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for
his return and for the purpose of enforcing the order may cause the ward to be arrested and to be
delivered into the custody of the guardian.
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(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of
the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882)*.
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not
of itself terminate the guardianship.

Comments

1. Scope

This section forms part of Chapter III which has the title “Duties, Rights and Liabilities of Guardian”. As we have
seen earlier, the guardian of the person of the minor is ordinarily entitled to the custody of the child. This section
lays down that a guardian who is deprived of the custody of the child can get it restored to him. It appears that
only the guardian can apply for custody under this section. If a case for restoration is made out, the court will
restore the custody of the child to the guardian, if necessary, by arresting him and delivering him to the
guardian.

On the plain reading of the section, the provision could be brought into motion only if the ward is removed from
or has left ‘the custody of his guardian’. This language presupposes an existence of jural relationship of
guardian and ward between the applicant and the child for whose custody an application is made. Secondly,
the section also presupposes that prior to filing of an application, the applicant-guardian has the custody of the
child from which he has been deprived. Thus, if there was no relationship of ward and guardian between the
child and the applicant or if there was such a relationship but the ward was never before in the custody of the
applicant, an application cannot be maintained. But a person seeking the custody is not a guardian he must first
seek an appointment as guardian, and then apply for custody. If before his appointment the child was at no time
in his custody he probably cannot succeed.

If a person is not interested in the guardianship and is interested only in the custody, he cannot apply under
section 25 and there is no other provision under which he can apply. Despite the liberal interpretation (or rather
stretched interpretation) given by our courts on the language of section 25, in our submission, even today, the
question of the bare custody cannot be agitated in our courts.

The object and purpose of this section are to ensure the welfare and well being of the child. In Rosy Jacob v.
Jacob A. Chakramakkal,1 the Supreme Court observed, “Hyper technicalities should not be allowed to deprive
the guardian of the necessary assistance from the court in effectively discharging the duties and obligations
towards his ward so as to promote the latter’s welfare.”2 It appears to be now settled that in the matter of
deciding. The question of custody the paramount consideration is the welfare of the child.3

The requirements of this section are the following:

(a) Application should be made by guardian,

(b) The child should have been in the custody of the guardian sometime prior to his application.
(c) The child must have left or been removed from the custody of the guardian, and
(d) Restoration of custody to the applicant must be for the welfare of the child.

The court also take into account some other matters also in deciding the question of custody, such as age and
sex of the child, wishes of the child and other matters, which have been discussed in our commentary of
section 17. Reference may please be made to the same.

Under this section the court has large judicial discretion in deciding the question of custody of the child.
2. Applicant should be Guardian

Does the term “guardian” under section means only a de jure guardian or it also includes a de facto guardian. In
our submission this section will be able to serve its objective only if within the ambit of term “guardian” we
include all types of guardians. But still there will be some difficulties. Our courts are not unanimous whether the
term “guardian” includes a de facto guardian.
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In Sydney Hugh Mcsweensy v. Margaret Arbuthonot,1 Mukerjit and Mitter, JJ., expressed a doubt whether the
word ‘guardian’ in section 25 could include a guardian other than the one appointed or declared by the court. In
Jiwan Krishan v. Sallendra Nath,2 the court expressly dissented from this view. Das, J., said that there is no
reason why the term guardian as used in section 25 should not include any guardian testamentary, certificated,
natural or de facto.

The Madras,3 Allahabad,4 Bombay,5 Lahore,6 High Court, Oudh,7 and Nagpur,8 Judicial Commissioner’s
Courts also favour wider interpretation. In Md. Ramzan v. Taja,9 the Jammu and Kashmir High Court said that
the word “guardian” in the section is used in a wider sense and does not necessary mean a certificated
guardian.

The Bombay High Court in Achratlal v. Chaman Lal,10 said that the guardian for marriage is not included under
section 12. However, the Calcutta High Court said that if a guardian for marriage tried to dispose of the child in
marriage contrary to its interest, the court could intervene.11 It would be difficult to say that he guardian for
marriage has ‘the care of the person’ of the child.12

Under the Hindu Minority and Guardianship Act, 1956, the term, ‘guardian’ is defined as a person having the
care of the person of a minor or of his property or both, and includes a natural guardian, testamentary guardian,
certificated guardian or a guardian under the Court of Wards Act.1 This definition would not, it seems, include a
guardian for marriage unless it is shown that the child is in his ‘care’. But in our submission, it may still include a
de facto guardian,2as the enumeration in the section cannot be taken as exhaustive. The definition is almost
the same as contained in the Guardians and Wards Act, 1890.

In an event, a person applying for custody under section 25 must be a guardian, probably, a guardian who
never had the custody of the child cannot come under the section. Nor can a mere inter meddler who has not
yet attained the status of de facto guardian. There may be yet another difficulty. It seems that it has been
overlooked that if wide interpretation is given to the word ‘guardian’, it may happen that the person claiming
custody and the person against whom custody is claimed are both guardians, one may be a de jure guardian,
the other may be de facto guardian. And suppose a de facto guardian may have the custody of child from its
birth. If the de jure guardian (such as the father or testamentary guardian) removes the child from his custody,
could the de facto guardian maintain his application under this section? Could he succeed? Answer to these
questions would depend upon the construction that is placed on words, ‘custody’, ‘leaves’ or ‘removed’ in
section 25.

In Madhu Bala v. Arun Khanna,3 as late as in 1987 the Delhi High Court could not restrain itself from saying
that section 25 postulates to pre-existing guardianship order by the court, though after considering the facts of
the case, it held that welfare to minor is the paramount consideration and gave custody to mother. The contest
was between the parents of the child.

In Om Prakash Bharuka v. Shakuntala Modi,4 there was dispute between parents with regard to custody of
children. Father has filed an application for custody of children. An earlier report submitted in the High Court
indicated that children were not inclined to live with father. They said that they were happy and well-looked after
by the mother. While refusing the father the interim custody, the court observed that a just and proper balance
should be struck between welfare of minor children and rights of their parents over them. In Thirumavalavam v.
Natarajan,5 father seeking custody of the child. A genuine letter of mother of the child before she committed
suicide stated the reason for her committing suicide to be that the father of the minor had developed illicit
relations with the maid servant and treated the mother and the child cruelly. She wished that custody of the
child should be given to her colleague belonging to another religion. Since letter was genuine, it was accepted
and acted upon as the last wish of the deceased and father was denied custody.
3. When Applicant is not Guardian

The question is: can a person who is not a guardian apply under this section has come in several cases.

In Mst. Chandra Kaur v. Chhotey Lal,1 on his application father was appointed guardian of his minor male child
and he also obtained an order for custody. The child was in the custody of the mother. Pursuant to the order of
the District Judge the father was able to take the child in his custody. The mother appealed and only desired to
have custody. The learned Judicial Commissioner said:

I do not see how the applicant without being appointed guardian by the District judge can obtain custody of the child. If
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she wants custody of the child the proper procedure for her would be to apply to the court of District Judge for
certificate of guardianship. If she obtains a certificate she will then be entitled to claim custody under section 25.

The learned Judge further said that under Guardians and Wards Act father cannot be appointed as guardian.
His Lordship admitted that but for the illegal order the father could not have obtained custody but said that since
he has obtained it, he cannot be deprived of it, he being the natural guardian.

If we take the argument to the logical conclusion, it would mean that the mother cannot regain the custody even
if she is deprived of it by a stranger by force or fraud; since mother is not a guardian, she cannot apply under
section 25.

The question came before the Punjab High Court in Ratan Amol Singh v. Kamaljeet Kaur.2The petitioner and
respondent, husband and wife, separated from each other in 1949, the father retaining the custody of three
minor girls and the mother taking the minor boy with her. In 1952 the mother desired the custody of girls also as
they had grown up by then. She also applied for appointment of herself as guardian of all her children. Dua, J.,
got over the difficulty presented by section 19 by relying on section 13 of the Hindu Minority and Guardianship
Act, 1956. On the other hand, Daulat, J., had some hesitation as he felt that the appointment of mother as
guardian would, by implication, mean that the father was unfit, and the judge felt that there was nothing on
record for that implication. But he agreed with Dua, J., that the order was passed purely from the point of view
of welfare of children.

There are few cases in which the mother was granted custody against the father. In Saraswathibai v. Shripad,3
granting the custody to the mother, the Bombay High Court said that it was not in favour of depriving the father
from guardianship. Beaumont, CJ., said:

There is no question here of removing the child from the guardianship of the father. The father is the natural guardian.
He remains the natural guardian, but in the interest of the child itself we are satisfied that its custody ought, for the
present, to be with the mother.

In this case the application was made by the father under section 25 and not by the mother. The child was in
mother’s custody.

This difficulty was clearly felt by the Calcutta High Court in In the matter of Kamal Rudra.1The contest was
again between the father and mother. The court was in favour of giving custody to the mother, though was not
in favour of her appointment as guardian. The court came to the conclusion that such an order could not be
passed under any provision of the Guardians and Wards Act and therefore had to fall back on its inherent
powers. Custody was granted to the mother under clause 17, the Letters Patent.

In In Lovejoy Patel,2 again the applicant wanted custody only.2 The applicant, a third person, passed her claim
on an agreement under which she was given custody. Das, J., felt that the matter was not free from difficulty; a
person who is not a de jure guardian cannot come and ask for custody without being first appointed guardian.
The applicant also did not desire to be appointed a guardian. But finding no other alternative the court
appointed her guardian and gave her custody.

Mst. Prem Kaur v. Benarsidas,3 is more interesting. A putative father applied for the custody of his children who
were with their mother. The court did not accept the argument that under Hindu law the mother of illegitimate
children is their natural and lawful guardian. The children were in the custody of the putative father before the
mother left him. On the application of the father, the court said that since any person could be guardian who
has the care of the child, the putative father was the guardian and hence he could apply.

The problem is, as was said by the Madras High Court in Kamaraswami v. Rajammal,4 in a given case it may
be in the welfare of the child that guardianship vests in the father and the mother is given custody. But
obviously the court lacks means to do so.

We would pass on to the consideration of some of the cases arising under Muslim law where the mother is
entitled to custody, though guardianship vests in the father. The question in these case has been that how a
child who has been removed from the custody of the mother could be restored to her.

In Siddiquinissa v. Nizamuddin,5 a child was brought up from its birth, the mother being dead, by its
grandmother who had the right of custody under Muslim law, when the child was about seven years old. The
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father wanted its custody. The grandmother applied for the appointment of herself as guardian. The father
counter-petitioned for appointment of himself as guardian and for custody. The court found that the
grandmother had lost her right of custody as she removed the child to her own place, and since she refused to
hand over the child to the father (though the father never had the child in his care), it amounted to removing the
child from lawful custody and hence the father could apply.

Almost on identical facts the question came for consideration before a Full Bench of the Oudh Judicial
Commissioner’s Court in Mst. Ghuran v. Sued Riaz,1 and the court got over the difficulty by invoking the
principle of welfare of minor as paramount consideration, even though it meant violence to the utter of law.1

The problem was presented squarely in Zynab Bi v. Md. Ghous Moideen.2 The mother of two minor children, of
whose custody she had the right under Muslim law, applied for custody under section 25, on the averment that
the father removed them forcibly from her custody. The court said that she may be treated as guardian under
section 25 and hence her application was maintainable. Thus a person who is under Muslim law a mere
custodian has to be dubbed as a guardian by the court to enable it to do justice. It was overlooked that the
father was the de jure guardian. On the other hand, the Allahabad High Court has taken a contrary view in
Hasmat Ali v. Surya Begam.3 The mother of a child entitled to the custody under Muslim law applied for its
custody with the averment that the father removed the child from her custody, Sehgal, J., said that the mother
might have been in custody of the minor at one time which custody has been taken away by the father and she
might be under the law of hizanat entitled to the custody of the child but she being not the guardian of the child,
custody could not be restored to her under section 25. As to the question how she could exercise her right, the
learned Judge said that she could exercise it by filing a suit but not under section 25 which is available only to a
guardian.

In Fatima Bibi v. Sheik Peda,4 a grandmother of two minor children having the right to their custody, applied for
their custody under section 25. She never before had their custody. The children were in the custody of the
father. She could not obviously be called a guardian as the children were never in her care, and she also could
not be appointed guardian unless the father was found unfit. Her application was dismissed. It seems that it
was not argued that since she had the right to custody, it may be deemed that she had the constructive custody
from the date of the death of the mother of children. It would have been still more interesting to argue that the
father being the natural and lawful guardian of his children is deemed to have their custody from their birth, and
thus both have had the custody of the child simultaneously.

In some recent cases this aspect of the matter that whether the applicant is a guardian or not has been almost
obliterated. Any one may move the court and the paramount consideration before the court would be the
welfare of the child. In Meera Devi v. Shyem Sunder,5 the court said that the court should consider the best
interest of the child, and while considering an application under section 25 it is open to the court to make any
arrangement relating to the education of the minor which he consider to be in the best interest of minor and in
such a case it is the welfare of the minor which alone is the foremost consideration and not the rights of the
parents. Neither the father nor the mother has an indefeasible right to have custody of the minor or to decide
his future as he or she likes. The court’s duty in this regards is onerous and it is required to discharge the same
to the best of its ability in the interest of minor. In Khurshid Gauhar v. Siddiqunnisa,1 it was mother’s application
for custody against the father who removed the child from her custody. The Allahabad High Court granted her
custody. There is no discussion at all at the technicalities of section 25.
4. Child must have Left or Removed from the Custody

It has been held that the section has no application unless it is shown that the ward has left or has been
removed from the custody of the guardian.2 This leads to the question whether “custody” means actual custody
or it also means constructive custody as well.

The High Courts differ among themselves whether the term ‘custody’ means actual custody or whether it
includes constructive custody also. Bombay High Court in Achratlal v. Chiman Lal,3said that the court, under
the Guardians and Wards Act, does not have any inherent powers to make orders in respect of children. It has
only those powers which are expressly conferred on it by the Act.4 And, therefore, if the guardian of a child
never had the custody of the child, it cannot be said that the child was removed or had left the custody and
hence section 25 does not apply. This decision was distinguished, on facts in Noshirban v. Sharoshavabu.5
The court said that the term ‘custody’ includes ‘actual as well as the constructive custody’ of the minor.6 In
Shivappa Basappa v. Chenpasappagowda,7 the court was of the view that judgment in Achratlal,3 was correct.
Beaumount, C.J., said that since the words used are if a ward leaves or is removed from the custody’, they can
only mean actual custody and cannot include constructive custody. The learned Chief Justice said that if
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‘custody’ means constructive custody, then the ward is always in the custody of his legal guardian and there
would be no occasion for making an order because it has not left, and it cannot leave, the constructive custody.
The learned Chief Justice observed:

I should be glad to hold that the statute confers such a power upon the court, but I cannot extract such a meaning from
the language which the legislature has used.

This was in answer to the argument that the court should suppose this, i.e., custody includes constructive
custody to be the intention of the Legislature and give effect to it. The Rangoon High Court gives a more
effective reply to the argument of supposed intention. Their Lordships said:

With due respect it is very dangerous for the courts to try to find out the intention of the Legislature and then
strain the language used in the statute to carry out the intention. If the Legislature has failed to express its
intention in the statute, that has to be remedied by the legislative action.1

Earlier in Maung Zaw v. Maung Hla Din,2 Page, C.J., and Sen J., took a different view. The learned Judges
said that the father can always apply as the children are deemed to be in his custody from their birth.3

The question came for consideration in a very interesting manner in Dhan Kumari v. Mahendra Singh.4 The
father of a girl of three years, who was from its birth living with her grandmother, applied for appointment of
himself as guardian of the girl. The court said that in view of section 19, the father cannot be appointed
guardian,5and since the father never had the custody of the child, he could not apply for custody under section
25. In our submission in view of the provisions sections 19 and 25 of the Guardians and Wards Act this
interpretation seems to be technically flawless.6

But the problem is, as the Oudh Judicial Commissioner Court7 very aptly put it: “It would be certainly very
strange, that the law, while it provides for and insists upon the due discharge of a guardian of his duties towards
his ward, should deny him the means of doing these duties”. And the court proceeded to give an interpretation
so that this strange result may not be reached. The learned Judicial Commissioner said that for the purpose of
enabling the guardian to do his duty by the ward it should be assumed that that the court can make an order for
the delivery to him of the custody of his ward, even if it is the case that he was not previously had the ward in
his actual keeping. The learned Commissioner had no hesitation in adding:

And this can only be done by adopting liberal interpretation of the term, ‘custody’.8 It is really strange that the law
should deny means to a guardian to enable him to discharge his duties. The concern of the courts in avoiding this
strange result is understandable. After all our courts are meant to import social justice.

However, in Deputy Commissioner v. Nawab Mohammad,9 Shrivastava, J., doubted this view. Thereafter the
question was considered by a Full Bench which favoured ‘liberal interpretation’. When a guardian who does not
have the custody of the child demands the custody from the person who is in custody of the child, and if the
latter refuses to deliver then it would amount to removing the child from the custody of the guardian.1

Thus section 25 of the Guardians and Wards Act, 1890, was made to work by judicial valour.

The Sind2 and Bilaspur3 Judicial Commissioner’s Courts, the Calcutta, Allahabad and Madras High Courts also
favour ‘liberal interpretation’.4

And thus the courts refrained from holding otherwise.5 The Allahabad High Court said that to make the section
work the judicial interpretation has taken a “merciful view” so as to prevent the courts being rendered
powerless.6 In Chandra Pal v. Mungia,7 the courts said that in order to make the Act workable a guardian
appointed by the Court under section 7 must be deemed to have been given legal custody from the date of his
appointment.8 Similarly, the Madras High Court said that the wide interpretation would help in carrying out the
intention of the legislature.9

After the death of the mother by committing suicide the minor child was retained by maternal grandparents
against the wishes of the father. Later on father was acquitted of the charge of abetting suicide. The father was
granted the custody of child as it was felt that there was nothing against the father to deprive him of the custody
of child.10

The Allahabad High Court takes the view that refusal to hand over the child by a person to the legal guardian
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amounts to ‘removal of the child’.11 The Calcutta High Court said that legally it is the father who has the
custody of the child and it would amount to removal from custody if the person having the actual possession of
the child repudiates to the guardian’s knowledge his right of legal custody.12 The Oudh Judicial
Commissioner’s court said that if a hazina does not allow the child to go to her father, then it amounts to
removal of the child from the lawful custody of the father.13 In Raj Kumar Gupta v. BarbaraGupta,1 the mother
of the child aged 3 years took away the child with her from the matrimonial home. The father claimed the
custody of child alleging that the child has been removed from his lawful custody. The court held that since the
mother was a lawful custodian of the child it cannot be said that she removed the child unlawfully. Thus one
artificial interpretation followed another. One fiction was added to another.

In sum, the court seems to take this position: the natural guardian is deemed to have the custody from the date
of the birth of the child and, the certificated guardian from the date of his appointment. However, in Tarun v.
Sidhartha,2 the Calcutta High Court has held, that the child should not be returned to the person from whose
custody it was removed, unless “returning the child will be for the welfare of child”. It is immaterial even if the
person happens to be the lawful guardian.

But did all this, liberal interpretation or ‘merciful view’ or ‘stretching’ the language of section 25 was able to
make the section work satisfactorily? In practically every case where the court granted an application under
section 25 it was compelled so say that the applicant was a guardian. And where they could not say to they
have to reject the application on that basis.3
5. Welfare of the Child is the Paramount Consideration

What amount to “welfare of the child”. We have discussed this in our commentary on section 13, Hindu Minority
and Guardianship Act. Reference may please be made to the same.

Our courts have been time and again upholding this principle.4
6. Sub-section (2): Arrest of the Ward

Sub-section (1) lays down that when the court makes a custody order in favour of a person it has also the
power to cause the ward arrested and to be delivered into the custody of the person in whose favour order has
been made. Sub-section (2) lays down that for the purpose of arresting the ward, the court has the power
conferred on a Magistrate of I Class by section 97 of the Code of Criminal Procedure, 1973. This is
supplementary power conferred on the court, a power already given under section 25(1).5 Section 97 of the
Code authorizes the Magistrate to issue search warrant if he has reason to believe that any person is
wrongfully confined.
7. Sub-section (3): Residence of the Minor against the Will of the Guardian

This sub-section lays down that the residence of a ward against the Will of his guardian with a person who is
not his guardian does not of itself terminate the guardianship. What is the import of this section is not clear. In
Siddiq-un-nissa v. Nizamuddin,1 the Allahabad High Court said: “Section 25(3) indicates that the residence of a
ward against the Will of the guardian with a person who is not his guardian does not itself terminate
guardianship. Accordingly constructive guardianship will continue.”

Probably, this sub-section refers to the jurisdictional aspect. If the child is living with a third person against the
Will of the child, it will not mean that the child is ordinarily residing there. In our submission, the sub-section is
redundant, since sections 38 to 42 deal with the termination of guardianship, and a negative provision in sub-
section (3) serves no purpose.
8. Appeal

An appeal lies to the High Court from an order passed under this section, whether order grants custody or
refuse to grant it.2
9. Access

When custody is accorded to one parent, the question often arises should the other parent or other relations
have no association with the child. This problem has been solved by granting access to the other parent as well
as other relations, provided it is for the welfare of the minor. Ordinarily, both orders need not be inconsistent:
One parent may have custody and the other parent access. In S v. S,3 the court observed:

To say of a woman that she is a bad wife and mother may be an excellent reason for not giving her care and control
but........is not sufficient ground for depriving her of any kind of access.3 Ordinarily when custody is given to one
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parent, access is given to the other. The normal principle is given that the children should grow up in the full knowledge
of both parents.

In B v. B,4 Martin, J., observed:

I wish to make clear and it can be expressed in the order, that the order is without prejudice to any question as to the
having father access to the child.

In this case mother was given custody. Obviously, when parents separate only one parent can be granted
custody. This does not mean that the other parent will not be allowed access to the child. The court, while
making an order of custody, may make it clear that the parent who does not have the custody of the child will
have access to it. When access is granted to a parent, the other parent cannot prevent him from access to the
child. But the right must be exercised in a reasonable manner and in conformity with the directions of the court
contained in the order.

English law.—At English common law the father’s powers were so absolute that he could even deny access to
the mother to her children. As Lord Cottemharm put it, “however such a woman might have been injured, she
was precluded from seeking justice from her husband by the terror of that power, which the law gave him, of
taking away her children from her.”1 It was the realization of this great hardship and injustice that lead to the
passing of the Talford’s Act, 1839, which for the first time gave the mother the right to access to her children, if
they were in the custody of the father or other legal guardian.

The Talford’s Act, came for interpretation in In re, Halliday’s Estate,2 Sir G.C. Turner, V.C. said that if custody is
left with the father and full access is given to the mother, the mother’s right under the Act can be maintained
consistently with the father’s common law right of custody of his children.

The Talford’s Act was replaced by the Custody of Infants Act, 1873; the Talford’s Act permitted access to the
children only up to the age of seven. It specifically laid down that a mother guilty of adultery was entitled neither
to custody nor to access. The Act of 1873 extended the age up to sixteen years and deleted the latter provision.
The Guardianship of Infants Act, 1886, further improved the position of the mother. The Act, which was then
called mother’s Act, laid down in section 5:

The court may, upon the application of the mother of any infant (who may apply without next friend), make such order
as it may think fit regarding the custody of such infant and the right to access thereto of either parent, having regard to
the welfare of the infant, and to the conduct of the parties, and the wishes as well of the mother as of the father.

The Act also contains another interesting provision in section 7 which provides that a parent guilty of
matrimonial misconduct could be declared unfit.3

The Guardianship of Infants Act, 1925 proclaims the paramountcy of welfare principle. Section 5 lays down that
mother’s right of custody and access can be exercised even if the mother is living with the father of the child.

The principle on which access to children is based was explained by Lord Chairns thus: There ought to be an
opportunity of access on both sides, so that none of the children my grow up without as full an intercourse, as
the case would admit of with both parents.4 Pollock M.R. explained the principle thus:

I cannot think that it would be right from the point of view of the child to cut her off from all access to her mother. The
relation of mother and daughter ought not to be, as the courts have now decided it need not be, entirely severed. It
may be an advantage to the daughter within proper limits, and if she is not brought into contact with what I might call
the corroding side of mother’s life, still to have the sympathy and the affection, and let me hope the guidance of the
mother. Although her mother has fallen, she remains her mother.1

In W v. W.,2 parents of a child were living separate. The mother obtained a decree of restitution of conjugal
rights which was not complied with by the father. The child was living with its grand-parents with whom it was
very happy and who were looking after her very well. The mother applied for custody. Lord Marrivale, P. said
that balancing the relative advantages which were offered to the child, the welfare of the child while it was of
tender age required peremptorily that the child should remain ordinarily in the custody in which since the birth it
has been, though at the same time it was also of great importance that both the parents should be concerned in
the welfare of the child. The court did not pass any order of custody but granted access to both parents.
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In S v. S.,3 the husband obtained a decree of divorce on the ground of wife’s adultery. The wife’s application for
access was dismissed. On appeal to the Court of Appeal, Ormerod, L.J., said that parties have separated, the
marriage has been dissolved, the wife has married the co-respondent. Are all these good enough reasons for
the mother to be denied access to her children? It has to be borne in mind, the learned Judge said, these
children are very young five and four years of age, both are girls, and it may be that at some future time they
would want to see more of mother, and since there is no sufficient reason shown for denying access to the
mother, the mother should be granted access to both children. Willimer, L.J., in his judgment observed that the
mother could be deprived of custody only if she was found to be not a proper and fit person to be brought into
contact with the children at all, such as when she had a criminal record, or when she was disposed to act with
cruelty against the children. To say of a woman that she is a bad wife or mother may the learned Judge added,
be an excellent reason for not giving her care and control, but is not sufficient ground for depriving her of any
kind of access. The third judge, Dankwerts, L.J., said that an order depriving a mother of any access to her
children is a very exceptional order.

In Hall v. Hall,4 the mother was given interim custody in divorce proceedings. The father applied for access.
The trial court rejected the application on the ground that there is a bitter feeling between the parents on
account of litigation, and the children are naturally influenced by it and did not desire to see their father. It found
that the one meeting which the children had with their father during litigation adversely affected them. Donovan,
L.J., in the Court of Appeal, said that as they grow up these children may well need the help and affection of the
father as well, and, therefore, it would be a grievous wrong to the children to deprive them deliberately of that
advantage.

Today the common law rules that the guilty wife cannot be given custody,1 has been totally abrogated, neither
parent can have an edge over the other. The matter is entirely decided on the basis of welfare of children.2 The
procedure for application for access is regulated by the Rules.3

The modern English law views the matter squarely from the point of view of welfare of children. It is ordinarily
always in the benefit and welfare of children that they should grow up in as full a knowledge and as full an
intercourse as possible with both parents. When one parent is given custody, the other should be given access
in the ordinary course, unless he or she is not a proper or fit person in the ordinary course, or unless the access
would have adverse effect on the children.

The modern law takes the view that it is not in the welfare of the child that it should grow up in the ignorance of
the parents. If the association of one of the parents will be completely cut out from the child, it may happen that
after sometimes child may be completely oblivious of the parent’s existence. This cannot be ordinarily in the
welfare of the child. This will be done in a very exceptional case, and only for the welfare of the child. Thus, it is
in the interest and welfare of children that they should grow up, as far as it is possible under the circumstances,
receiving the care, attention and affection of both parents, should have as full an intercourse with both parents
as is possible and grow up into adulthood with full knowledge of both the parents. This has been done by
granting access to the parent who does not have the custody of the child. In the modern law this is done
effectively by entrusting legal custody to one parent and care and control to another.

Indian law.—The textual Hindu law is silent both as to custody and access. On the other hand, we find some
reference to access in Muslim law. According to the Durr-ul-muhtar:

In is in the Sirajiah: when custody of the mother ceases, father takes the child, the father cannot be forced to send the
child to her, but whenever she likes to see the child, she will not be prohibited from doing so. My master Shaik Ramli
has held that the father can take the child on a journey after the expiry of the period of tutelage, and all agnates are like
the father in this respect...........

Ramification: A father goes away with his child and then divorces the mother, she demands the child. If the
father took away the child with the mother’s consent, he is not bound to take the child to her, but if he took it
away without her consent, he is bound to take the child to her.1

‘Ramification’ seems to refer to the period when the child is under the hizanat of the mother and the father
takes it away with the consent of the mother. In such a case what the Durr-ul-muhtar seems to lay down is that
it amounts to abandonment of her right by the mother and therefore the father is not bound to restore custody to
her. The earlier passage clearly lays down that when the child passes into the custody of the father, the mother
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is to be given access to it. Even in a case where the mother forfeits her right of custody, she has the right to
access unless she has rendered herself completely unfit.

There is no mention of father’s right of access. In our submission it was not necessary. The father being the
sole natural guardian could always have access to his children. Neil and Bailley have stated the law very
succinctly in the following sentence:

When a child is with one of its parents, the other is not to be prevented from seeing and visiting it.2

The modern writers on Muslim law have not devoted themselves to the subject.3 It seems that the provision
has also not come for interpretation before the courts.

It may appear surprising that the statutory law of India does not contain any specific provision relating to
access. Neither the Guardians and Wards Act, 1890, nor thehindu Minority and Guardianship Act, 1956,
contain any provision in this respect. The question of access has not been agitated much in our courts.
However, whenever the question has come before the courts the absence of any specific provision has not
created any difficulty. On the analogy of English law, courts have been granting access whenever they have
been called upon to do so and whenever they have found a fit case to do so. Looked at conceptually, access is
nothing but part of custody and if the court can pass an order for custody, it can as well pass an order for
access.

In Nisbett v. Nisbett,4 the court did not deem it in the welfare of the children to commit their custody to the
mother, but it granted access to her to which the father also did not object. In Sushila v. Kunwar Krishna,5 the
custody was given to the mother and access to children was granted to the father, though the court left it to
parties as to how much and in what manner access was to be granted to the father. Again, in Saraswathibai v.
Shripad,6 the custody was given to the mother and access was granted to the father. The court said, “Probably
there will be no difficulty in arranging that [i.e., access]. If there is, he will have to apply to the court to arrange
the circumstances in which he can see the child.”

The court used the provision of access in a very interesting manner in Jwala Prasad v. Bachu Lal.1 A child was
brought up from its very birth by its grand-parents. On the father’s application for custody, the court felt that the
sudden removal of the child at such an age—the child was eight years old—to new and unfamiliar surroundings
and environment from the grand-parents might seriously affect its health, and therefore did not deem it in the
welfare of the child to give his custody immediately. However, the court granted full access to the father so that
he might get acquainted and became familiar with the child. He was granted access on all holidays and was
allowed to take the child with him on ceremonial occasions. Poonam Datta v. Krishanlal Datta,2 also presents
an interesting fact situation. On the death of the father the mother was driven away from the house by the
grandparents of the child who also did not allow the child to be taken away by mother. The Supreme Court held
that it is in the welfare of the child that mother should have the custody of child though grand-parents were
granted access on the weekends. The child was placed in a school at Modi Nagar where mother lived.

In Kalippa v. Valiammal,3 the father had remarried and the custody was given to the mother of the child aged
two years and a half. The father was granted access and was allowed to take the child to his house for three
days in every quarter. The court also allowed other relatives of the father to visit the child at mother’s house at
all convenient times. In Sunder v. Gopa l,4 the custody of a child aged three years was given to the mother and
the father was given access to the child so that the child ‘is not antagonized against the father and should have
soft corner’ for him. The father was allowed to see the child at least twice a week. In Shanti Devi v. Gian
Chand,5 the father was given custody of a child aged about six years. The mother was allowed to have all
reasonable opportunity to visit and see the child.

Thus the absence of specific provision in the Indian law has not meant any difficulty for our courts in deciding
questions of access to children. The access has been granted almost as a matter of course, whenever it has
been asked for. In our submission it should be so. It would be a very exceptional case or as Danckwerts, L.J.,
said ‘a very exceptional order’.6 When a parent will be denied access.

In our submission to keep parents and child in some association with each other is ordinarily in the welfare of
the child. In a given case it may not be in the welfare of the child to be committed to the care of a parent. But it
would be a very rare case,1 when a parent is to be denied all contact with his child. Pallock, M.R. aptly said,
“Although her mother has fallen, she remains her mother.”2 This applies not merely to the mother but also to
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the father. The children should have the sympathy, affection and guidance of both parents as far it is
practicable and as far as it is consistent with the welfare of children.

The Indian courts have gone even a step further. They have not merely granted access to both parents, but
they have also ordered access to other relatives of the child.3 In our submission that is correct view especially
in a society like ours where joint family system prevails and other members of the family are usually interested
in the welfare of the child.

In deciding the question of access, the interest of the child is paramount, as in case of custody.4 No order of
access will be passed if it is not in the interest of the child.5 On the application of a parent, the court may make
such orders as to the access to the child as it may deem fit, having regard to the child’s welfare, the conduct of
the parties, and wishes of the child if mature enough to express its wishes.

In Mohini v. Virendra Kumar,6 the Supreme Court has elucidated the matter. In the order of custody or access
the court should give full and clear direction. In this case, the Supreme Court laid down that during long
vacations, the father would be entitled to take the child with him from the mother’s home in case the child was
with her or from the boarding school (where the child was educated and living) with him and keep it with him for
a period not exceeding one month in a year.

Lekh Raj v. Rayman, illustrates that when conceptual parameters are clear, one easily lands into difficulties.
The girl was entrusted to the custody of the mother and the son was put at the boarding house to whom
visitation rights were granted to both parents. In the present case with the permission of the school, the father
brought the child to his place. The child remained with the father for almost half of the vacation, then she
applied to the court that for the rest of the vacation child be allowed to be with her so that he was able to have
the company of his sister. The mother was not asking for the custody the child but only that for the part of the
vacation, child be allowed to live with her. Mahesh Chandra, J., misunderstood the entire issue and at one
place father as natural guardian was entitled to the custody of that the child and at another place he said that
the child was not a chattel to be shifted from one place to another. The learned Judge felt satisfied by giving
visitation rights to the mother at the place of the father.

The English courts have recently taken the view that access is not the parent’s right but of the child, and access
to the non-custodian parent is justified by the long-term advantages to the child of being associated to the both
parents.1

Violation of access order.—Remedy for violation of the order of access has under section 39A, the Special
Marriage Act where the order has been passed in matrimonial proceedings, otherwise a petition of contempt
may be filed if the order is under the Guardians and Wards Act or the Hindu Minority and Guardianship Act.2

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

2 AIR 1952 Mad 284 [LNIND 1951 MAD 146].

3 AIR 1971 All 260 .
4 AIR 1941 Mad 944 [LNIND 1941 MAD 176].
5 AIR 1985 Ori 65 [LNIND 1984 ORI 7].
1 See also AIR 1986 All 314 [LNIND 1986 ALL 31].
2 For instance, see Md. Remzan v. Taja, AIR 1983 J&K 70 .
3 ILR (1916) 40 Bom 600 .
4 This is the view taken by the Privy Council in Annie Beasant v. Narayaniah, AIR 1914 PC 41 .
5 AIR 1934 Bom 311 .
6 AIR 1934 Bom 311 (312). This was the Single Bench Judgment (Wadia., J.). The court purported to follow the Madras
High Court.
7 AIR 1941 Bom 444 .
1 Manoo Ali v. Hawabi, AIR 1936 Rang 63 .
2 AIR 1934 Rang 49 .
3 See also Mathuraban v. Tewary, AIR 1918 Lower Burma 59.
4 AIR 1923 Nag 199 .
5 See our commentary on section 19.
6 The Madhya Bharat High Court takes this view; Abbasi v. Sultan Hamid Khan, AIR 1955 (NOC) 3697 .
7 Mushaf Husain v. Md. Jawad, AIR 1918 Oudh 376 .
8 This was followed in Chootelal v. Chandra Kunwar, AIR 1925 Oudh 257 .
9 AIR 1934 Oudh 392 .
1 Mst. Ghuran v. Syed Riaz Khan, AIR 1935 Oudh 492 (FB); see also Mohammed Saddiq v. Wzxafati, AIR 1948 Oudh 51
.
2 AIR 1931 Sind 56 .
3 Mst. Radhi v. Garib Das, AIR 1953 Bilaspur 26 .
4 Jawala Prasad v. Bachu Lal, AIR 1942 Cal 215 ; But see Sydney v. Marget, AIR 1931 Cal 563 .
5 Jiwan v. Sailendra, AIR 1946 Cal 272 ; Jwala Pd v. Bachoolal, AIR 1942 Cal 215 .
6 Mst. Ulfat Bibi v. Bafati, AIR 1927 All 581 ; Hasan v. Hasan, 48 IC 60 was followed.
7 AIR 1961 All 549 [LNIND 1959 ALL 177].
8 Mst. Siddiquinissa v. Nizamuddin, AIR 1932 All 215 ; Utma Kaur v. Bhagwan Kaur, ILR (1915) 37 All 515 ; Sukh Deo
Rai v. Ram Chandra Rai, ILR (1924) 46 All 706 ; Mst. Sheokumari v. Mathura Ram, AIR 1936 All 267 .
9 Mohideen v. Md. Ibrahim, ILR (1917) 39 Mad 688 ; Narayaniah v. Beasant, AIR 1930 Mad 807 ; Raghaviya v.
Lakshmiah, AIR 1925 Mad 398 [LNIND 1924 MAD 287]; Taima v. Marina, AIR 1930 Mad 19 [LNIND 1929 MAD 175];
Venkatraama v. Tusai Ammal, AIR 1950 Mad 320 [LNIND 1949 MAD 295]; Archaya v. Kosarju, AIR 1929 Mad 81 .
10 S. Abboy Naidu v. R. Sundara Rajan, AIR 1989 Mad 129 [LNIND 1987 MAD 334].
11 Mst. Sheokumari v. Mathura Ram, AIR 1936 All 267 ; See also Mst. Siddiquinissa v. Nizamuddin, AIR 1932 All 15 ;
Utma Kaur v. Bhagwant Kaur, AIR 1915 All 199 .
12 Jawala Pd v. Bachu Lal, AIR 1942 Cal 215 .
13 Mst. Ghuran v. Syed Riaz Khan, AIR 1935 Oudh 492 ; Sarda Nayar v. Veyakan Amma, AIR 1957 Ker 158 [LNIND
1957 KER 98].

“Effectively keeping away the ward from the control or custody of guardian will also amount to removal of the ward
in the general sense”. Thus removal is not limited to physical removal.
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1 AIR 1989 Cal 165 [LNIND 1988 CAL 232].

2 AIR 1991 Cal 16 .
3 This is despite the fact that courts have included ‘de facto’ guardian in the meaning of the word ‘guardian’ under section
25.
4 Chandrakala Menon v. Nipin Menon, JT 1993 (1) SC 229 ; Master Zubeen v. Principal Judge, Family Courts, Lucknow,
AIR 1994 All 147 [LNIND 1993 ALL 192].
5 Venkayamma v. Surrayya, AIR 1936 Mad 556 .
1 AIR 1932 All 215 .
2 Section 47(c).
3 (1962) 1 WLR 445.
4 (1940) Ch 54.

1 Warde v. Warde, (1849) 2 Ch 786 .

2 95 RR 947.
3 Section 7 runs: “In any case where a decree for judicial separation, or a decree either nisi or absolute for divorce, shall
be pronounced, the court pronouncing such decree may thereby declare the parent by reason of whose misconduct
such decree is made to be a person unfit to have the custody of the children (if any) of the marriage; and in such case,
the parent so declared to be unfit shall not, upon death of the other parent, be entitled as of right to the custody as
guardian of such children.”
4 Symington v. Symington, (1875) LR 2 SC & Div 415 (420).
1 B v. B, (1924) p. 176.
2 (1926) p. 111.
3 (1962) 2 All ER 1.
4 (1963) 2 WLR 1054.
1 Seddon v. Seddon, (1862) 2 SW&Tr 640, per Sir Gresswell Cresswell. Clout v. Clout, (1961) 2 SW&TR 391; Taylor v.
Taylor, (1870) 3 LJ (P&M) 23; Bent v. Bent, (1890) 63 LT 627. Such was the influence of common law doctrine that the
principle was enshrined in the Talford’s Act, 1839, and was also recognised and enforced by the Divorce Court.
Earlier access was given to the wife only with the consent of the husband, Talyor v. Talyor, (1870) 2 LJ (P&M), 23. While
there was no bar in respect to the guilty husband, R. v. Wilson, 43 RR 453.
2 Symington v. Symington, (1875) LR 2 SC&Div 415; Handley v. Handley,(1891) p. 124; Stark v. Stark, (1910) p 190; B v.
B, (1924) p. 176; W. v. W, (1926) p. 111; Allen v. Allen, (1948) 2 All ER 413; Willoughby v. Willoughby, (1951) p. 184;
Chipperfield v. Chipperfield, (1952) All ER 1360; Clarke v. Clarke, (1955) Times May 25; D v. D, (1958) 3 CLI; Hall v.
Hall, (1963) 2 WLR 1054.
3 See Divorce Rules 3(5), 33, and 54(2).
1 Brij Mohan Dayal’s Translation 314.
2 Digest of Mohammedan Law 439.
3 Ameer Ali, Tyabji, Fayzee or Mulla—none of them say anything.
4 AIR 1935 Oudh 133 .
5 AIR 1948 Oudh 266 .
6 AIR 1941 Bom 103 .
1 AIR 1942 Cal 215 .
2 AIR 1989 SC 401 .
3 AIR 1949 Mad 608 .
4 AIR 1958 MB 190 .
5 AIR 1956 Punj 234 .
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6 S. v. S., (1962) 2 All ER 1.

1 Two such instances were recited by Willimer, L.J. viz., when a parent has a criminal record or who is dispose to act with
cruelty against the children; S v. S, (1962) 2 All ER 1.
2 B v. B, (1924) P 176 (182).
3 In Santi Devi v. Gian Chand, AIR 1956 Punj 234, the maternal uncle was also granted access in addition to the mother.
Similarly in Kaliappa v. Valliammal, AIR 1949 Mad 608 alongwith the father access was also granted to other relatives.
4 Shanti v. Gian, ILR (1956) Punj 239.
5 Saraswathibai v. Shripad, AIR 1941 Bom 103 .
6 (1977) 3 SCC 513.
1 M. v. M., (1973) 2 All ER 81; B. v. B, (1971) 1 WLR 1486.
2 Sibani Banerjee v. Tiapan Kumar, AIR 1990 Cal 4 [LNIND 1989 CAL 82].

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

26. Removal of ward from jurisdiction.—

(1) A guardian of the person appointed or declared by the Court, unless he is the Collector or is a guardian
appointed by will or other instrument, shall not, without the leave of the Court by which he was
appointed or declared, remove the ward from the limits of its jurisdiction except for such purposes as
may be prescribed.
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(2) The leave granted by the Court under sub-section (1) may be special or general and may be defined
by the order granting it.

Comments

1. Scope

This section does not apply to the Collector or the testamentary guardian.

This section applies only to the certificated guardian.

This section lays down that the certificated guardian shall not remove the child from the jurisdiction without the
permission of the court: The guardian court may give a general permission or it may give a special permission
for removing the child out of jurisdiction. The matter is regulated by the High Court Rules.

Please also refer to para 16 of our commentary on section 17, under the tittle “Parent going out of the
jurisdiction”

The provision of clause (h) of section 39 may also be looked at. Clause (h) lays down that a certificated or
testamentary guardian may be removed for his ceasing to reside within the local limits of the court.
2. Guardian’s Residence within the Jurisdiction

The rationale behind the rule that guardian should remain within the jurisdiction is that from time to time the
court issues directions and instructions about the person or property of the minor to the guardian and if the
guardian is out of jurisdiction it may be difficult for him to carry them out. If the guardian

is not within the jurisdiction, the court may not be able to exercise effective control over him.1 However, so long
as the guardian conforms to the provisions of this section, the guardian court has no power to direct the
guardian to reside at a particular place.2

If the guardian removes the minor without the permission of the court, he incurs liabilities under section 44.

The court grants leave to remove the child outside jurisdiction for good and sufficient reason. Marggarate v.
Chacko,3Patrick4 and In re, Sister Gemma5 are good illustrative cases. Reference may please be made to
para 16 of our commentary on section 17, where these cases have been discussed.
3. Appeal

An appeal lies against the order refusing to grant leave to remove the child out of jurisdiction.6

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER III DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
The chapter under the title, “Duties, Rights and Liabilities of Guardian’s has four sub-heads. First, with the
title “General”, contains four sections, from 20 to 23, and deals with four miscellaneous matters, viz., (i)
guardian’ relationship with the ward is fiduciary, (ii) capacity of minor to act as guardian, (iii) remuneration of
guardian, and (iv) control of Collector as guardian.
The second part with the title “Guardian of the Person” contains three sections, from 24 to 26, dealing with (a)
duties of guardian of the person, (b) guardian’s title to custody of the minor, and (c) removal of the child out of
jurisdiction by the guardian.
The third part, with the title “Guardian of Property”, has 12 sections, from 27 to 37, dealing with (i) duties of guardian
of property, (ii) power of testamentary guardian, (iii) limitations of powers of the certificated guardian of property, (iv)
the nature of transfers of property of minor made in contravention of section 28 or section 29, (v) practice with
respect to permitting transfers under section 29, (vi) variations of powers of certificated guardian of minor’s
property, (vii) certificated guardian’s right to seek court’s opinion or direction regarding management of minor’s
property, (viii) obligations of the certificated guardian of minor’s property, (ix) guardian court’s power to award
remuneration to the auditor, (x) suit against guardian when administrative bond is taken, (xi) suit against guardian
when no administrative bond was taken, and (xii) general liability of guardian as trustee.
The fourth part with the title “Termination of Guardianship” contains five sections, dealing with (a) right of
survivorship among joint guardians, (b) removal of guardian, (c) discharge of guardian, (d) cessation of authority of
guardian, and (e) Appointment of successor to the guardian who has died, or has been discharged or removed.
GUARDIAN OF PROPERTY
Unlike the natural guardian, the certificated guardian is, from the date of his appointment, under the supervision,
guidance and control of the court. Sections 27, 29, 31, 32, and 33 of the Guardians and Wards Act, 1890, related to
the powers of the guardian of property appointed by the court.
Section 27, the Guardians and Wards Act, lays down in general terms the power and obligations of the guardian of
property. The ambit of his powers is limited by the rule that the guardian should deal with the property of the minor
in the same way as a man of ordinary prudence deal with his own property. Just as a prudent person deals with his
property carefully so should the guardian, and within that limit and subject to certain specific limitation laid down in
the Act, he has the authority to do all things necessary for the realization, protection and benefit of the property.
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Section 29 lays down a major limitation on the power of the certificated guardian; the guardian has no power to
mortgage, charge or transfer by sale, gift, exchange or otherwise or to lease any part of the property for a term
exceeding five years for any term extending more than one year beyond the date on which the minor will cease to
be a minor, without the prior permission of the court.
Under section 31 the court will accord permission for any alienation proposed by the guardian only if it finds that the
proposed alienation is for necessity or for evident advantage of the minor. Further, under section 32 the court has
power to define, restrict or extend the power of the guardian from time to time. The court may or may not exercise
its power under that section, but if it does, the guardian is bound to exercise his powers within the limitations laid
down by the court. The court has, at the time of appointment of guardian, general powers of defining and fixing the
limits of his powers.
Under section 33, the guardian can himself invite the court to fix and define the scope of his powers. Under this
section guardian may, on any specific matter, seek directions, instructions and opinion of the court in respect to the
management and administration of the properties. If he thus solicits the intervention of the court in the exercise of
his powers and functions, he is bound by the directions, instructions, etc., of the court and he must act accordingly.
If the scope and limitations of the guardian’s powers have not been fixed under the original order appointing the
guardian, or if they are not subsequently defined and limited by the court under section 32, or if the guardian has
not sought the intervention of the court on any matter under section 33 and if the matter does not relate to alienation
of immovable property of the ward, the guardian’s powers are regulated by the general provision contained in
section 27. It is interesting to note that apart from the restrictions contained in section 29, the Act does not impose
any other restrictions on the guardian’s powers of dealing with the minor’s property or of entering into transactions
on behalf of the minor. Thus, in our submission, the guardian’s limitations within this sphere are the general
limitations of a prudent man. What a prudent man can do, the guardian can also do, and, it is submitted, just as a
prudent man can make bona fide mistakes so may the guardian.

27. Duties of guardian of property.—

A guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence
would deal with it, if it were his own and subject to the provisions of this Chapter, he may do all acts which are
reasonable and proper for the realisation, protection or benefit of the property.

Comments

1. Scope

This is a general section relating to the duties of a guardian of property. The standard of care is that of a man of
ordinary prudence dealing with his own property. Section 20 lays down that the guardian stands in fiduciary
relationship with his ward. He is authorized to deal with minor’s property in the same manner as prudent person
will deal with his own property.

This section deals with practically all the powers of the guardian of property except the power of alienation
which is dealt with under section 29. For making an alienation of minor’s property, the guardian needs the prior
permission of the court for no other purpose such a permission is necessary.

For a fuller appreciation of the provision of this section, reference should also be made to our commentary on
section 8, the Hindu Minority and Guardianship Act.
2. Power of Management

For the management of minor’s property, the guardian can do all those things which a prudent person can do in
respect to his own property. In Kappathami v. Sekhi,1 after the death of the father, the mother of the minor was
appointed a guardian. The father had also left another widow. Both the widows were entitled to one-fourth
share each under the Hindu Women’s Right to Property Act, 1937. The mother guardian appropriated one-
fourth of income of property to herself and allowed one-fourth to the co-widow. When this was challenged, the
court said that since under the Act of 1937, each widow was entitled to one-fourth share in the properties, the
appropriation of the income to that extent was within mother’s powers of administration of minor’s properties.

In view of the fact that the Guardians and Wards Act has left a very wide sphere of administration and
management of minor’s properties to the intelligence and judgment of the guardian—a responsibility which
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every guardian may not be able to discharge successfully—the Act empowers the High Courts to frame rules
regulating certain aspects of the management and administration of minor’s properties. The High Courts in
exercise of the power conferred on them under section 50 have framed certain rules. Guardian’s compliance
with the Rules is necessary.

In the following pages it is proposed to discuss some important matters relating to the management and
administration of minor’s property for which no prior permission of the court is necessary.

INVESTMENT

Investment of minor’s properties is one of the main tasks of the guardian, and one of the very important and
responsible tasks. It has been said that the guardian’s concern should not be the maximum return but
maximum security for the investment. The mater is regulated by the Rules framed by the High Courts under
section 50 of the Guardians and Wards Act. All the High Courts have taken into consideration section 20 of the
Indian Trust Act in framing their Rules. In fact the Rules have been modelled on that section and the Rules of
some High Courts merely refer to that section.2

Although the position of the guardian is not identical with that of the trustee, yet the courts for various purposes,
and especially of the purpose investment of the property of the minor, put the guardian at par with the trustee.

So far as the matter is regulated by Rules, little discretion is left to the guardian. Whenever he chooses to invest
minor’s properties, he must see that he acts in accordance with the Rules. If he has complied with the Rules, he
is safe, he has done his duty. In any case, where he has any doubt be may refer the matter to the Guardian
Court under section 33, the Guardians and Wards Act.1 However, every failure on the part of the guardian to
invest minor’s properties would not amount to such neglect of duty on his part as would entitle the minor to
claim compensation from him. The court would examine each case and see whether there was any justification
for the guardian’s action in not investing minor’s property.1

The High Court Rules merely deal with the investment of minor’s money and do not provide any guidance for
the investment of minor’s other properties.

The Allahabad High Court in Md. Hussin v. Najjo,2 said that the guardian should deposit the money in the
safest investment, even though it may yield less income. In this case, the guardian court directed the guardian
to invest the minor’s money in Government securities in preference to investment in mortgage of landed estate
yielding an interest of twelve per cent. In Bansidhar v. Ganpat,3 the guardian invested minor’s money in a
newly floated company. The court said that such investment was risky and may amount to speculation, and as
such was not a prudent act and ordered the guardian to return the money to the minor. Similarly, in Ankan v.
Chenappa,4 where the guardian took out the money of the minor and invested it in a mortgage and advanced it
on promissory notes, the court considered such conduct of the guardian questionable.

In Gurdin v. Durgadeen,5 the guardian with the permission of the court effected a usufructuary mortgage of the
properties of the minor stipulating certain rate of interest. The guardian took the mortgaged properties on rent
without the permission of the court. On the failure to pay rent, the mortgagee filed a suit for its recovery. The
High Court said that the act of the guardian was nothing but an act of prudent management which the guardian
did for the protection of the interest of minor. In Hazari Lal v. Mansaram,6 the certificated guardian started an
altogether new business. The court said that he has no power to start an entirely new business, unless
compelled by necessity or for the protection and benefit of the family. The court said that the position of the
guardian is analogues to a trustee and his powers in such a case are not wider than that of a karta.

Thus, we find that despite the generality of section 27, the courts have denied the guardian a wide latitude in
the matter of investment of minor’s property and have put him at par with the trustee. Reliance has often been
placed on the following observations of Lord Watsom made in 1887. A businessman of ordinary prudence may,
and frequently does, select investments which are more or less speculative, but it is the duty of the trustee to
confine himself to the class of investments which are permitted by the trust and likewise avoid all investments of
the class which are attended with hazard.1 Relying on this observation, the Bombay High Court refused
permission to the guardian to invest the minor’s money in buildings. Their Lordships said that whatever the
guardian says about of increase in minor’s income may be true but it may as well be risky. It further said:

The duty of the guardian is primarily to preserve, and not to add to the properties of the minor.2
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In our submission, it is true that the guardian should not be permitted to invest the properties of the minor in
speculative or risky business, and he may not be permitted to take those risks which an average businessman
of ordinary prudence may take, but then to say that he can invest minor’s money only in Government
investment, or that he has to sit tight over properties of the minor would tantamount to depriving the minor off
an efficient, beneficial and fruitful management. He may be permitted to take ordinary risks involved in ordinary
business. In our submission the High Court Rules which were mostly framed in the later part of the nineteenth
century or early part of the twentieth century have become out of date.3
3. Power to Enter into Contracts

For a fuller understanding of our commentary under this head reference should be made to our commentary of
section 8 of the Hindu Minority and Guardianship Act under the title “Power to enter into contracts” and paras
15 and 16, thereof where the matter has been discussed in detail.

In Beneras Bank Ltd. v. Dipchand,4a guardian borrowed an amount of Rs. 7000 with the prior permission of the
court under section 33, the Guardians and Wards Act. He also executed a promissory note in favour of the
lender. In the suit filed for the recovery of this amount, the minor averred that there was no necessity to borrow
this amount. The court said that if the loan was advanced with the sanction of the court, the estate of the minor
was liable as the creditor has no duty to see that the money was applied for the necessity of the minor.

Similarly, the Patna High Court said that the loan contracted with the prior permission of the court was binding
on the estate of the minor.1 In Babooram v. Saidunissa,2 the court said that the guardian could file a suit for a
damages against a person who committed a breach of contract. In this case the guardian had obtained prior
permission of the court to sell minor’s properties, and the suit for specific performance was filed against the
vendee.

In Keshav v. Balaji,3 the question was: Whether the minor was liable on a promissory note executed by the
guardian with the prior permission of the court? Rangnekar, J., relying on Waghela said that it was too late in
the day to contest the proposition that a guardian cannot personally bind his ward by contract which does not
purport to bind his estate. The same view was taken in Shankar v. Nathu.4 In both the cases the suit was
based on promissory notes.

In Margaret v. Abui Backer,5 the promissory note was not executed with the permission of the court. The
Madras High Court said that even if the guardian has incurred the debt for the necessary purpose of the minor’s
estate, this would not by itself entitle the creditor to obtain satisfaction from the estate directly, if his contract
was with the guardian personally. The court found that the loan was not for the benefit of the minor. The court
earlier said that on the principle of subrogation the remedy of the creditor was indirect against the estate of the
minor.6

In Phatram v. Ayle Khan,7 the Allahabad High Court said that when a loan was taken by the guardian on behalf
of the minor for necessary or for the benefit of the minor, the minor’s estate was liable. The question whether
the guardian could bind the minor’s estate otherwise than by a document purporting to bind it was left open.6
The Calcutta High Court said that a creditor’s suit would be decreed if he succeeds in proving that he made
adequate enquiries and satisfied himself as to necessity for a loan, he need not prove that the money was
actually expended for the benefit of the minor’s property.8

We would now consider the question whether a contract entered into by the guardian on behalf of the minor is
specifically enforceable by or against the minor?

In Narayan v. Ankhy,9 a certificated guardian entered into a contract with the plaintiff for the sale of certain
lands belonging to the minor for a certain price subject to the sanction of the court. The sale was sanctioned but
at a higher price. The guardian sold it to a third person. On the plaintiff’s suit for specific performance, the court
said that the contract cannot be specifically enforced, since at no time it was a completed contract. It was
contingent upon the sanction of the court and the court did not sanction the contract as it was. The court in
Jugan Kishore v. Annudilal,1 said that no court would, even if it could, make a decree for specific performance
of a contract affecting a minor, unless the contract was shown to be for the benefit of the minor. Again, in
Innatunnissa v. Jankinath,2 with the permission of the court a guardian entered into a contract for the sale of
certain properties of the minor with the defendant, and, on the latter’s refusal to perform it, filed that suit for
specific performance, the court, distinguishing the case of Mir Sarvarjan,3 said that the contract was within the
competence of the guardian and hence specifically enforceable.4
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In Chitturmal v. Jagannath,5 the guardian court granted permission for the sale of certain properties of the
minor in favour of the plaintiff, but when he found another purchaser offering more, the permission was revoked
and the properties were sanctioned to be sold to that purchaser. On the plaintiff’s suit for specific performance,
the court said that it will not allow a bargain made by improvident guardian to be enforced against the interest of
the minor, if it been shown to be a bargain made to the detriment of the minor. In Babu Ram v. Saidunissa,6 the
court said that a contract entered into by the guardian with the permission of the court is valid and enforceable.

Foster J., of the Patna High Court in Abdul Haq v. Md. Yahia Khan,7 said that a contract entered into by the
guardian without the permission of the court was not specifically enforceable. This view was distinguished in
Gobardhan v. Sheo Narayan,8 where the court said that it would be going too far away to suggest that a
certificated guardian cannot enter into a contract with an intending purchaser, without the sanction of the court
and the intending purchaser has no right to sue the minor for specific performance.

Thus, to sum up: it has been held that the guardian has power to borrow money,9 to execute promissory
note,10 and to enter into a contract,11 with the permission of the court. The predominant view is also that if
money is borrowed or contract is entered into without the prior permission of the court, it is binding on the minor
and enforceable against his estate, provided the lender has made proper and bona fide enquiries as to the
existence of necessity or benefit and provided further that the transaction was for the benefit of the minor or his
estate.1 There is unanimity in the view that in no case personal liability can be imposed on the minor.

In short, the predominant view that emerges is that the guardian can enter into contract on behalf of the minor
just as much without the sanction of the court as with the sanction of the court. The generality of section 27, the
Guardians and Wards Act clearly suggests that the courts have been inclined to take this view, but it seems
somewhere something mars a clear judicial thinking, as if a spear is thrown, and the thread is torn as under.
This spear, in our submission, is the Privy Council’s decision in Mir Sarvarjan v. Fakhruddin,2which has marred
the clarity in the judicial thinking for about more than half a century. That was not a case under the Guardians
and Wards Act. There is also another spear thrown into: It is Waghela v. Masluddin,3 which was a case under
Hindu law which lays down a simple rule: a minor can not be bound by personal covenant entered into by the
guardian, or that no personal liability (in the English law sense) can be imposed on the minor.

Attempts to distinguish and confine the ratio dissidendi of Mir Sarvarjan,4 have been made variously and
sometimes vigorously. The general proposition that is deduced from Mir Sarvarjan is: the guardian has no
power to impose any liability on the minor or his estate by entering into a contract on his behalf. Waghela is
considered to lay down that the guardian cannot impose any personal covenants on the minor. From these two,
a broader proposition is deduced: A guardian cannot personally bind his ward with a contract which does not
purport to bind his estate. Some of the decisions take a view that the guardian has no power at all to enter into
contracts on behalf of the ward. That this result is most undesirable and unwarranted is obvious. The fallacy of
the arguments becomes crystal clear when we realise that the courts have not been zealous to apply this
principle to those contracts which are entered into with its prior permission.

The sanction of the court to contract does not imply any special sanctity to the transaction. When the
Legislature laid down in section 29 that the minor’s property cannot be alienated without the prior permission of
the court, the reason was to provide adequate protection to the minor: to substitute a responsible and
reasonable agency in the place of the guardian who may be, at times, unscrupulous, irresponsible, careless or
stupid. Even then, an alienation without the prior permission of the court is merely voidable at the instance of
the minor. The general tenor of the Act is to leave to the prudence of the guardian all matters relating to
administration and management of the property of the minor. Taking of loans and entering into contracts on
behalf of the minor may be sometimes necessary in the management and administration of the estate.

The sphere of the guardian’s activities in respect to management and administration should be determined by
the criteria of necessity or benefit. Whenever, there exists some necessity or whenever it is for the benefit of the
minor or his estate the guardian, should have the power to act and take decisions. The sphere of his action
should be as wide as the need of the management and administration of the property of the minor. That is what
the Indian law precisely purports to do. It clearly lays down that any person who enters into a transaction with
the guardian of the minor must make adequate and proper enquiries as to the existence of the necessity for
benefit.
4. Certain Special Contracts

It is well-established general rule that a guardian cannot bind the minor by personal covenant. Yet there are
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certain contracts with are not caught by the inhibition of this rule. Mir Sarvarjan,1 has sometimes been
interpreted to lay down that the guardian of minor has no power to enter into any type of contract on benefit of
the minor. This is too broad a view of Mir Sarvarjan and is not correct. It will not apply to such contracts which
are obviously, manifestly, to the advantage and benefit of the minor, such as contracts of insurance, contracts
of apprenticeship, contracts of service or contracts of marriage entered into by the guardian on behalf of the
minor. Even the English law, where the contractual powers of the guardian are negligible recognizes some
exceptional cases, either under statute or otherwise.
5. Contract of Marriage

Can a guardian enter into a contract of marriage on behalf of the minor”? As early as 1912,2 a minor filed a suit
against his betrothed and her uncle claiming damages for loss of character in the caste resulting from the
breach of marriage contracts committed by the defendants. The trial court passed a decree in favour of the
plaintiff which was confirmed on appeal by the Sadar Court.3

The question came for consideration before the Bombay High Court in Purshotamdas v. Purshotamdas,4 where
the plaintiff, who has betrothed the defendant’s daughter, sued for a declaration that either the defendant
should be willing to perform the marriage of his daughter with him within certain specified time, or the contract
of marriage should be no longer binding on him and that he be granted damages against the defendant for
breach of contract. The contract was entered into by the mother of the plaintiff and the defendant, the father of
the girl, when both the plaintiff and the girl were minors. The main plea of the defendant was that as the girl was
unwilling to marry the plaintiff, the contract was frustrated as its performance became impossible. Rejecting this
plea, Candy, J., said that contracts of marriage among Hindus are made by the parents and the children
exercise no volition and therefore the learned Judge held that the plaintiff was entitled to damages. However, it
may be noted that the suit was filed against the father of the girl by the plaintiff who had then attained majority
and that the case was decided before Mohari Bibi v. Dharamadas Ghose.1

Again, the question came for consideration with almost identical facts, except that in this case parties were
Muslims, in Abdul Razak v. Mohammed Hussain.2 The court said that a suit for breach of marriage contract
would not, i.e. under Muslim law in the same way in which it lies under English law, though the promisee would
be entitled to receive compensation or damages within the meaning of section 73 of the Indian Contract Act for
loss or damage caused to him on account of breach. In that respect, the learned Judge felt, there was no
distinction between any type of contracts.

The question then came in Rose Fernandes v. Joseph Gonsalves,3 where the parties were Christians. The
plaintiff who had then become a major, filed a suit against the defendant for the breach of marriage contract
entered into by the defendant with her and her guardian. The main questions before the court were two:
whether a father as natural guardian of the minor could enter into such contract on behalf of the minor so as to
bind the minor and whether such a contract was for the benefit of the minor.

Taraporewala, J., said that where a contract is made by the guardian of the minor so as to be binding on the
minor and which is for the benefit of the minor, there is an enforceable contract in law and the minor can
enforce it. Mir Sarvarjan was distinguished by the learned Judge by saying that the question of marriage is quite
different from the question of an interest in property particularly in our country where ‘marriage take place in
most cases before the attainment of majority, especially of girls.’ “it is considered”, the learned Judge said, “in
this country a sacred and essential duty of the parents and guardians, particularly of girls, to see that they are
settled down in life by a proper marriage.” Taraporewala, J., was of the opinion that it did not make any
difference in this respect whether the parties are Hindus, Muslims or Christians, and if the courts were to hold
that the parents of girls could not make binding contracts on their behalf, it would lead to very great hardship,
and it would be really going against the customs, the manners and the habits of the people. His Lordship further
said that just as in England so in India a contract of marriage is for the benefit of the minor, rather in India it is
more so. This case has been followed by the Madras High Court in Daniel v. Marianna,4 where the parties were
Christians and the contract to marry was entered into by the guardian of the minor girl. Rao, J., also placed
reliance on the Privy Council decision in Subrahamanayam.5

Rose Fernandes was also followed by the Division Bench in Khimji Kuverji v. Lalji Karamji,6 where the parties
were Parsis. A contract was entered into between the defendant who was a boy of nineteen years and the
guardian of the plaintiff who was then four years old. The defendant committed a breach of the contract by
secretly marrying another girl. Beaumount, C.J., said that essential element of such a contract is that it should
be for the benefit of the minor. The learned Chief Justice had some hesitation in saying whether a contract for
the marriage of girl of four years could be for her benefit, but he said that a contract of the marriage of a girl
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however young is prima facie for her benefit. Kania, J., was also of the same opinion, but added that while the
minor could enforce such a contract it could not be enforced against the minor.1

In both the aforesaid Bombay cases, reliance was placed on the observations of Ameer Ali J. in Khwaja
Mohammed v. Hussani Begum,2 that in India where the marriage of a minor is contracted by parent, it would be
great injustice if the common law rule that a stranger to the contract cannot sue under it even if he is beneficiary
was held applicable.3

We may refer also to Ma Pua Kyue v. Maung Hmat Gyi,4 and Poppy Kunikutty v. Sankaran.5 In the former
case the contract was entered into by a minor girl herself with the defendant who agreed to marry her, but failed
to do so. It was rightly held that the contract was void. In the latter case the contract to marry her adult daughter
was entered into by the mother. It was not even entered into on behalf of the daughter. It was held that the
mother was entitled to damages. These cases, therefore, do not relate to the guardian’s contract to marry the
ward.

In our submission the basis of validity of such contract is the same as of any other contract entered into on
behalf of the minor by a guardian, the want of capacity on the part of the minor is supplied by the guardian and
such contracts are enforceable if found to be for the benefit of the minor. The difference between the two is, as
Beaumount, C.J., said that a contract of marriage entered into by the guardian on behalf of the minor is prima
facie for the benefit of the minor.

In the modern law of India, where minor’s marriage is prohibited, Beaumount, J’s., formation will not be correct.
Rather, a contract for minor’s marriage entered into by the guardian should no longer be regarded as one for
the welfare or benefit of the minor.
6. Contract of Apprenticeship

The contracts of apprenticeship stand on a different footing. It seems that such contracts are prima facie
considered to be for the benefit of the minor.1

The very definition of “apprentice” visualizes contractual relationship. “Apprentice” is a person who is
undergoing apprenticeship.2 It should be noticed that the Act applies to all apprentices, minor or major. The Act
defines “apprenticeship training” as a course of training in any industry or establishment undergone in
pursuance of a contract of apprenticeship and under prescribed terms and conditions which may be different for
different category of apprentices.3

The Act visualizes establishment of the following authorities, with a view to carrying out the provision of the Act:
National Council, Central Apprenticeship Council, State Council, the State Apprenticeship Council, All India
Council, Regional Boards, Boards or State Council of Technical Education, Central Apprenticeship Advisor, and
State Apprenticeship Adviser.4

No person can be an apprentice unless he is of fourteen years of age.5 The Act lays down that a contract of
apprenticeship is a pre-requisite for entering into the training of apprentice.6 If an apprentice is a minor,
contract has to be entered into by his guardian. Section 4 of the Act runs as under:

(1) No person shall be engaged as an apprentice to undergo apprenticeship training in a designated trade
unless such person or, if he is minor, his guardian has entered into a contract of apprenticeship with
the employer.
(2) The apprenticeship training shall be deemed to have commenced on the date on which the contract of
apprenticeship has been entered into under sub-section (1).
(3) Every contract of apprenticeship may contain such terms and conditions as may be agreed to by the
parties to the contracts:

Provided that no such terms or conditions shall be inconsistent with any provision of this Act or any
rule made thereunder.
(4) Every contract of apprenticeship entered into under sub-section (1) shall be sent by the employer
within such period as may be prescribed to the Apprenticeship Adviser for registration.
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(5) The Apprenticeship Adviser shall not register a contract of apprenticeship unless he is satisfied that the
person described as an apprentice in the contract is qualified under this Act for being engaged as an
apprentice to undergo apprenticeship training in the designated trade specified in the contract.
(6) Where the Central Government, after consulting the Central Apprenticeship Council, makes any rule
varying the terms and conditions of apprentices training of any category of apprentices undergoing
such training then, the terms and conditions of every contract of apprenticeship relating to that
category of apprentices and subsisting immediately before the making of such rule shall be deemed to
have been modified accordingly.

The contract of apprenticeship will terminate on the expiry of the period of apprenticeship training.1 Section 7 of
the Act runs as under:

(1) The contract of apprenticeship shall terminate on the expiry of the period of apprenticeship training.
(2) Either party to contract of apprenticeship may make an application to the Apprenticeship Adviser for
the termination of the contract, and when such application is made, shall send by post a copy thereof
to the other party to the contract.
(3) After considering the contents of the application and the objections, if any filed by other party, the
Apprenticeship Adviser may, by order in writing, terminate the contract if he is satisfied that the parties
to the contract or any of them have or has failed to carry out the terms and conditions of the contract
find that it is desirable in the interest of the parties or any of them to terminate the same: provided
where a contract is terminated—
(a) for failure on the part of the employer to carry out the terms and conditions of the contract, the
employer shall pay to the apprentice such compensation as may be prescribed;
(b) for such failure on the part of the apprentice, the apprentice or his guardian shall refund to the
employer as cost of training such amount as may be determined by the Apprenticeship Adviser.

Section 20 provides for settlements of disputes and runs as under:

(1) Any disagreement or dispute between an employer and an apprentice arising out of the contract of
apprenticeship shall be referred to the Apprenticeship Adviser for decision.
(2) Any person aggrieved by the decision of the Apprenticeship Adviser under sub-section (1) may, within
thirty days from the date of communication to him of such decision refer an appeal against the decision
to the Apprenticeship Council and such appeal shall be heard and determined by a Committee of that
Council appointed for the purpose.
(3) The decision of the Committee under sub-section (2) and subject only to such decision, the decision of
the Apprenticeship Adviser under sub-section (1) shall be final.

7. Contract of Service

Under English law contracts of apprenticeship and service are almost equally treated. In as much as it is for an
infant’s benefit that he should fit himself and employ himself in labour or business, he can bind himself by a
contract of apprenticeship and of service generally.”1 The contract of service is valid only if it is beneficial to the
infant. However, a contract of service may contain such provisions for cessation of wages as are usual in
contracts by adults in respect to the same description of service or are necessary for the protection of the
master under the existing conditions, of trade, and also provisions for the infant becoming a member of an
insurance society.2

Under Indian law it seems contracts of service stand on a different footing. The Bombay High Court in Rajrani v.
Prem Adeep,3 held that a contract of service entered into by the guardian or a minor is void and cannot be
enforced by the minor. In this case the contract to serve in film under the production of the defendant was
entered into by the guardian of the plaintiff on her behalf with the defendant. Subsequently, the defendant
committed a breach of contract.3 Desai, J., in a very elaborate judgment considered the question from various
aspects.

First, the learned Judge said that, since in India minor’s contracts are void, a contract of service entered into by
the minor would also be void. Merely because a contract has been entered into for and on behalf of the minor
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and for his benefit by his guardian the contract would not be valid, since a minor cannot employ an agent and
since no person can enforce a contract merely because it is for his benefit. The third party can sue only when a
trust is created in his favour, he cannot sue merely because a benefit has been conferred on him under a
contract.4 The definitions of ‘promisor’ and ‘promisee’ under the Act also, according to the learned Judge,
exclude the idea of third party enforcing it.5

Secondly, a contract of apprenticeship entered into on behalf of the minor by his guardian being merely
executory contract, where full consideration is payable by the minor, is not enforceable by the minor. It was on
this ground that the learned Judge supported and distinguished Great American Insurance Co. v. Madanlal.6

Thirdly, the contract was void for want of consideration. Then, the learned Judge said that assuming that a bare
undertaking of the father of the plaintiff to the defendant formed consideration for defendant’s promise what
would be measure of damages in such a case? In such a case the quantum of damages would be the damages
sustained by the plaintiff’s father. But since the damages were claimed by the plaintiff for damage sustained by
her, such damages cannot be recovered.

Fourthly, since marriage contracts were a hurdle in the way of the learned Judge, it is very interesting to note
how he got over them. The learned Judge said that in a marriage contract it is not the minor’s promise, if any,
which is relied on: the only consideration for the marriage contract is the promise of the father that the minor
would fulfill his contract by his marriage at a further date. The reciprocal promises form the only consideration
for each other and they result in contract. The parties rely on the respectability of the father for the fulfilment of
the contract.1 On the other hand, the learned Judge said, in a contract of service the other party relies upon the
promise of the minor to serve and for his actual service from day-to-day. The employee agrees to pay the
salary specified not in consideration of father’s promise that the minor will serve in terms of the contract. “In my
opinion a minor’s contract of marriage is, therefore, not void for want of consideration, as a contract of service
by the minor is”2 The fallacy of the argument, in our submission, is too obvious to need any comment.

In the present submission, Desai, J., was swayed by the consideration of those class of contracts where a third
part (not necessarily a minor) is given benefit under a contract. Another thing that weighed heavily on the mind
of the judge seems to be the fact that minor’s contracts are void under Indian law. It seems that the learned
Judge also misunderstood the position of the guardian: whatever action the guardian takes, whatever he does
on behalf of the minor he never does in the capacity of the agent. For this, it seems the following comments in
Mulla’s work on Madanlal’s case,3 is responsible: “If the guardian contracts as the minor’s agent, it is the
minor’s contract and therefore a nullity. If it is guardian’s contract, he should alone be entitled to sue.”4

Mr. Justice Desai also referred to Mir Sarvarjan,5 but ultimately he did not base his judgment on lack of
mutuality in such contracts, but on want of consideration. Even on his own promises, in our submission the
learned Judge reached the wrong conclusion: he could have held that such contracts are void as they lack
mutuality; or he could have said that the third party cannot sue on a contract even if it is for his benefit.

Like a contract of apprenticeship the contract of service is prima facie considered to be for the benefit of the
minor. Since all contracts of minor are void under Indian law, even those contracts which are beneficial to the
minor are void if entered into by the minor himself. But when the guardian entered into such contracts the
position is different. The want of capacity on the part of the minor is supplied by the guardian. If the contract is
one which is within the competence of the guardian to enter into, then the contract is binding on the minor and
is enforceable. Since a contract of service is prima facie for the benefit of the minor such a contract is valid and
enforceable if entered into by the guardian on behalf of the minor. In fact Candy, J., very aptly and correctly
said that contracts for marriage, contracts for apprenticeship and contract for service stand on the same
footing.1 They differ from other contracts only in this: Such contracts are presumed to be prima facie for the
benefit of the minor while others have to be proved to be for the benefit of the minor and only then they would
be valid and enforceable.
8. Contract of Insurance

A contract of insurance is obviously for the benefit of the minor. In Great American Insurance Co. v. Madanlal,2
a guardian of a minor entered into a contract of insurance on behalf of a minor under which an insurance policy
against fire was obtained. When the cotton bales (articles which were insured) were gutted by fire, the minor
sued the company for his claim under the insurance policy. The insurance company resisted the claim on the
ground that the contract was void as the plaintiff, at the time when contract was entered into, was a minor.
Beaumont, C.J., said that the defendant company knew that the business was carried on by the minor and it
hardly lay in their mouth to say that they deliberately entered into contract with the minor; in fact they did not
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enter into contract with the minor but with the guardian of the minor who entered into the contract on behalf of
the minor. The provision of the law which makes a contract by a minor not binding on him was intended to be
for the benefit of the minor, and that provision cannot be interpreted as to defeat that very purpose. The learned
Chief Justice said that if the contention of the defendants was right, it would mean that properties of the minor,
cannot be insured. The law cannot intend such a startling result.

This case was followed in Vijayakumar v. New Zealand Insurance Co. Ltd.3 Changla, C.J., said that if the
general proposition laid down by the Privy Council in Mohari Bibi was to be applied very strictly it would lead to
very startling results. In that event it would instead of guarding the interests of the minor, do incalculable harm
to his rights and would cause great hardship. “Pushed to a logical conclusion the Privy Council decision would
have made it impossible for a minor to get benefit under or enforce any contract entered into by him even when
the consideration has been fully received.” But the courts in India have not pushed that doctrine to its logical
end. The contracts of insurance are valid and enforceable if entered into by the guardians on behalf of the
minor.

The contracts of marriage, service, apprenticeship and insurance fall in that special category of contracts which
are prima facie considered to be for the benefit of the minor if entered into by his guardian. When a minor sues
for the enforcement of the contract, the question whether the contract is for the benefit of the minor is hardly of
any importance; no minor would sue on a contract if it is not for his benefit and it would be a unique
phenomenon for the defendant to argue that the contract should not be enforced as it is not for the benefit of
the minor. The question whether a contract is or is not for the benefit of the minor would arise only when the
other party sues on it. If it is proved that the contract at the time when it was entered into was for the benefit of
the minor, then it can be enforced. It may be again emphasised that the contracts of marriage, apprenticeship,
service and insurance are a special type of contracts which are by their very nature beneficial to the minor. And
since under the Indian law, unlike English law, minor has no capacity to contract, such contracts entered into by
the guardian on behalf of the minor have added importance. And in the social interest needing protection it is
necessary that such contracts should be held valid, otherwise, the purpose of law to provide protection to the
minor would be frustrated.
9. Necessaries

Both Indian and English law from very early times have considered minor liable for necessaries supplied to him.
The reason is the same for which minor’s contracts are considered void or voidable, i.e., according protection to
minor. Eversley puts it very succinctly: “If an infant could not obtain such things he would be in a poor plight; if
he could not obtain credit for their purchase, not only he might starve from hunger, cold or neglect, but he will
be excluded from his rightful place in society, though in the immediate future he might have ample means to
purchase them.”1

English law ‘from the earliest times down to the present, the word necessaries is not confined to its strict sense
to such articles as were necessary to the support of life, but extended to articles fit to maintain the particular
person in the state or degree and station of life in which he is.’2 Four years later in Chapple v. Cooper,3the
term was expounded thus; “Things necessary are those without which an individual cannot reasonably exist. In
the first place, food, raiment lodging and the like. Again...........instructions in art or trade, or intellectual, moral
and religious information may be a necessity also. Again, if a man lives in society, the assistance and
attendance of other may be necessary for well-being.” The Sale of Goods Act, 1893, defines necessaries as
“goods suitable to the condition in life of an infant or other persons dependent on him and to his actual
requirements at the time of sale of delivery.”4

Thus English law gives a wide interpretation to the term necessaries.5

A sum of money advanced to the infant for the purchase of necessaries can be recovered,1 though the infant
cannot give a binding security for,2 nor can he draw a bill of exchange or promissory note for them.3

In a suit for the recovery of the price of necessaries or for the recovery of loan given for the purchase of
necessaries, the plaintiff must show that the necessaries were suitable to the conditions of the life of the minor,
that they were actually required by the infant at that time, and that the infant was not sufficiently provided with
them at that time.4 The burden of proof is on the plaintiff,5 his ignorance as to the fact that the infant already
had sufficient supplies is immaterial.6

Thus to sum up: If the minor is supplied with necessaries or is given loan for the purchase of necessaries, the
supplier or lender is entitled to recover the price of goods,7 or the money lent.8 It is the duty of the court to
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enquire: whether the necessaries were actually supplied.9 The minor is personally liable for the payment of the
price of necessaries supplied to him or the money given to him for the purchase of the same.1 The case of the
supplier of necessaries or lender is not prejudiced on account of the fact that the infant has given an invalid
security.2 Where there exists a deed or writing and that deed or writing is invalid because the infant has no
capacity to execute the same, the deed or writing can be ignored and action can be brought on the basis of
necessaries supplied or money lent for the purchase of necessaries.3

Under the common law the liability for the price of necessaries or for the loan with which necessaries were
purchased was originally based upon “a contract raised by implication of law,”4 the circumstances created the
relationship of the creditor and the debtor between the supplier and the minor. Thus a fictitious promise was
implied. Lord Brougham said that they were binding on the minor or lunatic because they were debts.5 Lord
Chancellor Lydhurst said that if one person applied money for the benefit of a lunatic or minor without fraud, it is
a debt which could be enforced against the lunatic or minor and, if he dies, against his estate; but the rule
applies only to necessaries.6

Gradually, English law accepted that the liability of the minor is based not on contract, but it arises re and not
consensur. Lord Justice Lindsey said that in order to raise an obligation to repay, the money must have been
expended with the intention on the part of the person providing it that it should be paid. “Obligations of this class
are called by civilians obligations quasi ex-contractu.”7 Cotton, L.J., said that even though there might be an
obligation on the part of the lunatic or minor to repay, yet the necessaries must be supplied under
circumstances which would justify the court in implying an obligation to repay.

However in some later cases the implied theory was followed. In re, J.,8 Lindley, L.J., said that the obligation is
not contractual, it is an obligation implied by law from the fact that necessaries have been supplied to a person
who is unable to contract, but is nonetheless an obligation and it has ‘exactly the same status as a debt; it is
recoverable under the same circumstances as a debt would be, and the power of recovering it is limited
precisely the same way’.

However, the modern English law bases the infant’s liability for necessaries supplied to him on the principle of
restitution or quasi- contracts. In Halsbury’s Laws of England the position is summed up as under:

An action against an infant for necessaries is usually spoken of as a case of enforcing a contract against the infant. It
has been said, however, that the basis of the action is hardly contract: and that the real foundation of the action is an
obligation which the law imposes on the infant to make a fair payment in respect to needs satisfied, in other words, an
obligation arising re and not consensus.1

Under English law the liability of the infant to pay for necessaries is personal. It seems that if the necessaries
are supplied to the guardian of the minor, then the supplier can recover them from the infant only in those cases
where the doctrine of subrogation would apply.

The Indian law is embodied in section 68, the Contract Act which runs as under:

If a person incapable of entering into a contract, or any one whom he is legally bound to support, is supplied by another
person with necessaries suited to his condition in life, the person who was furnished such supplies is entitled to be
reimbursed from the property of such incapable person.

In an early case, Piggot, J., said that necessaries supplied or money lent must be for some purpose
accomplishment of which could not will be postponed without immediate detriment to the minor himself or to
some person who he was legally bound to support.2 Following the English law, the Indian courts have given a
wide meaning to the term ‘necessaries’. It is now an established rule that necessaries does not merely mean
things necessary for the subsistence of the minor. It is not confined to goods, it includes other things such as
good teaching and instructions,3 money spent in defending or prosecuting a litigation on behalf of the minor in
respect to his estate or in defending him in a criminal prosecution,4 house taken on rent by the minor for the
purpose of living and continuing his studies,5 have been held necessaries. In a majority of cases it has been
held that the marriage of the minor6 or any person dependent on the minor is necessary within the meaning of
section 68.

An attempt was made to further widen the scope of necessaries so as to include the cases of legal necessity
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and benefit of estate, but it did not succeed. Our courts were not willing to extend the meaning of the term
beyond what it means under English law. Piggot, J., very pertinently observed:7

The essential difficulty of the present case lies in the application of the principle of law based upon English decisions to
the widely different conditions of Indian society. Nor can the principle itself be considered altogether apart from those
provisions of Hindu law which bear upon the devolution of property in a Hindu joint family and the duties and liabilities
of such family inter se.1

In some cases it was argued that the obligation of a son to pay the debts of his father was necessary. In
Nilkanth v. Chandrabhan,2 the argument was not accepted. In Ramalinga v. Shrinivaslu,3 it was argued that
payment of binding debt was necessary. The court said that even if the argument was accepted it would be
difficult to maintain the sale. In Maharaja Shri Ranmalsinghji v. Vadilal,4 it was argued that a debt taken for
going to a pilgrimage was a necessary. The court said that it was true that what are necessaries is to be
determined according to Hindu ideas, and a pilgrimage might be looked upon as beneficial, but then that would
be extending the meaning of the “term necessaries”, very much beyond the meaning that has been hitherto
assigned to the them.

Thus, the result has been that though the term ‘necessaries’ has been given a wide interpretation, the way it
has been interpreted under English law, yet the courts have refused to interpret it so widely as to include the
entire Hindu law concept of legal necessity and benefit of estate.

The Indian law differs from English law in some respects materially. Under Indian law liability of the minor is not
personal, but it is of the minor’s estate against which the supplier or lender has his remedy of reimbursement.

The basis of the liability for necessaries is, under Indian law, clearly quasi-contractual. The very title of the
Chapter of the Indian Contract Act makes it clear: “Of certain Relations resembling those created by Contract.”
Pollock, A.J.C., said, ‘the liability of the minor’s estate arises not ex-contractu, but because the money
borrowed has been expended on necessaries.5

Under the Indian law it makes no difference whether the necessaries were directly supplied to the minor or
were supplied to him through the guardian, in either case minor’s estate is liable. The Calcutta High Court in
Bhawal Sahu v. Baijnath,6 said that though a guardian cannot bind the minor’s estate except by a document
purporting to bind it, yet where the promise was to pay money which has been expended for necessaries the
estate of the minor is liable not on the promise, but because the money has been supplied for the necessaries
of the minor. This view has been accepted by the Bombay High Court.7 In Ramajoggya v. Jagannathan,8
Wallis, C.J., of the Madras High Court in his dissenting judgment said that no decree can be passed against a
minor or his estate on the covenant of guardian, but this does not affect the liability of the minor’s estate under
section 68 of the Contract Act to the supplier of the necessaries suitable to his condition in life. Even if the
guardian of the minor has executed a note, it is immaterial, as the liability is based not on the bond, but
because the minor was supplied with necessaries.

In Sadasheo Balaji v. Firm Hiralal Ramgopal,1 Vivian Bose J., explained the distinction between legal necessity
and necessaries. The learned Judge said that the test of ‘fair and proper’ can be applied in both the cases, but
the standard must necessarily differ, for what is fair and proper in the shape of benefits conferred or comforts
supplied may not be fair and proper in the case of alienation for necessity. While in the case of necessity,
enquiries made in good faith protect the alienee, but in case of necessaries such considerations are irrelevant.
Further, an alienation made by the minor would be void, whatever consideration there might be, whereas in the
case of necessaries supplied to him, it is immaterial whether the order comes from him, or from his guardian, in
both the cases the test is precisely the same: the suitability of goods supplied or the benefit conferred, having
regard to the social status and conditions in life of the minor, and to his actual requirement at the time of the
transaction.2

A supplier of necessaries of a lender who lent money for the purchase of necessaries will be entitled to the
decree if he can prove: (i) the necessaries were suitable having regard to the social status and conditions of
minor’s life, and (ii) they were suitable to his actual requirement, i.e. when necessaries were supplied to him he
has not already been supplied with the same from some other source.3 A supplier or lender, unlike alienee,
cannot be protected merely on the basis that he made proper and bona fide enquiries.

It has been held in some cases,4 that the necessaries supplied to the guardian on behalf of the minor rest as
an exception to the general rule that a minor is not personally liable on the contracts entered into by the
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guardian on behalf of the minor. In our submission, under Indian law necessaries are squarely based on the
quasi-contracts, and it makes no difference whether necessaries were supplied directly to the minor or through
the guardian. It is submitted that had the quasi-contractual basis been not available in Indian law, such
contracts entered into by the guardian would have been valid as being for the benefit of the minor.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

* For Statement of Objects and Reasons, see Gazette of India, 1886, Pt. V, p. 77; for Report of the Select Committee,
see Gazette of India., 1890, Pt. V, p. 77; and for Debates in Council, see Gazette of India, 1886, Supplement, pp. 419
and 666, and Gazette of India, 1890, Pt.VI, pp. 33 and 45.
This Act has been declared to be in force in the Sonthal Parganas by the Sonthal Parganas Settlement Regulation (3 of
1872), sec. 3; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), Sec. 3 and Schedule;
and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), Sec. 3 and Schedule.
It has been declared not to be in force in the scheduled districts in Ganjam and Vizagapatam by notification under sec. 3(b)
of the Scheduled Districts Act, 1874 (14 of 1874), see Gazette of India, 1898, Pt. I, p. 872.
It has been extended to the portions of the partially excluded areas in the Madras State, in which the provisions of this Act
are not in force by the Madras (Partially Excluded Areas) Guardians and Wards Regulation, 1940 (Mad. Reg. 6 of
1940), to Berar by the Berar Laws Act, 1941 (4 of 1941).
It has also been extended, with modifications, to the district of Koraput by the Koraput Guardians and Wards Regulation,
1943 (Orissa Reg. 7 of 1943).
It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
1 AIR 1957 Mad 195 .
2 Take for instance, rule 18(b) of the Bombay High Court lays down, when the court passes orders as to investments it
shall ordinarily direct them to be made in securities mentioned in clauses (a), (b), (c), (d) of section 20 of the Indian
Trust Act or in the Government Saving Bank.
The Rules of the Calcutta, Madras, Mysore High Courts repeat several clauses of section 20 of the Indian Trust Act. The
other High Courts also more or less do the same thing.
1 Laburam v. Bhagmal, 54 IC 926.
2 (1881) AWN 37.
3 3 CPLR 95.
4 1950 TC 38.
5 54 IC 19.
6 AIR 1929 All 890 ; Reliance was placed on Sanyasi v. Krishna, AIR 1922 PC 273 .
1 Learoyd v. Whiteley, (1887) 12 AC 727.
2 In re, Cassumali Jawar Pirgiri, ILR 30 Bom 591.
3 Section 33, the Guardians and Wards Act, 1890.
4 AIR 1936 All 172 .
1 Rai Syam Bahadur v. Rameshwar Parsad, AIR 1942 Pat 441 .
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2 ILR (1913) 25 All 499 .

3 AIR 1932 Bom 460 .
4 (1932) 34 BLR 1001; See also Nagendra v. Bhimrao, AIR 1943 Bom 44 .
5 AIR 1939 Mad 414 [LNIND 1938 MAD 430].
6 Reference was made to Ramajogyya, ILR (1919) 42 Mad 185 (FB).
7 AIR 1927 All 55 .
8 Anil Kumar Das v. Smt. Prabhavati Mishra, AIR 1940 Cal 532 .
9 ILR (1886) 12 Cal 152 .
1 ILR (1895) 22 Cal 545 .
2 (1917) 22 CWN 477.
3 ILR 39 Cal 232.
4 See also Tarini Kumar v. Srish Chandra, AIR 1925 Cal 1160 .
5 ILR (1907) 29 All 217 .
6 ILR (1913) 35 All 499 .
7 AIR 1924 Pat 81 .
8 AIR 1929 Pat 202, per Das and Fazal Ali, JJ.
9 Banaras Bank v. Deep Chand, AIR 1936 All 172 ; Syam Bahadur v. Rameshwar Pd., AIR 1942 Pat 441 .
10 AIR 1936 All 172 .
11 Babooram v. Said-un-nisa, ILR (1913) 25 All 499 .
1 Phatram v. Ayle Khan, AIR 1927 All 55 ; Anil Kumar Das v. Smt. Prabhavati Mishra, AIR 1940 Cal 532 ; Ran Behari v.
Maikha, AIR 1960 Pat 271 .
2 ILR (1912) 39 IA 1 .
3 ILR (1887) 11 Bom 551 .
4 ILR (1912) 39 Cal 232 .
1 ILR (1912) 39 Cal 232 .
2 I Borr 155.
3 This case went very far and it may be difficult to support it today. In this case security was taken from the uncle that he
would not marry the girl to any other person and he was ordered to perform the marriage with the plaintiff. The Sadar
Adalat, after consulting its law officer, came to the conclusion that a betrothal pronounced by the caste as valid could
not be set aside, and the girl on refusal to celebrate the marriage could be compelled by the caste to perform the
marriage.
4 ILR (1895) 21 Bom 23 .
1 ILR (1903) 30 Cal 539 .
2 ILR (1918) 42 Bom 499 .
3 ILR (1924) 48 Bom 673 .
4 AIR 1951 Mad 466 [LNIND 1950 MAD 138].
5 AIR 1948 PC 95 .
6 AIR 1941 Bom 129 .
1 The Bombay High Court has earlier held that the damages could be claimed for breach of betrothal contract: Muli
Thakersay v. Gomti, ILR (1887) 11 Bom 412 ; Umed Kika v. Nagindas Narotamdas, (1870) 7 BHCR 122. Calcutta High
Court also took the same view: In the matter of Gunpat Narayan Singh, ILR (1875) 1 Cal 74 . So also the judgment of
the Punjab Chief Court in Muhammed Omar v. Budda, (1906) PR 3.
2 ILR (1910) 32 All 410 .
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3 Taraporewala, J., also referred to Raghavachariar v. Shriniwasa, ILR (1916) 40 Mad 308 ; where the contract was
considered to be enforceable if the minor has performed his part of obligation, but realising that rule could not be
applied to marriage contracts, he abandoned the approach.
4 AIR 1939 Rang 46 .
5 AIR 1954 TC 129 .
1 See Purshotamdas v. Purshotamdas, ILR 21 Bom 23, and Rose Fernandaz v. Joshep Gonsalves, AIR 1925 Bom 97,
where the Bombay High Court said that a contract of marriage of apprenticeship are considered to be for the welfare of
the child.
2 Section 2(aa).
3 Section 2(aaa).
4 Section 23.
5 Section 3(a).
6 Section 4(1).
1 Section 7(1).
1 Halsbury’s Laws of England, 3rd Edn., Vol. 21, p. 145.
2 Halsbury’s Laws of England, 3rd Edn., Vol. 21, p. 148.
3 AIR 1949 Bom 215 .
4 AIR 1949 Bom 215 (217).
5 Reliance was placed on Mir Sarvarjan, ILR 39 Cal 232; Jamnadas v. Ram Avtar, ILR 34 All 63; Dunlop v. Selfridge,
(1915) AC 847; In re, R.A. Chemical Co., (1883) 25 Ch D 103; National Petroleum Co. v. Popat, AIR 1936 Bom 344 .
6 AIR 1935 Bom 353 : ILR 59 Bom 656.
1 The learned Judge proceeded to say that the father very often brings his personal influence to bear on the minor so that
the father’s contract may be honoured; and sometimes the minor carried out the father’s contract at the cost of his
personal happiness. One fails to understand, in our submission, why the same argument cannot apply to a contract of
service.
2 AIR 1949 Bom 215 (225).
3 Great American Insurance Co. v. Madanlal, AIR 1935 Bom 353 : ILR 59 Bom 656.
4 Mulla’s Contract Act, 8th Edn., p. 73.
5 ILR (1912) 39 Cal 232 .
1 Purshotamdas v. Purshotamdas, ILR 21 Bom 23.
2 AIR 1935 Bom 353 : ILR 59 Bom 656.
3 AIR 1954 Bom 347 [LNIND 1953 BOM 14].
1 Law of Domestic Relations, 568.
2 Peters v. Fleming, (1840) 6 M&W 42.
3 (1844) 13 M&W 252.
4 Para 2 of section 2, Lord Coke said “An infant may bind himself for his good teaching or instruction, whereby he may
profit himself afterwards”.
5 Certain things are obviously necessaries, such as, food clothing and medicine; Huggins v. Wiseman, (1690) Carth 110.
So is loding: Lowe v. Griffith, (1835) 1 Scot 458; article which suit to the social position and station in life are also
necessaries; Hands v. Slaney, (1800) 8 Temp Rep 578 (Livery for servant of an infant officer in Army); Coats v. Wilson,
(1804) 5 Ep 152 (regimental uniform): Peters v. Fleming, (1840) 6 M&W 42 (watch chain, rings and pins); Jenner v.
Walker, (1968) 19 LT 398 (presents to betrothed) Clyde v. Hargreaves, (1898) 78 LT 296 (racing bicycle); Roberts v.
Gray, (1913) 1 KB 520 (an exhibition tour round the world of a professional billiards player); Elkinton & Co. v. Amery,
(1936) 2 All ER 86 (suitable education) Pickering v. Gunnings, (1628) Palm 528; Chappeles v. Cooper, (1844) 13 M&W
252; De Frencesco v. Barnum, (1890) 45 Ch D 430; Walter v. Everard, (1891) 1 QB 369 ; Roberts v. Gray, (1923) 1
KB 520 (legal proceedings and execution of deeds); Clarke v. Leslie, (1803) 5 Esp 28; Ex parte M’Key, (1810) 1
Ball&B 405; Prichard v. Roberts, (1883) LR 17; Prince v. Hawarth, (1905) 2 KB 768. The following were held not to be
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necessaries: Hands v. Slaney, (1800) 8 Term Rep 578 (Cockades for soldiers in the company of an infant minor);
Burghart v. Angerstain, (1834) 6 C&P 690 (superfluous and expensive clothes); Harrison v. Fane, (1840) 1 Man &G
550 (hire of horses); Bryant v. Richardson, (1866) LR 3 Exch 93 (Cigars and Tobacco); Ryder v. Womwell, (1968) LR 4
Exch 32 (costly jewellery); Lafthouse v. Brown, (1898) WN 52 (commission to a theatrical agent for obtaining
engagement in a music hall to the infant performer) but in Machinlay v. Bathurst, (1919) 39 TLR 31, a contrary view
was taken. Shears v. Mandeloff, (1914) 30 TLR 342 (a commission to an agent of an infant boxer); Hamilton v. Bennet,
(1930) 94 JPJ 136 (flying lessons for an infant law student).
1 Re, National Permanent Benefit Building Society, Ex parte Williamson, (869) 5 Ch App 309; Martin v. Gale, (1876) 4 Ch
D 428; Walter v. Everard, (1891) 2 QB 369; Garinder v. Wainfur, (1919) 89 LJ Ch 98; Yorkshire Rail Wagon Co v.
Maclure, (1881) 19 Ch D 478.
2 There is long line of cases which hold that even if there is a bond, a supplier can sue for recovery of the price of
supplies, though not on the bond: Aylif v. Archdale, (1660) Cr Eliz 920; Russel v. Lee, 83 ER 310; Keane v. Boycott,
(1795) 3 ER 494; Baylies v. Dinaley, (1915) 105 ER 689; Cooper v. Simons, (1862) 7 M&N 707; Walter v. Everard,
(1891) 2 QB 369.
3 Aylif v. Archdale, (cited above); Martin v. Gale, (1876) 4 Ch D 428; Walkedan v. Hartley, (1886) 2 TLR 767; Walter v.
Everard, (1891) 2 QB 369; Gardner v. Wainfur, (1919) 89 LJ Ch 98; Earlie v. Peale, (1711) 10 Mod Rep 66; Trueman v.
Hurst, (1785) 1 Term Rep 40; Re, Sotykof, (1891) 1 QB 413.
4 Ford v. Forthergill, (1794) 1 Esp 211; Cook v. Deaton, (1827) 3 C&P 114; Foster v. Redgrave, (1867) LR 4 Exch 35;
Nash v. Imman, (1908) 2 KB 1; Stocks v. Wilson, (1913) 2 KB 235.
5 Nash v. Imman, (1908) 2 KB 1.
6 Barnes & Co. v. Toye, (1884) 13 QBD 410; Jonstone v. Marks, (1887) 19 QBD 509.
7 Ryder v. Wombwell, (1868) LR 4 Ex 32; Peters v. Fleming, (1846) 6 M&W 46. See also section 2, the Sales of Goods,
Act 1893.
8 Marlow v. Fitfield, (1719) 1 P Win 558; Re, National Permanent Benefit Building Society, (1869) 5 Ch App 309; Martin
v. Gale, (1876) 4 Ch 428 ; Yorkshire Railway Wagon Co. v. Machure, (1881) 19 Ch D 478.
9 Harison v. Fane, (1840) 1 Man&G 550; Broker v. Scott, (1843) M&W 67; Wharton v. Machenize, (1844) 5 QB 606 ;
Barnes & Co. v. Toye, (1884) 13 QBD 410; Ryder v. Wombwell, (1868) LR 4; Nash v. Imman, (1908) 2 KB 1.
1 Section 2, the Sales of Goods Act, 1893.
2 Gardner v. Wainfur, (1919) 89 LJ Ch 98; Ayliff v. Archdale, (1660) Cro Eliz 920; Russel v. Lee, 83 ER 310; Keane v.
Boycott, 3 ER 494; Baylies v. Dinaley, 105 ER 689; Walter v. Everard, (1891) 2 QB 369.
3 Probart v. Knouth, (1783) 2 Esp 472; Cooper v. Simons, (1862) 7 H&N 707; Martin v. Gale, (1876) 4 Ch D 428; Walter
v. Everard, (1891) 2 QB 369.
4 Wantworth v. Tubb, 62 ER 840, per Vice-Chancellor Knight Bruce; see also Williams v. Wentworth, 49 ER 603, per
Langadale, LJ.
5 Howard v. Digby, 6 ER 1293.
6 Wantworth v. Tubb, 62 ER 840.
7 Rhodes v. Rhodes, (1890) 44 Ch D 94.

8 (1909) Ch 574 .
1 3rd Edn., Vol. 21, 142 Footnote (b).
2 (1916) 5 IC 413 (414).
3 Sadasheo Balaji v. Firm Hiralal Ramgopal, AIR 1938 Nag 65 .
4 Walkins v. Dummo, ILR (1881) 7 Cal 140, Barnson v. Appasami, ILR (1894) 17 Mad 257 .
5 Kunwarlal v. Surajmal, AIR 1963 MP 58 [LNIND 1961 MP 71].
6 Yadorao v. Coandradas, AIR 1927 Nag 196 ; Rahim Bibi v. Sherifunddin, AIR 1947 Mad 155 [LNIND 1946 MAD 147];
Kalicharan v. Ramdas, AIR 1917 Pat 332 ; Annamalai v. Muthuswami, AIR 1939 Mad 38 ; Vaikuntam v. Kalipiram, ILR
23 Mad 512; Vaintam v. Ayyangar, ILR (1902) 26 Mad 497 (money spent on the ceremony of Griha Pravesam and
Rahusanti).
7 Nandan Prasad v. Audhya Prasad, (1910) 5 IC 413 (FB); Shrinivas Rao v. Baharam, 1933 Nag 285; Jai Indra Bahadur
Singh v. Dilraj Kaur, (1921) 61 IC 278 (Oudh).
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1 Nandan Prasad v. Ajudhya Prasad, (1910) 32 All 325; See also Sham Charan Mal v. Chaudhary Debya Singh, (1894)
21 Cal 872; Kumar Krishna Dutt v. Hari Narain Ganguli, 33 IC 708 (Lion in favour of attorney); Shrinivas Pillai v.
Balsubramainia, (1926) 94 IC 534 (bulls); Mohammed Ali v. Chaki Shah, (1930) 23 IC 827 (money borrowed to pay
land revenue).
2 AIR 1922 Nag 247 .
3 AIR 1955 Mad 657 [LNIND 1955 MAD 28].
4 ILR 20 Bom 61.
5 Shrinivas Rao v. Baharam, AIR 1933 Nag 286 .
6 ILR (1907) 35 Cal 320 .
7 Tukaram v. Ramchandra, AIR 1932 Bom 460 .
8 AIR 1919 Mad 641 (FB).
1 AIR 1938 Nag 65 .
2 AIR 1938 Nag 65 (66-67).
3 Sachit v. Harmandan, AIR 1933 Pat 29 ; Sadaseo v. Sankar, AIR 1938 Nag 68 ; Pragdas v. Collector, 1943 All WN
303. The view is based on Barnes v. Toye, (1884) 10 QBD 410 ; and Janstone v. Marks, (1887) 19 QBD 509.
4 Sadashiv v. Sankar, AIR 1938 Nag 68 ; Sugan v. Sankar, AIR 1941 Nag 105 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER III DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
The chapter under the title, “Duties, Rights and Liabilities of Guardian’s has four sub-heads. First, with the
title “General”, contains four sections, from 20 to 23, and deals with four miscellaneous matters, viz., (i)
guardian’ relationship with the ward is fiduciary, (ii) capacity of minor to act as guardian, (iii) remuneration of
guardian, and (iv) control of Collector as guardian.
The second part with the title “Guardian of the Person” contains three sections, from 24 to 26, dealing with (a)
duties of guardian of the person, (b) guardian’s title to custody of the minor, and (c) removal of the child out of
jurisdiction by the guardian.
The third part, with the title “Guardian of Property”, has 12 sections, from 27 to 37, dealing with (i) duties of guardian
of property, (ii) power of testamentary guardian, (iii) limitations of powers of the certificated guardian of property, (iv)
the nature of transfers of property of minor made in contravention of section 28 or section 29, (v) practice with
respect to permitting transfers under section 29, (vi) variations of powers of certificated guardian of minor’s
property, (vii) certificated guardian’s right to seek court’s opinion or direction regarding management of minor’s
property, (viii) obligations of the certificated guardian of minor’s property, (ix) guardian court’s power to award
remuneration to the auditor, (x) suit against guardian when administrative bond is taken, (xi) suit against guardian
when no administrative bond was taken, and (xii) general liability of guardian as trustee.
The fourth part with the title “Termination of Guardianship” contains five sections, dealing with (a) right of
survivorship among joint guardians, (b) removal of guardian, (c) discharge of guardian, (d) cessation of authority of
guardian, and (e) Appointment of successor to the guardian who has died, or has been discharged or removed.
GUARDIAN OF PROPERTY
Unlike the natural guardian, the certificated guardian is, from the date of his appointment, under the supervision,
guidance and control of the court. Sections 27, 29, 31, 32, and 33 of the Guardians and Wards Act, 1890, related to
the powers of the guardian of property appointed by the court.
Section 27, the Guardians and Wards Act, lays down in general terms the power and obligations of the guardian of
property. The ambit of his powers is limited by the rule that the guardian should deal with the property of the minor
in the same way as a man of ordinary prudence deal with his own property. Just as a prudent person deals with his
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property carefully so should the guardian, and within that limit and subject to certain specific limitation laid down in
the Act, he has the authority to do all things necessary for the realization, protection and benefit of the property.
Section 29 lays down a major limitation on the power of the certificated guardian; the guardian has no power to
mortgage, charge or transfer by sale, gift, exchange or otherwise or to lease any part of the property for a term
exceeding five years for any term extending more than one year beyond the date on which the minor will cease to
be a minor, without the prior permission of the court.
Under section 31 the court will accord permission for any alienation proposed by the guardian only if it finds that the
proposed alienation is for necessity or for evident advantage of the minor. Further, under section 32 the court has
power to define, restrict or extend the power of the guardian from time to time. The court may or may not exercise
its power under that section, but if it does, the guardian is bound to exercise his powers within the limitations laid
down by the court. The court has, at the time of appointment of guardian, general powers of defining and fixing the
limits of his powers.
Under section 33, the guardian can himself invite the court to fix and define the scope of his powers. Under this
section guardian may, on any specific matter, seek directions, instructions and opinion of the court in respect to the
management and administration of the properties. If he thus solicits the intervention of the court in the exercise of
his powers and functions, he is bound by the directions, instructions, etc., of the court and he must act accordingly.
If the scope and limitations of the guardian’s powers have not been fixed under the original order appointing the
guardian, or if they are not subsequently defined and limited by the court under section 32, or if the guardian has
not sought the intervention of the court on any matter under section 33 and if the matter does not relate to alienation
of immovable property of the ward, the guardian’s powers are regulated by the general provision contained in
section 27. It is interesting to note that apart from the restrictions contained in section 29, the Act does not impose
any other restrictions on the guardian’s powers of dealing with the minor’s property or of entering into transactions
on behalf of the minor. Thus, in our submission, the guardian’s limitations within this sphere are the general
limitations of a prudent man. What a prudent man can do, the guardian can also do, and, it is submitted, just as a
prudent man can make bona fide mistakes so may the guardian.

28. Powers of testamentary guardian.—

Where a guardian has been appointed by will or other instrument, his power to mortgage or charge, or transfer
by sale, gift, exchange or otherwise, immovable property belonging to his ward is subject to any restriction
which may be imposed by the instrument, unless he has under this Act been declared guardian and the Court
which made the declaration permits him by an order in writing, notwithstanding the restriction, to dispose of any
immovable property specified in the order in a manner permitted by the order.

Comments

1. Scope

This section deals with the powers of the testamentary guardian in regard to alienation of minor’s property, and
lays down that his powers of alienation are subject to restrictions laid down in the Will. The court has also
power to remove any of the restriction imposed in the Will by an order in writing to that effect provided the
testamentary guardian has been declared to be the guardian by the court under the provisions of the Guardians
and Wards Act.

It is this section which deals with the powers of the testamentary guardian of minor’s property and not section
29 of the Act.
2. Section 28 and section 9, the Hindu Minority and Guardianship Act

Under the Hindu Minority and Guardianship Act 1956, the testamentary guardian’s powers over the minor’s
property are equated with natural guardian’s subject to such restrictions as may be specified in the Act or in the
Will.1While under this section the testamentary guardian’s powers of alienation of minor’s property are subject
to any restrictions laid down in the Will. There are no other restrictions and the court has power to remove these
restrictions. Obviously there is a conflict in the two provisions and the Madras High Court said that since the
Hindu Minority and Guardianship Act has been given over-riding effect over all other statutes, its provisions
would prevail over that the Guardians and Wards Act.2 (For details please refer to para 6 of our commentary on
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section 9, the Hindu Minority and Guardianship Act). As regards to other children, the testamentary guardian’s
powers would be regulated by this section, subject to the relevant personal law.
3. Court’s Power to Remove Restrictions

The principle underlying section 28 is that when a guardian is appointed by a Will and his powers are expressly
restricted by it, the court must be apprised of the Will and the restrictions on his powers imposed by the testator
in order to exercise its discretion to determine whether those restrictions should be removed or not. The section
enacts a salutary principle for the exercise of its parental jurisdiction.1 In Shri C.P.J. Temple v. Hari Krishna,2
the Supreme Court said that even when the High Court exercises its inherent power, the provisions of this
section are binding. In case the mother of the minor while applying for the permission of the court to alienate
minor’s property did not disclose that there was a Will under which her powers were restricted. Rather, she
made a misrepresentation that her deceased husband had left two houses and she was the owner of one and
the other would go to the minor. On this representation both the houses were permitted to be mortgaged by the
guardian court. The court held that the sanction could not be regarded as having been obtained under section
28 or section 31(2) read with section 29. The court held that mortgagee was entitled to get back the money
advanced under the mortgage and till the money was repaid it stood as a charge on the entire property.
4. Where No Restrictions are Imposed

It would appear that where the Will does not impose any restriction on the powers of testamentary guardian his
powers would be the same as that of the natural guardian. Please make reference to our commentary on
section 8, the Hindu Minority and Guardianship Act in Part II of this work and on natural guardian’s power under
Muslim law to Part IV of this work.
5. Hindu’s Power to Appoint Testamentary Guardian

Under Hindu law, a Hindu has the power to appoint a testamentary guardian under section 9, the Hindu
Minority and Guardianships Act.
6. Muslim’s Power to Appoint Testamentary Guardian

The power of a Muslim to appoint a testamentary guardian is regulated under Muslim law.
7. Christian and Parsi’s Power to Appoint Testamentary Guardian

The power of a Christian, Parsi or a European British subject to appoint a testamentary guardian is regulated by
section 60 of the Indian Succession Act.
8. Alienation in Violation of section 28 is Voidable

A disposal of property made in contravention of section 28 is only voidable and not void. Whenever a minor
receives a benefit under a voidable transaction he should restore the benefit.3

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

1 Section 9(5).

2 T.V. Duraiswamy v. E. Balasubramanian, AIR 1977 Mad 304 [LNIND 1976 MAD 254].

1 Sri Chanda Probhuji Jain Temple v. Hari Krishna, AIR 1973 SC 2565 [LNIND 1973 SC 243].

2 AIR 1973 SC 2565 [LNIND 1973 SC 243].

3 Sri Chanda Probhuji Jain Temple v. Harikrishna AIR 1973 SC 2565 [LNIND 1973 SC 243]. See also Parshotam Dai v.
Nazir Hussain, AIR 1920 Oudh 53 ; Peria Karuppan Chetty v. Kandasamy, (1933) HWN 791; Abbas Hussain v. Kiran
Shastri, AIR 1942 Nag 12 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER III DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
The chapter under the title, “Duties, Rights and Liabilities of Guardian’s has four sub-heads. First, with the
title “General”, contains four sections, from 20 to 23, and deals with four miscellaneous matters, viz., (i)
guardian’ relationship with the ward is fiduciary, (ii) capacity of minor to act as guardian, (iii) remuneration of
guardian, and (iv) control of Collector as guardian.
The second part with the title “Guardian of the Person” contains three sections, from 24 to 26, dealing with (a)
duties of guardian of the person, (b) guardian’s title to custody of the minor, and (c) removal of the child out of
jurisdiction by the guardian.
The third part, with the title “Guardian of Property”, has 12 sections, from 27 to 37, dealing with (i) duties of guardian
of property, (ii) power of testamentary guardian, (iii) limitations of powers of the certificated guardian of property, (iv)
the nature of transfers of property of minor made in contravention of section 28 or section 29, (v) practice with
respect to permitting transfers under section 29, (vi) variations of powers of certificated guardian of minor’s
property, (vii) certificated guardian’s right to seek court’s opinion or direction regarding management of minor’s
property, (viii) obligations of the certificated guardian of minor’s property, (ix) guardian court’s power to award
remuneration to the auditor, (x) suit against guardian when administrative bond is taken, (xi) suit against guardian
when no administrative bond was taken, and (xii) general liability of guardian as trustee.
The fourth part with the title “Termination of Guardianship” contains five sections, dealing with (a) right of
survivorship among joint guardians, (b) removal of guardian, (c) discharge of guardian, (d) cessation of authority of
guardian, and (e) Appointment of successor to the guardian who has died, or has been discharged or removed.
GUARDIAN OF PROPERTY
Unlike the natural guardian, the certificated guardian is, from the date of his appointment, under the supervision,
guidance and control of the court. Sections 27, 29, 31, 32, and 33 of the Guardians and Wards Act, 1890, related to
the powers of the guardian of property appointed by the court.
Section 27, the Guardians and Wards Act, lays down in general terms the power and obligations of the guardian of
property. The ambit of his powers is limited by the rule that the guardian should deal with the property of the minor
in the same way as a man of ordinary prudence deal with his own property. Just as a prudent person deals with his
property carefully so should the guardian, and within that limit and subject to certain specific limitation laid down in
the Act, he has the authority to do all things necessary for the realization, protection and benefit of the property.
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29. Limitation of powers of guardian of property appointed or declared by

the Court.—
Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been
appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous
permission of the Court,—
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable
property of his ward, or
(b) lease any part of that property for a term exceeding five years or for any term extending more than one
year beyond the date on which the ward will cease to be a minor.

Comments

1. Scope

This section lays down that guardian cannot alienate minor’s property without prior permission of the court. This
section applies only to the certificated guardian. Testamentary guardian’s powers of alienation are regulated by
section 28.

This section also does not apply to Collector. The powers of Collector are laid down in section 23.

This section deals with alienations in term of mortgage, charge, or transfer by sale, gift, exchange or otherwise
as well as in the form of granting of lease.
2. Necessity and Evidence Advantage

This section or any other provision of the Act does not define the terms, ‘necessity’ or ‘evident advantage’; nor
have the courts attempted to give any precise meaning to them. The reason is obvious: cases of ‘necessity’; or
‘evident advantage’ can be so numerous and varied that any attempt to lay down a precise definition is bound
to fail. Similarly, it is also difficult to lay down any precise standard of what is reasonable and proper. Each case
has to be determined on its own merits. Once the court enquires and holds that a particular transaction is for
necessity or evident advantage to the minor or his property, the matter ends there.1 In according sanction to
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the guardian for alienation of minor’s property courts have not taken a very rigid view. Whenever alienation of
property is made for providing maintenance to the minor, to members of his family or for providing education to
the minor, the courts have held that alienation is for necessity.2 If the personal law of the minor obliges him to
do certain things, then a alienation made for the purpose of doing them amounts to necessity. Alienation for
payment of debts binding on the minor3 or for the purpose of carrying on the business of the minor has been
held to be necessity.4

We have seen that under section 27, the test is of a prudent person. But whether the same test applies under
this section, our courts have expressed divergent views. In 1935, Beaumount, C.J., said that the test of prudent
owner goes too far.5In re, Cossumali Javar Bhai,6 the Bombay High Court said that the duty of the guardian is
primarily to preserve, not to add to the property of the minor. The Madras High Court propounded the test of
prudent owner as early as 18647 and continues to take the same view even now.8 In Sakthu v. Kappathamal,9
the guardian sought the permission of the court for the sale of certain lands of the minor on the ground that, as
the law relating to ceiling of land was about to be passed shortly if the lands were sold immediately they would
fetch much more value than the amount of compensation which should be paid after the acquisition of land.
According sanction to the guardian, the court observed that a broad view must be taken of ‘what is a measure
of benefit of the estate of the minor’ and held that the guardian is doing what any prudent man would have
done. Similarly, the expression ‘evident advantage’ does not warrant a negative or narrow meaning. In our
submission the test of prudent owner is a good workable test.
3. Permission of the Court

Whenever guardian wants to alienate minor’s property, prior permission of the court is necessary under this
section. An alienation made by the guardian without the prior permission of the court cannot be valid merely
because it has benefited the minor and was a perfectly honest and bona fide transaction.1 In Rajni Kant v.
Manmath Nath,2 where the guardian first mortgaged the properties without the permission of the court and
utilized the money for the benefit of the minor, and then sold the same with the permission of the court,
Fletcher, J., said that properties passed on to the purchaser unaffected by the inchoate right of the mortgagee.3

A guardian can take a lease on behalf of the minor without prior permission of the court, as taking of a lease is
not an alienation of property of the minor.4

In Vice Chancellor, Sampurnand Sanskrit Vidyalaya v. Brahm Gopal,5 a guardian was appointed as trustee of
property (books) of minor by the court and the said books were deposited with an educational institution for
their safe custody. Guardian sold the books to the state government without prior permission of court. It was
held that such an act was without any authority and guardian is bound to return books to minor on their
attaining majority.

It is the duty of the guardian to comply strictly with permission of the court.6 If the court sanctioned a
usufructuary mortgage, the guardian has no power to effect a simple mortgage.7 An alienation in contravention
of the permission of the court is invalid.8 Thus, where the court sanctioned mortgage of seven kanis in a taluka
belonging to the minor, the court held that the mortgage effected by the guardian is something different than the
one sanctioned and hence it was invalid.9 But to alienate less than what is authorized was held not to be in
contravention of the permission of the court.10

If on account of remissness of the judge a transaction results to the detriment of the child, the transaction can
be reopened.11

In Immami v. Mst. Kallo,12 where on an auction ordered by the court on the guardian’s application for
permission to sell a minor’s house, the court directed that a draft sale-deed should be prepared for its approval.
Since the court made some alterations in the sale deed which were not acceptable to the vendee, the latter
gave a notice through his lawyer. Whereupon the court sanctioned the sale in favour of another purchaser. The
original vendee brought a suit for specific performance. Dismissing his suit, the court said that the transaction
as desired by the plaintiff was not in the benefit of the minor and, therefore, the subsequent permission in
favour of another person was valid.1

Once the permission is granted and alienation is made pursuant to the same, the court has no power to
withdraw the sanction merely because another person subsequently makes a better offer.2 Once a sanction is
given and the transaction is completed, the court has no jurisdiction to reopen it.3 But before the alienation is
made the court has power to cancel or withdraw its sanction.4
4. Duty of the Court and the Guardian
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It is the duty of the court to act promptly in all matters of minor. In Gulam Haider v. Iqbal Nath,5 the court, on
the application of the guardian for permission to give on lease certain lands of the minor, ordered that the lands
be given on lease. Thereafter the matter went to the High Court twice. During this period, the agricultural prices
fell down and the lessee was no longer willing to take the lease. The Lahore High Court said, “It was the duty of
the guardian court to carry out the directions given by the High Court and decide all petty disputes that had
arisen between the guardian and the plaintiff, instead of saying that it was unable to do anything in the matter.
This inaction of the guardian court resulted in the delay”.6 In Saminath v. Laljit,7 the guardian was accorded
permission for the sale of a half share in the properties of the minor in 1891. The guardian sold them in 1906.
The Allahabad High Court said, “But it is quite clear that the District Judge in 1891 did not intend to sanction the
transfer of the properties fifteen years later when the circumstances of the family must have altered
considerably. In our opinion the transfer cannot be supported by the sanction given in 1891.”

If the circumstances change the guardian should apply for fresh sanctions. In Udai Partap Singh v. Pyre,8 the
guardian was accorded permission for the mortgage of certain properties of the minor for the gauna ceremony
of his sister, for the maintenance of the minor, and for necessary expenses. Before the mortgage could be
effected, the sister died and money was no longer necessary for her gauna ceremony. The guardian
nonetheless effected mortgage. The court held that it was imperative for the guardian to obtain fresh sanction of
the court, since he did not do so, the transaction was invalid.

In Commissioner of Wakf v. Md. Moshin,1 the district court sanctioned the creation of a wakf by the guardian of
certain properties of the minor. On appeal, the Calcutta High Court, said that section 29 is ‘not intended to
create a new form of transfer.’ Under Mohammedan law only the owner can create a wakf. Therefore the
sanction was cancelled.

The guardian should also find out the real value of the property and inform the court accordingly. The Calcutta
High Court said that the court is bound to enquire into all circumstances, and must find out whether the
proposed sale or mortgage should or should not take place.2 In Tarini Kumar v. Srish Chandra,3 it was
observed that it is the duty of the guardian court to see that the proposed alienation conferred highest benefit
on the minor, and it was not the concern of the court as to what motives the rival purchasers have in giving
higher bids. In Sarnath v. Dharma Rao,4 the Assam High Court said that the guardian court before according
sanction must be satisfied that the permission sought and given, is in the interest of the child. No court should
accord permission unless it knows all facts.5 In Premsukhdas v. Lakshmi Tiwari,6 the guardian court asked for
the report of the Munsif in respect to the valuation of the properties of minor to be sold. The Munsif in his report
gave the valuation to be Rs. 400. Later on offers of Rs. 1,000 and Rs. 1,400 were received for the same
property. The court said that it did not merely reflect seriously on the Munsif but also on the guardian court. It is
the duty of the guardian court to look carefully after the interest of the minor.

In Gopal v. Mehtab, and Mohan Lal v. Sheikh,7 the guardian court accorded sanction for the sale of the minor’s
property without making any enquiry on that very day on which application was made. On appeal, the Oudh
Judicial Commissioner’s court said that the court should apply its mind before giving permission for any
alienation of minor’s property. However, the court in Sajjad Hussain v. Abdul Rahim,8 said that the absence of
enquiry would not vitiate the transaction if the judge has been able to conclude a good bargain.

The Punjab Chief Courts in Sullan Singh v. Hasmat Ullah,9 said that the guardian court should not give
permission to sell property without fixing at least an approximate price, without clearly ascertaining as to what is
to be sold and for what value. The other High Courts also have held that the guardian court should not accord
permission without due enquiry.1 Thadani, C.J., and Labhaya J., of the Assam High Court said, “It [guardian
court] must satisfy that the permission sought and given, is in the interest of the minor. It should not be content
merely to rely upon an affidavit.” It should, for instance, call for ‘evidence as to the market-value of the land
sought to be sold, before it comes to the conclusion as to the value of the property.2

There is a divergence of opinion among our High Courts whether an order without an enquiry is void or merely
voidable.3 In our submission if the guardian court without making proper enquiry sanctions an alienation, then
an alienation pursuant to the sanction is not void but merely voidable,4since under the Guardians and Wards
Act, 1890, an alienation made by the guardian without the permission of the court is merely voidable.5 But if
fraud is exercised in obtaining the sanction of the court, then both the order and the transaction ensuing from it
would be void.6
5. Alienee can Rest on the Sanction
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Does an order under section 29 authorizing the guardian to alienate minor’s property afford complete protection
to the alienee against any future impeachment of the transaction by the minor or any person claiming though
him?7 If the answer is in the negative a further question arises: in what cases can the minor challenge the
alienation and what would be the value of the order in such proceedings?

No straight answer has so far been given by our courts.

The question came for consideration for the first time before the Calcutta High Court in 1879 under the Act 40
of 1858. Sir Richard Garh, C.J., said that before the Act of 1858 a purchaser was bound to make enquiries as
to the existence of necessity and to satisfy himself as an honest man. It was intended by the statute, the
learned Chief Justice said, not only to protect the interests of the minor but also to throw upon the civil court a
large share of responsibility which has previously been upon the guardian and to which the latter was found as
a rule deplorably unequal. If the court has made enquiries and made an order an alienee can rest on it,
otherwise a purchaser buying under an order of the court would remain under the same obligation, and would
obtain no better title than if he had bought direct from an uncertificated guardian.1

Sir Hobhouse of the Privy Council in Ganga Parsad v. Maharani Bibi,2 observed:

“If any fraud or underhand dealing is brought home to him that would be a different matter; but apart from any charge
of that kind, their Lordships think he is entitled to rest upon the order.”

His lordship then added:

“It is sufficient for the plaintiff to say, “I have got the order of the court’.”

Relying on the above observation, Harrington and Chatterjea, JJ., of the Calcutta High Court said that a
mortgagee was not bound to go behind the order to enquire whether the order ought to have been made or not
and a mortgage executed with the permission of the court was good and binding on the minor.3 The Allahabad
High Court took this view in two cases,4 but in Ram Bhayan v. Matbar Singh,5 the court said that once the
sanction was obtained, the burden of proof would shift and if the minor wanted to void the alienation then it
would be for him to show that the transaction was not binding on him.

The Punjab Chief Court in Mst. Rachmani v. Mst. Husani,6 said that an alienation pursuant to the sanction of
the court is valid, unless fraud was exercised in obtaining the order. The court has taken this view in later cases
also. This is also the view of the Patna High Court.7 The Oudh Judicial Commissioner’s Court took this view but
added that, even if it was established that the court was misled by fraud or misrepresentation of the guardian,
the sale cannot be set aside unless it was shown that the purchaser was privy to the fraud or at least was
aware of it. A bona fide purchaser is sufficiently protected by the fact that the sale was sanctioned by the
District Judge.8 The Nagpur High Court agrees with this view.9

Relying on Ganga Pd.10 the Bombay High Court, in Raghavendra v. Industrial Bank,11 and Vinayak v.
Ganesh,12 took the same view. But in In re, Dattatraya Govind Haldankar13 Kania, J., said that in spite of the
fact that a court has passed an order sanctioning an alienation, the purchaser is not absolved from his
responsibility of making necessary enquiries, and in the event of the minor challenging the transaction, the
alienee will have to prove that he made independent enquiries. The learned Judge also quoted some of the
observations of Princep. J., in Sikhar Chandra v. Dulputty.1

Princep. J., (Garth, C.J. agreeing substantially with him) said that the sanction merely means that it throws the
onus on the plaintiff to show that the alienations were improperly made, contrary is the usual rule requiring the
purchaser to establish the validity of the alienation or that he acted with due care and caution. After making
such enquiries as an honest and prudent man would make.

In Venkaswamy v. Viranna,2 Ramesam, J. (Spencer J., with him taking substantially the same view) of the
Madras High Court, on the basis of the above observations of Princep, J., and Garth, C.J. reached the
conclusion that in the case of a sanctioned alienation the burden of proof shifts on the plaintiff and that it is not
necessary to say that the purchaser acted fraudulently. About five years later in Raman Chettiar v.
Trignansambandham,3 another Bench consisting of Rao and Reilly, JJ., took a different view. They held that an
alienation can be challenged only if the alienee has been a party to the fraud, or collusion or some underhand
dealings.
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The question was then considered by a Full Bench in Harikrishnan v. C.P. Jain, Temple.4 Full Bench dissented
from the view of Ramesam and Spencer, JJ. The Bench said that an order under section 31(2) can be relied on
by the alienee as a substitute for an honest enquiry by him; but that it will be open to the minor to show that the
alienee was put to notice at the time of alienation of the matters which would show defects in the transaction or
that he did not act bona fide. So long as the alienee has no knowledge of guardian’s fraud or misrepresentation
he would be entitled to rely on the order of the court as affording evidence of honest enquiry. The learned Chief
Justice then said: “under the general law, the onus of proving justifying circumstances will be on the alienee but
the existence of an order under section 31(2) of the Act which was passed after an enquiry as to there being
necessity etc., though not res judicata, will shift the onus on the minor who will have to prove that the alienation
was not for necessity etc. This is because the alienation is one sanctioned by the court.5

In our submission, though their Lordships expressly differed from the view of Spencer and Ramesam, JJ., they
have done nothing but to restate the same view in a different language.

The fundamental purpose of the law of guardianship is to accord protection to the person and property of the
minor. When a matter relating to person or property of a child is brought before the court the child comes under
the care of the court. The term ‘care’ is not just a technical term of art, but it signifies that the jurisdiction of the
court is parental; the guardian judge does not just decide the contested questions of facts and law, but his main
concern is the welfare of the child, the protection of his interest. Naturally a large share of responsibility is cast
on the guardian judge.

It can happen that in a given case an alienation of minor’s property may be necessary or for the benefit of the
minor. It would not be merely in accordance with justice and fair play, but also in the interest of the minor, that
the alienee who comes forward to enter into a transaction with the minor’s guardian should have a reasonable
assurance that he would be getting good title to the property free from any danger of its subsequent reversal.
This is also in the interest of the minor because only then he will be able to get a proper and fair price for his
property.

This seems to be the basis of sections 29 and 31, the Guardians and Wards Act. The duty of finding out
whether in a given case there exists a necessity or whether in a given case it would be beneficial to the minor
that his property is alienated is cast on the court; because a certificated guardian may not be able to discharge
that duty. This provision is made not merely to save the guardian or the alienee from the trouble of making
enquiry, but also to guarantee that an alienation would be made only when necessity exists or it is for benefit of
the minor.

Unfortunately, machinery provided under the Guardians and Wards Act has not worked well and has proved
unsatisfactory. This has been because the court has not been able to live upto its responsibilities: more often
than not, it has been duped by an unwary, careless or unscrupulous guardian whose sole motive, at times, is
that the transaction goes through and who may be least interested in the welfare of the minor. This can also
happen not merely because fraud or some other underhand method is employed in obtaining the sanction, but
simply on account of carelessness or inefficiency of the guardian and insufficient means available to the court
to dig deep in the matter and find out the truth. In the proceedings initiated by the guardian who wants the
transaction to be effected,ex parte statements are made, the court has ordinarily no adequate machinery to
enquire into the truth or otherwise of those statements.1

This seems to be the reason why Kania, J., said that the alienee is not absolved of his responsibility of making
independent enquiry. This also seems to be the reason why Ramesam and Spencer, JJ.,2 and the Chief
Justice in the Full Bench,3 said that the burden of proof is shifted on to the minor. But in our submission in that
view it would render the provision ineffective. It would also be contrary to the interest of the child; if an alienee
would about under the apprehension that the transaction might still (i.e., after the sanction has been obtained)
be upset at any future time, the minor would never get adequate value for his property In our submission this is
another case which goes to show that adversary litigation method is not suited to a court which exercise
parental jurisdiction and whose uppermost concern is the welfare of the child than anything else. It is necessary
that the procedure should be less formal and more inquisitorial. The court should be assisted by the welfare
officers who can go and make an enquiry, if necessary, even at the spot.

In our submission the proposition may be formulated as under:

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(1) The alienee or lender may rest on the order of the guardian court authorizing a guardian to alienate the
property or to take loan.
(2) The order shall be conclusive as to all matters except the following:
(a) If the order was obtained by fraud, misrepresentation or some underhand dealing to which the
alienee was a party or of which he had notice.
(b) If there is any inherent defect in the exercise of jurisdiction.1
(c) If the order of the court was passed without making any enquiry.2
(d) If the alienee had knowledge of the non-existence of the necessity or he did not act bona fide.3

6. Appeal

An appeal lies to the High Court for refusing to accord sanction to an alienation proposed by the guardian,4 but
no appeal lies against the order sanctioning alienation.5 But a revision lies against such an order under section
48.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

* For Statement of Objects and Reasons, see Gazette of India, 1886, Pt. V, p. 77; for Report of the Select Committee,
see Gazette of India., 1890, Pt. V, p. 77; and for Debates in Council, see Gazette of India, 1886, Supplement, pp. 419
and 666, and Gazette of India, 1890, Pt.VI, pp. 33 and 45.
This Act has been declared to be in force in the Sonthal Parganas by the Sonthal Parganas Settlement Regulation (3 of
1872), sec. 3; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), Sec. 3 and Schedule;
and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), Sec. 3 and Schedule.
It has been declared not to be in force in the scheduled districts in Ganjam and Vizagapatam by notification under sec. 3(b)
of the Scheduled Districts Act, 1874 (14 of 1874), see Gazette of India, 1898, Pt. I, p. 872.
It has been extended to the portions of the partially excluded areas in the Madras State, in which the provisions of this Act
are not in force by the Madras (Partially Excluded Areas) Guardians and Wards Regulation, 1940 (Mad. Reg. 6 of
1940), to Berar by the Berar Laws Act, 1941 (4 of 1941).
It has also been extended, with modifications, to the district of Koraput by the Koraput Guardians and Wards Regulation,
1943 (Orissa Reg. 7 of 1943).
It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
1 Ordinarily the appellate court will not question the discretion of the trial court, unless the same is of a manifestly wrong
exercise of discretion.
2 See Balaji v. Firm Hiralal Ramgopal, AIR 1938 Nag 65 ; Watkins v. Dhummo, ILR (1881) 7 Cal 140 ; Vranson v.
Appasami, ILR 17 Mad 257; Venkatta v. Timmayya, ILR (1889) 22 Mad 314 ; Shyam Charan v. Chaudhary, ILR (1894)
21 Cal 827 ; Mohammed Ali v. Chinka, (1930) 123 IC 827; Hemraj v. Nathu, ILR (1935) 59 Bom 525 (FB). In Palani
Ammal v. Kothandrama, AIR 1944 Mad 91 [LNIND 1943 MAD 172]: ILR (1944) Mad 418, guardian has no power of
making a gift on the occasion of the marriage of a daughter of family. In In the matter of Lalitha, ILR (1961) Mad 95
[LNIND 1960 MAD 220], alienation for the marriage of the sister of minor was not allowed. But under section 68,
Contract Act, it has been held that the marriage of the minor, his sister or other dependents is a ‘necessary’ and loan
given for the purpose can be recovered from minor’s Property: Nandan Pd v. Ayydhiya, (1910) 5 IC 413 (FB); Yadorao
v. Chandra Das, AIR 1927 Nag 193 ; Rahim Bibi v. Sherifunddin, AIR 1947 Mad 155 [LNIND 1946 MAD 147];
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Valicharan v. Ramdas, AIR 1917 Pat 332 ; Annamalai v. Muthuswami, AIR 1939 Mad 38 ; Venkunthan v. Kallipiram,
ILR 23 Mad 512; But see, Tikkilal v. Kamal Chandra, AIR 1940 Nag 327 for a contrary view.
3 Rajballabh v. Bishunu Pd, AIR 1935 Pat 74 ; Nagammal v. Verada, AIR 1950 Mad 606 [LNIND 1949 MAD 326];
Dharamraj v. Chandra, (1942) Nag 214.
4 Anil Kumar Das v. Smt. Prabhavati Mishra, AIR 1940 Cal 532 ; Behari Lal v. Maikha, AIR 1960 Pat 271 ; Singh v.
Kharak, ILR (1928) 50 All 776, permission was refused for the sale of minor’s property for starting a new business.
5 Hemraj v. Nathu, ILR (1935) 59 Bom 525 (FB).
6 ILR 30 Bom 591.
7 Temmakkal v. Subbammal, (1864) 2 Mad HCR 47.
8 Sakthu v. Kappathammal, AIR 1960 Mad 394 [LNIND 1960 MAD 214].
9 Karim Khan v. Salamuddia, (1912) 13 IC 595 (Cal).
1 Karim Khan v. Salamuddia, (1912) 13 IC 595 (Cal).
2 (1918) 46 IC 665 (Cal).
3 See also Nagendra Nath v. Mohan Bose, AIR 1913 Cal 131 ; Govind Rao v. Rume Atmaram, AIR 1938 Nag 314 .
4 Gurdin v. Durgadeen, 54 IC 19 (Oudh). Surrender of ex-proprietary right amounts to alienation; AIR 1927 All 546 ; But
release of sub-soil rights is not an alienation of property; Jagdamba v. Anadinath, AIR 1938 Pat 337 .
5 AIR 1993 All 233 [LNIND 1992 ALL 318].
6 Ramdeen Singh v. Ram Sumer Singh, AIR 1925 Oudh 237 .
7 Chiranji Lal v. Syed Illias, AIR 1924 All 751 .
8 Ram Bhayan v. Matbar, AIR 1935 All 41 ; Mangal Kumar v. Sheo Saran, 98 IC 500.
9 Hirdotrya v. Shrinath, (1913) 11 IC 624.
10 Innatunnisa v. Jankidas, AIR 1918 Cal 827 ; Raghunath v. Dhanodhe Singh, AIR 1926 Oudh 169 ; Bhusan Chandra v.
Hiramony Roy, AIR 1957 Tripura 1 .
11 Sajjad Hussain v. Abdul Rahim, ILR 1915 Lah 356.
12 ILR 38 All 433.
1 Chittar Mal v. Jaganath, ILR 29 All 213.
2 Bishambar v. Sardari, AIR 1930 Lah 1017 .
3 Premsukhdas v. Lakshmi Tiwari, (1918) 46 IC 542.
4 Mansa Ram v. Ahmed, 31 IC 380; Tarini Kumar v. Srish Chandra, AIR 1925 Cal 1160 ; Ramdeo v. Sheonarayan AIR
1935 Pat 225 .
5 AIR 1939 Lah 118 .
6 AIR 1939 Lah 118 (120).
7 ILR 35 All 150.
8 AIR 1938 All 109 .
1 AIR 1954 Cal 463 [LNIND 1953 CAL 137].
2 Sikhar Chandra v. Dulpaty Singh, ILR (1879) 5 Cal 363 ; In the petition of Shrish Chandra, ILR 6 Cal 161.
3 AIR 1925 Cal 1160 .
4 AIR 1953 Assam 44 .
5 In re, Jagannathji Ramji, ILR (1893) 19 Bom 96 .
6 AIR 1934 Lah 1003 : ILR (1934) 15 Lah 630.
7 (1909) 2 IC 237 (Oudh).
8 AIR 1929 Oudh 354 .
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9 ILR 1915 Lah 356.

1 (1915) 29 IC 804.
2 Mahabir Das v. Janardhan Prasad, AIR 1928 Pat 543 ; Abbas Hussain v. Kiran Sastri, AIR 1942 Nag 12 ; Bhusan
Chandra v. Hiramony Roy, AIR 1957 Tripura 1 ; Nallaka Venkataswami v. Rangam Viranmma, AIR 1922 Mad 135
[LNIND 1921 MAD 175]; Prohlad Chandra v. Ram Saran, AIR 1924 Cal 420 ; Rameshwar v. Mst. Ridh Kuer, AIR 1925
Oudh 633 .
3 Rameshwar v. Ridh Kuer, AIR 1925 Oudh 633 and Mohanlal v. Sheikh, AIR 1926 Oudh 88 seem to take the view that
such an order is void.
4 Prohlad Chandra v. Ramsaran, AIR 1924 Cal 420 ; Dyan Khan v. Sarat Chandra, (1921) 26 CWN 363 and Sajjad
Hussain v. Abdul Rahim, ILR 1915 Lah 356, clearly take the view that it is merely voidable.
5 See also section 8(3), the Hindu Minority and Guardianship Act, 1956.
6 Ramadhin v. Dhanpat Singh, (1910) 5 IC 334; Ganga v. Maharani, ILR (1884) 11 Cal 379 (PC).
7 Or, the question may be posed: Is an order under section 29 permitting the guardian to alienate minor’s property
conclusive against the minor in the sense that the minor cannot impeach it subsequently? A Full Bench of the Madras
High Court posed the question thus: “Whether the existence of an order under section 31 of the Guardians and Wards
Act, 1890, granting leave to a guardian for alienating the property of the ward, is conclusive proof that the alienation
made in pursuance thereof is binding on the minor?”
1 Sikhar Chandra v. Dulpatty Singh, ILR (1879) 5 Cal 363 . However, certain observations in the case were interpreted to
give the decision a different meaning; Venkaswamy v. Viranna, AIR 1922 Mad 135 [LNIND 1921 MAD 175].
2 ILR (1884) 11 Cal 379 .
3 Jugal Kishore v. Anand, ILR 22 Cal 545; Jagandhu v. Haldhar, (1917) 41 IC 269; Prohlad Chandra v. Ramsaran, AIR
1924 Cal 420 .
4 Budho v. Sheocharan, AIR 1924 All 875 and Benaras Bank Ltd. v. Deep Chand, AIR 1936 All 172 .
5 AIR 1935 All 41 .
6 AIR 1919 Lah 391 .
7 Inder v. Piare, AIR 1927 Lah 665 ; Brij v. Alliance Bank, AIR 1936 Lah 946 .
8 Mahabir v. Jamuna, AIR 1928 Pat 543 .
9 Satihan v. Ganga, 49 IC 375.
10 Abnas v. Kiran, AIR 1942 Nag 12 .
11 AIR 1936 Bom 380 .
12 AIR 1938 Bom 234 .
13 (1932) ILR 36 Bom 519.
1 ILR (1879) 5 Cal 363 .
2 AIR 1922 Mad 135 [LNIND 1921 MAD 175].
3 AIR 1927 Mad 233 [LNIND 1926 MAD 228].
4 AIR 1962 Mad 267 [LNIND 1961 MAD 197](FB).
5 Hari Krishnan v. C.P. Jain, AIR 1962 Mad 267 [LNIND 1961 MAD 197](273).
1 In re, Dattatraya Govind Haldankar, (1932) ILR 36 Bom 519.
2 Nallaka Venkataswami v. Rugam Viranna, AIR 1922 Mad 135 [LNIND 1921 MAD 175].
3 Harikrishna v. C.P. Jain, Temple, AIR 1962 Mad 267 [LNIND 1961 MAD 197].
1 Commissioner of Wakf v. Mashin, AIR 1945 Cal 463, has suggested this exception.
2 This will not be much hardship to the alienee. He can inspect the record of the case and find out what is what. This
exception does not suggest that the alienee should conduct independent enquiry. This exception is suggested because
enquiry and the need are the very basis of the order.
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3 Raj Mishra v. Bishan Pd. Singh, AIR 1935 Pat 74 ; if the alianee already knew that there was no necessity or advantage
of the minor, then sanction will not protect him.
4 Section 47(2).
5 Sikhir Chand v. Dulputty, ILR (1879) 5 Cal 367 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER III DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
The chapter under the title, “Duties, Rights and Liabilities of Guardian’s has four sub-heads. First, with the
title “General”, contains four sections, from 20 to 23, and deals with four miscellaneous matters, viz., (i)
guardian’ relationship with the ward is fiduciary, (ii) capacity of minor to act as guardian, (iii) remuneration of
guardian, and (iv) control of Collector as guardian.
The second part with the title “Guardian of the Person” contains three sections, from 24 to 26, dealing with (a)
duties of guardian of the person, (b) guardian’s title to custody of the minor, and (c) removal of the child out of
jurisdiction by the guardian.
The third part, with the title “Guardian of Property”, has 12 sections, from 27 to 37, dealing with (i) duties of guardian
of property, (ii) power of testamentary guardian, (iii) limitations of powers of the certificated guardian of property, (iv)
the nature of transfers of property of minor made in contravention of section 28 or section 29, (v) practice with
respect to permitting transfers under section 29, (vi) variations of powers of certificated guardian of minor’s
property, (vii) certificated guardian’s right to seek court’s opinion or direction regarding management of minor’s
property, (viii) obligations of the certificated guardian of minor’s property, (ix) guardian court’s power to award
remuneration to the auditor, (x) suit against guardian when administrative bond is taken, (xi) suit against guardian
when no administrative bond was taken, and (xii) general liability of guardian as trustee.
The fourth part with the title “Termination of Guardianship” contains five sections, dealing with (a) right of
survivorship among joint guardians, (b) removal of guardian, (c) discharge of guardian, (d) cessation of authority of
guardian, and (e) Appointment of successor to the guardian who has died, or has been discharged or removed.
GUARDIAN OF PROPERTY
Unlike the natural guardian, the certificated guardian is, from the date of his appointment, under the supervision,
guidance and control of the court. Sections 27, 29, 31, 32, and 33 of the Guardians and Wards Act, 1890, related to
the powers of the guardian of property appointed by the court.
Section 27, the Guardians and Wards Act, lays down in general terms the power and obligations of the guardian of
property. The ambit of his powers is limited by the rule that the guardian should deal with the property of the minor
in the same way as a man of ordinary prudence deal with his own property. Just as a prudent person deals with his
property carefully so should the guardian, and within that limit and subject to certain specific limitation laid down in
the Act, he has the authority to do all things necessary for the realization, protection and benefit of the property.
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30. Voidability of transfers made in contravention of section 28 or section

29.—
A disposal of immovable property by a guardian in contravention of either of the two last foregoing sections is
voidable at the instance of any other person affected thereby.

Comments

1. Scope

This section lays down that whenever an alienation is made in contravention to the provisions of section 28
(alienation by testamentary guardian) or section 29 (alienation by certificated guardian) such alienation is
voidable.
2. Alienation Voidable at the Instance of the Minor or any other Person Affected thereby

Interpreting the provisions of this section, our High Courts have taken the view that an alienation made by
certificated guardian without the sanction of the court, is voidable at the instance of the minor1 or any other
person affected thereby.2

An alienation which is not in conformity with the sanction accorded by the court is not valid; such an alienation
is voidable,3 though some cases take the view that such an alienation is null and void.4 The latter view is not
shared by a majority of High Courts and is obviously correct.5

Once it is shown that the alienation was without or in contravention of the sanction of the court, the minor has
the right to avoid it, and if he chooses to do so; and it is immaterial that the alienation was for the benefit of the
minor.6 The court will not even go into that question.7

A minor can avoid an alienation made without or in contravention of the sanction of the court by a suit.1 But it
may be as well-repudiated by the minor. The Calcutta High Court said that a transaction which is voidable at
the instance of the minor might be repudiated by an act or omission on the part of the minor and that it is not
necessary for him to bring a suit. Therefore, the minor’s failure to institute a suit within three years of his
attaining majority cannot ipso facto perfect the title of the alienee.2 But in every case where the minor chooses
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to avoid a transaction it is necessary that he should communicate the same to the alienee.3 This may be
expressed by way of defence when an action is brought to enforce the transaction against him.4
3. Is it Necessary that Minor should File a Suit to Avoid an Improper Alienation or can he Repudiate it
without Filing a Suit?

This matter has been discussed in note 19 of our commentary on section 8 of the Hindu Minority and
Guardianship Act, 1956, in Part II of this work reference may be made to the same.
4. Aftermath of Avoidance of Improper Alienation

When an improper alienation (whether under section 28 or section 29) is avoided two questions arise:

(a) Is the minor entitled to mesne profit, and

(b) Is the alienee entitled to restitution of benefits which the minor has derived under the impugned
transaction?

A voidable transaction is valid till it is avoided, and therefore the question of mesne profits can arise only from
the date when the transaction is repudiated. If the transaction is repudiated by filing a suit, the minor would be
entitled to mesne profits from the date of the suit.5 In Suraj Rajan v. Prem Chandra,6 the court said that in no
circumstances the minor can recover mesne profits for more than three years before the suit, as remedy would
be barred under Article 109, the Limitation Act.7Mesne profits are an equitable remedy, therefore the court has
a discretion to award them from the date of repudiation or from the date of the filing of the suit.

The next question is: Can a minor retain the advantage under a transaction and repudiate it at the same time?

Section 33 of the Act of 1963, the Specific Relief Act provides that when the court sets aside a transaction it
has discretion to order restitution. The remedy does not arise out of the contract. The Calcutta High Court said
that nothing could be ‘more unjust than to permit a person to sell a tract of land and take the purchase money,
and then, because the sale happens to be informal and void, to allow him to recover back the land and keep the
money.1 The remedy of restitution is based on the principle: one who seeks equity must do equity.

The Allahabad High Court in Nurbux v. Ruikum Singh,2 said that where the amount for which hypothecation
was made was received for the benefit of the minor, he could not avoid it without making restitution of the
money by which he had benefited.3 In Mausaradas v. Ahmed,4 the court said that the minor could avoid the
transaction only on restoration of the benefit actually received by the minor, but then it is for the alienee to show
to what extent the money so raised was applied for the benefit of the minor or his estate.5 This is also the view
of other High Courts.6

But, if the minor has not received any benefit under the impugned transaction, the question of restitution does
not arise.7 Similarly, if alienee has been in possession of the property for a considerably long period, the court
may not grant restitution.8 Further, restitution can be granted only if there exists an obligation to pay. Their
Lordships of the Privy Council said:

It is not in every case in which a man has benefited by the money of another that an obligation to repay the money
arises. The question is not to be determined by the nice considerations of what may be fair or proper according to the
highest morality. To support such a suit, there must be an obligation, express or implied, to repay. It is well-settled that
there is no such obligation in the case of a voluntary payment by A of B’s debt. Still less will the action lie when money
has been paid, as here, against the will of the party for whose use it is supposed to have been paid.9

In Nathu Pirji v. Balwant Rao,10 the alienee paid the debts of the mother and later on she sold the properties of
her son. On the suit of the son to set aside the sale, the court said that the alienee was not entitled to any
restitution.

A view has been taken that restitution can be granted against the minor only when he is a plaintiff, but if he is a
defendant no restitution can be granted.1 In Sultan Singh v. Hasmat Ullah,2 the Punjab Chief Court said, ‘if
however, the minor or quondam minor is the beatus possideus and is being used by the other party, ordinarily,
according to authorities, a claim against the minor for refund of the benefit would fail! The question was
considered by a Full Bench of the Lahore High Court,3 and Sir Shadi Lal, J., said that it is difficult to understand
why the granting of an equitable remedy should depend upon a mere accident, namely whether it is the minor
or his adversary who has taken the initiative in bringing the transaction before the court. The learned Judge
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said: “The equitable jurisdiction of the court to order restitution rests purely upon the principle of justice and that
principle is no more applicable to a case in which he is defendant.”

As to section 33 of the Specific Relief Act which provide that restitution can be granted when the minor seeks to
avoid the transaction as a plaintiff, his Lordship said that the doctrine was not based thereon alone, but on the
equitable principle that no one can be permitted to take advantage of his fraud.

In its origin the doctrine of restitution is based on the principle that a person guilty of fraud cannot reap
advantage of his own fraud. But in its extension in the modern law, it applies to all cases, where a person has
benefited under an invalid transaction. When a person avoids a transaction he must return all benefits received
under it. In the modern law it is sometimes called the principle of unjust enrichment. In our submission, the
minor may be asked to restore benefit whenever he avoids a transaction, and it is immaterial whether he is a
plaintiff or defendant in the suit, though whether to grant or not to grant restitution in a given case is in the
discretion of the court.
5. Liability of the Guardian

The guardian of the minor is not liable if an improper alienation is set aside unless he has entered into personal
covenants binding on him. Apart from the personal covenants, the guardian is not liable when alienee is
deprived of whole or part of the property as a consequence of minor’s avoiding the alienation made without the
sanction of the court.4
6. Limitation

When an alienation of minor’s property is void such as when made by an unauthorised person, the period of
limitation for recovery of possession is 12 years.5 When an alienation is voidable, such as when it is made by a
certificated guardian without the sanction of the court, the period of limitation is three years,6 from the date of
minor’s attaining majority. If the minor fails to do so, his right stands extinguished by operation of section 28, the
Limitation Act, 1964.1 The position of the assignee from a quondam minor is the same.2

On the question of limitation, there is some controversy on the matter for which reference may please be made
to para 20 of our commentary on section 8 of the Hindu Minority and Guardianship Act in Part II of this work.
7. Appeal

An order passed under this section is not appealable.3

8. Adverse possession

When de facto guardian makes a sale of minor’s property, the possession of the purchaser would become
adverse from the dates he gets into possession.4 But the possession of a guardian, even of a de facto guardian
or of his mortgagee as a derivative owner cannot be legally deemed to be adverse to the minor

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
1 Madan v. Rangilal, ILR (1901) 23 All 288 ; Nurbaksh v. Rukum Singh, (1911) 11 IC 764; Jitan v. Namko, AIR 1922 All
45 ; Chiranji Lal v. Syed Illias, AIR 1924 All 751 ; Ram Chari Her Misir v. Suraj Teli, AIR 1932 All 108 ; Narsingacharya
v. Tulsobai, AIR 1925 Bom 287 ; Karim v. Salamuddin, (1912) 13 IC 594; Kanok v. Shrihari, 52 IC 260; Etawaria v.
Chandra, 10 CWN 763; Prohlad Chandra v. Ramsaran, AIR 1924 Cal 420 ; Solema v. Hafez, AIR 1927 Cal 836 ;
Sinaya Pillai v. Munisami, ILR 22 Mad 289; Sivaanmalai v. Arunachela, AIR 1938 Mad 822 [LNIND 1938 MAD 66];
Jagdamba v. Anandi, AIR 1938 Pat 337 .
2 Dasram v. Tirath, AIR 1924 Cal 481 (reversioner can avoid); Dattaram v. Gangaram, AIR 1921 Bom 212 ; Filan v.
Mumko, AIR 1922 All 95 (FB) (Tenant); Lalji v. Chetram, 7 PR 1914 (a tenant is not such a person but see Lachhi v.
Baldeo, AIR 1923 All 14 ).
3 See also Kunjamal v. Gauri Shankar, 3 ALJ 30; Thakore v. Duleyam, AIR 1924 All 474 ; Rambhayan v. Matbar Singh,
AIR 1935 All 41 ; Dataram v. Gangaram, AIR 1921 Bom 212 ; Haridoyatra v. Srinath, 19 IC 634; Raj Lakhi v. Devendra,
ILR 24 Cal 668; Innatunnisa v. Jankinath, AIR 1928 Cal 827 ; Labh Singh v. Shabhan, AIR 1926 Lah 289 ; Abbas v.
Kiran, AIR 1942 Nag 12 ; Ramdhin v. Ram Sumer, AIR 1925 Oudh 237 ; Raghunath v. Domle, AIR 1926 Oudh 196 ;
Abdul Raheen v. Abdul Hussein, AIR 1928 Sind 101 ; Bushan Chandra Dele v. Hiramony Roy, AIR 1957 Tripura 1 .
4 Mohanlal v. Shek Mohd. Ali, AIR 1926 Oudh 88 ; Rameshwar v. Ridh, AIR 1925 Oudh 633 .
5 Narsingh v. Tulsa, AIR 1925 Bom 320 ; Charitter v. Suraj, AIR 1932 All 108 .
6 Karim v. Salamuddin, 12 IC 594; Sinaya Pillai v. Munusami, ILR 22 Mad 280; Rameshwar v. Ridh, AIR 1925 Oudh 633
; Raghunath v. Dhandhe, 1926 Oudh 169; Shiblal v. Shamdas, 47 IC 353; Bushan Chandra Dele v. Hiramony Roy, AIR
1957 Tripura 1 .
7 Mohanlal v. Shek Mohd. Ali, AIR 1926 Oudh 88 .
1 Gulam v. Ayesha, AIR 1941 Mad 481 ; Jagdamba v. Anandinath, AIR 1938 Pat 337 .
2 Lalit Kumar v. Nagendranath, AIR 1940 Cal 589 .
3 Madan Gopal v. Rangi Lal, ILR 23 All 288.
4 Jai Narayan v. Lal, AIR 1938 All 369 ; Bhusan Chandra v. Hiramony Roy, AIR 1957 Tripura 1 ; Nar Singh v. Suraj
Singh, (1919) 52 IC 137; Muthukarama v. Anthony, AIR 1915 Mad 296 [LNIND 1914 MAD 30]; Sivaanmalai v.
Arunachela, AIR 1938 Mad 822 [LNIND 1938 MAD 66]; Eastern Mortgage and Agency Co. v. Rebti Kumar, 3 CLJ 260;
Hem Chandra v. Lalit Mohan, 14 IC 515.
5 Devichilai v. Raghupati, AIR 1926 Mad 46 [LNIND 1925 MAD 47]; Brighu Chandra v. Narsingh, ILR (1916) 34 All 61 ;
Bijoy v. Krishna, AIR 1970 Cal 329 ; Subha Goundon v. Krishmachari, (1921) 45 MLJ 449.
6 AIR 1918 Cal 360 .
7 Das J., mesne profits can be claimed from the date on which the alienee was put into possession.
1 Eastern Mortgage Agency Co. v. Rebti Kumar Rey, 3 CLJ 260.
2 (1911) 11 IC 764.
3 Maksud v. Shek Abdulla, AIR 1928 All 77 ; Girraj v. Kadi Hamid, ILR 9 All 340; Tejpal v. Ganga, (1902) 25 All 59; Jai v.
Bachoo Lal, AIR 1938 All 369 ; Hemchandra v. Lalit, 16 CLJ 537; Mansaram v. Ahmed, 21 CWN 63; Dwejendra Mohan
v. Manorama, AIR 1922 Cal 159 ; Prohlad Chandra v. Ramsaran, AIR 1924 Cal 420 .
4 (1917) 37 IC 380.
5 Laljit v. Nagendra, AIR 1940 Cal 589 ; Nagendra v. Mohani, AIR 1931 Cal 131 ; Raj Lakhi v. Devendra, ILR 24 Cal 668.
6 Sultan Singh v. Hasmat Ullah, ILR 1915 Lah 356 : 29 IC 884; Md. Ismail v. Gauri, AIR 1916 Lah 285 ; Sinaya Pillai v.
Munsiram Ayyar, ILR (1899) 22 Mad 289 ; Pursotam Singh v. Nazir, (1920) 54 IC 846; Abbas Hussain v. Kiran Shastri,
1942 Nag 12; Bhusan Chandra v. Hiramony Roy, AIR 1957 Tripura 1 .
7 Chiranji Lal v. Syed, AIR 1924 Mad 751 ; Venkatarama v. Sohbhabdri, ILR 59 Mad 39 (PC).
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8 Ghanghatta v. Asumal, 17 IC 371; Purshotam v. Nazir, 54 IC 846; Md. Anwar v. Jhanda Singh, AIR 1922 Oudh 271 .
9 Ram Tuhul Singh v. Bishewar Lal Sahoo, (1875) 2 IA 131.
10 (1903) 27 Bom 390.
1 Nazamuddin Shah v. Anand Prasad, ILR 18 All 373.
2 ILR 1915 Lah 356 : 29 IC 884.
3 Khan Gul v. Lakhsingh, AIR 1928 Lah 609 .
4 Maida v. Krishna Bahadur, AIR 1934 All 645 .
5 Article 65, the Limitation Act.
6 Article 60, the Limitation Act.
1 R.B. Mishra v. State of Bihar, AIR 1983 Pat 250 .
2 Nathu v. Thakur, AIR 1931 Oudh 122 .
3 Lachmi Prasad v. Baldeo, AIR 1923 All 14 .
4 Sorimotthu v. Perumal, AIR 1930 Mad 708 [LNIND 1929 MAD 184].

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER III DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
The chapter under the title, “Duties, Rights and Liabilities of Guardian’s has four sub-heads. First, with the
title “General”, contains four sections, from 20 to 23, and deals with four miscellaneous matters, viz., (i)
guardian’ relationship with the ward is fiduciary, (ii) capacity of minor to act as guardian, (iii) remuneration of
guardian, and (iv) control of Collector as guardian.
The second part with the title “Guardian of the Person” contains three sections, from 24 to 26, dealing with (a)
duties of guardian of the person, (b) guardian’s title to custody of the minor, and (c) removal of the child out of
jurisdiction by the guardian.
The third part, with the title “Guardian of Property”, has 12 sections, from 27 to 37, dealing with (i) duties of guardian
of property, (ii) power of testamentary guardian, (iii) limitations of powers of the certificated guardian of property, (iv)
the nature of transfers of property of minor made in contravention of section 28 or section 29, (v) practice with
respect to permitting transfers under section 29, (vi) variations of powers of certificated guardian of minor’s
property, (vii) certificated guardian’s right to seek court’s opinion or direction regarding management of minor’s
property, (viii) obligations of the certificated guardian of minor’s property, (ix) guardian court’s power to award
remuneration to the auditor, (x) suit against guardian when administrative bond is taken, (xi) suit against guardian
when no administrative bond was taken, and (xii) general liability of guardian as trustee.
The fourth part with the title “Termination of Guardianship” contains five sections, dealing with (a) right of
survivorship among joint guardians, (b) removal of guardian, (c) discharge of guardian, (d) cessation of authority of
guardian, and (e) Appointment of successor to the guardian who has died, or has been discharged or removed.
GUARDIAN OF PROPERTY
Unlike the natural guardian, the certificated guardian is, from the date of his appointment, under the supervision,
guidance and control of the court. Sections 27, 29, 31, 32, and 33 of the Guardians and Wards Act, 1890, related to
the powers of the guardian of property appointed by the court.
Section 27, the Guardians and Wards Act, lays down in general terms the power and obligations of the guardian of
property. The ambit of his powers is limited by the rule that the guardian should deal with the property of the minor
in the same way as a man of ordinary prudence deal with his own property. Just as a prudent person deals with his
property carefully so should the guardian, and within that limit and subject to certain specific limitation laid down in
the Act, he has the authority to do all things necessary for the realization, protection and benefit of the property.
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31. Practice with respect to permitting transfers under section 29.—

(1) Permission to the guardian to do any of the acts mentioned in section 29 shall not be granted by the
Court except in case of necessity or for an evident advantage to the ward.
(2) The order granting the permission shall recite the necessity or advantage, as the case may be,
describe the property with respect to which the act permitted is to be done, and specify such
conditions, if any, as the Court may see fit to attach to the permission; and it shall be recorded, dated
and signed by the Judge of the Court with his own hand, or, when from any cause he is prevented from
recording the order with his own hand, shall be taken down in writing from his dictation and be dated
and signed by him.
(3) The Court may in its discretion attach to the permission the following among other conditions,
namely:—
(a) that a sale shall not be completed without the sanction of the Court;
(b) that a sale shall be made to the highest bidder by public auction before the Court or some person
specially appointed by the Court for that purpose, at a time and place to be specified by the Court,
after such proclamation of the intended sale as the Court subject to any rules made under this Act
by the High Court, directs;
(c) that a lease shall not be made in consideration of a premium or shall be made for such term of
years and subject to such rents and covenants as the Court directs;
(d) that the whole or any part of the proceeds of the act permitted shall be paid into the Court by the
guardian, to be disbursed therefrom or to be invested by the Court on prescribed securities or to be
otherwise disposed of as the Court directs.
(4) Before granting permission to a guardian to do an act mentioned in section 29, the Court may cause
notice of the application for the permission to be given to any relative or friend of the ward who should,
in its opinion, receive notice thereof, and shall hear and record the statement of any person who
appears in opposition to the application.

Comments
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1. Scope

Section 29 lays down that alienation of minor’s property cannot be made without the sanction of the court. This
section lays down the procedure for granting sanction. Sub-section (1) of this section lays down that no such
permission should be granted unless the proposed alienation is for “necessity” or “evident advantage” of the
minor. Sub-section (2) lays down that the court granting the permission should recite in the order “the
necessity” or “advantage”. That would accrue to the minor by the proposed alienations. The order should also
describe the property in respect of any, attached therewith. The order should be dated, recorded and signed by
the judge himself. In case he is not able to write the order himself, then it may be taken down in writing from his
dictation and signed.

Sub-section (3) empowers the guardian to lay down any condition mentioned in its clauses (a) to (d). The court
has power to impose any other conditions, as the opening words of the sub-section lay down that court may in
its discretion attach to permission the following among other conditions.

Sub-section (4) lays down that before according permission for the proposed alienation the court should serve
notice of the application on any relative or friend of the minor and in case they appear before it, should record
their statements and hear.
2. ‘Necessity’ and ‘Evident Advantage’

We have discussed the meaning of the terms “necessity” and “evident advantage” in note 2 of our commentary
on section 29.

Whether or not the proposed alienation is for “necessity” or for the “evident advantage” has to be ascertained
by the court after making due inquiry. The court is bound to look into the circumstances and facts of each case,
such as whether the proposed alienation would be for benefit of the minor.1 The decisions holding that it is not
essential on the part of the court to make an inquiry do not represent good law.2 In our submission the guardian
court before whom application for permission for alienation of minor’s property is made should satisfy itself on
the following two grounds:3

(a) The proposed alienation is necessary or for the evident advantage of the minor, and
(b) The alienation is for the benefit of the minor.

In Sajjad Hussain v. Abdul Rahim,4 the Oudh Chief Court held that if the court had concluded a good bargain,
the permission would not be vitiated even if no proper inquiry was made by the court. In Prohlad Chandra v.
Ramsaran,5 the Calcutta High Court held that sanction for an alienation given by the guardian court renders it
merely voidable and the minor wishing to avoid it would have to show that alienation was not for his benefit.
3. Sub-section (2): Contents of the Order

This sub-section lays down that the order sanctioning alienation should contain the following:

(a) It should recite the necessity or evident advantage to the minor.

(b) It should contain the description of the property proposed to be alienated.
(c) It should specify such condition, if any, as the court may see fit to attach for the permission, and
(d) It should be recorded, dated and signed by the guardian judge in his own hands, or when from any
cause he is prevented from doing, it shall be taken down in writing from his dictation and be dated and
signed by him.

It has been held that these conditions are mandatory. An order which contains no such recital cannot be
construed to comply with the requirements of section 31(2) merely because it is endorsed upon an application
specifying the alleged necessity and therefore, such an order does not constitute valid permission.1 Similarly,
an order sanctioning sale of property is defective, if it does not specify the property to be sold.2 So also an
endorsement with the word ‘approved’ on a draft sale deed by the guardian court does not amount to
permission to sell.3 In Bhushan Chandra v. Hiranmony,4 the court said that mere endorsement on the back of
the application with the word, ‘permitted’ is not sufficient compliance with the provision, but such an order is not
a nullity though there is a material irregularity. The Calcutta High Court, on the other hand, said that such an
endorsement means that the court adopts the reasons given in the application.5 The Lahore High Court said
that if after due enquiry the court sanctions an alienation, then this amounts to sufficient compliance with the
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sanction, even if the order does not recite the necessity or advantage.6 The Madras High Court takes the view
that the order must comply with the sub-section and must recite necessity and other matter mentioned in the
section.7

It has been held that mere omission to mention the rate of interest is not material irregularity.8 The Allahabad
High Court said that if the rate of interest is not specified, the lender would be ordinarily entitled to a reasonable
rate of interest.9 But once the rate of interest is fixed by the court, its reasonability cannot be challenged by the
minor.10
4. Sub-section (3): Consequence of Non-compliance with the sub-section

The question here is thus: Is an order of the guardian court which does not substantially comply with the
requirement of the sub-section, a nullity or merely voidable? Our courts have rendered some conflicting
judgments. The Madras High Court and the Oudh Judicial Commissioner’s Court, in a majority of cases, take
the view that such an order is nullity. Greeven and Piggot, A.C.J., opined that ‘such an order cannot constitute a
valid permission.11 However, Wazi Hasan, J., and Neave, A.C.J., took a contrary view in Rameshwar v. Ridh
Kuer.12 The learned Judges said that such an order is not nullity, at best it amounts to an irregularity:
“Obviously the transferee cannot be made to suffer for defects of procedure; for his protection the order of the
court is sufficient.”

The Madras High Court said that such an order is only prima facie evidence that the transaction is a good one,
but does not cure any inherent defect that may exist in it; the minor may at any future time show that it was
fraudulent and improper and not for his benefit, but the burden would be on him to show that it was so.1

The Calcutta High Court said that an order which did not recite necessity was valid, if the application and
affidavits on the basis of which the order was made set out necessity clearly; in such a case it would be
presumed that the court adopted statements contained in the application and affidavit as to necessity or
benefit.2 Most of the High Courts take this view.3

In our submission the crux of the matter is that before according permission for any proposed alienation, due
enquiry should be made by the court and if the court makes a due enquiry, the mere formal non-compliance
with section 32(2) is immaterial. At any rate a transaction which results from such a sanction can at best be
voidable.
5. Sub-section (3): Condition that may be Attached with the Permission

Sub-section (3) empowers the court to attach to the order permitting alienation the following other conditions

(a) that a sale shall not be completed without the sanction of the court;
(b) that a sale shall be made to the highest bidder by public auction, before the court or some person
specially appointed by the court for that purpose, at a time and place to be specified by the court, after
such proclamation of the intended sale as the court, subject to any rules made under this Act by the
High Court, directs;
(c) that a lease shall not be made in consideration of a premium or shall be made for such term of years
and subject to such rents and covenants as the court directs;
(d) that the whole or any part of the proceeds of the act permitted shall be paid into the court by the
guardian to be disbursed therefrom or to be invested by the court on prescribed securities or to be
otherwise disposed of as the court directs.

Can an alienee disregard those conditions imposed by the court which are impossible of performance? The
Allahabad High Court said that in such a case the alienee should go to the guardian court and say that under
the conditions imposed he could not take the transfer. But it is not open to him to say that since the conditions
laid down are incapable of performance he would take the transfer without conditions. It is upon the guardian
court to vary or not to vary the conditions.1

Conditions imposed by the guardian court may be: (a) condition precedent, or (b) condition subsequent.

In Dhyam Khan v. Sarath Chandra,2 the guardian court empowered the guardian of a minor to sell certain
properties of the minor for the discharge of certain debts, and directed him to put the bonds (under which debt
was taken) before the court with due endorsement of the creditor as their being discharged. This condition was
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not complied with. The Calcutta High Court said such a condition was a condition subsequent and it could not
vitiate the transaction. It was merely for the satisfaction of the court. In Vinayak v. Santha Bai,3 the guardian
court authorised the guardian to mortgage certain payments on behalf of the minor and to deposit the balance
in the court. The alienation being challenged on the ground of condition not complied with. Nassooden and
Thakor, J.J., said that the lender was not bound to go behind the order, was entitled to rely on it, and if he acted
bona fide, he was not bound to see to the application of money or any part of it; condition being merely
subsequent, the transferee is not affected.

In Subhan Ali v. Chhitu,4 the order granting permission to sell was as follows: “Permission is granted as prayed
for on condition that the proof of payment of decretal debt be filed.” No proof being filed the court revoked the
sanction. Subsequently, the guardian submitted the proof and prayed that the revocation be set aside. The
application was rejected. The minors on attaining majority challenged the sale on ground of revocation. The
Allahabad High Court said that the order sanctioning the transfer has been strictly complied with by the
guardian up to the time of the execution of the deed of transfer and that no condition precedent has been
violated. If by the order sanctioning the transfer the guardian and not the transferee is directed to do certain
acts after the execution of the deed of transfer, the failure of the guardian to comply with that direction cannot
affect the validity of the transfer.

In Raghunath v. Dhande Singh,5 the permission ran as under:

Permission to sell half of Mauza Pilkhanwan to pay off the mortgage debt of her late husband is granted. Draft-sale-
deed will be filed for the approval of the court.” Since no draft-sale-deed was presented for approval, the alienation was
challenged. On account of difference of opinion between the judges constituting the Bench, the case was referred to a
Full Bench which said that the condition being a condition precedent, the non-compliance with it rendered the
transaction invalid.

Thus it seems that violation of condition precedent vitiates the alienation, but violation of condition subsequent
does not affect alienation.
6. Sub-section (4): Notice of Application to Relatives and Friend

This sub-section requires that when a certificated guardian makes an application to the guardian court for
permission to alienate minor’s property, notice of such application should be made to the relatives and friends
of the minor. Sub-section further lays down that court would hear and record the statement of any person who
opposes the application. Thus ‘any person’ need not be a relative of a minor. It can be any person who
proposes to oppose the application.1 In Rajah Venugopal v. Kadirveluswami,1 the person who opposed the
guardian had entered into a contract with him to grant a prospecting and mining lease of minor’s land. The court
held that he is entitled to be heard by the guardian court, even though he is neither a relative nor a friend of the
minor.
7. No Appeal but Revision

An order passed under this section is not subject to appeal, though a revision may be filed.2

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

It has been extended to the portions of the partially excluded areas in the Madras State, in which the provisions of this Act
are not in force by the Madras (Partially Excluded Areas) Guardians and Wards Regulation, 1940 (Mad. Reg. 6 of
1940), to Berar by the Berar Laws Act, 1941 (4 of 1941).
It has also been extended, with modifications, to the district of Koraput by the Koraput Guardians and Wards Regulation,
1943 (Orissa Reg. 7 of 1943).
It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
1 There is a long line of cases. Some may be noted: In Re, Suresh Chandra, ILR (1880) 6 Cal 161 ; Budhoo v. Seo
Charan, AIR 1924 All 875 ; Raman v. Tirugnanambandhan, AIR 1927 Mad 233 [LNIND 1926 MAD 228]; Sakthi v.
Kuppa Thammal, AIR 1960 Mad 394 [LNIND 1960 MAD 214]; Mahabir v. Jamuna, AIR 1928 Pat 543 .
2 Sundar Lal v. Gursaran, AIR 1938 Oudh 65 .
3 Raman Chettier v. Tirugunsubramanyam Pillai, AIR 1927 Mad 233 [LNIND 1926 MAD 228]: ILR (1927) 50 Mad 217;
Budhoo v. Seo Charan, AIR 1924 All 875 .
4 ILR 1915 Lah 356.
5 AIR 1924 Cal 420 .
1 Gopal v. Mehtab, (1909) 2 IC 237.
2 Ramadhin v. Ram Sumer, AIR 1955 Oudh 287 .
3 Mohan Lal v. Sheikh, AIR 1925 Oudh 88 ; Sultan Singh v. Hasmat Ullah, ILR 1915 Lah 356 : 29 IC 884.
4 AIR 1957 Tripura 1 ; see also, Sarat v. Dharamram, AIR 1952 Assam 44 ; Inder v. Piara, AIR 1927 Lah 665 ;
Rameshwar v. Ridh Kuer, AIR 1925 Oudh 633 .
5 Rameshwar Singh Bahadur v. Dhanpat Singh, (1910) 5 IC 334.
6 Inder Singh v. Piara Singh, AIR 1927 Lah 665 .
7 Vallakavenkataswami v. Raganviranama, AIR 1922 Mad 135 [LNIND 1921 MAD 175]; Raman Chettier v.
Tirugunsubramanyam Pillai, AIR 1927 Mad 233 [LNIND 1926 MAD 228].
8 Mohammed Ismail v. Gansi Pd., (1916) 34 IC 907.
9 Thakar v. Ganpat, AIR (1908) 30 All 188 ; see also Ganga v. Maharani, ILR 11 Cal 379 (PC); Mansaram v. Ahmed
Hussain, 21 CWN 63.
10 Mata Bakhash v. Patraj Kumar, AIR 1930 Oudh 55 .
11 Gopal v. Mehtab, (1909) 2 IC 237; This was followed in Bankey v. Swami, (1920) 56 IC 328; and Ramdhin v. Ram
Sumer, AIR 1925 Oudh 237 .
12 AIR 1925 Oudh 633 .
1 Nallaka Venkataswami v. Rangam Viranmma, AIR 1922 Mad 135 [LNIND 1921 MAD 175].
2 Rameshwar Singh Bahadur v. Dhanpal Singh, (1910) 5 IC 334.
3 Budhoo v. Sheocharan, AIR 1924 All 875 ; Thakar v. Ganpati, AIR 1908 All 188 ; Indersingh v. Piara Singh, AIR 1927
Lah 665 ; Balaji v. Sadashive, AIR 1936 Bom 389 ; Mohabir v. Jamuna, AIR 1928 Pat 543 ; Bhusan Chandra v.
Hiramony Roy, AIR 1957 Tripura 1 .
1 Kishori Ramanji v. Duley Ram, AIR 1924 All 474 .
2 26 CWN 218.
3 AIR 1938 Bom 234 .
4 AIR 1927 All 631 .
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5 1926 Oudh 169.

1 Rajah Venugopal v. Kadir Veluswami, ILR (1911) 35 Mad 743 .
2 In the matter of Durgabai, AIR 1926 All 301 ; Jamnabai v. Gopal Das, AIR 1928 Nag 291 ; Ramjas v. Chani Ram, AIR
1923 Lah 89 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER III DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
The chapter under the title, “Duties, Rights and Liabilities of Guardian’s has four sub-heads. First, with the
title “General”, contains four sections, from 20 to 23, and deals with four miscellaneous matters, viz., (i)
guardian’ relationship with the ward is fiduciary, (ii) capacity of minor to act as guardian, (iii) remuneration of
guardian, and (iv) control of Collector as guardian.
The second part with the title “Guardian of the Person” contains three sections, from 24 to 26, dealing with (a)
duties of guardian of the person, (b) guardian’s title to custody of the minor, and (c) removal of the child out of
jurisdiction by the guardian.
The third part, with the title “Guardian of Property”, has 12 sections, from 27 to 37, dealing with (i) duties of guardian
of property, (ii) power of testamentary guardian, (iii) limitations of powers of the certificated guardian of property, (iv)
the nature of transfers of property of minor made in contravention of section 28 or section 29, (v) practice with
respect to permitting transfers under section 29, (vi) variations of powers of certificated guardian of minor’s
property, (vii) certificated guardian’s right to seek court’s opinion or direction regarding management of minor’s
property, (viii) obligations of the certificated guardian of minor’s property, (ix) guardian court’s power to award
remuneration to the auditor, (x) suit against guardian when administrative bond is taken, (xi) suit against guardian
when no administrative bond was taken, and (xii) general liability of guardian as trustee.
The fourth part with the title “Termination of Guardianship” contains five sections, dealing with (a) right of
survivorship among joint guardians, (b) removal of guardian, (c) discharge of guardian, (d) cessation of authority of
guardian, and (e) Appointment of successor to the guardian who has died, or has been discharged or removed.
GUARDIAN OF PROPERTY
Unlike the natural guardian, the certificated guardian is, from the date of his appointment, under the supervision,
guidance and control of the court. Sections 27, 29, 31, 32, and 33 of the Guardians and Wards Act, 1890, related to
the powers of the guardian of property appointed by the court.
Section 27, the Guardians and Wards Act, lays down in general terms the power and obligations of the guardian of
property. The ambit of his powers is limited by the rule that the guardian should deal with the property of the minor
in the same way as a man of ordinary prudence deal with his own property. Just as a prudent person deals with his
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32. Variation of powers of guardian of property appointed or declared by the

Court.—
Where a guardian of the property of a ward has been appointed or declared by the Court and such guardian is
not the Collector, the Court may, from time to time, by order, define, restrict or extend his powers with respect
to the property of the ward in such manner and to such extent as it may consider to be for the advantage of the
ward and consistent with the law to which the ward is subject.

Comments

1. Scope

The moment a child is brought before the court, the court, as the supreme guardian of the child has large share
of responsibilities and obligations in respect to the child and his property. After the appointment of a guardian to
the person or property of the child, it may be that the court may not do anything actively or directly, but then it
has the final and ultimate say in the matter, and whenever it deems fit and necessary, it may intervene. Section
32 purports to do just that. After the appointment of a guardian, since the court usually acts through the
guardian, the court may under this section define, restrict, or enlarge the powers of the guardian whenever it
deems it necessary to do so.

This section applies to certificated guardian only. This section empowers the court to reconsider the direction
given at any time if fresh circumstances are brought to its notice.1
2. Limitation of Court’s Powers

Under this section the court’s powers are subject to two limitations. First, the order of the court should be for the
advantage of the minor, and secondly, it should be consistent with the personal law of the minor. In Sitabai v.
Shankar,2where the guardian court passed an order asking the guardian to deliver the possession of the
property in respect of which he was appointed guardian to another person, the Nagpur Judicial Commissioner’s
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Court said that the guardian court has no power to order the guardian to deliver possession of the property in
respect to which he has been appointed guardian, unless the powers of the guardian have ceased for any of
the reasons enumerated in section 41 of the Guardians and Wards Act. The court further said that the powers
of the court under section 32 can only be exercised in the interest of the minor and they cannot be invoked by
persons claiming adversely to the minor, who have their remedy in a regular suit.3

In Khatun Begum v. Ezaz Ahmed,4 where Mutawalliship devolved upon a minor under the terms of a trust
deed, the court directed the guardian to appoint another person as a Mutawalli pending the minor attaining
majority or till some one was appointed Mutawalli by a regular suit. On appeal, it was held that the court has
power to do so. Under Muslim law mother has no power to deal with the property of her minor son, but if she is
appointed a guardian, she could exercise all the powers of a certificated guardian and could also deal with the
properties of the minor.
3. Court’s Power to Suspend the Guardian

Under this section the court can suspend the guardian.5 Suspension is obviously not the same thing as
removal or discharge. A guardian under suspension remains a guardian, though his authority to act as such
stands suspended.
4. No Directions can be Issued to Third Persons

Under this section the guardian court has no power to issue directions to third persons. He can give directions
to the guardian. If the property is in the possession of a third person, the court cannot give direction to him but
to the guardian to recover the property from him.6

The court should act judicially and not arbitrarily or harshly.7

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

1 Harbans v. Rajender, AIR 1925 All 277 .

2 (1919) 52 IC 365.

3 See also Rani Mohani v. District Judge Murshidabad, AIR 1937 Cal 424 ; Hosur Kasipathy v. C.P. Venugopal, (1950) 1
MLJ 184.

4 37 IC 885.

5 Urmila Sundari v. Rati Kanta Sahu, 40 IC 397.

6 Harbans v. Rajender, AIR 1925 All 277 .

7 Rani Mohini v. Distt. Judge Murshidabad, AIR 1937 Cal 424 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER III DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
The chapter under the title, “Duties, Rights and Liabilities of Guardian’s has four sub-heads. First, with the
title “General”, contains four sections, from 20 to 23, and deals with four miscellaneous matters, viz., (i)
guardian’ relationship with the ward is fiduciary, (ii) capacity of minor to act as guardian, (iii) remuneration of
guardian, and (iv) control of Collector as guardian.
The second part with the title “Guardian of the Person” contains three sections, from 24 to 26, dealing with (a)
duties of guardian of the person, (b) guardian’s title to custody of the minor, and (c) removal of the child out of
jurisdiction by the guardian.
The third part, with the title “Guardian of Property”, has 12 sections, from 27 to 37, dealing with (i) duties of guardian
of property, (ii) power of testamentary guardian, (iii) limitations of powers of the certificated guardian of property, (iv)
the nature of transfers of property of minor made in contravention of section 28 or section 29, (v) practice with
respect to permitting transfers under section 29, (vi) variations of powers of certificated guardian of minor’s
property, (vii) certificated guardian’s right to seek court’s opinion or direction regarding management of minor’s
property, (viii) obligations of the certificated guardian of minor’s property, (ix) guardian court’s power to award
remuneration to the auditor, (x) suit against guardian when administrative bond is taken, (xi) suit against guardian
when no administrative bond was taken, and (xii) general liability of guardian as trustee.
The fourth part with the title “Termination of Guardianship” contains five sections, dealing with (a) right of
survivorship among joint guardians, (b) removal of guardian, (c) discharge of guardian, (d) cessation of authority of
guardian, and (e) Appointment of successor to the guardian who has died, or has been discharged or removed.
GUARDIAN OF PROPERTY
Unlike the natural guardian, the certificated guardian is, from the date of his appointment, under the supervision,
guidance and control of the court. Sections 27, 29, 31, 32, and 33 of the Guardians and Wards Act, 1890, related to
the powers of the guardian of property appointed by the court.
Section 27, the Guardians and Wards Act, lays down in general terms the power and obligations of the guardian of
property. The ambit of his powers is limited by the rule that the guardian should deal with the property of the minor
in the same way as a man of ordinary prudence deal with his own property. Just as a prudent person deals with his
property carefully so should the guardian, and within that limit and subject to certain specific limitation laid down in
the Act, he has the authority to do all things necessary for the realization, protection and benefit of the property.
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33. Right of guardian so appointed or declared to apply to the Court for

opinion in management of property of ward.—

(1) A guardian appointed or declared by the Court may apply by petition to the Court which appointed or
declared him for its opinion, advice or direction on any present question respecting the management or
administration of the property of his ward.
(2) If the Court considers the question to be proper for summary disposal, it shall cause a copy of the
petition to be served on, and the hearing thereof may be attended by, such of the persons interested in
the application as the Court thinks fit.
(3) The guardian stating in good faith the facts in the petition and acting upon the opinion, advice or
direction given by the Court shall be deemed, so far as regards his own responsibility, to have
performed his duty as guardian in the subject-matter of the application.

Comments

1. Scope

Section 27 lays down that “subject to the provision of this chapter, he [guardian] may do all acts which are
reasonable and proper for the realization, protection or benefit of property.” Section 29 specifically provides that
the guardian cannot alienate the property without the prior sanction of the court. Thus, in respect to any act
which does not amount to alienation prior permission of the court is not necessary. But if a guardian wants to be
on the safe side and does not want to rely on his own judgment as to what is reasonable and proper, he may
apply to the court and may obtain advice, direction or opinion of the court under this section.

In short, this section enables a certificated guardian to obtain the advice of the court concerning management
or administration of the property of the minor.
2. Sub-section (1): Management and Administration

The words “management” and “administration” of property used in the section are wide enough to include any
and every act which a guardian might contemplate to do in respect of the property of the ward. In our
submission section 33 provides the same protection to the guardian in respect to acts of administration and
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management of property done under the direction, etc., of the court that is provided to him under section 29 in
respect to sanctioned alienations.1

But if the guardian has no power to bind the minor in respect of certain matters then an order under section 33
will not protect him. Take for instance, he has no authority to impose any personal liability on the minor, but if
he does so even with the order of court under section 33, a minor cannot be made liable.2 On the other hand
the guardian can refer a matter for arbitration,3 he can take a loan4 he can execute a promissory note,5 he can
enter into a contract,6 he can invest the properties of the minor,7 and he can do like things under an order of
the court obtained under section 33.
3. Sub-section (2): Court’s Duty to give Advice and Hold Inquiry

If the guardian makes an application to the court under the section, the court is bound to give advice. In K.A.M.
Mahammad Abudacher v. K.A.M.S. Mahamad Mohideen,8 a guardian applied for the direction of the court and
the court directed him to take legal advice; the guardian after taking legal advice again referred the matter to
the court whereupon the court passed the following order: “The guardian has already been advised to take such
action as he deems fit. The guardian is referred to the previous order. He is at liberty to institute such
proceedings as he may be advised to take subject however to such risk being taken by the guardian as may be
imposed on him later.” On revision application, the High Court said that a guardian making an application under
section 33 is entitled to have the advice and direction of the faithful performance of the duty cast upon him by
the law and secure the protection which sub-clause (3) affords; the court can certainly dismiss the application if
it is of opinion that any such action is not in the interest of the minor.

In our submission it is not merely the question of the privilege of the guardian to have the protection under
clause three, but it is a wider question: the minor is a ward of court, i.e., minor is under the direct care of the
court and the certificated guardian is merely a delegated functionary of the court, and, therefore, the court in
that capacity must discharge all the duties towards the minor and should never shun to apply its mind, and to
give advice, direction and instruction on any matter concerning the minor or his property.

But the matter must relate to administration or management of property. Delivery of possession of the land from
the possession of a third person is not a matter relating to administration of property; nor is the direction for
payment of money to the guardian.1

The guardian acting by virtue of an order under this section cannot use the provision to the disadvantage of a
third person.2

Whenever the court takes into consideration the request of the guardian in respect of any matter of
administration or management of the property and the court considers the question to be proper for summary
disposal, it should cause a copy of the petition to be served on, and the hearing thereof may be attended by,
such of the persons interested in the matter as the court might think fit.
4. Sub-section (3): Protection of Guardian

This sub-section lays down that a guardian stating in good faith the facts in the petition and acting on the
opinion, advice or direction given by the court shall be deemed, so far as regards his own responsibility, to have
performed his duty as guardian in the subject-matter of the petition. In other words, the effect of the sanction
under this sub-section is that it raises a statutory presumption of a faithful performance of the duty cast upon
the guardian as regards his own liability.3

But if the guardian acts contrary to the advice, opinion or direction, he acts at his own risk.4
5. No Appeal Lies

An order under section 33 is not appealable.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

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* For Statement of Objects and Reasons, see Gazette of India, 1886, Pt. V, p. 77; for Report of the Select Committee,
see Gazette of India., 1890, Pt. V, p. 77; and for Debates in Council, see Gazette of India, 1886, Supplement, pp. 419
and 666, and Gazette of India, 1890, Pt.VI, pp. 33 and 45.
This Act has been declared to be in force in the Sonthal Parganas by the Sonthal Parganas Settlement Regulation (3 of
1872), sec. 3; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), Sec. 3 and Schedule;
and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), Sec. 3 and Schedule.
It has been declared not to be in force in the scheduled districts in Ganjam and Vizagapatam by notification under sec. 3(b)
of the Scheduled Districts Act, 1874 (14 of 1874), see Gazette of India, 1898, Pt. I, p. 872.
It has been extended to the portions of the partially excluded areas in the Madras State, in which the provisions of this Act
are not in force by the Madras (Partially Excluded Areas) Guardians and Wards Regulation, 1940 (Mad. Reg. 6 of
1940), to Berar by the Berar Laws Act, 1941 (4 of 1941).
It has also been extended, with modifications, to the district of Koraput by the Koraput Guardians and Wards Regulation,
1943 (Orissa Reg. 7 of 1943).
It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
1 Benaras Bank v. Deep Chand, AIR 1936 All 172 ; Keshav Mahadeo Rao Deshmukh v. Balji Vasodeo Attavale, AIR
1932 Bom 460 .
2 Keshav v. Balaji, AIR 1932 Bom 460 .
3 Taskin v. Md. Munim, AIR 1928 All 259 ; Baidunissa v. Ruqya, AIR 1931 All 307 .
4 Anil Kumar Das v. Smt. Prabhavati Mishra, AIR 1940 Cal 532 ; Benaras Bank v. Deepchand, AIR 1936 All 172 ; Rai
Shyam Bahadur v. Rameshwar Pd., AIR 1942 Pat 441 .
5 Margaret v. Abu Backer, AIR 1939 Mad 414 [LNIND 1938 MAD 430]; Keshav v. Mahadeo, AIR 1932 Bom 460 .
6 Babu Ram v. Said-un-nisa, ILR (1913) 25 All 499 .
7 Labhu v. Bhagmal, 54 IC 926; Kalippa v. Deviasingamani, 18 IC 27; In re, Cassumali Jawar Pirgiri, ILR 30 Bom 591.
8 (1955) 1 MLJ 459.
1 ILR (1957) 2 Punj 418 .
2 Rajagopala v. Official Trustee, AIR 1952 Mad 79 [LNIND 1951 MAD 66].
3 Keshav v. Balaji, AIR 1933 Bom 460 .
4 Taskin Fatima v. Md. Munim Bakshi, AIR 1928 All 259 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER III DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
The chapter under the title, “Duties, Rights and Liabilities of Guardian’s has four sub-heads. First, with the
title “General”, contains four sections, from 20 to 23, and deals with four miscellaneous matters, viz., (i)
guardian’ relationship with the ward is fiduciary, (ii) capacity of minor to act as guardian, (iii) remuneration of
guardian, and (iv) control of Collector as guardian.
The second part with the title “Guardian of the Person” contains three sections, from 24 to 26, dealing with (a)
duties of guardian of the person, (b) guardian’s title to custody of the minor, and (c) removal of the child out of
jurisdiction by the guardian.
The third part, with the title “Guardian of Property”, has 12 sections, from 27 to 37, dealing with (i) duties of guardian
of property, (ii) power of testamentary guardian, (iii) limitations of powers of the certificated guardian of property, (iv)
the nature of transfers of property of minor made in contravention of section 28 or section 29, (v) practice with
respect to permitting transfers under section 29, (vi) variations of powers of certificated guardian of minor’s
property, (vii) certificated guardian’s right to seek court’s opinion or direction regarding management of minor’s
property, (viii) obligations of the certificated guardian of minor’s property, (ix) guardian court’s power to award
remuneration to the auditor, (x) suit against guardian when administrative bond is taken, (xi) suit against guardian
when no administrative bond was taken, and (xii) general liability of guardian as trustee.
The fourth part with the title “Termination of Guardianship” contains five sections, dealing with (a) right of
survivorship among joint guardians, (b) removal of guardian, (c) discharge of guardian, (d) cessation of authority of
guardian, and (e) Appointment of successor to the guardian who has died, or has been discharged or removed.
GUARDIAN OF PROPERTY
Unlike the natural guardian, the certificated guardian is, from the date of his appointment, under the supervision,
guidance and control of the court. Sections 27, 29, 31, 32, and 33 of the Guardians and Wards Act, 1890, related to
the powers of the guardian of property appointed by the court.
Section 27, the Guardians and Wards Act, lays down in general terms the power and obligations of the guardian of
property. The ambit of his powers is limited by the rule that the guardian should deal with the property of the minor
in the same way as a man of ordinary prudence deal with his own property. Just as a prudent person deals with his
property carefully so should the guardian, and within that limit and subject to certain specific limitation laid down in
the Act, he has the authority to do all things necessary for the realization, protection and benefit of the property.
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34. Obligations on guardian of property appointed or declared by the

Court.—
Where a guardian of the property of a ward has been appointed or declared by the Court and such guardian is
not the Collector, he shall,—
(a) if so required by the Court, give a bond, as nearly as may be in the prescribed form, to the Judge of the
Court to ensure for the benefit of the Judge for the time being, with or without sureties, as may be
prescribed, engaging duly to account for what he may receive in respect of the property of the ward;
(b) if so required by the Court, deliver to the Court, within six months from the date of his appointment or
declaration by the Court, or within such other time as the Court directs, a statement of the immovable
property belonging to the ward, of the money and other movable property which he has received on
behalf of the ward up to the date of delivering the statement, and of the debts due on that date to or
from the ward;
(c) if so required by the Court, exhibit his accounts in the Court at such times and in such form as the
Court from time to time directs;
(d) if so required by the Court, pay into the Court at such time as the Court directs the balance due from
him on those accounts, or so much thereof as the Court directs; and
(e) apply for the maintenance, education and advancement of the ward and of such persons as are
dependent on him, and for the celebration of ceremonies to which the ward or any of those persons
may be a party, such portion of the income of the property of the ward as the Court from time to time
directs, and, if the Court so directs, the whole or any part of that property.

Comments

1. Scope

This section relates only to the certificated guardian. It expressly excludes the Collector from its purview. No
other guardian falls within the scope of this section. Like most of the provisions of the Act, this section comes
into application only during minority of the ward.1 This section gives court summary powers in regard to matters
stated in its five clauses. The section is not mandatory. If the guardian is “so required by the court” he would
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carry out any or all the obligations imposed on him by the court. If no such obligation is imposed on him by the
court, the guardian has obviously not to carry out anything under this section.

The section is not exhaustive. The court has otherwise also the power to impose obligations on the guardian.
This section has also nothing to do with the inherent powers of the High Courts.2

This section relates to the guardian of property. It confers certain summary powers on the court for the
protection of the minor’s property.

Under this section the court may cast upon the guardian any or all of following obligations:

(a) The guardian may be required to give a bond with or without sureties in a prescribed manner to the
guardian judge with a view of the ensuring that he will carry out his obligations of rendering accounts of
the property to the ward.
(b) The guardian may be required to give inventory of the properties of the minor, i.e., to deliver to the
court as uptodate statement of properties immovable and movable, and moneys belonging to the ward
as well as a statement of debts due to or from the ward.
(c) The guardian may be required to exhibit the account in the court in such form as the court may
prescribe and from time to time as the court may direct.
(d) The guardian may be required to pay into the court the balance due from him on those accounts (as
stated in the preceding clause) or so much therefor as the court may direct.
(e) The guardian may be required to apply such income of the ward’s property as directed by the court for
the maintenance, education and advancement of the ward and his dependents as well as for the
celebrations of certain ceremonies to which they are parties.

2. Clause (a): Security from the Guardian

The guardian occupies fiduciary position. With a view to obtaining from him due performance of his duties and
obligations, the court often requires of him to furnish security. The security is obtained from the guardian to
guarantee the ward against the mismanagement of the property and misconduct of the guardian. But it is not
obligatory on the part of the court to order security in every case. It is in the discretion of the court. Ordinarily,
when ward’s properties are considerable the court would be requiring him to furnish security for the due
discharge of his obligations and to render proper accounts.1 In case the court does not require the guardian to
furnish security, it must state the reasons in writing for doing so.1

Under this clause the security bond is taken in the name of the guardian judge (by designation). As we would
see, section 35 empowers the court to assign the bond to some other person in case engagement under the
bond is not kept. The assignee of the bond then can sue the guardian in his own name under the bond. It may
also be noted that the general liability of the guardian as trustee has been laid down in section 37, which is
apart from this section.

The basis for fixing the amount of security is not the actual value of the property but the income of the property.
(a) Nature of the Order for Security: Order Conditional on Furnishing Security

In our submission, there is a needless controversy among our High Courts as whether order asking for
furnishing security amounts to a conditional appointment of the guardian in the sense that the guardianship
would come into being only after the security is furnished. Section 34 speaks of the Court’s power of asking for
security from the guardian after he has been appointed and thus if guardian has already been appointed and
the court then asks for security from the guardian, then such an order has the effect of suspending the acts of
guardianship till the guardian furnishes security, but it does not affect his status as guardian or the status of the
child as his ward.2

It may be recalled that when the courts appoint a guardian, section 7 gives very wide powers to the guardian
court to lay down any terms and conditions in the order as it thinks fit to secure the interest of the minor. In such
an order security can also be asked. The order can be in such terms that it would be effective only on guardian
furnishing security within certain specified period. The result of such an order will be that on the failure of the
guardian to furnish security by the prescribed date, the order of guardianship would automatically come to an
end.3 The High Court Rules of several High Courts provide that an order of appointment of guardian will be
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subject to his furnishing security. Such orders are perfectly valid.4 It is obviously that when an order appointing
a guardian is conditional on guardian’s furnishing security and when on guardian furnishing the security, the
final order is passed, then it is this order which is appealable and not the earlier one which was a conditional
order.5

It is in this context that controversy among our High Courts has to be looked at. The Madras High Court has
taken the view that an order under section 34 cannot be conditional.1 The Court held the following order bad:
“upon the petitioner herein furnishing security, he be, and hereby is appointed guardian of property.” In our
submission such an order cannot be passed under section 34, but such an order can be passed under section
7. In our submission, the court rightly said that suspencery conditions in an order of appointment of guardian
are not warranted by section 34. But in our submission the error lies in thinking that order asking for security
under section 34 is also an order appointing a guardian. The fact of the matter is that an order asking for
security under section 34 merely has the effect of suspending the acts of guardianship till security is furnished.
It does not affect the status of guardian who had already been appointed. In our submission, looked at in this
context, the view of Lahore High Court expressed in Sham Das v. Umar Din,2 is correct. The Lahore High Court
said that an order appointing a guardian on the condition of his furnishing security is valid.
(b) Additional Security

When a guardian is found to be mismanaging the properties of the ward or is rendering incorrect account, the
court has power to remove him. But the guardian court may, instead in the interest of the minor, ask for
additional security. Such an order is valid.3
(c) Failure to Furnish Security: Consequences

When an order requiring the guardian to furnish security is not complied with within the prescribed time, the
court has power to remove him under section 39.4 But if the court has not fixed any time within which the
guardian is to furnish security, the court may remove him after the expiry of reasonable time on giving due
notice to him. However, in Muhammad Azim v. Muhammadji,5 the court expressed the view that if the court has
not specified a time within which the guardian is to furnish security, the court has no power to remove the
guardian if he fails to furnish security, the court further said that guardian cannot be removed if the court has
not fixed the amount of security and has not specified the time within which it is to be furnished. In Sital Das v.
Jesi Bai,6the court held the failure to furnish security was not punishable under section 45 of the Guardians and
Wards Act, and an order sanctioning prosecution of the guardian for an offence under the Indian Penal Code
was also bad. On the other hand, in Saddo Tewari v. Baram Deo,7 the Allahabad High Court has expressed the
view that in such a cause the guardian makes himself liable to prosecution in terms of clause (b) of section
45(1).
(d) Amount of Security

The guardian court has a discretion to fix the amount of security after considering all facts and circumstances
and the order will not be interfered unless the amount is plainly excessive.1

The matter is governed by the High Court Rules. These Rules lay the guideline as to how much amount of
security is to be taken from the guardian and all other allied matters.

As we have seen earlier, the amount of security should not be excessive: it should not be equal to the value of
the property but to the income or any reasonable amount which the court thinks proper. Since a guardian is
required to submit six monthly accounts, the interest of minor is protected if security is taken on the basis of
income of the property.
(e) Security Bond with Surety

Under clause (a), the court may also ask the guardian to furnish security bond with surety or sureties. In such a
case it is known as administrative bond and should be in prescribed form. The usual practice of the courts is
that the security bond is taken from the guardian with two or more sureties. Technical flaws or mistakes on the
part of the court or surety or even misrepresentation by surety does not invalidate the bond.2
(f) Liability of Surety

A surety is liable for the misdeeds of the guardian. A bond executed by a surety for the guardian may not
impose any limits. But the liability of the surety extends to the dealing of guardians with the properties of the
minor even in respect of those that are not specified in the petition if the guardian derives income from such
properties. If this could not be so, the guardian’s dealings with such properties could cause serious prejudice to
the minor and it would also be contravention of section 128 of the Indian Contract Act.3 In Bhagwan v.
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Ghulam,4 where security with surety was taken from the guardian for the proper collection of the lease amount,
the court auctioned the lease of minor’s land. The High Court observed it was the court itself which broke the
contract by auctioning the lease.

A surety cannot ask to be released from the bond merely on the ground of guardian’s mismanagement or
maladministration of minor’s property as he is appointed for that very person—to hold him responsible for
guardian’s maladministration.5 But surety may apply to the court seeking protection against guardian’s
maladministration, as surety need not sit idle and watch the guardian maladministering, committing waste and
misappropriating minor property knowing fully well that ultimately liability would come to him.1 In such
circumstances he can ask the guardian to furnish fresh security and if the guardian does so and it is sufficient to
cover guardian’s liability, the court may discharge the surety, but not otherwise.2 In case no fresh security is
furnished, the court may discharge the surety from further liability.2

The guardian is liable for his acts of defalcation even during the period when the guardian acted as de facto
guardian and not merely for such acts after his appointment. But so far the liability of surety is concerned he is
liable only for the period during which the guardian acted as certificated guardian.3

The liability of the surety lasts as long as the bond remain in full force and virtue.4 The bond is not invalidated
by the fact that sureties themselves were deceived by the guardian.4 On the final discharge of the guardian
under section 41, the surety bond becomes ipso facto void and thereafter the sureties are relieved of all liability
without any necessity of an application for his discharge.4

The surety bond does not stand discharged on the death of the guardian or the ward or on termination of
guardianship otherwise.5

Liability of surety does not arise before the guardian judge assigns the bond under section 35 for taking action
on it. The surety is not a party to any proceedings under the Act in which accounts are taken from the
guardian.6

It should also be noted that the summary procedure laid down in section 145, the Civil Procedure Code for
enforcing a surety bond executed by a surety pending a suit, is not available under the Guardians and Wards
Act. On the guardian’s maladministering the estate of the minor or misappropriating funds of the minor, the
remedy is by way of suit under section 35 of the Guardians and Wards Act.7 In Radhakishan v. Khusi Ram,8
the Lahore High Court said that the Court has no power to attach guardian’s property for realizing balance due
on accounts.
(g) Consideration for Suretyship

A suretyship can be given for consideration. Thus, in In re, Venkatarao,9 the father of a minor widow was
appointed guardian. He was also ordered to furnish security with surety. On consideration of their getting a
portion of the income of minor’s estate for a period of four years, two persons agree to give surety. The estate
of the minor widow was considerable. If the father would not have agreed to act as guardian, the Court had no
alternative but to appoint a manager-guardian of the estate on payment of remuneration to him. The Madras
High Court under these circumstances upheld the agreement and said that the agreement was not detrimental
to the interest of the minor widow. These were peculiar circumstances of the case, otherwise the guardian’s
agreement in which a portion of income of minor’s estate is paid to surety cannot be valid. If consideration is
paid by the guardian to the surety then it should have no connection with minor’s estate; it should not be
detrimental to minor’s estate.
(h) Stamp on the Bond

The matter of stamp on the bond is governed by the Stamp Act, Article 2 of Schedule I and not by Article 2 of
Schedule II of the Court-Fee Act.
(i) Assignment of the Bond

The matter of assignment of bond is governed by section 35 of the Act.

3. Clause (b): Inventory

This clause requires the guardian to prepare an inventory of all the properties of the minor and debts due to and
from the ward. The High Courts Rules of various High Courts made under the Act regulate the subject. The
Rules provide that inventory should be submitted to the guardian court within six months from the date of the
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appointment or declaration of the guardian or within such period as the court may direct. The submission of the
inventory may be dispensed with if the court so feels, but then the court should record reasons for doing so.

Whenever there is any augmentation or diminution of the property of the ward, it is the duty of the guardian to
report to the court and the court should cause the same recorded in the inventory.

It is part of the obligation of the guardian that soon after his appointment he should take, under his control all
the properties of the minor and manage them for the benefit of the minor.1

It should be noticed that the guardian is to prepare the inventory only when he is directed to do so by the court.
Ordinarily, when a certificated guardian is appointed or declared, it is the duty of the court to direct the guardian
to file an inventory of all the properties of the minor, and file the same in the court in the form prescribed by it
and at such time directed by it, and if the guardian fails to do so he renders himself for punishment under
section 45(b).

The inventory of immovable property should list all the immovable properties of the ward, irrespective of the fact
whether they are in guardians possession or not. On the other hand, the guardian is to prepare the inventory
only of those movable properties which are in his possession. The inventory should also include debt due to or
from the ward. He should do so within the time specified by the court.
4. Clause (c): Exhibiting of Accounts

This clause lays down that on the direction of the Court, the guardian of the property should exhibit the
accounts in such form as the court may prescribe and at such time the court directs. The court usually directs
periodical submission of the accounts, usually after every six months. Apart from this clause, the guardian’s
fiduciary position makes him liable to his ward for the settlement of accounts and all other matters. This clause
merely provides a summary method of enforcing that liability.

It should be understood clearly that filing of the account is no proof of their authenticity. By just filing the
accounts, the guardian does not stand relieved of his responsibility that accounts are correct. Even when the
accounts are passed by the guardian Judge, it does not relieve him from liability to the ward.1 It is because the
court merely makes a summary investigation of the account and not detailed scrutiny.2 In Pratap v.
Khurraram,3 the guardian entered into an agreement with the mother and uncle of the ward that if minor would
be allowed to manage his own estate he would be indemnified against any suit for rendition of accounts which
might be brought against him on minor attaining majority. The court held that the minor was not bound by the
agreement.

It is the duty of the guardian court to look into the accounts filed by the guardian on its direction and to review
them. The court’s duty of asking the guardian to file accounts and to review them comes to an end on guardian
attaining majority. But under the provisions of the Act, the guardian court has the power to direct the ex-
guardian to hand over all the relevant papers and accounts to the quondam ward. This is to enable the
quondam ward to take such steps and actions as he deems fit.4 It may be emphasised that the court’s
acceptance of the accounts filed by the guardian merely raised a presumption of their accuracy, but nothing
more than that. The ward can rebut that presumption.

It is for the guardian court to state from which date the guardian’s liability to account commences. It may order
to commence it at a later date.

On the ward attaining majority, the jurisdiction of the court under this section comes to an end. He cannot make
any order for submission of accounts in the court thereafter.5 But the court still retain power under section
45(1)(c) and section 46(3).6 The quondam ward also has no power to apply to the court for the scrutiny of
accounts.7

There is no provision in the Act under which the ward can claim interest on the sums retained by the guardian
over and above what he was permitted to retain.8

The guardian court may order for the detailed scrutiny of the accounts submitted by the guardian. Such an
order is merely an interlocutory order against which no appeal lies under section 47; nor does a revision lies
under section 48, read with section 115 of the Code of Civil Procedure. But such order does not operate as res
judicata and the guardian can raise objection when a final order directing him to pay certain sums to the ward is
made.1
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The failure of the guardian to submit accounts as directed by the court renders him liable to punishment under
section 45(1)(b).
(a) Inquiry into the Accounts

When on the order of the guardian court, the guardian submits the account and it look into them, the question is
what type of inquiry can guardian court make about them? Our High Courts have expressed divergent views.
Even the same High Court has expressed different views. There is yet no Supreme Court decision. In Ram
Chandran v. Balsubramania,2 after a review of its earlier decision expressing divergent views, the Madras High
Court held that the guardian court should not hold a detailed inquiry as to the correctness of the accounts with a
view to determining as to what amount is actually due by the guardian to the minor, since under the scheme of
the Act such matters are determined in a suit by minor or his next friend. The court added that the liability of the
guardian is to exhibit the accounts kept by him and to pay the balance due on those accounts. The Allahabad
High Court in Ranganath v. Murarilal,3 differing from some of its earlier decisions, expressed the same view.
The court observed that there was no provision in the Act under which the court might hold an inquiry into the
accounts. If, on the perusal of the accounts and hearing the parties, the guardian court comes to the conclusion
that accounts are correct it may make a declaration under section 1(4), though it is not bound to do so, or certify
the accounts as being correct. If the ward brings to the notice of the court the inaccuracies in the account or the
report of the auditor is to the same effect, the court should refuse to discharge the guardian. Further, the court
may assign the bond to the minor on his attaining majority. It should also be noticed that the discharge of the
guardian under section 40 does not amount to his discharge from all liabilities under section 41.4

On the other hand, the Patna High Court in Muni Lal v. Balbhaddar,5 took a contrary view. It was held that the
guardian court had jurisdiction to look into the account and hold an inquiry, and if it came to the conclusion that
certain sum were due to the minor, it could order the guardian to pay the same in the court. If the guardian fails
to do so, the court can proceed against him under section 45 to enforce the order without requiring the parties
to go for a regular suit.6 In our submission this is a better view as it saves the minor from the hassles of a
regular suit.

In our submission, the guardian court has jurisdiction to inquire whether the accounts settled by the guardian
are correct.
(b) Inspection of Accounts

The accounts exhibited in the court are open to inspection to all interested person including the persons to
whom notices of the original petitions were given. The accounts can be inspected at any time during the
minority of the ward.1 The High Court Rules make provision for the same.
5. Clause (d): Payment of Balance Due on Account

Under the previous clause the guardian is required to exhibit accounts. Under this clause the court may direct
the guardian to pay into the court balance due on the account so exhibited. Under this clause the court orders
payment into the court and not to the minor, obviously, the court cannot order the payment of the moneys not in
the hand of the guardian. In Nabhu Bepari v. Sheikh Mohammed,2 the guardian invested the moneys of the
minor in a firm not approved by the court. The court ordered the guardian to withdraw the amount and deposit it
in the court. On his failure to do so, the guardian court sought to punish the guardian under section 43(1). The
Calcutta High Court held that this could not be done.

On the question whether the court can ask the guardian to pay into the court the balance of amount found due
by it after the scrutiny of accounts, there is conflict in judicial opinion. The Calcutta High Court in Jagannath v.
Mahesh Chandra,3 took the view that the words “balance due” in the clause meant only the balance due on the
accounts exhibited by the guardian in the court and not the balance found due by the court after the
examination of the accounts. This view has been followed by the Madras High Court in Harikrishna v.
Govindavajulu.4 The court said that juxtaposition of sections 34, 35 and 36 indicates that if the guardian is
sought to be made liable for a larger sum than shown in the account, then the remedy is by way of suit, as
under this clause the guardian court has no such power. The Lahore High Court also took this view.5 The
Allahabad High Court after a review of case law has taken the same view.6 Thus if a guardian files account in
the court showing the manner in which he disbursed the amount, then it is not open to the guardian court to
disbelieve him and ask him to deposit the amount while the court finds to be actually due.

On the other hand, the Patna High Court in Md. Fariduddin v. Ahmed,7 took a contrary view.
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In our submission this conflict is a legal consequence of the divergent views taken by these courts on the
question whether under this clause the guardian court can make an inquiry into the accounts submitted by the
guardian. We have discussed this matter in para 4(b) of commentary on this section.
(a) Consequences of Disobedience of the Order under this Clause

When a guardian who is ordered to deposit the amount in the court fails to do so, then the remedy is by way of
suit under section 35 if administrative bond has been taken, or under section 36 if administrative bond has not
been taken. The court may also proceed under section 45(1)(b) and punish him for contumacy. When such a
guardian resigns and files his account, the new guardian can sue the outgoing guardian for rendering accounts,
even if the new guardian neglected to inspect the account, but if the guardian has been discharged under
section 41(4), no such action can be filed.

It seems that the court has no power to attach the properties of the guardian or his surety for realizing the
balance due to the guardian.1 The court has no power to impose fine on the guardian either.
(b) Distress Warrant on the Minor

The Act does not empower the guardian court to issue distress warrant on a minor for recovery of amount
alleged to be due from him to the ex-guardian on the basis of account submitted by the latter.2
(c) Res judicata

The proceedings relating to accounts exhibited by the guardian are summary proceedings. An interlocutory
order passed by the Court in such matters does not create the bar of res judicata. When the guardian court
after going into the accounts in a detailed manner passes an order, the guardian can file a revision against such
order.3
6. Clause (e): Maintenance, Education and Advancement

This clause empowers the court to direct the guardian to provide a portion of the income, or, if need be, the
whole income, for the maintenance, education and advancement of the minor and his dependents as well as for
the performance of certain ceremonies of the minor and his dependents. It may be recalled that under section
24 it is one of the duties of the guardian of the person of the minor to “look for his support, health and
education.” In our commentary on that section, we have discussed the meaning of these terms, support,
education and health. We have also stated there that the guardian of the person of the minor has not to spend
money from his own pocket but from the income of the property, if the guardian of the person and the guardian
of property are different persons, the guardian of the property, on the direction of the court, has to provide funds
out of the income of minor’s property for his maintenance, etc., to the guardian of the person of the minor.

The matter is also governed by the Rules of the High Court under which guidance has been provided to the
guardian court.

Obviously, this clause comes into operation when guardian has been appointed and not earlier, though during
the pendency of the proceedings, under section 12, the court has power to pass interlocutory orders in respect
of any matter for the protection of the minor.

It is the duty of the court to pass orders and allocate funds out of the income of minor’s estate for the
maintenance, etc., of the ward and his dependants. The guardian cannot spend more amount than allocated for
any of the aforesaid purposes.1 In a case where guardian of the person and property are different persons,
then once the court fixes the amount of maintenance, etc., it is the duty of the guardian of the property to pass
on these funds to the guardian of the person. If the guardian spends more than the income of the minor, he
cannot recover this amount from the minor on his attaining majority.2
(a) Quantum of Maintenance

No fix rule can be laid down as to what quantum of maintenance should be fixed. Various factors are to be
taken into consideration, such as the age of the minor, the number of dependants, the income of the property
and all other circumstances and facts. It has to be fixed in each case, considering all these considerations, facts
and circumstances. This also applies to education and advancement of the minor. All such orders terminate on
minor’s attaining majority.3 The court also has power to alter or vary them from time to time if change of
circumstances is shown.4

The term “maintenance” has been explained in our commentary on section 24. The term “education” includes
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all types of education, ordinary, advanced, technical, vocational. The term “advancement” is of English law.
Under English law, it means a payment made to a person who is presumably entitled to, or have a vested or
contingent interest in an estate or legacy, before the tie fixed by the Will for their obtaining absolute interest in a
portion or whole of which he would be entitled. It is not of much significance in Indian law and it has not come
for consideration in any reported case.

The clause also use the expression “celebration of ceremonies to which the ward or any of those persons (i.e.,
dependants) may be a party.” This will mean ceremonies of marriage, and among Hindus such ceremonies as
upanayayam, Shradha and other essential religious ceremonies. In all these cases, it is necessary to obtain the
direction of the court and sanction for the necessary amount to be spent.5
(b) The Execution of the Order Sanctioning the Amount

Any order passed under this section is not an order within the meaning of section 2(14) of the Code of Civil
Procedure and therefore is not executable as a decree.6 Similarly, if an order has been passed in favour of a
dependant and he or she has not been paid the amount, this amount cannot be enforced against the minor on
his attaining majority as arrears. The same is the situation of the creditor of the minor. The remedy in these
cases is by way of a suit.

The remedy under the Act in that case if the guardian fails to comply with an order under this clause, the
guardian court can remove him under section 39(c) and appoint another in his place.1 But no punishment can
be inflicted on the guardian under section 45.1
7. Appeal

No order passed under any of the clauses is appealable.2

8. Revision

A revision may be filed against an order passed under this section,3 but not on the question of fact.4

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

2 Jaysingh v. Pratap Singh, AIR 1945 Bom 243 .

1 Jahandas v. Hashim, AIR 1931 Lah 212 .
2 Gopal Chandra Bose v. Ganesh Chandra, (1905) 4 Cal LJ 112.
3 Jai Singh v. Pratap Singh, AIR 1945 Bom 243 .
4 Harendra v. Ardender, 24 IC 202.
5 Sangaypa v. Pathammal, 56 IC 513.
1 In re, Natha Venkatesa, AIR 1927 Mad 36 (FB).
2 AIR 1930 Lah 497 (FB).
3 Jagan Nath v. Mahesh Chandra, 21 CWN 688.
4 Muhammed Azim v. Muhammadji, 7 PR 189; Khusal Devi v. Sukh Dial, AIR 1924 Lah 313 ; Jagannath v. Mahesh
Chandra, 21 CWN 688.
5 7 PR 189.
6 88 PLR 1910.
7 Sauayya v. Pethammal, 56 IC 513; Harendra v. Ardhendu, 24 IC 202; Baboo Rao v. Kalavati Bai, AIR 1940 Bom 275 .
1 Sauayya v. Pethammal, 56 IC 513; Harendra v. Ardhendu, 24 IC 202; Baboo Rao v. Kalavati Bai, AIR 1940 Bom 275 .
2 17 ALJ 377.
3 Sarat Chandra v. Rajoni Mohan, 12 CWN 481.
4 AIR 1935 Lah 863 .
5 Bai Somi v. Chokshi, ILR (1893) 19 Bom 245 .
1 Bai Somi v. Chokshi, ILR (1893) 19 Bom 245 . In re, A.C. Benerjim, AIR 1932 All 262 .
2 Bhagwan Devi v. Banka Mal, 66 IC 35.
3 Gouri Lal v. Rajababu, AIR 1929 Pat 629 .
4 Devendra Nath v. A.G. Bengal, (1908) 35 Cal 956 (PC).
5 Ganpat v. Anna, (1905) 30 Bom 104.
6 Kanhaiyalal v. Malide, AIR 1932 All 177 .
7 Khusiram v. Shali Bai, AIR 1926 Sind 35 .
8 AIR 1923 Lah 506 .
9 38 MLJ 58.
1 Section 27.
1 Ramlasas v. Tansingh, AIR 1952 Nag 135 .
2 Ramnath v. Murarilal, AIR 1936 All 179 .
3 35 IC 75.
4 Gopal v. Sarju, 45 IC 599.
5 Nabhu Bepari v. Sheikh Mohammed, 5 CWN 207.
6 Govindashatta v. Narayanabatta, ILR (1906) 29 Mad 424 .
7 Tirudengadatha v. Tiruvengadam, AIR 1927 Mad 1136 [LNIND 1926 MAD 372].
8 Kasipathi v. Venugopal, AIR 1950 Mad 506 .
1 Ranganath v. Murari Lal, AIR 1936 All 179 .
2 AIR 1938 Mad 347 [LNIND 1937 MAD 400](FB).
3 AIR 1936 All 179 .
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4 Jagannath v. Mahesh Chandra, 21 CWN 688, the Calcutta High Court and in Hakin Rai v. Khandi Bai, AIR 1930 Lah
420, the Lahore High Court expressed the same view.
5 AIR 1942 Pat 422 .
6 Jagannath v. Mahesh Chandra, 21 CWN 688.
1 Jagannath v. Mahesh Chandra, 21 CWN 688.
2 5 CWN 207.
3 21 CWN 688.
4 AIR 1926 Mad 478 [LNIND 1925 MAD 343].
5 Fakin Md. v. Bhari, AIR 1932 Lah 306 .
6 Ranganath v. Murari Lal, AIR 1936 All 179 .
7 AIR 1928 Pat 255 .
1 Radhakrishnan v. Khusiram, AIR 1923 Lah 506 .
2 Md. Ibrahim v. Md. Abdul Bashar, AIR 1937 Cal 422 .
3 Ranga Nath v. Murari Lal, AIR 1936 All 179 ; Jagannath v. Lalbaba, AIR 1936 Pat 447 .
1 Laxmandas v. Ram Dei, 10 IC 243; Inder Singh v. Tej Kaur, 52 PLR 381.
2 Gopal v. Sarju, 45 IC 599; Dulla v. Allahadad, 150 PWR 1908.
3 Mohammad v. Wahab Jan, AIR 1935 Pesh 174 .
4 Habibullah v. Piari Jan, AIR 1936 Pesh 174 ; Tulsai v. Tulsai, AIR 1924 Nag 141 .
5 Ram Nath v. Udaya Raj, AIR 1931 Oudh 403 .
6 Somakka v. Ramjah, ILR (1911) 36 Mad 39 ; Parrathi v. Chokhalingam, ILR (1918) 41 Mad 241 .
1 Najbat Ali v. Mahtab Bibi, 34 PR 1912.
2 Gopammal v. Srinivasa, 30 MLJ 508; Ramjas v. Cheniram, AIR 1923 Lah 85 ; Radhakishan v. Khushiram, AIR 1921
Lah 377 ; Tulsai v. Tulsai, AIR 1924 Nag 141 ; Bhuli v. Bajabai, AIR 1938 Nag 495 ; In re, Durgabai, AIR 1926 All 301 ;
Chundasama v. Tulukdhari, 2 Bom LR 617.
3 Ranganath v. Murarilal, AIR 1936 All 179 ; Ramdas v. Cheni, AIR 1923 Lah 89 .
4 In re, Durgabai, AIR 1926 All 301 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER III DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
The chapter under the title, “Duties, Rights and Liabilities of Guardian’s has four sub-heads. First, with the
title “General”, contains four sections, from 20 to 23, and deals with four miscellaneous matters, viz., (i)
guardian’ relationship with the ward is fiduciary, (ii) capacity of minor to act as guardian, (iii) remuneration of
guardian, and (iv) control of Collector as guardian.
The second part with the title “Guardian of the Person” contains three sections, from 24 to 26, dealing with (a)
duties of guardian of the person, (b) guardian’s title to custody of the minor, and (c) removal of the child out of
jurisdiction by the guardian.
The third part, with the title “Guardian of Property”, has 12 sections, from 27 to 37, dealing with (i) duties of guardian
of property, (ii) power of testamentary guardian, (iii) limitations of powers of the certificated guardian of property, (iv)
the nature of transfers of property of minor made in contravention of section 28 or section 29, (v) practice with
respect to permitting transfers under section 29, (vi) variations of powers of certificated guardian of minor’s
property, (vii) certificated guardian’s right to seek court’s opinion or direction regarding management of minor’s
property, (viii) obligations of the certificated guardian of minor’s property, (ix) guardian court’s power to award
remuneration to the auditor, (x) suit against guardian when administrative bond is taken, (xi) suit against guardian
when no administrative bond was taken, and (xii) general liability of guardian as trustee.
The fourth part with the title “Termination of Guardianship” contains five sections, dealing with (a) right of
survivorship among joint guardians, (b) removal of guardian, (c) discharge of guardian, (d) cessation of authority of
guardian, and (e) Appointment of successor to the guardian who has died, or has been discharged or removed.
GUARDIAN OF PROPERTY
Unlike the natural guardian, the certificated guardian is, from the date of his appointment, under the supervision,
guidance and control of the court. Sections 27, 29, 31, 32, and 33 of the Guardians and Wards Act, 1890, related to
the powers of the guardian of property appointed by the court.
Section 27, the Guardians and Wards Act, lays down in general terms the power and obligations of the guardian of
property. The ambit of his powers is limited by the rule that the guardian should deal with the property of the minor
in the same way as a man of ordinary prudence deal with his own property. Just as a prudent person deals with his
property carefully so should the guardian, and within that limit and subject to certain specific limitation laid down in
the Act, he has the authority to do all things necessary for the realization, protection and benefit of the property.
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*[34A. Power to award remuneration for auditing accounts.—

When accounts are exhibited by a guardian of the property of a ward in pursuance of a requisition made under
clause (c) of section 34 or otherwise, the Court may appoint a person to audit the accounts, and may direct that
remuneration for the work be paid out of the income of the property.]

Comments

1. Scope

This section provides for the appointment of auditor of the accounts submitted or maintained by the guardian of
property and for payment of remuneration to the auditor. Clause (c) of section 34 lays down that the court may
require the guardian of property to exhibit his accounts in the court at such time and in such form as the court
from time to time directs. Even otherwise, a guardian of property is required to maintain accounts.

Under this section the court has power to appoint an auditor and to order for the payment of remuneration of
the auditor for the work done out of the income of property in the following two cases:—

(a) When the guardian of property has been required to exhibit accounts in the court, and
(b) Whenever the court feels that guardian’s accounts need to be audited.

2. High Court Rules

The High Court Rules provide for auditing of accounts by the class of persons to be appointed as auditors, and
scale of remuneration to be paid to them.
3. Auditing of Accounts

This section empowers the court to order the auditing of accounts maintained by the guardian of property. The
word “otherwise” in the section clearly indicates that all accounts maintained by the guardian of the property
can be ordered to be audited including the accounts specifically mentioned in the section, i.e., accounts
submitted to the court pursuant to requisition made under section 34(c) of the Act. This will include even those
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accounts which are in the possession of the guardian who has been discharged or removed and from the legal
representative of the guardian who had died.
4. Remuneration of the Auditor

This section lays down that the remuneration of the auditor is to be paid out of income of the property. But, in
our submission, if there is no income or sufficient income out of which auditor’s remuneration is to be paid, then
it has to be paid out of the capital of minor’s property.1 May be, in such a case the court may not appoint an
auditor.

The High Courts Rules provide for the appointment of type of auditors depending upon the quantum of
accounts. Rules also fix the scale of remuneration.2 Where it is not done, the auditor submits a bill of his fees.
The guardian court has power to reduce the amount of remuneration so charged by the auditor. The auditor can
get it revised from the High Court.3 There is some difference of opinion, whether such an order of the guardian
court is judicial or administrative.3
5. Duties of the Auditor

The duty of the auditor is to audit the accounts and to prepare a balance sheet. It is also his duty to draw
attention to the suspicious features of the account or wasteful expenditure. But he has no power or duty, to say
whether the guardian exceeded his power or guardian is liable. He has no power to pass strictures on the
guardian or to apportion blame. It is for the court to determine.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER III DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
The chapter under the title, “Duties, Rights and Liabilities of Guardian’s has four sub-heads. First, with the
title “General”, contains four sections, from 20 to 23, and deals with four miscellaneous matters, viz., (i)
guardian’ relationship with the ward is fiduciary, (ii) capacity of minor to act as guardian, (iii) remuneration of
guardian, and (iv) control of Collector as guardian.
The second part with the title “Guardian of the Person” contains three sections, from 24 to 26, dealing with (a)
duties of guardian of the person, (b) guardian’s title to custody of the minor, and (c) removal of the child out of
jurisdiction by the guardian.
The third part, with the title “Guardian of Property”, has 12 sections, from 27 to 37, dealing with (i) duties of guardian
of property, (ii) power of testamentary guardian, (iii) limitations of powers of the certificated guardian of property, (iv)
the nature of transfers of property of minor made in contravention of section 28 or section 29, (v) practice with
respect to permitting transfers under section 29, (vi) variations of powers of certificated guardian of minor’s
property, (vii) certificated guardian’s right to seek court’s opinion or direction regarding management of minor’s
property, (viii) obligations of the certificated guardian of minor’s property, (ix) guardian court’s power to award
remuneration to the auditor, (x) suit against guardian when administrative bond is taken, (xi) suit against guardian
when no administrative bond was taken, and (xii) general liability of guardian as trustee.
The fourth part with the title “Termination of Guardianship” contains five sections, dealing with (a) right of
survivorship among joint guardians, (b) removal of guardian, (c) discharge of guardian, (d) cessation of authority of
guardian, and (e) Appointment of successor to the guardian who has died, or has been discharged or removed.
GUARDIAN OF PROPERTY
Unlike the natural guardian, the certificated guardian is, from the date of his appointment, under the supervision,
guidance and control of the court. Sections 27, 29, 31, 32, and 33 of the Guardians and Wards Act, 1890, related to
the powers of the guardian of property appointed by the court.
Section 27, the Guardians and Wards Act, lays down in general terms the power and obligations of the guardian of
property. The ambit of his powers is limited by the rule that the guardian should deal with the property of the minor
in the same way as a man of ordinary prudence deal with his own property. Just as a prudent person deals with his
property carefully so should the guardian, and within that limit and subject to certain specific limitation laid down in
the Act, he has the authority to do all things necessary for the realization, protection and benefit of the property.
Page 2 of 5
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35. Suit against guardian where administration-bond was taken.—

Where a guardian appointed or declared by the Court has given a bond duly to account for what he may
receive in respect of the property of his ward, the Court may, on application made by petition and on being
satisfied that the engagement of the bond has not been kept, and upon such terms as to security, or providing
that any money received be paid into the Court, or otherwise as the Court thinks fit, assign the bond to some
proper person, who shall thereupon be entitled to sue on the bond in his own name as if the bond had been
originally given to him instead of to the Judge of the Court, and shall be entitled to recover thereon, as trustee
for the ward, in respect of any breach thereof.

Comments

1. Scope

When the court appoints a guardian of the property it may take an administrative bond from the guardian. But it
is not necessary for it to do so. In fact, in most of the cases no such bond is taken. In all circumstances, the
guardian is liable to account and manage the properties efficiently. But all guardians are not efficient. There are
defaulters also. Legal action may be necessary for effecting correction where guardian defaults or bungles.

This section provides for legal action when administrative bond is taken. The next section provides for legal
action when no bond is taken.

When a bond is taken from a guardian, the bond is in favour of the court. When an application made by petition
and on being satisfied that the engagement of the bond has not been kept the court may order, upon such
terms as a security, that any money received be paid to the court. The court may also assign the bond to some
proper person who shall be thereupon entitled to sue on the bond.

In fact, the purpose of assignment of the bond to a proper person is to enable him to sue on the bond. This is
the main legal action contemplated by the section.

This section is applicable:

(a) When the child is still a minor, and

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(b) When the child has attained majority.

2. Bond Survives the Death of Guardian or Ward

The bond does not cease to operate on the death of guardian or the ward. It also does not come to an end on
the termination of guardianship. The right to sue on the bond survives the death of the guardian, minor and on
the termination of guardianship.
3. Assignment of the Bond

Whether or not to assign the bond is the matter to be considered by the guardian court considering all the facts
and circumstances.1

The bond is obtained by the guardian judge with or without sureties in its favour to ensure that the guardian of
the property duly accounts for what he has received as income of property and what he has spent. Although the
guardian court can sue on the bond, it is a fact that the guardian judge should himself not sue on the bond on
the failure of the guardian to perform his engagement properly. Such a course is neither expedient nor correct.
In view of this, this section provides for the assignment of the bond to a proper person.2

Assignment of the bond is not required to be in writing. If the principal bond has been lost, a suit can still be
filed on an assignment of the surety bond and loss of the principal bond does not bar the assignment.2 The
Madras High Court takes the view that an assignment of the bond after the institution of the suit upon it will not
invalidate the assignment. But in Mani Devi v. Anpurna Dai,3 the Patna High Court took the view that cause of
action arises to the assignee on the bond after an assignment had been made in his favour and that an
assignment subsequent to the suit could not give him an antecedent cause of action against the sureties.

In any case, the cause of action for assignment arises only on the failure of the guardian to place the accounts
before the court within the period prescribed in the order or on the failure of the guardian to pay the balance
found due from the guardian within reasonable time. No suit can be maintained on the bond till either takes
place. Thus if there is no order of the court asking the guardian to account within a period fixed by the court,
there is no disobedience to order. There is no breach of bond, either. In such a case the order of the court for
the assignment of the bond is not proper even if there is a prima facie case of maladministration of the estate of
the guardian.2

The assignment contemplated by the section is not a mere right to sue but it gives rise to the right to enforce
the liability on bond which has accrued. There can be a further assignment by the assignee. In Muthurama v.
Krishna Ayyar,4 on the removal of the original guardian, the guardian assigned the bond to the minor on his
attaining majority. It was held that the assignment was valid.
4. Inquiry before Assignment

From the above, it should be evident that assignment of bond can take place only when the court comes to the
conclusion that the guardian has failed to keep his engagement on the bond. For coming to this conclusion the
court was to hold some enquiry to establish a prima facie case of breach of engagement on the part of the
guardian. Once on perusal of the account the court comes to the conclusion or has reason to believe that there
is some bungling, as least part of the income has not been accounted for, a case for assignment is established.
The court should not ask the ward to file a suit for accounts.1
5. Application for Assignment

The section lays down that on application made by petition and on being satisfied that the engagement of the
bond has not been kept, the court can order assignment of the bond. The question is who can put in an
application. It seems any person interested in the proper management of ward’s property may apply. The legal
representative or heir of the deceased minor can also apply.2

In Prastama v. Chandra Kumar,3 on attaining majority the minor assigned all his properties including any claim
that he might have against his former guardian to one P. The Calcutta High Court held that such a person may
obtain an assignment in his favour.
6. Mode of Assignment

As we have stated earlier, the assignment of the bond need not be in writing. It is an order of the court. A Full
Bench of the Allahabad High Court in Ramsavan v. Yudishthar,4 said that it is not such a transfer as could be
made only by means of a written or registered instrument. It is not necessary that assignment of the bond
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should be made by an endorsement on the back of the bond. In Manidevi v. Annpurna Devi,5 the Patna High
Court observed that it would be convenient to record the assignment on the back of the bond and to the order
making the assignment should clearly state so. In this case, the minor on attaining majority prayed to the court
that the bond executed by the guardian should be assigned to her. On this application, the court wrote, “the
prayer is allowed.” The Patna High Court held that the order meant to assign the bond to the minor.6
7. Surety’s Liability on the Bond

The bond executed by the guardian in favour of the guardian court is an administrative bond. On such a bond,
suit can be filed either at the instance of the guardian judge or by the assignee of the bond.7The executant of
the bond is liable only under the terms of the bond and liability thereunder can be enforced only by a suit on the
bond. An administrative bond is not covered by section 145, the Civil Procedure Code.8

The unique feature of guardian’s bond is that the assignee cannot recover the entire amount mentioned in the
bond. He can recover only that a moment which he proves to be the loss or damage suffered by him, i.e., the
minor or the assignee.1
8. Rights of Assignee

The obligation to pay under the bond arises only when there is a failure to account for moneys received by the
guardian. Where the liability under the bond is also secured by a charge or mortgage of immovable property the
charge or mortgage also stands assigned on the assignment of the bond. The assignee of a bond can further
assign it, either to the ward on attaining majority, or to any other person.2 But assignment of the bond does not
entitle the assignee to execute a decree against the estate of the deceased surety without instituting a suit
based on the bond and obtaining a decree thereupon.3
9. Remedy under section 45, Guardians and Wards Act

This section and section 36 contemplate the remedy by way of a suit against the defaulting guardian, section 45
of the Guardians and Wards Act provides a remedy by way of fine. Sections 35 and 36 do not bar this remedy.
The reverse is also true,i.e., if an action under section 45 does not yield the desired result, a suit can also be
filed.
10. Limitation

The period of limitation of the suit on administrative bond is prescribed in Article 30, the Limitation Act, 1963.
The period of limitation against a deceased surety starts running from the date of his death.4

A suit for accounts by the quondam minor against the minor against the quondam guardian is governed by
Article 113 and not by Article 89.4
11. Appeal

No appeal lies against the order of the guardian court refusing to assign the bond.5 A revision lies in a proper
case.6

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER III DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
The chapter under the title, “Duties, Rights and Liabilities of Guardian’s has four sub-heads. First, with the
title “General”, contains four sections, from 20 to 23, and deals with four miscellaneous matters, viz., (i)
guardian’ relationship with the ward is fiduciary, (ii) capacity of minor to act as guardian, (iii) remuneration of
guardian, and (iv) control of Collector as guardian.
The second part with the title “Guardian of the Person” contains three sections, from 24 to 26, dealing with (a)
duties of guardian of the person, (b) guardian’s title to custody of the minor, and (c) removal of the child out of
jurisdiction by the guardian.
The third part, with the title “Guardian of Property”, has 12 sections, from 27 to 37, dealing with (i) duties of guardian
of property, (ii) power of testamentary guardian, (iii) limitations of powers of the certificated guardian of property, (iv)
the nature of transfers of property of minor made in contravention of section 28 or section 29, (v) practice with
respect to permitting transfers under section 29, (vi) variations of powers of certificated guardian of minor’s
property, (vii) certificated guardian’s right to seek court’s opinion or direction regarding management of minor’s
property, (viii) obligations of the certificated guardian of minor’s property, (ix) guardian court’s power to award
remuneration to the auditor, (x) suit against guardian when administrative bond is taken, (xi) suit against guardian
when no administrative bond was taken, and (xii) general liability of guardian as trustee.
The fourth part with the title “Termination of Guardianship” contains five sections, dealing with (a) right of
survivorship among joint guardians, (b) removal of guardian, (c) discharge of guardian, (d) cessation of authority of
guardian, and (e) Appointment of successor to the guardian who has died, or has been discharged or removed.
GUARDIAN OF PROPERTY
Unlike the natural guardian, the certificated guardian is, from the date of his appointment, under the supervision,
guidance and control of the court. Sections 27, 29, 31, 32, and 33 of the Guardians and Wards Act, 1890, related to
the powers of the guardian of property appointed by the court.
Section 27, the Guardians and Wards Act, lays down in general terms the power and obligations of the guardian of
property. The ambit of his powers is limited by the rule that the guardian should deal with the property of the minor
in the same way as a man of ordinary prudence deal with his own property. Just as a prudent person deals with his
property carefully so should the guardian, and within that limit and subject to certain specific limitation laid down in
the Act, he has the authority to do all things necessary for the realization, protection and benefit of the property.
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36. Suit against guardian where administration-bond was not taken.—

(1) Where a guardian appointed or declared by the Court has not given a bond as aforesaid, any person,
with the leave of the Court, may, as next friend, at any time during the continuance of the minority of
the ward, and upon such terms as aforesaid, institute a suit against the guardian, or, in case of his
death, against his representative, for an account of what the guardian has received in respect of the
property of the ward, and may recover in the suit, as trustee for the ward, such amount as may be
found to be payable by the guardian or his representative, as the case may be.
(2) The provisions of sub-section (1) shall, so far as they relate to a suit against a guardian, be subject to
the provisions of section 440 of the Code of Civil Procedure, as amended by this Act, 1882 (14 of
1882)*.

Comments

1. Scope

This section stipulates for a suit for accounts against the guardian or his legal representative where the
guardian has not given a bond. This is a suit for accounts of what the guardian has received in respect of the
property of the ward. A person filing a suit on behalf of the minor under this section can recover the money due
to the minor as trustee for the ward.
2. Suit for Accounts against the Guardian or his Legal Representative

Although this section speaks of the certificated guardian, the principle laid down herein is applicable to all
guardians.1 In simple language, this section provides for a suit for accounts against the guardian, and in the
event of his death, against his legal representative. The suit is to be filed by any person, with the leave of the
court, on behalf of the minor. Of course, a minor on attaining the majority can also sue for accounts his
quondam guardian, or his legal representative. But this section contemplates a suit for accounts against the
guardian or his legal representative during the minority of the ward, by a next friend and not by the ward
himself.

Just as under the preceding section under this section also claim can be made for the amount found due
against the guardian or his legal representative.
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Under this section a suit is to be filed by the next friend of the minor during the minority of the ward.
3. Leave of the Court

No suit under this section can be filed without the leave of the guardian court. The suit under this section is to
be filed by a next friend of the ward. The section speaks of “any person”. This “any person” can be anyone who
is interested in the welfare of the child. The provision for the leave of the court has been enacted to ensure that
no meddler is allowed to hamper the administration of minor’s property, and no one is allowed to harass the
guardian by filing a suit for accounts.2

Since the objective of the leave of the court is to accord protection to the guardian against harassment, this
provision does not go to the jurisdiction of the court. In view of this, leave of the court is a condition precedent to
the filing of the suit; leave cannot be given after a next friend has filed a suit.1
4. Sub-section (2): Order XXXII, rules 1 and 4(2)

Reference to section 440 of the Code of 1882 should now be interpreted to mean reference to rule 1 and rule
4(2) of Order XXXII. It may be recalled that rule 1 lays down that even suit by a minor shall be instituted in his
name by a person who in such suit shall be called the next friend of the minor. Rule 4(2) permits the
appointment of any person other than the guardian as the next friend of the minor in the welfare of the minor.
5. Appeal

No appeal lies from the order of the guardian court refusing leave to file a suit against the guardian.2 A revision
would lie.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

1 Maina Hari v. Shankar, ILR 44 Bom 602.

2 Section 47 of the Act.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER III DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS
The chapter under the title, “Duties, Rights and Liabilities of Guardian’s has four sub-heads. First, with the
title “General”, contains four sections, from 20 to 23, and deals with four miscellaneous matters, viz., (i)
guardian’ relationship with the ward is fiduciary, (ii) capacity of minor to act as guardian, (iii) remuneration of
guardian, and (iv) control of Collector as guardian.
The second part with the title “Guardian of the Person” contains three sections, from 24 to 26, dealing with (a)
duties of guardian of the person, (b) guardian’s title to custody of the minor, and (c) removal of the child out of
jurisdiction by the guardian.
The third part, with the title “Guardian of Property”, has 12 sections, from 27 to 37, dealing with (i) duties of guardian
of property, (ii) power of testamentary guardian, (iii) limitations of powers of the certificated guardian of property, (iv)
the nature of transfers of property of minor made in contravention of section 28 or section 29, (v) practice with
respect to permitting transfers under section 29, (vi) variations of powers of certificated guardian of minor’s
property, (vii) certificated guardian’s right to seek court’s opinion or direction regarding management of minor’s
property, (viii) obligations of the certificated guardian of minor’s property, (ix) guardian court’s power to award
remuneration to the auditor, (x) suit against guardian when administrative bond is taken, (xi) suit against guardian
when no administrative bond was taken, and (xii) general liability of guardian as trustee.
The fourth part with the title “Termination of Guardianship” contains five sections, dealing with (a) right of
survivorship among joint guardians, (b) removal of guardian, (c) discharge of guardian, (d) cessation of authority of
guardian, and (e) Appointment of successor to the guardian who has died, or has been discharged or removed.
GUARDIAN OF PROPERTY
Unlike the natural guardian, the certificated guardian is, from the date of his appointment, under the supervision,
guidance and control of the court. Sections 27, 29, 31, 32, and 33 of the Guardians and Wards Act, 1890, related to
the powers of the guardian of property appointed by the court.
Section 27, the Guardians and Wards Act, lays down in general terms the power and obligations of the guardian of
property. The ambit of his powers is limited by the rule that the guardian should deal with the property of the minor
in the same way as a man of ordinary prudence deal with his own property. Just as a prudent person deals with his
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37. General liability of guardian as trustee.—

Nothing in either of the two last foregoing sections shall be construed to deprive a ward or his representative of
any remedy against his guardian, or the representative of the guardian, which, not being expressly provided in
either of those sections, any other beneficiary or his representative would have against his trustee or the
representative of the trustee.

Comments

1. Scope

The guardian though not a trustee, occupies fiduciary position. Section 20 of the Act explicitly says so. This
section lays down that apart from other remedies that the ward may have against the guardian, such as under
sections 35 and 36, his remedy against the guardian, as trustee is not barred by any provision of the Act. Yet
the guardian is not a trustee as the property of the ward does not vest in him. He is not the legal owner of
ward’s property. He is deemed a constructive trustee on account of the fiduciary relationship between him and
his ward.3 Nor is the relationship between guardian and ward is that of the agent and principal.4
2. Guardian as a Trustee

When it is said that the guardian is like a trustee, it means that the guardian must always act in the interest of
the minor. He cannot deal with minor’s property in any manner except as laid down by the Act or as ordered or
directed by the court. Thus no portion of property can be appropriated by the guardian even for the
maintenance of a person who is entitled to it, without the prior permission of the court.1 Even when the
guardian advances money for the maintenance and other needs of the minor out of his pocket (because the
minor has no funds available), he cannot reimburse later on when sufficient funds of minor are available without
the prior permission of the court. Accounts can be made on the termination of guardianship. The cause of
action to the guardian accrues only from the date when he hands over the possession of minor’s property and
funds to the ward.2
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A manifestation of the fiduciary relationship is found in the rule that the guardian must render full and correct
account. Section 34 lays down that the court may require the guardian to submit accounts and to prepare
inventory of minor’s property. Any failure on the part of the guardian to give correct accounts amounts to breach
of trust and the minor can pursue his remedy on that account. Thus, we have seen in our commentary on
section 34, in a suit for account by the ward, the guardian cannot be relieved of his obligation on the plea that
the court has passed those accounts under section 34.3

The minor on attaining majority can file a suit against the guardian as well as against his representative in case
the guardian is dead. But section 10, the Limitation Act, which applies to trustees, does not apply to him. The
minor can file the suit within six years of his attaining majority.

TERMINATION OF GUARDIANSHIP

Sections numbered as 38, 39, 40, 41 and 42 are grouped under the title, “Termination of Guardian”. According
to these sections guardianship may terminate in the following ways:

A. Death of the guardian : Section 38.

B. Removal of guardian : Section 39.

C. Discharge of guardian : Section 40.

D. Cessation of authority of guardian : Section 41.

E. Appointment of successor to guardian who is dead, or Section 42.

removed or discharged :

F. Death of the ward

A. Death of guardian.—

This is a case of inevitable termination of guardianship. If the guardian is dead, obviously, the guardianship
terminates. But, interestingly, section 38, with the marginal title of “Right of survivorship among joint guardian”,
merely says that on the death of one or more joint guardians, the guardianship continues to the survivor or
survivors until further appointment is made by the court. In our submission, the death of the guardian is such an
obvious case of termination of guardianship that it does not need a separate section to state that. That seems
to be the reason that section 38 merely talks of surviving guardians continuing to carry on the guardianship.
This also means that on the death of one or more of the joint guardians, the guardianship of surviving guardians
does not terminate.
B. Removal of guardian.—

The authority which appoints a guardian has also the power to remove him. An occasion may arise when a
guardian has to be removed. He may have to be removed because he is incompetent. He may have to be
removed, because he is corrupt. Section 39 deals with the circumstances or situations where the court has the
power to remove the guardian, section 39 deals with both certificated and testamentary guardian. Of these ten
cases, the case seventh dealt with in clause (g) of the section and the eighth case dealt with in clause (h) apply
to testamentary guardians with some modifications.
C. Discharge of guardian.—

Section 40 deals with discharge of the guardian. It relates only to the certificated guardian. When a certificated
guardian desires to resign his office and if the court accepts the resignation, it is called discharge of the
guardians. But this may not amount to discharge from the liability.
D. Cessation of the authority of the guardian.—

Section 41, with the marginal title “Cessation of authority of guardian” merely says that powers of the guardian
cease by his death, removal or discharge.1 These are the cases in which guardianship terminates. Clause (b)
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deals with the case of resumption of a minor’s estate by the court of wards. In such a case guardianship of
property obviously terminates.

The guardianship would terminate when the ward becomes a major. In the case of a female ward it terminates
on her marriage. These are the usual cases of termination of guardianship by cessation of guardian’s authority.

Section 41 lists some other cases also. Please see our commentary on that section.

Section 41 deals with certain contingencies on the happening of which guardianship terminates automatically,
while section 40 provides for the voluntary termination of guardianship as the guardian desires to be
discharged.
E. Appointment of successor.—

Section 42 has the marginal title, “appointment of successor to guardian who is dead, discharged or removed.”
This section in no sense deals with the termination of guardianship and has been wrongly placed in this group
of sections. This, in fact, deals with appointment of guardian in the contingencies mentioned in the section viz.,
when guardian dies or is removed or is discharged. In these cases, the court may suo motu appoint a guardian
under this section, or it may appoint upon an application by a person under Part II of the Act.
F. Death of the ward.—

These group of sections do not state that guardianship also terminates on the death of the ward. It is an
obvious case when the person for whom guardian was appointed, dies, the guardianship terminates.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

3 Rishandas v. Godavaribai, AIR 1937 Bom 334 .

4 Hani Devi v. Anpumadai, AIR 1934 Pat 218 .

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1 Kuppathammal v. Sakthi, AIR 1957 Mad 695 [LNIND 1956 MAD 144].

2 Radhi v. Namdeo, AIR 1939 Bom 394 .

3 Ram Lal v. Tan Singh, AIR 1952 Nag 135 .

1 Clause (a).

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

38. Right of survivorship among joint guardians.—

On the death of one of two or more joint guardians, the guardianship continues to the survivor or survivors until
a further appointment is made by the Court.
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Comments

1. Scope

This section applies to cases where more than one guardian has been appointed. This section lays down that
when any of the joint guardian dies, the guardianship continues to vest in the surviving guardians. In short, the
death of any one or more of the joint guardians does not lead to the termination of guardianship of surviving
guardian. The surviving guardians would continue to be the guardians till a new guardian is added by the court.
This rule is enacted in this section on account of the fact that guardianship is treated under our law as a trust.

Under English law, the rule is otherwise. There the death of any one of the joint certificated guardians
terminates the guardianship of all others, though the court usually reappoints the survivors, almost, as a matter
of course. This rule does not apply to testamentary guardians. In English law, in the case of joint testamentary
guardians, the right of a guardianship survives to the survivors in the event of death of any one of them.1

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

1 Halsbury’s Laws of England, Vol. XXI, 206-210.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

39. Removal of guardian.—

The Court may, on the application of any person interested, or of its own motion, remove a guardian appointed
or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes,
namely:—
(a) for abuse of his trust;
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(b) for continued failure to perform the duties of his trust;

(c) for incapacity to perform the duties of his trust;
(d) for ill-treatment, or neglect to take proper care, of his ward;
(e) for contumacious disregard of any provision of this Act or of any order of the Court;
(f) for conviction of an offence implying, in the opinion of the Court, a defect of character which unfits him
to be the guardian of his ward;
(g) for having an interest adverse to the faithful performance of his duties;
(h) for ceasing to reside within the local limits of the jurisdiction of the Court;
(i) in the case of a guardian of the property, for bankruptcy or insolvency;
(j) by reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which
the minor is subject:

Provided that a guardian appointed by will or other instrument, whether he has been declared
under this Act or not, shall not be removed—
(a) for the cause mentioned in clause (g) unless the adverse interest accrued after the death of the
person who appointed him, or it is shown that that person made and maintained the appointment in
ignorance of the existence of the adverse interest, or
(b) for the cause mentioned in clause (h) unless such guardian has taken up such a residence as, in
the opinion of the Court, renders it impracticable for him to discharge the functions of guardian.

Comments

1. Scope

Where a guardian is found to be incompetent, corrupt or otherwise improper person, he has to be removed.
This section provides for the removal of the guardian. This section lays down:

(a) Guardian may be removed by—

(i) the court suo motu, or
(ii) on the application of any interested person.
(b) The procedure for the removal of the guardian.
(c) The grounds on which a guardian may be removed.

This section applies only to certificated and testamentary guardian.

WHO MAY APPLY FOR REMOVAL OF GUARDIAN

2. The Court

Under this section, the court has power to remove the guardian at its own instance. This happens when the
court finds that the guardian is an improper person to be continued, his removal is in the interest of the child.
The court will remove the guardian after giving him opportunity of being heard. This scope of the section is
wider than the scope of section 43. This section applies only to certificated and testamentary guardians.
3. Interested Person

The opening paragraph of the section uses the words that guardian may be removed on the application of any
person interested. These words may be contrasted with the words used in section 8(b) which deals with the
persons who may apply for the appointment of the guardian of a minor child. Clause (b) of section 8 uses the
words “any relative or friend of the minor” may put in an application for appointment of guardian of a minor. The
words used in section 39 are much wider. It says any person interested in the welfare of the minor can apply.
Section 43 also uses the words “interested person” and there also these words have the same meaning.
Though the section does not say in so many words that any person interested in the welfare of the minor, these
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words are implicit in the expression “person interested”. In a wider connotation these words may also include
any person who is interested in the preservation of minor’s property and assets in his own interest, such an heir
of the minor or a person who has advanced money to the minor for necessaries. Of course, these words do
include a relative or next friend.1 The term “interested person” will include any person who is concerned with
the welfare of the minor who sees the urgency of getting minor’s property released from the grip of a
unscrupulous or thoroughly incompetent guardian. It is immaterial that such a person has enmity with the
guardians.1
4. Certificated and Testamentary Guardian

Under this section only testamentary and certificated guardians can be removed. The grounds for the removal
of the testamentary guardian are the same as that of the certificated guardian,1 except the grounds mentioned
in clauses (g) and (h) which apply to the testamentary guardian with modification. (See below).

This section will apply only to a validly appointed guardian. Thus if a person having no testamentary power to
appoint a guardian, appoints one, such an appointment is invalid. Such a testamentary guardian if he takes
possession of the properties is no more than a trespasser. He cannot, therefore, be removed under this clause.
For instance, a father has no power to appoint a testamentary guardian of the undivided interest of his son in
the joint Hindu family property;1 nor can he appoint a testamentary guardian of the entire joint family property2.
Similarly one cannot appoint a testamentary guardian of the son of a stranger,3 unless one bequeaths one’s
properties to him.
5. Natural Guardian

This section does not apply to natural guardian and, therefore, a natural guardian cannot be removed under this
section. Section 7(2) lays down that when the court appoints a guardian of a minor whose natural guardian is
alive, then it would mean automatic removal of the natural guardian. That seems to be the only mode by which
a natural guardian can be removed, apart from any provision under personal law.

This section does not apply to de facto guardian also. Of course, when the court appoints a guardian of a
minor, the de facto guardian automatically stands removed.
6. Procedure for the Removal of the Guardian: Opportunity of being Heard

The matter is regulated by the High Court Rules. Some High Court Rules lay down that when an application for
the removal of the guardian is made during the minority of the guardian, it should be accompanied with a prayer
to appoint a new guardian. The application has to be made to the District Court.4

When an application for the removal of the guardian is made, it is necessary that the guardian is informed of
charges against him, and allowed a reasonable opportunity to explain and defend himself.5 He should be given
a notice setting out the grounds of his removal.6 Without such notice, the removal of the guardian is bad and
cannot be sustained. While proceeding to remove the guardian, the court should be satisfied that grounds for
his removal exist and the order should state reasons for his removal.7 The order should also state that it has
been passed after hearing the explanation of the guardian, if any.1 The court is bound to hear the evidence
given by the parties.2 A summary order without enquiring into the allegation against the minor is bad.3 In case
the court declines to take evidence which parties desire to adduce and passes an order removing the guardian,
the order is bad and would be set aside on appeal.2 If the guardian is not present at the hearing, the court
cannot decide the matters without an inquiry, ex parte against the guardian.4 The remedy of the guardian in
such a case, is either to file an appeal or move an application for setting aside the ex parte order.5 A guardian
cannot be removed just because the minor has a preference for some one else.6

The doctrine of res judicata applies to proceedings under this section. Thus if an application for removal has
been dismissed by the court, no new application on the same facts can be entertained.7

On the order of the removal of the guardian being passed, the court should either appoint another guardian or
take adequate steps for the protection of ward’s property, particularly when it is in a bad state of management.8
7. Grounds of Removal

This section lists the following ten grounds on the existence of any one of them the guardian can be removed:

A. Abuse of trust.
B. Failure to perform duties of his trust.
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C. Incapacity to perform duties of his trust.

D. Ill-treatment or neglect of the ward.
E. Disregard of statutory provisions or orders of the court.
F. Conviction for an offence implying defect of character.
G. Adverse interest.
H. Residing outside the jurisdiction of the court.
I. Insolvency.
J. Cessation of guardianship.

In regard to testamentary guardian, conditions, G and H. apply with some modifications.

A guardian can be removed only on any one of the grounds mentioned in the section. He cannot be removed
on a ground outside this section.
8. Clause (a): Abuse of Trust

Section 20 lays down that the guardian stands in fiduciary relationship with his ward. This clause lays down that
if the guardian commits a breach of the relationship, he makes himself liable to be removed. This abuse may
arise from several acts. Gross negligence in performance is one. Incompetency is another. Misappropriation of
funds and conversion of minor’s property are two glaring instances of abuse of trust. In an early case, Tusneef
v. Sookhoo,1 it was held that it was a sufficient ground for removal of the guardian that he allowed the
redemption of the mortgage in favour of the minor for a very small amount or that he gave a loan of
considerable amount out of minor’s money on a simple hand-note without taking security. Similarly, where a
guardian withdrew without jurisdiction and without legal advice and appeal filed by the minor to set aside a sale
of minor’s property and then in collusion with auction purchaser purchased a portion of minor’s property in the
name of his wife, it was held that this amount to breach of trust.2 It also amounts to abuse of trust when the
guardian is engaged in the wasteful alienation of minor’s property (though without being fraudulent) by allowing
some properties of the minor to be sold away for arrears of small debts despite the fact that minor had sufficient
cash available to pay off the debts.3 He can also be removed for mismanagement,4 for selling minor’s property
for small consideration without obtaining the sanction of the court5 or for submitting totally fake accounts.6
Where two joint guardian feud, making joint management of minor’s property very difficult, the court may
remove one or both of them under this clause.7
9. Clause (b): Continuous Failure to Perform Duties of Trust

This clause will include continuous failure to perform duties of trust by the guardian, but not one or two failures.
Thus failure to maintain accounts year after year would be such a failure.
10. Clause (c): Incapacity to Perform Duties of Trust

This clause relates to the capacity to perform duties. Thus if on account of illiteracy a guardian is totally
incapable of maintaining account it would be incapacity under this clause.8 Though illiteracy by itself is no
disqualification, if he can appoint a person to look after the accounts and other matters of the minor which
require literacy. A guardian who lacks capacity to manage the affairs of the minor on account of his
incompetency and is unable to protect minor’s property from being misappropriated by others or depends on
other for the management of minor’s property will be covered under this clause.9 If old age renders a person
incapable of managing the affairs of the minor, the guardian can be removed, though old age itself is not a
sufficient ground.1
11. Clause (d): Ill-treatment or Neglect of the Ward

This clause relates to the guardian of the person of the minor. Thus section 24 entrusts the custody of minor to
the guardian and he is required to look for his support, education and health. The guardian is required to see to
the well-being of his ward. Neglecting any one of these duties would be covered under this clause. So would be
the ill-treatment or neglect or cruel behaviour towards the ward. It appears that occasional act of severity would
not be sufficient, though continuous and persist neglect or cruelty or ill-treatment would be covered under this
clause. In Muni Lal v. Saraswati,2 the guardian left his ward, two minor girls, with their step sister and did not
bother about them thereafter, and in Ganga v. Kaunsilla,3 the certificated guardian, who was also the father of
the minor children, did not take proper care, neglected them totally with the result all of them except one died
and who also set-up a claim against their property were held to be the guardians covered under this clause.
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12. Clause (e): Disregard of Statutory Provisions or Orders of the Court

Several provisions of the Guardians and Wards Act impose obligation on the guardian. These are statutory
provisions. Some of these provisions are contained in sections 10(e), 20, 26, 29 and 34(a). If he disregards his
obligations imposed by any one of these and other provisions, he can be removed from the guardianship. The
disregard has to be wilful. But if he unknowingly contravenes a provision of the Act, it would not be covered
under the clause.4 A guardian can also be removed under this clause if he conceals vital information about the
child from his near relations.5

The guardian should also comply with all orders, directions and instructions given to him from time to time.
Thus, it has been held that a guardian who fails to comply with the terms of his appointment,6 who fails to
furnish security as ordered by the court7 who flouts the order of the court calling upon him to deposit in the
court moneys belonging to the minor or who advances loans to person of doubtful credibility out of minor’s
funds, or who does not look after his ward and even does not care to call a doctor when ward is ailing,8 or a
guardian who got appointed as a guardian by concealing facts about ward’s near relations and by practising
fraud on the court,9 should be removed. Contumacious disregard of court’s order under clauses (b), (c) and (d)
of section 34 not merely exposes him to be removed from guardianship but he make himself liable for penalty
under section 45(1)(b).
13. Clause (f): Conviction for an Offence

Conviction of a guardian for certain offences involving defect of character makes the guardian liable to be
removed under this clause. It is not conviction for any offence; it should be something in the nature of moral
turpitude. But then these should be sufficient material before the court that conviction for the offences amounts
to defect in character. Conviction of the guardian twice for offences against property need not imply a defect of
character, that it does so should be based upon sufficient material and to the satisfaction of the court.1 It would
be no ground for the removal of a guardian that some twenty years back he was convicted for adultery.1
14. Clause (g): Adverse Interest

When a guardian sets up a claim adverse to the minor, he can be removed under this clause. But the mere fact
that the mother claimed an interest in the property to which she was entitled to under the law could not said to
be a claim adverse to the child and she could not be removed on that count.2
15. Clause (h): Residing Outside the Jurisdiction

Section 26 specifically lays down that the guardian will not remove the child out of the jurisdiction of the court
without its prior permission. The Act also stipulates that the guardian should live within the jurisdiction of the
court which appointed him. If he resides outside the jurisdiction without the leave of the court he can be
removed under this clause.3 But if the guardian who was authorized to remove the child out of jurisdiction at the
time of his appointment or subsequently cannot be removed under this clause.4

This clause does not apply to testamentary guardian as such. A testamentary guardian can be removed only if
in the opinion of the court he has taken up residence outside the jurisdiction which renders it impracticable to
discharge his functions and duties as guardian.5
16. Clause (i): Bankruptcy of the Guardian

If a guardian has gone bankrupt, he can be removed from guardianship.6

17. Clause (j): Cessation of Guardianship

This is an obvious case. If guardianship of a person ceases for any cause he cannot continue to be the
guardian and can be removed under this clause. Thus when a ward attains majority, guardianship ceases.
Under the various clauses of section 41 the powers of the guardian cease, and on such cessation of powers,
the guardian can be removed. Whenever the guardianship ceases, he can be removed from the guardianship
whatever be the cause. Various provisions of the Guardians and Wards Act provide that in certain
circumstances, the guardian renders himself unfit and, therefore, he can be removed. Under the Hindu Minority
and Guardianship Act, a guardian who ceases to be a Hindu or who has finally and completely renounced the
world incur disqualification and can be removed. He can be removed under this clause.
18. Appeal

An appeal lies against the orders removing the guardian.1 An appeal also lies against the order refusing to
remove the guardian2 where a person applied for the removal of the guardian and for the appointment of
himself as guardian, and the court rejected his application, such an order is appealable.3
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PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

* For Statement of Objects and Reasons, see Gazette of India, 1886, Pt. V, p. 77; for Report of the Select Committee,
see Gazette of India., 1890, Pt. V, p. 77; and for Debates in Council, see Gazette of India, 1886, Supplement, pp. 419
and 666, and Gazette of India, 1890, Pt.VI, pp. 33 and 45.
This Act has been declared to be in force in the Sonthal Parganas by the Sonthal Parganas Settlement Regulation (3 of
1872), sec. 3; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), Sec. 3 and Schedule;
and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), Sec. 3 and Schedule.
It has been declared not to be in force in the scheduled districts in Ganjam and Vizagapatam by notification under sec. 3(b)
of the Scheduled Districts Act, 1874 (14 of 1874), see Gazette of India, 1898, Pt. I, p. 872.
It has been extended to the portions of the partially excluded areas in the Madras State, in which the provisions of this Act
are not in force by the Madras (Partially Excluded Areas) Guardians and Wards Regulation, 1940 (Mad. Reg. 6 of
1940), to Berar by the Berar Laws Act, 1941 (4 of 1941).
It has also been extended, with modifications, to the district of Koraput by the Koraput Guardians and Wards Regulation,
1943 (Orissa Reg. 7 of 1943).
It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
1 Sribat Singh v. Rani Mohani, AIR 1939 Cal 626 (cousin of the minor); Jagannath v. Lal Babu, AIR 1936 Pat 447 .
1 Jambagathachi v. Rajamannatswami, 57 IC 687.
2 Alagappa Ayyangar v. Mangathai Ammangar, (1916) ILR 40 Mad 672.
3 Kanakasabai v. Pannusani Mualiar, (1913) 21 IC 848.
4 Shankar Prasad v. Usha Bala, AIR 1978 Cal 525 [LNIND 1978 CAL 218].
5 Jagannath v. Mahesh Chandra, AIR 1916 Cal 459 .
6 Yamunabai v. District Judge, Chhindvara, AIR 1926 Nag 176 .
7 Kumaraswami v. Goundan, AIR 1936 Mad 695 [LNIND 1935 MAD 427].
1 Mahadev v. Bidhi Chand, 20 CLJ 290.
2 Rasulan v. Rahmatulla, 38 CWN 763.
3 Ramakshi v. Jagat Sundari, 22 CLJ 70
4 Ram Sabai v. Chhotelal, AIR 1921 All 256 .
5 Mazhar Ali v. Kulsum Begum, AIR 1940 All 315 .
6 Kumaraswami v. Goundan, AIR 1936 Mad 695 [LNIND 1935 MAD 427].
7 Hook v. Administrator General of Bengal, AIR 1921 PC 11 ; Ram Kirpal v. Rup Kumari, ILR (1884) 6 All 269 (PC).
8 Kiransasi v. Panchanan, AIR 1931 Cal 102 .
1 14 WR 453.
2 Petambur v. Ishan, 18 WR 169.
3 Goonoomoee v. Bahno Sundari, 18 WR 258.
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4 Jagannath v. Mahesh Chandra, AIR 1916 Cal 459 .

5 K.R. Thargapandian v. Kuchhu Romma, AIR 1965 Mad 368 [LNIND 1965 MAD 1].
6 Jagannath v. Lal Baboo, AIR 1936 Pat 445 ; Heera Lal v. Manashomoyee, AIR 1934 Cal 520 .
7 Nistaranee v. Collector, 23 WR 330.
8 Faiz Md. v. Md. Bachal, AIR 1930 Sind 14 .
9 Kiransasi v. Panchanan, AIR 1931 Cal 102 .
1 Rindabai v. Girdhari Lal, 4 Bom LR 799.
2 AIR 1925 Lah 375 .
3 19 IC 65.
4 Brijendro v. Bussunt, 13 WR 300.
5 Laxmi Devi v. Chandra Kala, AIR 1975 Pat 83 .
6 Gheba v. Bari, 164 PLR 1913.
7 Jagannath v. Mahesh Chandra, AIR 1916 Cal 459 ; Khushal Devi v. Sukhdial, AIR 1934 Lah 313 .
8 Murari v. Soraswati, AIR 1925 Lah 375 .
9 Antu Mahton v. Ramraj Singh, AIR 1957 Pat 720 .
1 Ram Sahai v. Chote Lal, 63 IC 567.
2 Seelhabai v. Narsinha, AIR 1945 Mad 568 .
3 Ganga v. Kansilla, 19 IC 65; Bibi Fatima v. Bakarshah, AIR 1921 Sind 45 ; Asghar Ali v. Aminan Beum, ILR 56 All 280.
4 Ralla v. Maganlal, 116 PR 1912.
5 Abdul v. Zebunnessa, AIR 1951 Cal 205 .
6 Proviso (b).
1 Section 47(g).
2 Section 47(g) read with section 46. See also In re, Bai Harkha, ILR (1895) 20 Bom 667 ; Imtiazunnissa v. Anwar Ullah,
ILR (1898) 20 All 433 ; Pakhwanti v. Indra Narayan, ILR (1895) 23 Cal 204 ; Kanthalathammal v. Thangasamy, AIR
1924 Mad 327 .
3 Section 47(g) read with section 46. See also Mohima v. Tarni, ILR (1892) 19 Cal 487 ; Pakhwanti v. Indra Narayan, ILR
(1895) 23 Cal 204 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

40. Discharge of guardian.—

(1) If a guardian appointed or declared by the Court desires to resign his office, he may apply to the Court
to be discharged.
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(2) If the Court finds that there is sufficient reason for the application, it shall discharge him, and if the
guardian making the application is the Collector and the State Government approves of his applying to
be discharged, the Court shall in any case discharge him.

Comments

1. Scope

This section deals with the resignation of the certified guardian and with Collector’s when he is appointed a
guardian. Since the office of guardian is of fiduciary nature, no guardian can leave the office by just tendering
his resignation. He continues to be the guardian till his resignation is accepted. The acceptance of the
resignation of guardian is called discharge of the guardian.
2. Tender of Resignation

In the case of the certificated guardian the application tendering resignation is to be made the guardian court
which appointed him guardian. In the case of the collector-guardian also the application is to be made to the
guardian court which appointed him, though in his case he cannot be discharged without the approval of the
State Government. Once the State Government approves his resignation the court would discharge him as a
matter of course.
3. Acceptance of Guardianship is Mandatory but Acceptance of Resignation is Discretionary

Section 17(5) lays down that no person can be appointed a guardian against his Will. But once he accepts the
guardianship, he just cannot walk away at Will. He is allowed to resign, but he will continue to be the guardian
till his resignation is accepted by the guardian court.

Ordinarily, no court will discharge a guardian in midstream unless the court is convinced that there are cogent
reasons given in the application for discharging him. After all the office of guardian is in the nature of trust, the
court would discharge him only when it is convinced that sufficient and cogent reasons exist and that the
guardian has duly accounted for all moneys received by him out of the properties of the minor under his
guardianship.

In the case of the Collector-guardian, if the Government approves of his resignation, it seems, the court is
bound to discharge him.
4. Implication of the Order of Discharge

The one obvious implication of the discharge is that from the date of his discharge he ceases to be the
guardian. But he is not discharged of his liabilities under section 41(4). The discharge of liabilities can be
obtained by the guardian under an order under section 41(4).1 In Fakin Mohammed v. Bhari,2 the certificated
guardian tendered his resignation on the ground that since he was over-burdened by his own work he was not
in a position to carry on the burden of guardianship. The court ordered him to put a statement of accounts in the
court. On his doing so, he was discharged. But this did not mean that he was absolved of his liabilities, if the
account were not found correct, compliance with section 41(4) is essential.
5. Appeal

An appeal lies against the order refusing to discharge a guardian.3 But no appeal lies against the order
discharging the guardian.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

41. Cessation of authority of guardian.—

(1) The powers of a guardian of the person cease—

(a) by his death, removal or discharge;
(b) by the Court of Wards assuming superintendence of the person of the ward;
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(c) by the ward ceasing to be a minor;

(d) in the case of a female ward, by her marriage to a husband who is not unfit to be guardian of her
person or, if the guardian was appointed or declared by the Court, by her marriage to a husband
who is not, in the opinion of the Court, so unfit; or
(e) in the case of a ward whose father was unfit to be guardian of the person of the ward, by the father
ceasing to be so or, if the father was deemed by the Court to be so unfit, by his ceasing to be so in
the opinion of the Court.
(2) The powers of a guardian of the property cease—
(a) by his death, removal or discharge;
(b) by the Court of Wards assuming superintendence of the property of the ward; or
(c) by the ward ceasing to be a minor.
(3) When for any cause the powers of a guardian cease, the Court may require him or, if he is dead, his
representative to deliver as it directs any property in his possession or control belonging to the ward or
any accounts in his possession or control relating to any past or present property of the ward.
(4) When he has delivered the property or accounts as required by the Court, the Court may declare him
to be discharged from his liabilities save as regards any fraud which may subsequently be discovered.

Comments

1. Scope

Under this section the guardianship terminates because in certain contingencies the powers of the guardian
cease. This section in its two sub-sections deals with ceasing of the guardianship of person and guardianship of
the property separately. Sub-section (3) deals with the consequential acts to be performed by the guardian or
his representative (when guardian is dead), viz., to deliver as per directions of the court the properties as well
as the accounts in his possession or control to the ward. On the delivery of these, sub-section (4) lays down
that guardian may be discharged except as regards his fraud which might be subsequently discovered. Sub-
sections (3) and (4) are concerned with the guardianship of property.

The powers of the guardian of person cease in the following cases:

(a) by the death, removal or discharge of the guardian;

(b) by the assumption of guardianship by the Court of Wards;
(c) by the ward becoming an adult;
(d) by the marriage of the female ward to a person who is not unfit in terms of section 19;
(e) by the cessation of unfitness of the father on account of which a certificated guardian was appointed.

The powers of the guardian of the property cease in the following three cases:

(i) by the death, removal or discharge of the guardian;

(ii) by the assumption of superintendentship of property by the Court of Wards;
(iii) by the ward becoming a major.

These are the same in the first three in the case of guardianship of the person.

This section applies to all categories of guardians and is not confined to certificated guardian.
2. Sub-section (1)(a) and sub-section (2)(a): Death, Removal and Discharge of the Guardian

Death is a great remover of everything. On the guardian’s death, the guardianship terminates. Section 39 deals
with the removal of the guardian and section 40 deals with the discharge of the guardian. The powers of the
guardian cease on happening of any one of these.
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3. Sub-section (1)(b) and sub-section (2)(b): Assumption of Superintendence of the Person and
Property of the Ward

Section 19 lays down that the court has no power to appoint a guardian of the property of a minor whose
property is under the superintendence of the Court of Wards. The court also has no power to appoint a
guardian of the person of the minor whose property is under the superintendence of the Court of Wards. The
provision of these clauses is a corollary to section 19. These clauses lay down that when the Court of Wards
assumed superintendence of the person or property of the minor the powers of the guardian of the person or
property, as the case may be, cease.1
4. Minor Attaining Majority

The minority of a minor whose guardian has been appointed terminates at the age of 21 and not at the age of
eighteen years. Thus the guardian of the person of the minor terminates when he attains the age of 21 years.
The same is true of the ward who is under the superintendence of the Court of Wards. Section 41 lays down
that the court’s jurisdiction over the minor automatically comes to an end when he attains majority.

There is no provision in the Act empowering the court to declare that the minor has attained the age of majority.
This section lays that powers of the guardian cease over the ward’s property and person on ward’s attaining
majority. When a minor represents to a court that he has become a major, the court should determine the
question after considering all facts and circumstances of the case and after examining the minor.2 When the
court accepts the fact that minor has attained majority, it does not make any order under the Act which is final
and not liable to be contested by suit or otherwise. It is open to the minor to show that he has not attained
majority.3 On attaining majority the ward is entitled to resume the possession of all his property and any order
asking him to furnish security is bad.4 In Madleo Prasad v. Kanhaya Lal,5 a power-of-attorney was executed by
the guardian of the minor in favour of M. The authority to act as attorney on behalf of the minor would not
terminate on the minor becoming a major but it can only be terminated in accordance with section 21 of the
Contract Act.
5. Sub-section (1)(d): Marriage of Female Ward

Section 19(a) lays down that a certificated guardian cannot be appointed of a minor married female unless in
the opinion of the court the husband is unfit to be the guardian of her person. Clause (a) of sub-section (1) is a
corollary to that provision. If a guardian has been appointed of a minor female, sub-section (1)(d) lays down that
the certificated guardian will cease to exercise all powers on her marriage to a husband who is not unfit to be
the guardian. This provision applies only when a certificated guardian has been appointed on her person. But
when a guardian of her property, whether certificated or testamentary, exists, the guardianship of property
would not terminate on her marriage.6 Similarly, a testamentary guardian of both the person and property of a
minor female would continue to exercise his powers over her property even if she gets married,1 though, it
seems, not over her person, unless her husband is unfit.
6. Sub-section (1)(d): Father Ceasing to be Unfit

Section 19(b) lays down that the court cannot appoint a guardian of the person of a minor unless his father, in
the opinion of the court, is unfit to be the guardian. Clause (d) of sub-section (1) is a corollary to this provision. If
the court has appointed a guardian of the person of a minor because the father was found to be unfit, the
certificated guardian will cease to exercise the powers of guardianship if the father recovers from his unfitness.
7. Death of the Ward

There is no express provision anywhere in this Act which lays down that on the death of the ward guardianship
would terminate. Sub-section (3) says, “when for any cause the powers of a guardian cease”. In our submission
these words are wide enough to include death of the ward as one “of the causes” of cessation of guardianship.
This is also the view taken by most of our High Courts. In Shiv Charan v. Bhawani Shankar,2 Sir Shadi Lal, J.
observed, “there can be no doubt that just as the death of the guardian puts an end to the guardianship, so
does the death of the ward himself.” The learned Judge added the cessation of guardianship on the death of
the ward would come within the ambit of words “for any cause” in sub-section (3), as these words are wide
enough to include the case of the death of the ward. But death of the ward does not put to an end to the
jurisdiction of the court. The court will have the power to order the guardian to hand over the property and
accounts which are with him to the next of kin of the minor. This was the view of the Bombay High Court in
Murlidhar v. Vallabh.3 But in case of the disputed heirship of the deceased minor, the court would have the
heirs to get their title settled through suit in a civil court competent to do so.4 This is also the view of the Madras
High Court in an early case,5 but in Kullappa v. Dalinappa,6 the court does not seem to agree with this view.
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The Allahabad High Court in Chandra v. Sujan,7 observed that word “for any cause” cannot include the death
of the ward as the concluding words in the sub-section are “any past or present property” of the ward. These
words clearly contemplate, that court added, the ward is alive at the time when order was passed.
8. Sub-section (3): Delivery of Property and Accounts

On the cessation of the guardianship for any cause, the guardian or his representative (in case the guardian is
dead) may be required by court to deliver any property or/and account relating to any past or present property
of the minor in his possession or control as per direction of the court.

The procedure under the sub-section is summary. Under this sub-section the court has power to direct the
guardian to deliver ward’s property including moneys which indubitably belongs to him. But if the guardian does
not admit that it is minor’s property and there is reasonable room for doubting minor’s title, then the court should
not pass an order under this section, but should leave the parties to settle the title by a civil suit.1 Similarly, the
property which is not in possession or control or which is no longer in his possession or control cannot be
ordered to be delivered to the ward. Remedy in such a case is again a civil suit.2

In Heeralal v. Manashamoyee,3 the Calcutta High Court said that the words “in the possession and control”
should be taken in a narrow sense meaning in his actual possession and control, i.e., in the sense of property
which he can dispose of. In our submission, this narrow construction is likely to jeopardise the interest of the
minor such as the guardian may, by converting ward’s property as his own or by disposing it of, succeed in
evading the provisions of the section.

The moneys of the minor that the guardian is required to hand over to the minor are those which are due under
the accounts submitted by him and passed by the court.4 The property includes government promissory
notes.5 When a person is appointed a guardian it is his duty to take over the possession of all the movable and
immovable property of the ward. In Heeralal v. Manashamoyee,6 the minor, apart from other properties,
claimed that certain ornaments belonging to her should also be given back to her. She said that presumption is
that the ornaments had been taken possession of by the guardian. The court held that unless the actual
possession of the guardian was shown, he would not be liable.

These cases lay down that the guardian can be ordered to deliver to the ward only those properties which are
in his actual possession.

In Paranand v. Arura,7 the guardian claimed certain lands as his own by asserting that long before he was
appointed the guardian he had purchased these from minor’s grandmother. But mutation was granted to him
only after he was appointed guardian. Earlier the authorities have refused mutation as they suspected the
dubious character of alienation. The guardian did not mention the lands in the inventory submitted by him, nor
did he account for the same. The guardian was ordered to give possession of the land to the ward subject to
the former establishing title in the civil court.

Sub-section (3) empowers the court to direct the guardian to deliver the accounts. Under the sub-section the
guardian is required to deliver the accounts and not to render accounts.1 Only those accounts are required to
be delivered which are in his possession or under his control. The object of the sub-section is to protect minor’s
interest and his property. Although the proceedings under the section are summary, the court has power to
investigate the accounts produced by the guardian for the purpose of determining their correctness. If on such
investigation the court comes to the conclusion that certain sums are due, can it direct the guardian to pay
these sums? One view is that the court has the power to do so. If the guardian fails to do so, the court can
proceed against the guardian under section 45.2 The Allahabad High Court in Md. Abdul Rab v. Khodaija Bibi,3
took the view that in such a situation, the court should not discharge the guardian and refer the parties to a
regular civil suit. In Sadho Singh v. Mohar Singh,4 the Lahore High Court also said that the court has no power
to order the guardian to pay the sum found due by the court after investigation. The court added that since
under the sub-section not only the guardian but his representative (in case guardian is dead) can be asked to
submit accounts, then, how can the representative of a deceased guardian be asked to pay the amount found
due by the court?5 But where a petition is filed against the guardian claiming certain sum of money but on
court’s investigation the exact amount found due was different, then the court certainly has the power to record
that finding.6
9. Penalty for Failure to Comply with sub-section (3)

On the failure of the guardian or his representative to deliver up the property and accounts to the ward or any
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person as directed by the court, the court can impose a fine or order the detention of the guardian or his legal
representative in a civil prison under section 45.7 On the other hand, there is no provision in the Act
empowering the court to issue a distress warrant against the ward for a sum of money which guardian claims
against the ward.8
10. Sub-section (4): Discharge of Guardian

This sub-section lays down that once compliance to orders made under sub-section (3) has been made by the
guardian, the court may discharge the guardian from his liabilities except those that might arise out of
guardian’s fraud. Such a discharge of the guardian, protects him from all suits in connection with the
management of minor’s property except for the fraudulent acts discovered after such a discharge.9 Thus a
discharge, protects him from his failure to invest minor’s funds properly or for breach of duty imposed on him
under section 27.1

The fiduciary nature of relationship between the guardian and ward imposes a duty on the court to be satisfied
that the guardian has taken no advantage of his position. It should discharge him only when it is satisfied that
guardian has taken no unfair advantage of his position and has discharged his duties competently. If the court
is not satisfied, it should not discharge him. He should keep the question open, and ask the minor or his next
friend to proceed under section 35 or section 36, as the case may be. On the other hand, if the court is satisfied
that guardian has acted fairly, has not taken any advantage of his position and has acted properly and
competently, the court should not hesitate in discharging him.2 Once a guardian has been discharged under
sub-section (4) of this section, a suit for settlement of account against the guardian is not maintainable.

An order discharging the guardian under this sub-section has to be expressed. Thus, it has been held that no
discharge can be inferred from the fact that the guardian has filed an abstract of accounts and assets of the
ward for several years3 or that the court made no comments on the account filed by the court.4 In Amarnath v.
Raghpat,5 minor on attaining majority put in an application for the security of the accounts submitted by the
guardian. On the date fixed for hearing, the quondam minor did not appear before the court though the
guardian appeared. On that date the court passed the order thus: “Guardian is present, ward is absent. The
guardian has furnished the ward a copy of accounts books and made over to him the whole of the property, the
case may, therefore, be sent to the record room.” It was held that this order did not amount to the discharge of
the guardian.

In Ranganath v. Murarilal,6 the Allahabad High Court said that when the guardian applies for the discharge, the
proper course for the guardian judge is to issue notice to the ward. On hearing the parties, if ward has no
objection, the discharge may be given to the guardian. As long as the judge has not passed the order of
discharge, the suit for account or recovery of property would lie against guardian.7 Such a suit is not barred
under section 48 either.8
11. Fraud Discovered Subsequent to Discharge

The sub-section makes it abundantly clear that if any fraud on the part of the guardian is subsequently
discovered, notwithstanding the discharge, proceedings can be filed against him. Under these circumstances,
the court is competent to pass an order for restoration of property or payment of money to the ward. Such an
order can be executed under the provisions of the Act.1 A suit by the ward for the recovery of specific sum of
money lost to him on account of the fraud of the guardian is maintainable.2In Md. Ibrahim v. Md. Abdul Basar,3
on account of the fraud of minor’s wife’s father on the court, the guardian was discharged on the ground that
minor has attained majority; minor not being party to fraud. It was held that the order of the court was not
conclusive against the minor, and the minor could sue the guardian for the recovery of property improperly
alienated by him.
12. No Appeal or Revision against the Order of Discharge

No appeal lies against the order of the court directing or requiring the guardian to deliver property or accounts
in his possession or under his control. However, where an order requiring the guardian to deliver possession of
property also imposes a penalty for its breach, the order so far as it relates to penalty is appealable under
section 47(j).

Where the guardian has complied with the order of the court under sub-section (3), and the court in exercise of
its direction discharged him under sub-section (4), no revision or appeal lies against such an order.4 Similarly
an order refusing to exercise discretion under sub-section (3) is not appealable.5

An order refusing to direct delivery of property is final except as provided by section 48.6
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PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

* For Statement of Objects and Reasons, see Gazette of India, 1886, Pt. V, p. 77; for Report of the Select Committee,
see Gazette of India., 1890, Pt. V, p. 77; and for Debates in Council, see Gazette of India, 1886, Supplement, pp. 419
and 666, and Gazette of India, 1890, Pt.VI, pp. 33 and 45.
This Act has been declared to be in force in the Sonthal Parganas by the Sonthal Parganas Settlement Regulation (3 of
1872), sec. 3; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), Sec. 3 and Schedule;
and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), Sec. 3 and Schedule.
It has been declared not to be in force in the scheduled districts in Ganjam and Vizagapatam by notification under sec. 3(b)
of the Scheduled Districts Act, 1874 (14 of 1874), see Gazette of India, 1898, Pt. I, p. 872.
It has been extended to the portions of the partially excluded areas in the Madras State, in which the provisions of this Act
are not in force by the Madras (Partially Excluded Areas) Guardians and Wards Regulation, 1940 (Mad. Reg. 6 of
1940), to Berar by the Berar Laws Act, 1941 (4 of 1941).
It has also been extended, with modifications, to the district of Koraput by the Koraput Guardians and Wards Regulation,
1943 (Orissa Reg. 7 of 1943).
It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
1 Deputy Commr., Gonda v. Nawab, AIR 1934 Oudh 392 .
2 Daskshayami v. Brahmayya, AIR 1950 Mad 37 .
3 Naima v. Basant, AIR 1934 All 406 .
4 Raja Yenumuler v. Chitrapu, AIR 1951 Mad 792 .
5 AIR 1946 All 1 .
6 Rajarajeshwar Ammal v. Sanikaranayya Aiyar, AIR 1948 Mad 155 [LNIND 1947 MAD 70].
1 Rajarajeshwar Ammal v. Sanikaranayya Aiyar, AIR 1948 Mad 155 [LNIND 1947 MAD 70].
2 AIR 1928 Lah 495 .
3 ILR (1909) 33 Bom 419 .
4 Fateh Chand v. Parvati, AIR 1925 Sind 269 .
5 Nataraja v. Subbayya, 1918 MWN 440.
6 AIR 1950 Mad 574 [LNIND 1950 MAD 49].
7 Chandra v. Sujan, ILR 42 All 1.
1 Fakir Md. v. Brij Narayan, AIR 1925 All 785 ; Motilal v. Bai Ochha, 11 Bom LR 190; Surain Singh v. Balwant Kaur, AIR
1935 Lah 931 .
2 Hoondomal v. Nazir, AIR 1930 Sind 43 .
3 AIR 1934 Cal 520 .
4 Abdul Hasim v. Maleka, AIR 1919 Cal 833 ; Muni Lal v. Mukhteshwar, AIR 1938 Pat 398 .
5 Heeralal v. Manashamoyee, AIR 1934 Cal 520 .
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6 AIR 1934 Cal 520 .

7 33 PLR 1912.
1 Nabhu Bepan v. Sheikh Md., 5 CWN 207; Abdul Hasim v. Maleka, 29 CLJ 44.
2 Muni Lal v. Balbhaddar, AIR 1942 Pat 422 .
3 AIR 1925 All 457 . See also Rangnath v. Murari, AIR 1936 All 179 .
4 AIR 1931 Lah 68 .
5 See Md. Ibrahim v. Md. Abdul Basar, AIR 1937 Cal 422 .
6 Jagannath v. Lal Babu, AIR 1936 Pat 447 ; Sita Ram v. Govindi, AIR 1924 All 593 ; but all Ranganath v. Murarilal, AIR
1936 All 179, where a different view has been expressed.
7 Muni Lal v. Mukhteshwar, AIR 1938 Pat 398 ; Surain Singh v. Balwant Kaur, AIR 1935 Lah 937 .
8 Md. Ibrahim v. Md. Abdul Bashar, AIR 1937 Cal 422 .
9 Murlidhar v. Vallabhdas, ILR (1909) 33 Bom 419 ; Ramayya v. Tulsamma, AIR 1936 Mad 868 [LNIND 1936 MAD 153].
1 Murlidhar v. Vallabhdas, ILR (1909) 33 Bom 419 ; Ramayya v. Tulsamma, AIR 1936 Mad 868 [LNIND 1936 MAD 153].
2 Ramchandran v. Balsubramanian, AIR 1938 Mad 347 [LNIND 1937 MAD 400](FB).
3 Nawadeep v. Jaga Dasses, 15 CLJ 57.
4 Abdul Rahim v. Tansingh, AIR 1952 Nag 135 .
5 25 PR 1918.
6 AIR 1936 All 179 .
7 Amar Nath v. Raghpat, 25 PR 1918; Kaniz Fatima v. Sajjad Hosain, ILR (1906) 34 Cal 211 .
8 Abdul Rahim v. Baria, 61 IC 807.
1 Mohammed Abdul Rab v. Khodaija Bibi, AIR 1925 All 457 .
2 Ramayya v. Tulsamma, AIR 1936 Mad 868 [LNIND 1936 MAD 153].
3 AIR 1937 Cal 422 .
4 Ramchandran v. Balasubramania, AIR 1938 Mad 347 [LNIND 1937 MAD 400].
5 Prabhulal v. Collector, 1972 SLR 16.
6 Basalingappa v. Nazir, 1 Bom LR 822.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

42. Appointment of successor to guardian dead, discharged or removed.—

When a guardian appointed or declared by the Court is discharged, or, under the law to which the ward is
subject, ceases to be entitled to act, or when any such guardian or a guardian appointed by Will or other
instrument is removed or dies, the Court, of its own motion or on application under Chapter II, may, if the ward
is still a minor, appoint or declare another guardian of his person or property, or both, as the case may be.
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Comments

1. Scope

This section stipulates for the appointment of a successor to a certificated and testamentary guardian who has
died or has been discharged or removed.

Under section 40 a guardian can be discharged. He can be removed under section 39.

This section obviously does not apply to natural guardians. The natural guardians are governed by the personal
law of the minor. A natural guardian is removed when a certificated guardian is appointed.
2. Appointment of Successor: Two Modes

This section contemplates two modes of appointment of successor to a certificated or testamentary guardian:

(i) the court may suo moto appoint a successor or

(ii) The court may appoint a successor on the application of a person as required under Chapter II of the
Act.

In the case of a minor who owns sufficient property, the court may consider it for its welfare to appoint a
guardian of his property even if he has attained the age 18, till he attains the age of 21 years.1 It is because on
the appointment of a guardian by the court, the age of minority, is extended to the attainment of age of 21
years.

Under clause (j) of section 39, when the guardianship of a person ceases under his personal law, the court
would remove him. For instance, provisos (a) and (b) to section 6 of the Hindu Minority and Guardianship Act
lay down that if a natural guardian has ceased to be a Hindu or if he has completely and finally renounced the
world by becoming a hermit or an ascetic, he would not be entitled to act as natural guardian. In such a case
also the court is competent to appoint a successor guardian, provided there is no other natural guardian. Thus
when the Hindu father ceases to be entitled to act as guardian in any one of the former cases mother becomes
the natural guardian and therefore, the question of appointing a successor does not arise.
3. Case of Urgency

Sometimes the appointment of a successor may be urgent. Thus on the death or removal of an existing
guardian, there would be a case of urgency for the protection of minor’s property where the quantum of
property is considerable. In such a case the court would appoint a successor guardian without delay.2
4. Procedure to be Followed

When appointment of successor is made, the procedure for the appointment of guardian as laid down in
Chapter II of the Act should be followed. Thus an appointment of a successor without issuing due notices under
section 11 would be bad.3
5. Appeal

No appeal lies against an order of appointment of successor guardian when the court actsuo moto.—
But an appeal lies when appointment of guardian is made on the application by any other person. It is because
such an order will be deemed to be made under section 7.1

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
CHAPTER VI SUPPLEMENTAL PROVISIONS
This chapter contains sections 43 to 53, of which section 52 was repealed in 1938 and section 53 in 1908. This
chapter deals with some miscellaneous matters, which are not interconnected.
Section 43 empowers the guardian court to pass orders for regulating conduct and proceedings of guardians and
mode of enforcement of such orders.
Section 44 lays down penalty for removal of the ward from the jurisdiction. It may be recalled that section 26 lays
down that a ward cannot be removed out of jurisdiction without the permission of the court. In case the ward is
removed outside the jurisdiction of the guardian court, this section provides the penalty.
Section 45 provides penalty for contumacy.
Section 46 empowers the guardian court to call for a report on any matter arising in any proceedings under the Act
for the Collector or a subordinate court.
Section 47 lays down which of the orders passed by the guardian court can be appealed against and by implication
lays down that other orders are not appealable.
Section 48 by implication provides for revision against certain orders of the guardian court. It makes applicable
section 115 of the Code of Civil Procedure to certain orders passed under the Guardians and Wards Act. Section
115 of the Code of Civil Procedure deals with “revision”. Section 48 also lays down that, apart from the provisions
for appeals and revisions, orders made under the Act are final and cannot be contested by suit or otherwise.
Section 49 deals with costs and lays down that the costs of any proceedings under the Act including the costs of
maintaining a guardian or other person in the civil jail shall be in the discretion of the court, subject to the Rules
framed by the High Court.
Section 50 lists eleven matters on which the High Courts can frame Rules under the Act. The section also says that
this power is in addition to any other power to make rules conferred expressly or impliedly under the Act.
Section 51 lays down that the guardians appointed under any law prior to the commencement of the Guardians and
Wards Act shall be subject to the provisions of the Guardians and Wards Act and rules framed thereunder as if they
have been appointed thereunder, unless differently prescribed.

43. Orders for regulating conduct or proceedings of guardians, and

enforcement of those orders.—
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(1) The Court may, on the application of any person interested or of its own motion, make an order
regulating the conduct or proceedings of any guardian appointed or declared by the Court.
(2) Where there are more guardians than one of a ward and they are unable to agree upon a question
affecting his welfare, any of them may apply to the Court for its direction, and the Court may make
such order respecting the matter in difference as it thinks fit.
(3) Except where it appears that the object of making an order under sub-section (1) or sub-section (2)
would be defeated by the delay, the Court shall, before making the order, direct notice of the
application therefor or of the intention of the Court to make it, as the case may be, to be given, in a
case under sub-section (1), to the guardian or, in a case under sub-section (2), to the guardian who
has not made the application.
(4) In case of disobedience to an order made under sub-section (1) or sub-section (2), the order may be
enforced in the same manner as an injunction granted under secion 492 or section 493 of the Code of
Civil Procedure, 1882 (14 of 1882)*, in a case under sub-section (1), as if the ward were the plaintiff
and the guardian were the defendant or, in a case under sub-section (2), as if the guardian who made
the application were the plaintiff and the other guardian were the defendant.
(5) Except in a case under sub-section (2), nothing in this section shall apply to a Collector who is, as
such, a guardian.

Comments

1. Scope

It may be recalled that section 33 lays down that a certificated guardian may seek the opinion, advice or
direction from the guardian court on any matter relating to the management or administration of the property of
his ward. This section empowers the guardian court either at its own instance or on the application of any
interested person to make orders regulating the conduct or proceedings of the certificated guardian. Both
sections 33 and 43 apply only to certificated guardian. The tenor of the Act is that, though the court appoints a
guardian, it retains the jurisdiction over the person and property of the minor till the minor attains majority, and
the guardian continues to work under the supervision and guidance of the court throughout his guardianship.
Chapter III which deals with the duties, rights and liabilities of the guardian contains several provisions which
keeps the guardian under the supervision and control of the guardian court. This is evident from the control that
the court exercises over the guardian of the property of the minor. Sections 27 to 37 lay down a whole set of
controls over the guardian of minor’s property.

This section deals with two sets of matters. Sub-section (1) empowers the court to pass orders regulating the
conduct or proceedings of the certificated guardian. Sub-section (2) empowers the court to sort out differences
between the joint guardians on the application of any one of them.

Sub-section (3) lays down the procedure for making orders and directions under sub-sections (1) and (2).

Sub-section (4) provides for action to be taken in case of disobedience of any order or direction made under
sub-sections (1) and (2).

Sub-section (5) lays down that the provisions of this section, except that of sub-section (2), do not apply to the
Collector-guardian.
2. Regulations of Conduct or Proceedings of a Guardian

This section makes it evidently clear that it is the conduct or proceedings of the guardian that are to be
regulated by the guardian court. Thus, under this section no directions can be issued to a stranger.1 In
Krishnaswami v. Palam Ammal,2 the court issued direction to the executor of the Will of minor’s father, in
Somokka v. Ramiah,3 the court issued directions to step-mother of a minor that she should pay a certain
amount for the marriage of minor, and in Laxminarayan v. Parvatibai,4 the court issued certain directions to the
temporary custodian of the minor about the marriage of a minor, it was held that the guardian court had no
power to issue such directions to these persons as none of them was a guardian. It has been held that court
cannot issue an order directing to return the jewel of the minor to a person who had removed the same from the
minor at a time when minor was in his custody prior to the appointment of guardian.1 Similarly, the court cannot
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issue any order or directions to a trustee of the minor2 or to a father of the minor who is not a certificated
guardian of the minor.3

Where the conduct of a guardian is somewhat blameworthy, the court may issue directions to him to correct his
conduct and to act in a particular manner. Such conduct may not warrant his removal. The court has the power
to ask the guardian to give security for his personal appearance on a particular day but it cannot ask the
guardian to provide security for the appearance of a third person.4
3. Who may Seek Orders and Directions: Guardian Court or any Interested Person

Under this section the guardian court may give directions and pass orders at its own instance or at the
application of any interested person.

“Any interested person” means a person interested in minor’s welfare. It cannot be a total stranger or inter-
meddler. Any interested person would also not include a guardian as directions and orders are sought against
the guardian. In Granambal v. Badivelu,5 it was held that a person seeking loan out of the funds of the property
was not an interested person under this section. A relation or a friend of the minor interested is protecting the
interest of minor or seeking his welfare is an interested person.

Section 39 also uses the words “any interested person”. There also these words have the same meaning.
Reference may be made to our commentary on that section.
4. Sub-section (1): Regulation of Conduct of Proceedings

Sub-section (1) requires the fulfilment of the following conditions:

(a) The court may act at its own instance or at the instance of an interested person.
(b) Order and directions can be issued only to a certificated guardian, i.e., there must be existing a
certificated guardian, and no orders or directions can be issued to a person who is not a guardian of
the minor.

5. Regulation of Conduct: Marriage of the Minor

It is interesting to note that most of the cases that have come before the courts relate to the marriage of the
minor, either sanctioning or prohibiting minor’s marriage. The cases which relate to sanctioning of the marriage
of the minor do not represent a good law as under the modern Indian Law minors’ marriages are prohibited,6
and no guardian court would now sanction the marriage of the minor. Almost all the cases on this matter are
pre-independence cases. In an early case, Monijan Bibi v. Distt. Judge, Birbhum,1 the Calcutta High Court said
that the guardian court representing the sovereign has very wide powers of regulating the conduct and
proceedings of the guardian, including the power to restrain an unsuitable marriage even where the guardian
had consented to such a marriage. The court added that the marriage of a minor who is the ward of the court
should not take place without the sanction of the court. In Laxminarayan v. Parvatibai,2 the guardian court has
prohibited the mother of minor girls (she was the certificated guardian) from marrying them. The mother gave
the undertaking to abide by the order. But in the breach of undertaking she gave away the girls in marriage. The
court passed order to punish her for disobedience of the order of the court. The court issued similar orders to
the son-in-laws and others responsible for the marriage. The Allahabad High Court held that the court could
punish the mother for contempt under this section but not others. On the other hand, in Bai Biwali v. Moti
Karson,3 the Bombay High Court expressed the view that marriage of the minor was not included under this
section. But in later decisions, the Bombay High Court has changed this view. In Dahyabhai v. Bai Diwali,4 the
Bombay High Court observed that the marriage of the ward is one of the “proceedings of the guardian” referred
to in section 43. In Reotilal v. Shiamlal,5 the Allahabad High Court went to the extreme when it observed that to
provide a suitable match to a minor girl and to perform her marriage is one of the duties of the guardian.

At the time of the appointment of the guardian, the court can lay it down as a condition that he would not give
away the minor in marriage without the prior sanction of the court and after giving due notice to the relations of
the ward.6 Disobedience to such orders is punishable under this section.7
6. Regulation of Proceedings: Matters other than Marriage

It seems that all matters pertaining to the property of the minor would be covered under the word “proceedings
of the guardian.” Similarly, matters stated in sections 24, 25 and 26 relating to the person of the minor could
also be covered under the head “conduct” or “proceedings”.
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In Kundanlal v. Bhagwati Saran,8 the guardian executed a lease of minor’s property without the permission of
the court. The court ordered the guardian to cancel this lease and execute another in favour of a person named
by the court. It was held that the court has power to do so, as it pertained to “proceedings of the guardian”,
under this section. In Granambal v. Vadivelu,9 the court said that an order sanctioning a mortgage loan and
directing the guardian to get the mortgage deed executed is covered under this section.

An order calling upon the guardian who had taken benami lease of minor’s land to deposit the lease money in
the court,1 an order entitling the ward, to recover certain sum of money from the guardian,2 an injunction
against guardian restraining him from performing unsuitable marriage3 of the minor, order to pay a certain
amount to the ward,4 and order directing the guardian to deposit the entire amount which he took under an
unauthorized mortgage of the minor,5 were held not to be proper orders falling under this section.
7. Sub-section (2): Orders Sorting Out Differences between the Joint Guardians

Sub-section (2) empowers the guardian judge to sort out differences between the joint guardians, when joint
guardians differ on a matter pertaining to the welfare of the minor, any one of them may apply to the court for its
directions. When such an application is made, the court will issue directions or pass orders as it deems fit.
8. Sub-section (3): Procedure for Disposing of Application under sub-section(1) and sub-section (2)

In case any matter referred to the court under sub-sections (1) and (2) is very urgent, the court has power to
pass an order immediately. Otherwise, when any matter is brought before the court for its directions or orders
under sub-section (1), whether at the instance of the court or on the application of an interested person, the
court should give a notice to the guardian before making any order or issuing any direction. When a matter is
brought before the court under sub-section (2), at the instance of one of the joint guardians, the court will give
notice to the other guardian or guardians. An order passed without such notice is bad, unless it is one which
has been passed in a matter of urgency. Any matter in which any delay in passing the order would defeat the
very object of making the order, will be an urgent matter and the court can pass orders without giving any notice
to relevant persons.
9. Sub-section (4): Enforcement of Orders and Directions

The interesting aspect of enforcing orders under this section is that it is enforced in the same manner as
disobedience of an injunction passed by a civil court is enforced. It should be emphasised that under this
section, the guardian court has no power of passing an injunction, but if orders made under this section are
disobeyed they are enforced in the same manner as breach of injunction, i.e., such disobedience is treated as
contempt of the court. This provision has led to some misunderstanding on the part of some courts which have
passed injunction orders under this section.1 But the guardian court, it is submitted, has no such power.

Sub-section (4) provides for mode of enforcement of orders passed under sub-sections (1) and (2) when they
are disobeyed irrespective of the fact whether or not the effect of disobedience is capable of removal or
repatriation. As regards the orders under sub-section (1), the ward is regarded as plaintiff and the guardian as
defendant as in a case for suit for injunction, and in case of disobedience to the order of the court, the
punishment is the same as in case of flouting of the injunction. In respect of orders under sub-section (2), the
guardian who made the application is treated as plaintiff and the other guardian or guardians as defendant or
defendants in the like manner as in a suit for injunction. The punishment is for contempt as in the case of
injunction. In Sahoda v. Dhajadhari,2 the guardian court passed an order directing the guardian that the ward
should not be married without the consent of her grandfather and without the leave of the court. In disobedience
to the order the guardian gave the minor in marriage. The guardian was punished under the sub-section even
though, on the marriage of the girl, the order had become incapable of enforcement as status quo could not be
restored.3 But if the order of the court is without jurisdiction, no punishment can be awarded to the guardian.4
10. Appeals

Orders made under this section are subject to appeal to the High Court under section 47(i). But if an order does
not fall within the purview of section 43, no appeal lies under section 47(i). Thus an order sanctioning proposal
for marriage of the minor when no appointment of guardian was made,5 and an order selecting a bridegroom
for a minor girl6 are not orders made under section 43. But it seems revision lies against such orders when an
application is not maintainable under section 43, yet the court purports to pass orders under the section, appeal
lies.7

An order directing the guardian to pay the amount due after the scrutiny of accounts submitted by him,8 an
order refusing to take action against the guardian under section 45 or for procuring payment of amount
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surcharged9 is not an order under section 43 and hence is not appealable. In Taskin Fatma v. Mohammad
Munim,10 the guardian of a female ward with the permission of the court initiated certain proceedings relating
to certain disputed matters. The award was made. Thereafter, minor got married and her husband was
appointed a guardian. Her husband sought the permission of the court to institute a suit to get the award set
aside on the ground of fraud and collusion. The court dismissed his application as one made mala fide. It was
held that the order dismissing husband’s application was not passed under section 43, as this could hardly be
treated as a matter relating to the regulation of conduct or proceedings of the guardian. On the other hand, in
Surain Singh v. Balwant Kaur,1 an order was made against an ex-guardian to pay the amount, which was found
due against him and for which he was repeatedly asked to make payment, on pain of being sent to the prison
for non-compliance. It was held that such an order might be regarded as one made under section 43 as one
regulating the conduct of the proceedings of the guardian. In our submission this judgment is wrong as section
43 applies only when the guardianship is subsisting.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

1 ILR (1914) 42 Cal 351 .

2 ILR (1919) 44 Bom 690 .
3 ILR (1896) 22 Bom 509 .
4 AIR 1939 Bom 366 .
5 AIR 1930 All 66 .
6 In re, Gulbai and Lilabai, ILR (1907) 32 Bom 50 .
7 Mahabir v. Raghubar, AIR 1933 Oudh 312 ; Distt. Judge, Chindwara v. Basori Lal, AIR 1942 Nag 45 ; Gondamal v.
Ramjidas, 20 PLR 1914.
8 AIR 1934 All 1043 .
9 AIR 1934 Mad 207 [LNIND 1933 MAD 285].
1 Arur v. Gur Baksh, AIR 1932 Lah 272 .
2 Ghazanfar Hussain v. Rahmat Hussain, AIR 1935 Oudh 180 .
3 Deo Krishan v. Asaram, AIR 1933 Nag 62 .
4 Hoondomal v. Nazir, AIR 1930 Sind 43 .
5 Naraindas v. Thali Bai, AIR 1927 Sind 262 .
1 Abdul Rahiman v. Ganpatti, ILR 23 Mad 517; the Court issued an injunction and also appointed a receiver under this
section.
2 16 CWN 447.
3 See also Sami Naidu v. Pandaridas, 1 Mad LJ 318.
4 Sahodra v. Dhajadhari, 16 CWN 447; Abdul Ghafoor v. Saminulla, AIR 1960 All 66 [LNIND 1959 ALL 90].
5 Laxminarayan v. Parvatibai, ILR (1920) 44 Bom 690 .
6 Manijam Bibi v. Distt. Judge, Birbhum, ILR 42 Cal 351; Salubai v. Keshavrao, AIR 1932 Bom 156 .
7 Subbarami v. Pattabhairama, AIR 1926 Mad 977 [LNIND 1926 MAD 78]; Ranganath v. Murarilal, AIR 1936 All 179 ;
Abdul Rahim v. Ganapati, ILR 23 Mad 517.
8 Rangnath v. Murarilal, AIR 1936 All 179
9 Sitaram v. Govindi, AIR 1924 All 593 .
10 AIR 1928 All 259 .
1 AIR 1935 Lah 931 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

44. Penalty for removal of ward from jurisdiction.—

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If, for the purpose or with the effect of preventing the Court from exercising its authority with respect to a ward,
a guardian appointed or declared by the Court removes the ward from the limits of the jurisdiction of the Court
in contravention of the provisions of section 26, he shall be liable, by order of the Court, to fine not exceeding
one thousand rupees, or to imprisonment in the civil jail for a term which may extend to six months.

Comments

1. Scope

Section 26 lays down that the ward should not be removed out of the jurisdiction without prior permission of the
court. Section 44 provides penalty for removing the ward from the jurisdiction of the court.

This section applies only to certificated guardian. It does not apply to the Collector or other guardians.
2. Penalty

The penalty provided by the section is a fine not exceeding one thousand rupees or to imprisonment in the civil
prison for a term which may extend to six months. Both punishments cannot be inflicted simultaneously.

The removal of the ward out of jurisdiction without the prior permission of the court should be with the object of
preventing the court from exercising its authority with respect of the ward.
3. Appeal

Appeal lies against the order imposing penalty.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

45. Penalty for contumacy.—

(1) In the following cases, namely:—

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(a) If a person having the custody of a minor fails to produce him or cause him to be produced in
compliance with a direction under section 12, sub-section (1), or to do his utmost to compel the
minor to return to the custody of his guardian in obedience to an order under section 25, sub-
section (1); or
(b) if a guardian appointed or declared by the Court fails to deliver to the Court, within the time allowed
by or under clause (b) of section 34, a statement required under that clause, or to exhibit accounts
in compliance with a requisition under clause (c) of that section, or to pay into the Court the
balance due from him on those accounts in compliance with a requisition under clause (d) of that
section; or
(c) if a person who has ceased to be a guardian, or the representative of such a person, fails to deliver
any property or accounts in compliance with a requisition under section 41, sub-section (3),

the person, guardian or representative, as the case may be, shall be liable, by order of the Court, to
fine not exceeding one hundred rupees, and in case of recusancy to further fine not exceeding ten
rupees for each day after the first during which the default continues, and not exceeding five hundred
rupees in the aggregate, and to detention in the civil jail until he undertakes to produce the minor or
cause him to be produced, or to compel his return, or to deliver the statement, or to exhibit the
accounts, or to pay the balance, or to deliver the property or accounts, as the case may be.
(2) If a person who has been released from detention on giving an undertaking under sub-section (1) fails
to carry out the undertaking within the time allowed by the Court, the Court may cause him to be
arrested and recommitted to the civil jail.

Comments

1. Scope

This section provides for penalty for contumacy in the following specific cases:

A. Non-compliance with the directions issued under section 12(1).

B. Preventing the minor from returning to the lawful custody when an order under section 25(1) has been
passed.
C. Failure of the guardian to deliver to the court within the specified time, statement required under
section 34(b).
D. Failure of the guardian to pay into the court, balance due from him on those accounts as required of
him under section 34(d).
E. Failure of the guardian to pay into the court balance due from him on those accounts as required of
him under section 34(d).
F. Failure of the guardian or his legal representatives to deliver up the accounts or property when ordered
to do so under section 41(3), when he has ceased to be a guardian.

The penalty is in the form of a fine not exceeding one hundred rupees. But if the offence is repeated or insisted
upon (recusancy) a further fine not exceeding rupees ten per day after the first during which offence continues
but not exceeding five hundred rupees in the aggregate. The person guilty of contumacy under this section can
also be detained in a civil prison until he complies with the order. When such a person is released from the jail
on his giving an undertaking that he would comply with the order but fails to do so, he can be rearrested and
sent to jail.
2. Sub-section (1): Disobedience of Order under section 12(1)

Under section 12(1) the court can direct a person who is not a guardian having the custody of the child to
produce the child as per direction of the court. When the guardian is asked to produce the child it is not an
order under section 12(1) nor under section 25(1). If the guardian fails to obey such order, he cannot be
punished under section 45. Thus in Sobodra v. Dhajadhari,1 a certificated guardian was directed by the court
not to marry the ward without its permission as well as of certain relations of the minor. The guardian in
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disobedience of the order gave the minor in marriage. The court ordered the guardian to produce the child and
on his failure to do so imposed a fine under section 45. It was held that the order was bad.
3. Sub-section (1)(a): Disobedience to Order under section 25(1)

Under section 25(1) an order is passed against a person who has actual custody of the child to produce the
child before the court. In Inder Singh v. Kartar Kaur,1 a certificated guardian requested the court that custody of
the child be given to him. The person having actual custody of the child was asked to produce the child. Such
an order is under section 25. But if no order under section 25 has been passed, then an order punishing the
person disobeying the order would be set aside and fine would be refunded since the violation of an order
under section 25(1) has been made punishable under sub-section (1)(a) of this section.
4. Sub-section (1)(b): Breach of Obligations under section 34

Clauses (b), (c) and (d) of section 34 require certain specific things to be done by the guardian. Non-
compliance with such orders is made punishable under this section.2 These are the following three matters:

(a) to deliver to the court a statement of the assets and liabilities of the minor within the time prescribed by
the court.
(b) to exhibit the account in the court, if so ordered, and
(c) to pay into the court the balance due on those accounts, if so ordered.

In Jaddo v. Baram Deo,3 on the failure of the guardian to furnish security as required by the court, the court
imposed a fine on him under sub-section (1). In our submission an order asking to furnish security is not the
one mentioned in the sub-section, and therefore no fine can be imposed on failure to furnish security. The
decision is bad.

We have reviewed in our commentary on section 34, the controversy among our High Court as to the meaning
of words, “exhibiting account” and consequent controversy as to which “balance” the guardian is required to
deposit,4 reference may be made to the same.

The failure to comply with the order of the court under clauses (c) and (d) is punishable under this section, but
only for moneys due on the account, and not on the failure to deposit other moneys. Thus in Garib Chand v. E,5
guardian has recovered some money due to the minor. He informed the court accordingly. The court ordered
him to deposit the money in bank fixed deposit within a specified time. The guardian represented to the court
that the mother of the minor wanted the money to be loaned out at a higher rate of interest. Meanwhile the time
specified by the court expired. The court imposed fine on the guardian. The Lahore High Court held that on
such a lapse, fine could not be levied as the case did not fall under section 45, Similarly, in In re, Nikhrannussa
Bibi,1 the guardian obtained the permission of the court for the sale of a portion of the house on the plea that
money was needed to repair the house. He sold the portion for Rs. 5000. In this accounts the guardian said that
out of this sum Rs. 4000 had been retained by the purchaser against the loan given by him to the minor.
Thereafter the guardian was ordered to deposit Rs. 4000 by a certain date. On the failure of the guardian to do
so, the guardian was awarded fine under section 45. On appeal, the Calcutta High Court observed that the
order was bad as it was not the balance due under the accounts exhibited under section 34.
5. Sub-section (1)(c): Failure to Deliver Accounts or Property

Under section 34 the guardian is required to deliver accounts and property to the ward as ordered by the court.
Under clause (c) of sub-section (1), the guardian can be punished for his failure to do so. This clause applies to
quondam guardian also. But such an order should be made after a due inquiry as to what account and what
property is due to the minor. The punishment of the guardian without such inquiry is bad and the punishment
inflicted on the guardian can be quashed.2 But if a guardian is avoiding inquiry and had conducted himself
contumaciously throughout making the inquiry impossible, then penalty under section 45 can be imposed on
him.3 The same applies to accounts. The guardian can be punished for his disobedience to an order to pay into
the court the accounts as submitted by him. Whether he can be fined for the amount found due after an inquiry
made by the court there is controversy among the High Court. These cases have been reviewed in our
commentary on section 34.
6. Punishment for Disobedience

Section 45 provides that a fine of not exceeding Rs. 100 can be imposed on the defaulting guardian and in case
of recusancy an additional fine of Rs. 10 per day can be imposed, but this fine cannot exceed Rs. 500. This
section also provides for detention of the defaulter. A defaulter who has been detained in civil prison may be
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released from the prison if he gives an undertaking to comply with the order. But if he fails to carry out the
undertaking, he can be detained in civil prison again. Both punishments cannot be inflicted simultaneously.4 In
Balai Chand v. Narayan Chand,5 the court observed that on failure to obey an order passed under section
34(d), the defaulter should be ordered into the civil prison only on proof that he had some means to comply with
the order.

It should be noticed that no penalty is provided under this section for the failure of the guardian to comply with
the order of providing maintenance, etc., to the minor under clause (e) of section 39. An order imposing penalty
for non-compliance of the order is not punishable and if punishment is inflicted it is without jurisdiction.6

An order imposing penalty on a person without giving him an opportunity to defend himself is bad.1 In Fakir Md.
v. Brij Narayan,2 the retiring guardian was asked to hand over a house to the new guardian. This house was
not included in the inventory filed by the quondam guardian. It was also found that delivery of the house was
ordered without the court making any inquiry about the title of the house. On the non-compliance of the order,
the quondam guardian was awarded penalty under section 45. The Allahabad High Court held the order bad
and set it aside.

In Motibai v. Bai Ochha,3 the guardian was ordered to deliver up accounts and properties to minor. On his
failure to do so, he was fined. It was revealed that some of the properties of the minor were misappropriated by
the gomasta fraudulently. But the guardian was not party to the fraud of the gomasta. The Bombay High Court
held the order imposing fine as bad since the matter involved related to a complicated question of law and fact
which could not be sorted out by a summary inquiry. It was observed by the court that the remedy for
contumacy and recusancy are altogether inappropriate where a bona fide question of fact and law is raised
which cannot conveniently be decided in a summary manner.
7. Appeal

An order passed under this section is appealable under section 47(j). But an order refusing to impose penalty is
not appealable. But a revision is competent.4

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

1 16 CWN 447.
1 AIR 1929 Lah 487 .
2 Kinu Sundari v. Narendra Nath, AIR 1929 Cal 27 .
3 17 ALJ 377.
4 Reference may be made to: Sitaram v. Govindi, AIR 1924 All 593 ; Abbasi Begum v. Yakuti, AIR 1925 Pat 477 ;
Fariduddin v. Ahmad Abdul, AIR 1928 Pat 255 ; Jagannath v. Mohesh Chandra, 21 CWN 680; Hari Krishna v.
Govindarajulalu, AIR 1926 Mad 478 [LNIND 1925 MAD 343]; Harnam Singh v. Gurdian Singh, AIR 1930 Lah 558 .
5 AIR 1928 Lah 538 .
1 20 CWN 663.
2 Fakir Md. v. Brij Narayan, AIR 1925 All 785 .
3 Damodar Das v. Jath, AIR 1927 Lah 344 .
4 Balai Chand v. Narayan Chand, 49 IC 624.
5 49 IC 624.
6 Najabat Ali v. Mehtab Bibi, 34 PR 1912.
1 Sant Singh v. Lal Chand, AIR 1929 Lah 630 ; Allahadi v. Abdul Ghani, 40 DLR 532.
2 AIR 1925 All 785 .
3 11 Bom LR 190.
4 Sita Ram v. Govindi, AIR 1924 All 593 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

46. Reports by Collectors and subordinate Courts.—

(1) The Court may call upon the Collector, or upon any Court subordinate to the Court, for a report on any
matter arising in any proceeding under this Act and treat the report as evidence.
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(2) For the purpose of preparing the report the Collector or the Judge of the subordinate Court, as the
case may be, shall make such inquiry as he deems necessary, and may for the purposes of the inquiry
exercise any power of compelling the attendance of a witness to give evidence or produce a document
which is conferred on a Court by the Code of Civil Procedure, 1882 (14 of 1882)*.

Comments

1. Scope

The objective of this section is to help the guardian court in finding out true fact about the person and property
or any other matter arising in guardianship proceedings, by getting made inquiries at the place where minor is
living or his property is situate or the proposed guardian lives. Under this section, the guardian court can ask
the Collector or the subordinate court for a report on any matter arising in any proceedings under the Act. This
section further lays down that the guardian court can treat the report of the Collector or the subordinate court as
evidence.
2. Inquiry by the Subordinate Court or Collector

Sub-section (2) lays down that for the purpose of making report, the Collector or the subordinate court, as the
case may be shall make such inquiry as he deems necessary, and for that purpose he can exercise any power
of compelling the attendance of a witness to give evidence or produce a document which is conferred on a civil
court by the Code of Civil Procedure. But this does not mean that the guardian court can dispense with the
hearing of evidence by himself and transfer the entire investigation to the subordinate court. The court should
comply with the requirement of the section.1 What this section lays down is that on any matter arising in the
proceeding which needs local inquiry or investigation, the guardian court can seek assistance from the
Collector or the subordinate court. But the material issues are to be decided by the guardian court itself, such
as suitability of the guardian to be appointed or whether the appointment of guardian is necessary. Ganesh
Vithal v. Kusa Bai,2 provides a good illustration. The application for appointment of guardian of the person and
property of the minor made to the guardian judge, was sent to the subordinate court for inquiry and report. The
guardian court issued a notice to the objector that he should appear before the subordinate court which would
hear and dispose of the objections. In view of these instructions, the entire inquiry was made by the subordinate
court who also recorded the evidence. Thereupon, on this basis, the guardian court disposed of the application
without itself recording any evidence or hearing the parties. It was held that the order of the guardian judge was
vitiated and bad. On the other hand, in Janak Raj v. Pateshri,3 the guardian court fixed a date of hearing and
after that he sought a report from the subordinate court about the suitability of the proposed guardian. The
subordinate court submitted its report. Then after hearing the parties and considering the report he passed the
order. It was held by the Allahabad High Court that it was a proper procedure and valid use of the provisions of
section 46.
3. Report of the Collector or Subordinate Court

The report of the Collector or subordinate court would form part of evidence only when it has been called by the
District Judge. A report sent by the Collector at his own initiation cannot form part of the evidence.1 In
Gangawa v. Sanna,2 the Collector at his own instance send a letter to the District Judge bringing to his notice
certain facts about the guardian appointed by the district court and requested that the order appointing guardian
should be cancelled. His letter cannot form part of evidence. This is so for few reasons. First, it is not a report
but the opinion of the Collector, and secondly, it was not called by the guardian court. The District Judge cannot
treat the evidence recorded by the subordinate court as part of its record. It is only the report called by the
District Judge from the Collector or the subordinate court which can form part of evidence.3

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

47. Orders appealable.—

An appeal shall lie to the High Court from an order made by a *[***] Court,—
(a) under section 7, appointing or declaring or refusing to appoint or declare a guardian; or
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(b) under section 9, sub-section (3), returning an application; or

(c) under section 25, making or refusing to make an order for the return of a ward to the custody of his
guardian; or
(d) under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court,
or imposing conditions with respect thereto; or
(e) under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section;
or
(f) under section 32, defining, restricting or extending the powers of a guardian; or
(g) under section 39, removing a guardian; or
(h) under section 40, refusing to discharge a guardian; or
(i) under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference
between joint guardians or enforcing the order; or
(j) under section 44 or section 45, imposing a penalty.

Comments

1. Scope

The Guardians and Wards Act is a special statute and the provisions of appeal contained in the Code of Civil
Procedure are as such not applicable to orders passed under the Act. An appeal would lie only against an order
covered by any one of the ten clauses of this section. No order made by the guardian outside these clauses is
appealable, though in cases covered by section 115, the Code of Civil Procedure, a revision may lie.

It should be clearly understood that there is nothing like a right of appeal. An appeal lies only when it is
specifically provided under the Code of Civil Procedure or under any other law, while there is a right to sue.
This basic distinction between the right to sue and right to appeal has been explained by Chandrachud, J., (as
he was then) in Ganga Bai v. Vijay Kumar,1 thus: There is an inherent right in every person to bring a suit of a
civil nature and unless the suit is barred by statute one may, at one’s peril, bring a suit of one’s choice. It is no
answer to a suit; however, frivolous the claim, that the law confers no such right to sue. A suit for its
maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in
regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore, an appeal for its
maintainability must have the clear authority of law. That explains why the right of appeal is described as a
creature of statute. Under section 96(1) of the Code of Civil Procedure, save where otherwise expressly
provided by the Code or by any other law for the time being in force, an appeal lies from every denial
jurisdiction, to the court authorised to hear appeals from the decisions of such court. Section 100 provides for a
second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court,
section 104(1) provides for appeals against orders of the kind therein mentioned and ordains that save as
otherwise expressly provided by the Code or by any law for the time being in force an appeal shall lie “from no
other orders.” Clause (i) of this section provides for an appeal against any orders made under Rules from which
an appeal is expressly allowed by Rules.’ Order XLIII, rule 1 of the Code, which by reason of clause (i) of
section 104(1) forms a part of that section, provides for appeals against orders passed under various rules
referred to in clauses (a) to (w) thereof. Finally, section 105(1) of the Code lays down that save as otherwise
expressly provided, no appeal shall lie from any order made by a Court in exercise of its original or appellate
jurisdiction. These provisions show that under the Code of Civil Procedure, an appeal lies only as against a
decree or as against an order passed under rules from which appeal is expressly allowed by Order XLVIII, rule
1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such
appeal.

This section makes the orders passed under sections 7, 9(3), 25, 26, 28, 29, 32, 39, 40, 43, 44 and 45
appealable in terms stated in the clauses of this section.
2. Forum of Appeal

It should be emphasised that whichever court may exercise the jurisdiction, whether the district court or a
subordinate civil court, appeal will lie only to the High Court. This is so even when the proceedings are
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disposed of by a subordinate court under section 4A. The appellate court has also the power to stay
proceedings, as well as pass other interlocutory order as may be required in the interest of justice.1
3. Clause (a): Orders Appointing or Refusing to Appoint Guardian

It is section 7 under which application for appointment or declaration of guardians is made. Orders appointing or
refusing to appoint guardian are appealable. But a person who is not party to proceedings cannot file an
appeal. In other words, an appeal can be filed by a person who makes an application or by any person on
whom notice under section 11(c) is served. But it seems that a third person interested in the welfare of the
minor may file a revision.2 When an application for appointment of guardian is dismissed for non-appearance
and the second application is rejected as being not maintainable, an appeal lies against the second order.3

In our commentary on section 7 as well as on section 34, we have referred to the controversy among our High
Courts as to whether an order of appointment of guardian on the condition of his furnishing security is made
under section 7 or section 30. If it is considered to be an order under section 7 it is appealable, on the other
hand, it is considered to be made under section 34, it is not appealable.1

An interesting question arose in Chandrawati v. Jagannath,2 where an application was made under section 7
for appointment of guardian. Pending the application, another application for appointment of a receiver was
made. The question before the court was whether it was an application under section 12 of the Act or under
Order XLIII, rule 1 of the Code of Civil Procedure. The court said that it was an application under Order XLIII,
rule 1 and hence appealable. Had the court considered it to be an application under section 12 of the Act, no
appeal would have been maintainable.

In Sherbati Devi v. Kali Pershad,3 the guardian court, while dismissing the application for appointment of
guardian, awarded costs against the applicant on analogy of section 47 of the Code of Civil Procedure. The
court held that an order passed in execution of the order of the court is appealable.
4. Clause (b): Section 9(3)

Under section 9(3) when an application with respect to guardianship of property of a minor is made to a district
court other than “that having jurisdiction in the place where minor ordinarily resides, the court may return the
application if it feels that it can be more justly or conveniently tried by another District Judge having jurisdiction,
when the court makes such an order, it is appealable under this clause.
5. Clause (c): Orders making or Refusing to make an Order for the Return of a Ward to the Custody of
his Guardian

When a guardian makes an application under section 25 for the return of the ward to his custody and the court
passes an order, the order is appealable. Even where a guardian who never had the custody of the child
applies for custody and if his application is rejected, the order rejecting the application is appealable. The word
“refusing” in the clause is of vide amplitude, and an order dismissing the application on account of absence of
the application, is also an order refusing the application, and therefore is appealable.

It appears that when a person applies for custody of the child, and the court considers that the application does
not fall within the scope of section 25 and rejects it, the order is appealable, or, at least, a revision lies.4
6. Clause (d): Order Refusing to Remove the Child Out of Jurisdiction under section 26

Section 26 lays down that a ward can be removed outside the jurisdiction only with the leave of the court. The
court may refuse to grant leave, or court may grant leave by imposing certain conditions. Both the orders are
appealable under this clause. But, it seems if the court grants leave to the guardian to remove the child outside
the jurisdiction, the order is not appealable.1
7. Clause (e): Order made under section 28 or under section 29: Refusing Guardian Permission to
Alienate Minor’s Property

Under section 29, the certificated guardian cannot alienate minor’s property by way of mortgage, charge, sale,
gift, exchange or otherwise or lease out minor’s property for a term exceeding five years or for any term
extending more than one year beyond the date on which the ward will cease to be a minor. Similarly, when
testamentary guardian is appointed guardian by the court he as much needs the permission of the court as the
certificated guardian for the alienation of minor’s property under section 28. It should be noted that no appeal
lies against the order according to permission for alienation of minor’s property. Even when permission is
accorded by inadvertence such as an account of lack of information about the exact position of the minor, or on
account of misrepresentation by the parties concerned, the order according permission is not appealable.2
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Similarly, when the court sanctions a mortgage in favour of one person, the order is not appealable.3 But, it
seems such orders are subject to revision. But in both cases appeal will lie when the order refuses to accord
permission for the alienation of minor’s property.
8. Clause (f): Orders Defining, Restricting or Extending the Powers of the Guardian in Respect of
Minor’s Property under section 32

Under section 32, the court has power to pass orders, from time to time, defining, restricting or extending the
powers of the certificated guardian over the property of the minor in such manner and to such extent as it may
consider to be for the advantage of the minor and consistent with the personal law of the minor. Such orders
have been made appealable by this clause.
9. Clause (g): Order Removing the Guardian under section 39

Under section 39, the guardian court has been empowered to remove the guardian under any one of its ten
clauses. Such an order is appealable. However, when the court recalled its order appointing a person as
guardian of the child under the misinformation that the child was minor while in fact it was adult at that time,
such an order is not appealable as it is not a case covered under one of the ten clauses of section 39. The
court has inherent power to recall such orders.4 The court had appointed two co-widows as guardian of a
minor. The senior widow applied for the removal of the junior widow on account of mismanagement. The court
passed an order removing the junior widow, such an order is appealable.5

When the guardianship terminates on account of the ward attaining majority and the guardian is allowed special
allowance for the good services rendered by him, then such an order is not subject to appeal. In fact it is an
order under section 22 and not under section 39.1
10. Clause (h): Order Refusing to Discharge a Guardian under section 40

When a certificated guardian wishes to resign from guardianship he may apply to be discharged under section
40. An order refusing to discharge the guardian is appealable. In Fakin Muhammad v. Bhari,2 a certificated
guardian applied to be discharged. The court passed order discharging him on the conditions that he should
immediately pay up the amount found due on the accounts submitted by him. The Lahore High Court held that
such an order is appealable.
11. Clause (i): Orders Regulating Conduct or Proceeding of a Guardian or Settling Dispute About
Management Among the Joint Guardians under section 43

We have seen in our commentary on section 43, that the court has power to pass orders regulating the conduct
or proceedings of the guardian. In case there are joint guardians and they differ on dispute on any matter
relating to the management of the affairs of the minor, the court has power to pass orders resolving the
differences or disputes. Such orders have been made appealable under this clause.3 In Abdul Rahiman v.
Ganapathi,4 the court passed an order for attachment of entire estate of the minor and all documents and
accounts in the possession of the guardian. It also appointed a receiver to manage the estate of the minor. The
Madras High Court held that the order was not under section 43 and was not appealable.
12. Orders in Other Matters: Whether Appealable

It is evident that no order which is not covered under any one of the clauses of this section is appealable. But
sometime a court purport to pass an order under a particular section under which orders are not appealable,
but in fact the order is under a section under which appeal lies. In such a case an appeal would lie. Thus in
Ghulam Hyder v. Abdul,5 the court appointed a guardian saying that the order was under section 42, while in
fact order was under section 7. It was held that order was appealable.

No appeal lies against an interlocutory order or an order which is not final. In Ali Mohammad v. Abu Nasar,6 the
court refused the application for appointment of the guardian but kept the proceeding pending till it received a
report from the Collector, the order being not final, it was held not to be appealable.

The courts have held the following orders as not appealable:

(a) An order sanctioning the alienation of minor’s property or sanctioning in favour of one of the
prospective alienees.1
(b) An order setting aside an alienation made without the sanction of the court.2 Order being under section
29.
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(c) An order refusing permission to file a suit on behalf of the minor to set aside an award or a reference to
arbitration made by a guardian.3 Such an order is under section 33 and not under section 43.
(d) An order appointing a new guardian and by implication removing the existing guardian. Such an order
is not appealable by a guardian who stands removed.4
(e) Order refusing to appoint a guardian on the application of a third person (intervener in guardianship
proceedings) or appointing a third person as guardian.5
(f) Order returning the application for appointment as guardian for presentation to a proper court.6 The
order in section 9(1).
(g) Order allowing or disallowing remuneration or granting lump sum payment to the guardian.7 Revision
also does not lie.7
(h) Order allowing remuneration to custodian.8
(i) Order made under section 31(1)(d) directing disbursement of sale-proceeds of minor’s property.9
(j) Order fixing an amount for the marriage expenses of the minor.10 The order is under section 31.
(k) An order fixing the liability of surety.11
(l) Order accepting security from the guardian.12 (Whether on the ground of insufficiency or otherwise). A
revision is competent.13
(m) Order directing the guardian to pay into the court money due to the minor.14 However if a mistake
apparent on the fact of the record is shown, revision is competent.14
(n) Order fixing the amount of maintenance for the ward.1 The Order is under section 34. But a revision is
competent.2
(o) Order refusing the increase or decrease of the maintenance allowance.3 Since the matter rests on the
discretion of the court, revision is also not competent.4
(p) Order refusing to assign administrative bond is not appealable.5
(q) An order refusing to remove a guardian.6 It should be noticed that under clause (g) of this section an
appeal is provided against the order removing the guardian, but not against an order refusing to
remove a guardian.

In Imtiszunnissa v. Anwarulla,7 a person applied for appointment of himself as guardian and for the
removal of the existing guardian. The court said that it was an order refusing to remove an existing
guardian and not refusing to appoint a person as guardian, and hence the order was not
appealable.8 On the other hand, in Kamaksha Basini v. Jagat Sundan,9 on the application of one
of two joint guardians, he was allowed to manage the affairs of the minor, to the exclusion of the
other pending decision in an administrative suit filed by the other. It was held that it virtually
amounted to the removal of the other guardian, and hence order was appealable.
(r) Order refusing to examine the correctness of the accounts submitted by the guardian and asking the
applicant to take recourse to a regular civil suit.10
(s) Order requiring or refusing to require delivery of property in the possession of the guardian who has
ceased to be the guardian. The mode of enforcing the delivery of property from the guardian to the
minor is laid down in section 45(j) which has been made appealable,11 and not any other order.
(t) Order selecting a bridegroom to the minor girl.12 The order does not fall under section 43(1) or section
24. But a revision lies against such an order.
(u) Order directing the guardian to pay the amount due to ward after examination of accounts.1
(v) Order refusing to dispossess a person in the possession of minor’s property and hand it over to the
guardian appointed by the court.2
(w) Order allowing minor to receive money from the guardian. However, a revision lies.3
(x) Order directing the guardian in possession of minor’s property to pay certain amount of rent to the
minor.4 However, revision lies.
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(y) Order refusing to take action against the guardian under section 45 and to compel him to furnish
proper accounts and pay balance due to the minor.5 However, revision is competent.

13. Abatement of Appeal: Death of Appellant or Respondent

Where the appellant dies during the pendency of the appeal, the answer to the question whether the appeal
abates or can be continued by his legal representative depends upon fact whether the appellant’s appeal was a
matter of personal preference and trust. If it is so, the appeal with abate. If it is otherwise, the appeal can be
continued by the legal representative of the appellant. In Gangabai v. Kashibai,6 in the contest for appointment
of guardian between the mother and grandmother (who was also the testamentary guardian under the Will of
minor’s father), the court appointed the mother as guardian. The grandmother preferred an appeal and died
during its pendency. On the application of her legal representative to be substituted in the place of the mother,
the court held that since the mother’s appeal was based on her claim of personal preference and trust, she
being the testamentary guardian under the Will of minor’s father, her legal representative had no right to
continue the appeal. On the other hand, in Palaniandi v. Adaitalam,7 the contest for appointment of guardian
was between a maternal uncle and a paternal uncle. The court appointed maternal uncle as guardian and the
paternal uncle preferred an appeal. On the death of the paternal uncle during the pendency of appeal his son
applied to be substituted in his place. The Madras High Court held that son could be substituted and appeal
could be continued as the paternal uncle’s claim was not based on any personal preference expressed by the
parent of the minor but only on the basis of the so called preference of paternal side over the maternal side in
the matter of appointment of guardian.8

The same considerations apply to the respondent. If respondent’s claim is based on personal preference and
trust no substitution can be allowed. If not, his legal representative can be substituted in his place.1
14. Procedure for Filing Appeal

It appears that procedure of appeal as well as the period within which the appeal should be preferred will be
regulated by the Code of Civil Procedure, since the Guardians and Wards Act is silent on the matter. Section
141 of the Code of Civil Procedure lays down that the procedure prescribed in the Code in regard to suit will be
followed as far as it can be made applicable in all proceedings in any court of Civil Jurisdiction. In Thakur
Prasad v. Fakirulla,2the Privy Council held that section 141 would regulate guardianship proceedings. It is now
well-established proposition that appeals are nothing but continuation of suits. In view of this, procedure for
appeals laid down in the Code will apply to appeals under this section, in the absence of any specific provision
to the contrary in the Guardians and Wards Act. The Guardians and Wards Act, contains no provision about
appeals except this section. Thus the procedure for appeal will be governed by the Code.
15. Period of Limitation for Filing Appeals

The Guardians and Wards Act also does not lay down any period within which an appeal. Article 116 of the
Limitation Act, 1963 applies to appeals under the special statutes. Thus the period of limitation for appeals
under the Guardians and Wards Act will be 90 days from the date of the order under appeal.3

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

It has also been extended, with modifications, to the district of Koraput by the Koraput Guardians and Wards Regulation,
1943 (Orissa Reg. 7 of 1943).
It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968),
subject to the following proviso:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
* The word “district” repealed by Act 4 of 1926, sec. 4.
1 AIR 1974 SC 1126 [LNIND 1974 SC 142].
1 Panchanan v. Dwarka, 3 CLJ 29; Sham Singh v. Tharri, AIR 1928 Lah 912 .
2 Thaneshwar v. Baijnath, 27 IC 121.
3 Ahmed Ali v. Raisunessa, (1913) 18 IC 985 : 17 CWN 429.
1 Some of the leading cases are: Harendra v. Arodhendu, 24 IC 202; Sham Dass v. Umer Din, AIR 1930 Lah 497 (FB). In
re, Natha Venkatesa, AIR 1927 Mad 36 (FB).
2 AIR 1925 Lah 489 .
3 AIR 1942 Lah 119 .
4 Khurshed Banu v. Mohibubsaheb Rahimanan, AIR 1967 Bom 228 [LNIND 1966 BOM 14].
1 Utam Kaur v. Bhagwanta, ILR (1915) 37 All 515 ; Washwa v. Malain, 13 PR 1897.
2 Sikher Chand v. Dulputty, ILR (1879) 5 Cal 363 .
3 Shiam Kunwar v. Shaim Lal, 11 OC 29.
4 Rashmoni v. Ganoda, 19 CWN 84.
5 Kamaksha Basini v. Jagat Sundari, 30 IC 875.
1 Suraj Narayan v. Bishamber, AIR 1925 Oudh 260 .
2 AIR 1932 Lah 306 .
3 Reoti Lal v. Shiam Lal, AIR 1930 All 66 ; Dahyabhai v. Bai Diwali, AIR 1939 Bom 366 ; Salubai v. Kesharao, AIR 1932
Bom 156 (where the question is left open); Gnanambal v. Vadivelu, AIR 1934 Mad 207 [LNIND 1933 MAD 285];
Raghunath v. Bulakhi Shankar, AIR 1951 Nag 251 .
4 ILR (1900) 28 Mad 5 .
5 23 IC 776.
6 Ali Mohammad v. Abu Nazer, AIR 1935 Cal 228 .
1 Sikher Chand v. Dulputty, ILR (1880) 5 Cal 363 ; Shiam Kunwar v. Shaim Lal, 11 OC 29.
2 Lachmi Prasad v. Baldev, ILR (1922) 44 All 458 .
3 Taskin Fatima v. Muhammad Munim Bakshi, AIR 1928 All 259 .
4 Narsing v. Hemraj, AIR 1934 Lah 323 ; Wallace v. Wallace, AIR 1919 Mad 189 ; Mohammad Aktiar v. Hussein Bibi, 96
IC 173.
5 Gopal Rao v. Shrawan, AIR 1923 Nag 36 .
6 Murad Bibi v. Umer Din, 107 PR 1919.
7 Suraj Narain v. Bishamber, AIR 1925 Oudh 260 ; Gangadhar v. Shivling Rao, ILR 24 Bom 95.
8 Mina Manna Lal v. Hardhian, 48 PR 1901.
9 Biva v. Keshava, Bom LR 1.
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10 In re, Durgabai, AIR 1926 All 301 ; Jamnabai v. Gopal, AIR 1928 Nag 291 .
11 Kanhaya Lal v. Mahadei, AIR 1932 All 177 .
12 Gopammal v. Sreenivasa, 34 IC 432: 30 MLJ 508.
13 Sughra Begam v. Abdul Ghani, AIR 1934 Lah 232 .
14 Radha Kishen v. Khushi Ram, AIR 1927 Lah 377 .
1 Bhuli v. Rajubai, AIR 1938 Nag 495 ; Gopammal v. Sreenivasa, AIR 1928 Mad 546 [LNIND 1927 MAD 317]: 30 MLJ
508; Tulsai v. Tulsai, AIR 1924 Nag 141 ; Jamnabai v. Gopal, AIR 1928 Nag 291 .
2 Ram Jas v. Chani Ram, 55 IC 587.
3 Chudasama v. Talukdari, 2 Bom LR 617.
4 In the matter of Durgabai, ILR (1926) 48 All 300 ; Bhuli v. Rajubai, AIR 1948 Nag 495 .
5 Ganpat v. Anna, ILR (1906) 30 Bom 164 .
6 In re, Bai Harkha, ILR 20 Bom 667; Pakhwante v. Indra, ILR 23 Cal 201; Mohini v. Tarini, ILR 19 Cal 487; Md. Anwar v.
Dara Singh, ILR 42 All 514; Suraj Narayan v. Bishamber, AIR 1925 Oudh 260 .
7 ILR 20 All 433.
8 See also Abdul Ghani v. Nawab, 3 ALJ 44; Pran Bandhu v. Brachamamoyi, 1 CWN 693.
9 30 IC 875.
10 Chambella v. Ram Dullare, I OC 43.
11 Basalingappa v. Nazir, I Bom LR 822.
12 Salubai v. Keshav Rao, AIR 1932 Bom 156 ; Monijan Bibi v. Distt. Judge, Birbhum, ILR (1915) 42 Cal 351 ;
Laxminarayan v. Parvatibai, ILR (1920) 44 Bom 690 .
1 Ranganath v. Murari Lal, AIR 1936 All 179 .
2 Nathu Ram v. Karmon, 40 PLR 1912. In this case the person in possession of minor’s property was the guardian of the
person of the minor. The High Court said that in such a case guardian of the person may be removed.
3 Ghazanfar Hussain v. Rehmat Hussain, AIR 1935 Oudh 180 .
4 Chanan Singh v. Har Kaur, AIR 1933 Lah 484 .
5 Sitaram v. Govindi, AIR 1924 All 593 .
6 ILR 25 Bom 719.
7 AIR 1924 Mad 484 [LNIND 1923 MAD 312].
8 See also Arjan Singh v. Gujri, 116 PLR 1917.
1 Ganda Mal v. Ramji Deo, 20 PLR 1914.
2 ILR (1895) 17 All 106 (PC).
3 The matter is governed by the Code of Civil Procedure. See Ramaswami Pillai v. Tahsildar of Madura, ILR (1920) 43
Mad 51 ; Pana Bibi v. Mahla, AIR 1928 Lah 488 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

48. Finality of other orders.—

Save as provided by the last foregoing section and by section 622 of the Code of Civil Procedure, 1882 (14 of
1882)*, an order made under this Act shall be final, and shall not be liable to be contested by suit or otherwise.
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Comments

1. Scope

Not all orders under the Guardians and Wards Act are final. Some of the orders can be changed, varied and
altered with the change of circumstances. Thus an order of custody or even guardianship can be changed or
varied on changes of circumstances being shown.1 But this does not mean that there is no finality of orders. Till
such orders are changed they are final.

This section speaks of finality in a different sense. Certain orders are subject to appeal as laid down in section
47 or revision as laid down by section 115, the Code of Civil Procedure. There are several other orders which
are not subject to either appeal or revision. This section speaks of finality of orders in the sense that such
orders cannot be contested through the medium of suit or otherwise. In other words, except those orders which
are subject to appeal or revision, no other order can be challenged by a suit or other proceedings. Such orders
are final.2 Even those orders which are subject to appeal are final, since these also cannot be challenged by a
suit in any other proceedings, except by way of appeal.

Obviously, this section applies to those orders which are within the jurisdiction of the court. Thus if a District
Judge passes an order declaring a minor major,3 and an order of requisitioning property against a guardian
whose guardianship has terminated,4 such orders are without jurisdiction, and therefore, this section will not
apply.

Any order obtained fraudulently is not final,5 though simple misrepresentation of fact5 or failure to comply
strictly with the provisions of the Act does not effect finality of the order.6
2. Consent Orders are Final

Section 96(3) of the Code of Civil Procedure lays down that “no appeal shall lie from a decree passed by the
court with the consent of the parties.” This provision also applies to consent orders passed under the Guardians
and Ward Act. But orders obtained by consent can be set aside on the grounds on which any agreement may
be got set aside.7
3. Finality of Orders and Power of the Guardian Court under section 39

The provision of section 48 which speaks of finality of orders does not mean that the guardian court’s power to
remove a guardian and take other actions and pass other orders under section 39 or other provisions is taken
away. Thus the guardian court’s power to remove a guardian suo motu or on the application of any person is
not affected.1 It has been submitted earlier in this work that once the guardian court is seized of the
proceedings and appoint a guardian or commits custody, the court will continue to exercise jurisdiction till minor
attain majority.
4. Appeal

The orders which are appealable are stated in section 47 of the Act. Please refer to our commentary on that
section.
5. Revision

The reference in the section 622 is to the Civil Procedure Code of 1882. The equivalent section of the present
Code is 115. Under section 115, the Code of Civil Procedure, the High Courts have power to change the orders
of the lower court in the exercise of revisional jurisdiction. This section preserves that power of the High Courts.
The High Courts have power to exercise revisional jurisdiction in the following three matters where it appears
that the lower court:

(a) has exercised a jurisdiction not vested in it by law,

(b) has failed to exercise jurisdiction so vested, or
(c) has acted in the exercise of the jurisdiction illegally or with material irregularity.

Some of the instances in which a revision has been allowed are given below (obviously these cannot be
exhaustive):
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(a) An ex parte order made without giving an opportunity of being heard.2

(b) Order directing criminal prosecution of the guardian who failed to furnish security (under the Act the
guardian court has no jurisdiction to impose this penalty on the defaulting guardian).3
(c) Order made under section 34(d) directing the guardian to pay into the court balance due from him.4
(d) Order demanding excessive security at the time of appointment of a person as guardian.5
(e) Order providing for fee to custodian or property appointed guardian under section 12(1).6
(f) Order cancelling agreement of lease of minor’s land within the competence of the guardian.7
(g) Order finding that certain amounts are due from the guardian to the quondam ward after the scrutiny of
accounts had already been made.1
(h) Order dismissing an application for guardianship on an erroneous ground.2
(i) Order selecting a bridegroom for ward despite the opposition by the guardian of the person,3 or
sanctioning the marriage of minor when no guardian existed,4or sanctioning marriage without the
consent of the guardian for marriage. Now that the marriage of minor is prohibited under the Child
Marriage Restraint Act, the guardian judge cannot sanction minor’s marriage.5
(j) Order appointing guardian of a minor without hearing the natural guardian’s advocate.6
(k) Refusal of the court to hear evidence or give opportunity of being heard to the guardian whom it has
removed.7
(l) Order under section 43(1) without making an inquiry.8
(m) Court’s failure to order the guardian to furnish correct accounts and any balance in the court.9
(n) Order refusing to give custody on wrong ground.2
(o) Refusal of the court to assign administrative bond on a wrong ground.10
(p) Order refusing to appoint a guardian on the application of a third person who sought the appointment
of another person as guardian.11
(q) A person who is aggrieved by the order of the court appointing a guardian, though who did not make
any application for the appointment of guardian and he was also not a party to the guardianship
proceeding.12

It has been held in the following cases that no revision lies:

(a) Where other remedy is available.13

(b) Where the matter rests entirely on discretion of the court.1
(c) Where the matter is purely a question of facts.2

6. Who may Apply for Revision

It is not necessary that an application for revision can be made only by a person who is party to proceedings. It
can be made by any person to whom a notice of guardianship proceedings should have been given under
section 11 as a person interested in the matter of guardianship. Such a person can prefer a revision, though not
an appeal.3
7. The Court can set aside its Own Order

Any order made by the judge of the High Court sitting in chamber about any matter of guardianship and custody
can be varied, altered, modified or changed, recalled or rescinded if he feels so in the interest of justice. In
Nagardas v. Anand Rao,4 on the true facts brought to the notice of the court it rescinded its order as the judge
felt that the order of guardianship, was obtained from him improperly and erroneously on fact not fully brought
before him. The High Court has inherent powers to recall an order previously made appointing guardian of a
minor. Thus where the order was obtained by misrepresentating that child was minor, while in fact he has
attained majority was recalled on this fact being brought to the notice of the court.5

In our submission, not merely the High Court but the guardian court (District Court) has also power to change
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its orders, wherever it is induced to take jurisdiction while in fact it has none.5Section 151 of the Code of Civil
Procedure enshrines this principle and it can be exercised by the guardian court as well as other civil court.
Thus where the grandfather of a minor child obtained an ex parte order of appointment of guardian by
misrepresenting to the court that the notice of application was served on the mother of the minor, while in fact
none was served, the guardian court recalled its order in exercise of powers conferred on it by section 151.6 In
Chhitar Mal v. Jagannath,7 the guardian court had sanctioned the sale of minor’s property at a certain price.
Before the sale was finalized, he received an offer for higher price. The court cancelled the earlier order in the
interest of the minor. The Patna High Court upheld the order.8

In some cases, a view has been expressed that the guardian judge has no inherent powers.9
8. Review Application

The order of the District Judge under the Act is not subject to review. Section 114 of the Code of Civil
Procedure which contains provision for review has not been made applicable to orders and judgments passed
under the Guardians and Wards Act.1
9. Suit to set aside the Orders

The last clause of the section lays down that an order under the Act “shall not be liable to be contested by suit.”
This means that no order passed under the Act can be challenged by a suit on any ground. It appears that not
even on the ground of fraud or collusion.2 A suit cannot be filed for getting set aside an order of the court on the
ground that it is not for the welfare of the minor.2The propriety of an order passed under the Guardians and
Wards Act cannot be challenged in collateral proceedings.

But it seems that an order passed by the guardian court without any jurisdiction may be challenged in a suit.
Thus in Commr. of Wakf v. Md. Mushim,3 the District Court sanctioned the creation of a wakf of minor’s
property at the instance of the guardian who purported to act under section 29. The creation of wakf of minor’s
property is not permitted under Muslim law and is void. It was held that a suit on behalf of the minor for getting
Act aside the wakf was maintainable. Similarly, whether or not an impugned adoption is valid does not fall
under the jurisdiction of the District Court and the District Judge acting as guardian judge cannot adjudicate on
the matter. In this case the court appointed a guardian of a minor’s child despite the fact that the widow
challenged the adoption which was attributed to be made by her husband. The order of the guardian court was
not valid. In Rakhal Mom Dasi v. Adwayta Prasad Ray,4 it was held that the widow could challenge the
adoption by a suit. In Ram Harakh v. Jagannath,5 the paternal uncle of a minor married girl got himself
appointed a guardian by concealing the fact that the girl was married. He also obtained the custody of the girl.
The husband filed suit for a declaration that the girl was his lawfully wedded wife, was held maintainable. All
illegal orders, i.e., order while the court is not competent to make, can be challenged by a suit.6

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry”.
It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), sec. 2.
This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and to the whole of the Union
territory of Lakshdweep by Reg. 8 of 1965, sec. 3 and Schedule.
This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August,
1984, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii).
* See now section 115 of the Code of Civil Procedure, 1908 (5 of 1908).
1 Md. Siddiq v. Wafati, AIR 1948 Oudh 51 ; Tarini Kumar v. Srish Chandra, AIR 1925 Cal 1160 .
2 Nagardas v. Anandrao, ILR (1907) 31 Bom 594 ; Tarini Kumar v. Srish Chandra, AIR 1925 Cal 1160 ; Vankata v.
Akkappa, AIR 1941 Mad 569 [LNIND 1940 MAD 439]; Suraj Narayan v. Bishambar Singh, AIR 1925 Oudh 260 ;
Rahman v. Hussain, 73 PR 1919.
3 Naima Khatun v. Basant Singh, AIR 1934 All 466 .
4 Wallace v. Wallace, AIR 1919 Mad 189 .
5 Rameshwar Singh Bahadur v. Danpat Singh, 5 IC 334; Rahman v. Hussain, 73 PR 1919. Ib.
6 Tarini v. Srish Chander, AIR 1925 Cal 1160 ; Inder Singh, 1927 Lah 665. But a contrary view was taken Ramadhin
Singh v. Ram Sumer Singh, AIR 1925 Oudh 237 .
7 Laxmi Devi v. Chandra Kala, AIR 1975 Pat 83 .
1 Laxmi Devi v. Chandra Kala, AIR 1975 Pat 83 .
2 Chakrapani v. Varahalamma, ILR 18 Mad 227.
3 Sitaldas v. Jasibai, 88 PLR 1910.
4 Ramjas v. Chani, AIR 1923 Lah 89 .
5 Sughra Begam v. Abdul Ghani, AIR 1934 Lah 232 .
6 Miva Mal v. Hardial Singh, 48 PR 1909.
7 Bishambar Das v. Sardari Lal, AIR 1930 Lah 232 .
1 Miva Mal v. Hardial Singh, 48 PR 1901; Ghazanfar Hussain v. Rahmat Hussain, AIR 1935 Oudh 180 .
2 Utma Kaur v. Bhagwan Kaur, ILR (1915) 37 All 515 : AIR 1915 All 199 .
3 Monijan Bibi v. Distt. Judge, Birbhum, ILR (1915) 42 Cal 325 .
4 Laxminarayan v. Parvatibai, ILR (1922) 44 Bom 690 .
5 Sububai v. Keshavrao, ILR (1932) 56 Bom 71 .
6 Chakrapani v. Varahalamma, ILR (1895) 18 Mad 227 .
7 Rasulan Bibi v. Rahamatulla, AIR 1931 Cal 59 .
8 Fakir v. Brij Narain, AIR 1925 All 785 .
9 Sita Ram v. Govindi, AIR 1924 All 593 .
10 Ganpat v. Anna, ILR 30 Bom 164.
11 Gopal Rao v. Shraman, AIR 1923 Nag 36 .
12 Islaman v. Maqbulan, AIR 1924 Oudh 126 ; Balhi Mal v. Hardwari Lal, AIR 1924 Lah 570
13 Murad Bibi v. Umar Din, 107 PR 1919.
1 In re, Durgabai, AIR 1926 All 302 .
2 Jamnabai v. Gopal Das, AIR 1928 Nag 291 .
3 Ballamal v. Bardevari Mal, AIR 1924 Lah 570 .
4 ILR 31 Bom 590.
5 Reshmoni Das v. Ganada Sundari Dasi, 19 CWN 410.
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6 Walmia Khatoon v. Md. Kabiruddin, AIR 1958 Pat 410 .

7 ILR 39 All 213.
8 See also Souba v. Narayan, AIR 1924 Nag 269 ; Tarini Kumar v. Srish Chandra, AIR 1925 Cal 1160 ; Immami v. Mst.
Kallo, ILR 38 All 433.
9 Hoondomal v. Nazir, AIR 1930 Sind 43 ; Annie Besant v. G. Narayaniah, AIR 1914 PC 41 .
1 Farid v. Milho, 143 PR 1906; Ralla v. Manglan, 116 PR 1912. For a contrary opinion see Somba v. Narayana, AIR 1924
Nag 169 . See also Kamini Mayi Devi v. Bhusan Chandra, AIR 1926 Cal 1196 .
2 Venkata v. Akkappa, AIR 1941 Mad 569 [LNIND 1940 MAD 439]; Commr. of Waqfs v. Md. Mushin, AIR 1954 Cal 463
[LNIND 1953 CAL 137].
3 AIR 1954 Cal 463 [LNIND 1953 CAL 137].
4 ILR (1903) 30 Cal 613 .
5 AIR 1932 All 5 .
6 Mira Malu Rai Bahadur, 48 PR 1901; Raman Chettier v. Tirugunsubramanyam Pillai, AIR 1927 Mad 233 [LNIND 1926
MAD 228]: ILR (1927) 50 Mad 217; Balji v. Sashiv, AIR 1936 Bom 389 ; Rakhal Mom Dasi v. Adwayta Prasad Ray, ILR
(1903) 30 Cal 613 ; Naima Khatun v. Basant Singh, AIR 1939 All 406 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

49. Costs.—
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The costs of any proceeding under this Act, including the costs of maintaining a guardian or other person in the
civil jail, shall, subject to any rules made by the High Court under this Act, be in the discretion of the Court in
which the proceeding is, had.

Comments

1. Scope

In all civil suits the court decides the question of costs of proceedings. It passes an order awarding costs to one
of the parties. Sometimes it does not pass such an order and leaves the parties to bear their own cost. The
guardianship proceedings are special proceedings and therefore a separate provision has been made. This
section lays down all matters relating to award of the cost are to be determined:

(a) By the High Court Rules, and

(b) (In the absence of the High Court Rules) these are subject to discretion of the guardian court.

The matters specifically covered by this section is: costs of maintaining a guardian or other person in the civil
jail.
2. Discretion of the Court

The ordinary rule is that the person who initiates any proceedings under the Act must bear the cost, unless the
court comes to the conclusion that such proceedings are for the welfare of the minor and for the protection of
his interest. In the latter case the costs may be awarded out of the estate of the minor. In In re, Fakuruddin
Md.1 a person put in an application for the removal of the natural guardian and appointment of himself as a
guardian. The court removed the natural guardian but did not appoint him guardian. The applicant took further
proceedings against the order rejecting his prayer for his appointment as guardian. The court held that he was
entitled to costs out of the estate of the minor for his earlier prayer which was accepted as it was in the welfare
of the minor, but not for latter proceedings. Whenever an application for appointment of guardian is rejected,
the applicant is not entitled to costs.2

This section empowers the court to award costs, i.e., as to who should bear the cost of litigation. If an applicant
convinces the court that he filed the proceedings for the welfare of the minor, the court may award him costs
out of minor’s estate. But it is in the discretion of court. He cannot file a suit for recovery of the costs.3
3. Costs of Detention in Civil Prison

Under our law when a person is sent to civil prison for not obeying the order of the court, the subsistence
allowance to the detenu is paid by the person on whose application the detention in civil prison is made.
However, detention in civil prison under the Guardians and Wards Act is a different matter. The court may order
that the subsistence allowance is to be paid out of the estate of the minor.

The matter is governed by the High Court Rules, most of the Rules lay down that if proceedings are found to be
for the benefit of the minor, costs can be paid out of the estate of the minor.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

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PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

50. Power of High Court to make rules.—

(1) In addition to any other power to make rules conferred expressly or impliedly by this Act, the High
Court may from time to time make rules consistent with this Act—
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(a) as to the matters respecting which, and the time at which, reports should be called for from
Collectors and subordinate Courts;
(b) as to the allowances to be granted to, and the security to be required from, guardians, and the
cases in which such allowances should be granted;
(c) as to the procedure to be followed with respect to applications of guardians for permission to do
acts referred to in sections 28 and 29;
(d) as to the circumstances in which such requisitions as are mentioned in clauses (a), (b), (c) and (d)
of section 34 should be made;
(e) as to the preservation of statements and accounts delivered and exhibited by guardians;
(f) as to the inspection of those statements and accounts by persons interested;
*[(ff) as to the audit of accounts under section 34A, the class of persons who should be
appointed to audit accounts, and the scales of remuneration to be granted to them;]
(g) as to the custody of money, and securities for money, belonging to wards;
(h) as to the securities on which money belonging to wards may be invested;
(i) as to the education of wards for whom guardians, not being Collectors, have been appointed or
declared by the Court; and
(j) generally, for the guidance of the Courts in carrying out the purposes of this Act.
(2) Rules under clauses (a) and (i) of sub-section (1) shall not have effect until they have been approved
by the *[State Government], nor shall any rule under this section have effect until it has been published
in the Official Gazette.

Comments

1. Scope

This section confers power to make rules for various matters listed in clauses (a) to (j). The Rules are to be
approved by the State Government, and they would come into force only when they are published in the Official
Gazette.

The power to make rules under this section is in addition to the power conferred under other sections. Thus
High Courts have power to make rules under sections 11(1)(b), 31(3) and 43.

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

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PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

51. Applicability of Act to guardians already appointed by Court.—

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A guardian appointed by, or holding a certificate of administration from, a Civil Court under any enactment
repealed by this Act shall, save as may be prescribed, be subject to the provisions of this Act, and of the rules
made under it, as if he had been appointed or declared by the Court under Chapter II.
PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

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PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

52. Amendment of Indian Majority Act.—

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[Rep. by the Repealing Act, 1938 (1 of 1938), section 2 and Schedule].

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

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Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

53. Amendment of Chapter XXXI of the Code of Civil Procedure.—

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[Rep. by the Code of Civil Procedure, 1908 (5 of 1908), section 156 and Sch.V].
[Rep. by the Repealing Act, 1938 (1 of 1938), section 2 and Schedule].

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

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Paras Diwan

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PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward. It is hereby enacted as
follows:—
ANNEXURE CUSTODY IN HABEAS CORPUS PROCEEDINGS
(Proceeding under section 491, the Cr. P.C. and Article 226 of the Constitution)

Nature of the writ of habeas corpus

The writ of habeas corpus has been used ever its inception for getting released a person from unlawful
detention, whether is private or public.

In England and other common law jurisdictions including India the writ of habeas corpus has been used for
getting the custody of minor children restored to the lawful guardian from a person who has detained them
wrongfully. In England the earliest reported case is of 1762.1 Thereafter it has been continuously used,2 and is
used even today, despite the fact that now in guardianship proceedings and matrimonial proceedings the
custody of the child can be obtained. The same is true of India. Rather in India, Article 226 of the Constitution is
frequently resorted to in obtaining the custody of the child from a person who has unlawfully detained him, as it
is the only speedy remedy available in such cases. In some cases child’s ordinarily residence may not be in
India, such as he came to India on a visit or is whisked away from a foreign country to India a writ of habeas
corpus may be the only effective remedy, though in such cases the letters patent or special jurisdiction of the
High Court may also be invoked.

The principle on which the writ of habeas corpus would issue in respect to minor children was explained by
Coleridge, J.,3 thus:

A habeas corpus proceeds on the fact of illegal restraint. Where the writ is obeyed, and the party brought up is
capable of using a discretion, the rule is simple, and disposes of many cases, namely, that the individual who
has been under restraint is declared at liberty and the court will direct that the party shall be attended home by
an officer of the court to make the order effectual. But where the person is too young to have a choice, we must
refer to legal principle to see who is entitled to the custody, because the law presumes that where the legal
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custody is, no restraint exists, and where the child is in the hands of a third person that presumption is in favour
of the father.
PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

1 R. v. Ward, (1762) 1 WN BI 386.

2 R. v. Mannerville, (1804) 4 East 221; In re, Pearson, (1820) 22 RR 690; In re, Pulbrook, (1847) 11 Jor. 185; Ex parte
Bailey, (1839) 49 RR 727; In re, Hkewill, (1852) 12 CB 223; R v. Howes, (1860) 3 EL&E 332; In re, Moore, (1859) 11
CLR 1; In re, Sutter, (1960) 2 F&F 267; In re, Lyons, an infant (1869) 22 LT 770; Re Goldsmith, (1876) 2 QBD 75; In re,
O’Hara, (1900) 2 LR 232; In re, Bell, (1908) 43 ILT 35; R v. Wigand, (1913) 2 KB 419; In Re Caroll, (1931) 1 KB 317.

3 R v. Greenhill, (1836) 4 A&E 624.

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Paras Diwan

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PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

Wishes of the Child

The basis of the issuance of the writ of habeas corpus being illegal restraint,4 the court consults the wishes of
the person illegally detained. The age at which the child is deemed to have a discretion is fourteen in the case
of boy, and sixteen in the case of a girl.1 Wishes of children who have attained those ages are consulted by the
court, and the court enquires whether the child consents to remain where it is, and if it does so, the very ground
of an application for habeas corpus falls through. In R. v. Delaval,2 the court observed that after the child has
attained the age of discretion, the court shall set it free if illegally detained, but would not force a child against
his or her wishes to remain with his father or legal guardian.3 The Chancery Judge Lord Denman said:

Where an infant is brought before the court by habeas corpus, if he is of the age to exercise a choice, the court
leaves him to elect where he will go. If he is not of that age, and a want of discretion would only expose him to
danger of seduction, the court must make an order for his being placed in the proper custody. The only
question then is, what is to be considered the proper custody; and that undoubtedly is the custody of the
father.4

When the child is below the age of discretion the court would not consult the wishes of the child and would
order him to return to the custody of his guardian. In Re v. Howes,5 Cockburn, C.J., said that in the case of a
female child the age of discretion being sixteen, up to that age the father’s right of custody continues and ‘short
of which such a child has no discretion to consent to leave him.’ In the modern law, this observation has to be
read with some reservations.

The courts in England have frequently exercised the jurisdiction in restoring custody of a child to its legal
guardian. The guiding principle has been the welfare of children. The granting of the writ is discretionary matter
and the courts have always refused to exercise the discretion in favour of the petitioner, if they find that it would
not be for the welfare of the child.6 In exparte Bailey,7 the mother of a child who was in its aunt’s custody
applied for a writ of habeas corpus for restoration of custody to her. The father of the child had been convicted
of felony and was undergoing the sentence. The court granted the writ. On the other hand, in R. v. Wilson,8 the
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court refused to grant the writ at the instance of the father, who was found guilty of misconduct. The child was
in the custody of the mother. Similarly, the court refused to grant a petition in R. v. Greenhill.9 The court said
that the writ would not be issued if it would be attended with danger to the child, as where there is an
apprehension of cruelty, or of contamination.

In Indian law the principle underlying the writ of habeas corpus has been enshrined in section 491 of the
Criminal Procedure Code.1Article 226 of the Constitution of India also empowers High Courts to issue orders,
directions etc., in the nature of writ of habeas corpus.
PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

“(1) Any High Court may, whenever it thinks fit, direct—

(a) that a person within the limits of its appellate criminal jurisdiction be brought before the court to be dealt
with according to law;
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(b) that a person illegally or improperly detained in public or private custody within such limit be set at liberty;

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Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

Welfare of the Child is Paramount Consideration

The underlying principle of every writ of habeas corpus in reference to the child is to ensure the protection and
the wellbeing of the child brought before the court under the writ.2 The court in Zora Bibi v. Abdul Razak,3 said
that the well-being of the person brought before the court ought to be not only the determining but the sole
consideration. In this case the mother of a Muslim child having the right of hizanat applied for a writ on the
averment that the father removed the children forcibly. In Swa Lay Teong v. Yeo Boon,4 the court refused to
grant the writ on the petition of the father as it felt that doing so would not be for the welfare of the child. In
Abraham v. Mahtabo,5 husband and mother of a minor girl applied for the restoration of her custody. The girl
was living in a Christian Mission and it was alleged that she went there of her own free Will. The court restoring
the custody, to the mother said that it amounted to unlawful detention, as the girl was kept there against the Will
of those who were lawfully entitled to have charge of her. In Venkataramaniah v. Pappamaha,6 the court
ordered for the restoration of the custody of a minor wife to the husband who was lawfully entitled to her
custody, but since the wife was yet physically immature for consummation of marriage, the court, considering
the welfare of minor, ordered the husband to keep her in a public home at least for one year at his expenses.

A Full Bench of the Madras High Court said that the court in proceedings on a writ of habeas corpus for
restoration of the custody of a minor child, the welfare of the children is the paramount consideration. The court
refused the petition of the father on the ground that the father being a very busy man (he was a motor car
driver) would not be able to look after the child.7 In Swa Lay v. Yeo Boon,8 the court said that ordinarily the
court would restore the custody to the lawful guardian unless it found that it would be in the interest of the child
that it should remain where it is.1 A Full Bench of the Kerala High Court said that on a writ of habeas corpus for
custody of the child, the best interest of the child is the sole deciding factor in granting custody.2
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In considering what is for the welfare of the child, the court would take into consideration the wishes of the
child.3 The mental development of the child will also be given the due weight in considering what effect should
be given to its wishes.4 In Subbaswami v. Kamaksai,5 the court emphasised that in finding out what is for the
welfare of the child the preference of a child of the age of discretion would be taken into account. However, in
this case the court found that the girl aged thirteen years was tutored and, therefore, her wishes were not
worthy of consideration.6 In Sampath v. Govindammal,7 the court again said that the court would take into
consideration the wishes of a child who is mentally mature to express them intelligently.8 The question came
for consideration before the Supreme Court in Gohar Begum v. Suggi.9 Sarkar, J., quoted the passage (cited
earlier) from the judgment in R. v. Henrietta Lavina Greenhill with approval and said that if the child is not of age
of discretion it should be placed in the custody of mother, who is the legal guardian of the child. The facts of the
case were: One Gohar Begum had several illegitimate children including a daughter named Anjum by an
exclusive paramour called Trivedi. Gohar Begum had allowed her maternal aunt Kaniz Begum to take Anjum to
Pakistan. After Kaniz Begum returned to India from Pakistan with Anjum, Gohar Begum asked her to return the
child. Failing to get the child Gohar Begum filed a petition for habeas corpus.

The Indian courts do not consider the maturity of a child on the basis of age and consider it as a question of fact
in every case.10
PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

2 Zara Bibi v. Abdul Razak, (1910) 8 IC 618; Swa La v. Yeo Boon, AIR 1926 Rang 76 ; Mohammad Amin v. Nasuruddin
Ahmed, AIR 1952 MB 54 ; Venkataramanish Chetty v. Pappamah, AIR 1948 Mad 103 ; Pollard v. Rouse, (1910) 6 IC
754; Laxmi Narayan v. Secretary of State, AIR 1934 Oudh 392 ; In the matter of Joshy Assam, ILR (1896) 23 Cal 290 ;
Gopal v. Shri Chand, AIR 1955 All 28 [LNIND 1954 ALL 118].

3 (1910) 8 IC 618.

4 AIR 1926 Rang 76 .

5 ILR (1889) 16 Cal 487 .

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6 AIR 1948 Mad 103 .

7 Shaik Moideen v. Kunhadevi, AIR 1929 Mad 33 .

8 AIR 1926 Rang 76 .

1 See also Bhola Nath v. Distt. Magistrate, AIR 1959 Punj 326 .

2 Margarate v. Pulparampil, AIR 1970 Ker 1 [LNIND 1969 KER 13](FB), Parens Patriae jurisdiction, See also, Budhulal
v. An Infant, AIR 1971 MP 235 [LNIND 1970 MP 111](father’s legal right is subordinate to welfare of the child).

3 AIR 1924 Mad 873 [LNIND 1924 MAD 479].

4 See also Rama Iyer v. Natraja Iyer, AIR 1948 Mad 294 [LNIND 1947 MAD 224].

5 AIR 1929 Mad 874 ; followed in Venkatramaniah v. Pappamah, AIR 1948 Mad 103 .

6 Iyer v. Iyer, AIR 1948 Mad 294 [LNIND 1947 MAD 224].

7 AIR 1952 Mad 98 [LNIND 1951 MAD 151].

8 See also Gandi Kota v. Pydimarri S. Santa, AIR 1967 AP 294 [LNIND 1966 AP 72].

9 AIR 1960 SC 93 [LNIND 1959 SC 146].

10 See our commentary on section 17, para 2.

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Paras Diwan

Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

Writ is Refused when Material Facts are Disputed

The court would refuse to exercise this extra-ordinary jurisdiction if the material facts are disputed and their
determination would entail an enquiry by the court. In Saw Lay v. Teo Boon,11 the father applied for the
custody of his minor child whom he had entrusted in the custody of the respondent. The paternity of the child
was disputed. The court said that, since no urgency was shown, nor was there any suggestion that the child is
not being properly looked after, the writ would not be issued. Similarly, in Paul v. Hunt,1 an uncle applied for the
writ on the averments that his nephew, aged about thirteen years, who was living with him for past ten years,
went to the marriage of his sister and since then he has been detained by the sister and her husband. The court
refusing to grant the writ said that the applicant was never appointed a legal guardian, nor there were any
allegations that the child was not properly looked after. It could be said that the child was improperly or illegally
detained.
PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

11 AIR 1926 Rang 76 .

1 AIR 1927 Rang 329 .

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Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

Writ Lies in Case of Urgency

The remedy of writ of habeas corpus, in the very nature of things, would be available in a case of urgency, for
instance, where a father is suddenly deprived of the custody of his child and that causes some danger to the
child. If there is no urgency and the claim to guardianship is disputed the court would not exercise jurisdiction.2
In Gopal v. Shri Chand,3 the father allowed a period of seven months to lapse between the period of removal of
the child and the filing of petition, and he did not aver that there was any danger to the life or health of the child.
The court refused to issue the writ.

The remedy of writ of habeas corpus cannot be used to remove a person from the guardianship of a child. In
Veerswami v. Guttikonda,4 a person applied for a writ of habeas corpus to be issued against the mother on the
allegation that she was about to convert to Christianity and was likely to bring up her children in that religion.
Similarly in Subbarathaammal v. Sacachalam,5the writ was asked against a guardian appointed by the court
under the Guardians and Wards Act, 1890. In both the cases the petition was dismissed. A Full Bench of the
Madras High Court said that the remedy of habeas corpus is available only in cases where a person is illegally
or improperly detained and it would not lie in a case which would involve a lengthy enquiry into disputed facts
and where no urgency was shown.6
PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW
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2 Sultan Singh v. Maya Ram, AIR 1930 All 260 .

3 AIR 1955 All 28 [LNIND 1954 ALL 118].

4 AIR 1928 Mad 1087 .

5 AIR 1931 Mad 773 [LNIND 1931 MAD 82].

6 AIR 1929 Mad 33 (FB).

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Law of Adoption, Minority, Guardianship and Custody

PART III THE GUARDIANS AND WARDS ACT, 1890*

(8 of 1890)

[21st March, 1890]

An Act to consolidate and amend the law relating to Guardian andWards.

Proceedings for Custody under Writ Jurisdiction and Guardians and Wards
Act
A question is raised sometimes: In the matter of restoration of the custody to the lawful guardian, a special
remedy is provided under the Guardians and Wards Act, 1890, then should the court exercise its extraordinary
jurisdiction under section 491, the Criminal Procedure Code or under Article 226, the Constitution of India? Or,
as it is sometimes said, in the presence of an alternative remedy, should the court refuse to exercise its
extraordinary jurisdiction?

The Allahabad High Court in Sultan Singh v. Maya Ram,7 said that the extraordinary jurisdiction of the court
should be exercised in a case of urgency. When there is no urgency and a civil remedy is open to the applicant
wherein the welfare of the child can be fully enquired into, the court would refuse to exercise the jurisdiction.1 In
Gopalji v. Shri Chand,2 Mukherji, J., said, “We are of the opinion that, if on the circumstances of any particular
case, it appears to the court that the paramount interests of the minors do not demand that action be taken,
then it is open to the court to refuse the prayer.”

The Madhya Bharat High Court in Mohammed Amir Abbasi v. Nasuruddin Ahmed,3 said that it is a rule of
prudence that where an enquiry was necessary to ascertain what would be beneficial in the interest of the
minor children the local forum will be best suited for making such enquiry. In this case the father applied for the
custody of his minor child who was under the custody of the State Government. The court was of the view that
which of two custodies would be in the welfare of the child would need an enquiry.4 The question again came
before the court in Chandrakant v. Hiralal,5 where the father applied for a writ against the grandfather in whose
custody the child was, Mehta, J., said:
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An application under section 491, the Cr. P.C. by the natural guardian for the custody of the minor who has
been illegally detained by another person and detained against the wishes and consent of the natural guardian,
is maintainable even if the remedy under the Guardians and Wards Act is open to him and has not been availed
by him in the first instance.

Then the learned Judge quoted with approval Bacon, V.C.’s observation in Brayant v. Bull,6 that it did not
matter how many remedies are open to a person— there may be 5,000—he is entitled to avail himself of any
one of them, only thing he has to show is that the remedy which he is availing is open to him.

It should now be treated as settled law that just because a remedy for obtaining custody exists under the
Guardians and Wards Act or under any other law, the High Court’s jurisdiction under Article 226 of the
Constitution cannot be ousted.7

The question has come for consideration before the Madras High Court in a series of cases. In Veerasami v.
Guttikonda,8 and Shaik Moideen v. Kunhadevi,9the court simply said that if controversial matters were involved
the forum provided under the Guardians and Wards Act, 1890, would be more appropriate. In Subbaswami
Goundan v. Kamakshi Ammal,10 where the husband prayed for a writ of habeas corpus for the recovery of
custody of his wife, the court said that just because the husband can as well have recourse to the provisions of
the Guardians and Wards Act, there is no reason why his petition under section 491 should not be granted.
Again in Rama Iyer v. Natraja Iyer,1 a Division Bench (Menon and Yehya Ali, JJ.) took the same view. The
question came for consideration before another Division Bench,2consisting of Mack and Naidu, JJ. A husband
applied for the custody of his minor wife. The court felt that there was substance in the wife’s assertion that she
left her husband’s house because she was ill-treated by her mother-in-law. The wife was also just about to
come to age. Mack, J., said that he was quite satisfied that the young woman who was on the threshold of
majority, had left her husband, entirely of her own accord dissatisfied with the treatment she was receiving from
her mother-in-law. The judge also added that it was a fit case to be agitated under the Guardians and Wards
Act. Naidu, J., observed:

It is well-known that this prerogative writ of habeas corpus is extraordinary remedy and generally sought for
upon sufficient causes shown in cases where the ordinary remedy provided by the law is not available or is
inadequate or ineffective in the circumstances of a particular case. It is therefore, always open to the High Court
to refuse that remedy when there is an effective and specially provided for remedy, which should be the
ordinary remedy which an aggrieved person, as in this case, who asks for the custody of the minor, should
seek.

In our submission the case should be taken to have been decided on a very short point: the court found that
there was no wrongful detention. The minor girl who has completed her seventeenth year expressed desire to
remain where she was. The observations as to alternative remedy were merely obiter.

It is true that if a case involves a complicated enquiry of facts the jurisdiction of the court under a writ of habeas
corpus is not a suitable forum. But to say that if there is an alternative remedy which can be availed of, the
remedy by way of habeas corpus cannot be availed of is rather going too far. The present writer is in respectful
agreement with the observation of Shrivastava J., that the court should not refuse the expeditious relief under
section 491, just because it is possible for the applicant to pursue some other remedy.3 This view has received
the support of the Supreme Court.4 Sarkar, J., observed:

We further see no reason why the appellant should have been asked to proceed under the Guardians and
Wards Act for recovering the custody of the child. She has, of course, right to do so. But she had also a clear
right to an order for the custody under section 491 of the Code. The fact that she had a right under the
Guardians and Wards Act is not justification for denying her the right under section 491.

A Full Bench of the Kerala High Court,5 said that the parens patriae jurisdiction exercised by the High Court on
the question of custody of the infants in habeas corpus proceedings is an inherent jurisdiction as distinct from
statutory jurisdiction conferred by any particular section in any special statute. Therefore, nothing can limit this
jurisdiction.
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In Veena Kapoor v. Varinder Kumar Kapoor,1 where the Punjab and Haryana High Court dismissed mother’s
writ petition on the ground that father’s custody was illegal, the Supreme Court observed that it was a settled
matter that on the question of custody of minor children, the paramount consideration is the welfare of the child
and not the legal right of either parent or any other person.2

In some cases a view has been expressed that a writ of habeas corpus can be filed.
PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

7 AIR 1930 All 260 .

1 Haidari v. Jawad, AIR 1935 All 55 .

2 AIR 1955 All 28 [LNIND 1954 ALL 118].

3 AIR 1922 MB 54 .

4 AIR 1930 All 260 and AIR 1929 Mad 33 were followed.

5 AIR 1954 MB 43 .

6 10 Ch D 153.

7 Veera Kapoor v. Varinder Kumar, AIR 1982 SC 792 [LNIND 1981 SC 209]; Mumtaj Begum v. Mubarak Hussain, AIR
1986 MP 221 [LNIND 1986 MP 178].

8 AIR 1928 Mad 1087 .

9 AIR 1929 Mad 33 .

10 AIR 1929 Mad 834 [LNIND 1929 MAD 136].

1 AIR 1948 Mad 294 [LNIND 1947 MAD 224].

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2 Somnath v. Govindammal, ILR (1952) Mad 468.

3 Deputy Commissioner, Gonda v. Nawab Mohammed Shikoh, AIR 1934 Oudh 392 .

4 Gohar Begum v. Suggi, AIR 1960 SC 93 [LNIND 1959 SC 146](96).

5 AIR 1970 Ker 1 [LNIND 1969 KER 13].

1 AIR 1982 SC 792 [LNIND 1981 SC 209].

2 Poonam Datta v. Krishanlal Datta, AIR 1989 SC 401 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed > Dr Paras Diwan:
Law of Adoption, Minority, Guardianship and Custody, 5th ed > PART IV GUARDIANSHIP AND
CUSTODY UNDER MUSLIM LAW

Law of Adoption, Minority, Guardianship and Custody

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

I INTRODUCTORY

Like Hindu society, Muslim society has been essentially a patriarchal society in which father’s dominant position
was recognized. Father’s rights were sweeping and restrictions on them were nominal.

A remarkable feature of Muslim law of guardianship and custody is that, on the one hand, detailed rules have been
laid down for the guardianship of a minor’s property, while, on the other, there are very few rules relating to the
guardianship of a minor’s person. The reason for the scantiness of the rules of guardianship of a minor’s person is
the notion to which the Muslim law-givers, it is submitted, rightly subscribed that the guardianship of a minor’s
person is more a matter of custody than of guardianship. And, we find that the Muslim law-givers have laid down
detailed rules relating to the custody of minor children. In this lies their farsightedness. It is remarkable that in an
essentially patriarchal society, they could lay down that the custody of children of tender years belonged to the
mother. Thus, a clear distinction is maintained between guardianship and custody—a distinction which could be
established in English law only after a protracted struggle extending over almost two centuries, and then, too, by
legislation. It is unfortunate that in the early days of administration of Muslim law during the British Raj, some text-
book writers and Judges1 could not decipher the distinction between guardianship and custody. On the one side,
undue prominence was given to the paternal right, on the other, the mother was dubbed as guardian of her children
of tender age2.

The source of law of guardianship and custody are certain verses in the Koran,1 and a few ahadis2. The Koran, the
ahadis and other authorities on Muslim law emphatically speak of the guardianship of the property of the minor; the
guardianship of the person is a mere inference. According to the Radd-ul-Muhtar, the right of guardianship of the
property of a minor belongs preferentially to the father, in his absence to his executor. If the father had died without
appointing an executor, the grandfather is the guardian. After the death of grandfather, the guardianship belong to
the grandfather’s executor. If the grandfather had died without appointing an executor, then guardianship is vested
in the kazi who may himself act as such, or may nominate someone else to act on his behalf.3 The Fatwai Alamgiri
states the law thus: The executor of a father is in the place of the father, so also, the executor of the grandfather is
in the place of the grandfather, and the executor of the grandfather’s executor is in the place of the grandfather’s
executor; and the executor of the judge is in the place of the Judge, when his appointment is in general.4
II GUARDIANSHIP

Not merely the Koran and the Hadis but also all other authorities of Muslim law speak predominantly of the
guardianship of the property of the minor; very little has been said by them about guardianship of the person of the
minor.
Classification of Guardianship

In Muslim law guardians fall under the following three categories:

(i) Natural guardians

(ii) Testamentary guardians, and
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(iii) Guardians appointed by the court.

To this list, we may add the de facto guardian who has been discussed by the Muslim authorities under the head
fizuli, and who has practically no position in the Muslim law of modern India.

Natural guardian.—The Muslim law givers and jurists do not use the expression natural guardian but it seems to
be clear that in all schools of both the Sunnis and the Shias, the father is recognized as guardian—which term in
the context is equivalent to natural guardian—, and the mother in all schools of Muslim law is not recognized as a
guardian, natural or otherwise, even after the death of the father. Since the mother is not the legal guardian of her
minor children, she has no right to enter into a contract to alienate the minor’s properly.1 The question of her being
the natural guardian during the life-time of the father or even after his death does not arise. The father’s right of
guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The father’s
right to control the education and religion of minor children is recognized.2 He also has the right to control the
upbringing and the movement of his minor children. So long as the father is alive, he is the sole and supreme
guardian of his minor children.3

According to the Rudd-ul-Muhtar the right of guardianship in respect of the property of a minor belongs
preferentially to the father, in his absence, to his executor. If the father had died without appointing an executor, the
grandfather is the guardian. If the grandfather is dead but had appointed an executor then guardianship belongs to
him. If none of them is there, the guardianship belongs to the Kazi (now to the court) and his appointee.4

The Fatwai Alamgiri thus states the comparative position of the father and the executor:

The executor of a father is in the place of the father, so also, the executor of the grandfather is in the place of the father’s
executor, and the executor of grandfather’s executor is in the place of grandfather’s executor. And the executor of the
Judge’s executor is in the place of the Judge’s executor when his appointment is in general.1

The rule is different among the Shias. The father is primary sole guardian so long as he is alive. After his death the
grandfather has priority over father’s executor. The executor of the father, or in his absence executor of the
grandfather, is entitled to guardianship only in the absence of the grandfather.2

The Shia authorities differ as to the effect of father’s appointment of an executor by his Will in case grandfather is
living. The majority of them take the view that in such a case, the executor appointed by the father would be
ineffective.3 It seems that the Shia law considers the father as the natural guardian of his minor children, and after
his death, the grandfather is specified as natural guardian. No other person is recognized as natural guardian.

Thus, it seems that under both the schools the father is the only and probably the sole guardian. Under Shia law the
grandfather is also recognized as a natural guardian. Under Sunni school, no other person is recognized as natural
guardian.

Under all schools, mother is not recognized as a natural guardian of her children even after the death of the father.4

Some of the writers5 take the view that the above stated four de jure guardians are merely guardians of the
property of the minor and they have nothing to do with the person of the minor, though father’s guardianship over
the person of the minor is not disputed.

The father’s right of guardianship is recognized in all schools of Muslim law. Even when the custody is with the
mother or any other female entitled to custody, the father’s general supervision and control exist. Father’s right to
control the religion of his children is recognized even if the mother is a non-Muslim.6 He has also the right to control
the education, general upbringing and movements of his children.7 It seems that in the absence of the father the
same rights can be exercised by the grandfather or executor—whoever is entitled to guardianship. It has been laid
down that the “wasi is empowered to do all acts from which benefit may accrue to the orphan, so is the father.”8
The power of wasi or executor can be limited by the Will. But in the absence of such limitations, it seems that he
has the same powers.

Testamentary guardian.— Among the Sunnis, the father has full power of making a testamentary appointment of
guardian. In the absence of the father and his executor, the grandfather has the power of appointing a testamentary
guardian. Among the Shias, the father’s appointment of testamentary guardian is valid only, if the grandfather is not
alive. The grandfather, too, has the power of appointing a testamentary guardian. No other person has any power of
making an appointment of a testamentary guardian.
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Among both the Shias and the Sunnis, the mother has no power of appointing a testamentary guardian of her
children. It is in two cases in which the mother can appoint a testamentary guardian of the property of her minor
children, both legitimate and illegitimate, viz., first when she has been appointed a general executrix by the Will of
the child’s father, she can appoint an executor by her Will, and secondly, she can appoint an executor in respect of
her own property which will devolve after her death on her children. The first exception is more apparent than real;
any executor of the father has the power to appoint an executor by his Will: this provision applies to all executors.
The latter exception, too, has little significance since every person is free to appoint an executor of his or her own
property.

The mother can be appointed a testamentary guardian or executor by the father, or by the grandfather whenever he
can exercise this power. Among the Sunnis, the appointment of a non-Muslim mother as testamentary guardian is
valid, but among the Shias such an appointment is not valid, as they hold the view that a non-Muslim cannot be a
guardian of the person as well as of the property of a minor.

According to all Muslim authorities, a non-Muslim alienee cannot be appointed as a testamentary guardian; if such
an appointment is made it is null and void. It seems that the appointment of non-Muslim fellow-subject (zimmi) is
valid, though it may be set aside by the kazi.1 According to the Malikis and the Shafii law, a zimmi can be validly
appointed testamentary guardian, of the property of the minor, but not of the person of the minor. The shias also
take the same view.2 The Dur-ul-Muhtar states that if a minor, a bondman, a non-Muslim or a Fasik (reprobate), is
appointed as testamentary guardian, he should be replaced by the kazi. But any act done by him before his
removal, will be valid. Further, if disability ceases to exist before his removal, he cannot be removed.3 The Fatwai
Alamgiri also take this view4 but holds that the appointment of a minor or insane person as guardian is void, and
therefore, any act done by them before or after his removal will be void and non-effective.5 There is some
controversy among the Muslim jurists on the point whether a person who was a minor at the time of his appointment
but who ceased to be so before his removal, can be removed on the ground that when his appointment was made
he was unqualified.4 It appears that when two persons are appointed as guardians, and one of them is disqualified,
the other can act as guardian.

The Muslim jurists of all schools agree that a profligate, i.e., a person who bears in public walk of life a notoriously
bad character, cannot be appointed as guardian. However, all acts done by such a person before his removal are
valid and binding, unless found to be contrary to the interest of the minor.

Acceptance of the appointment of testamentary guardianship is necessary, though acceptance may be express or
implied. But once the guardianship is accepted, it cannot be renounced save with the permission of the court.1

Muslim law does not lay down any specific formalities for the appointment of testamentary guardians. Appointment
may be made in writing or orally. In every case the intention to appoint a testamentary guardian must be clear and
unequivocal.2 A testamentary deposition made by a testator may be invalid, but appointment of the testamentary
guardian of minor children will be valid. The appointment of the executor may be general or particular. The testator
must have the capacity to make the will at the time when it was executed. This means that the testator should be
major, of sound mind. In sum, at the time of execution of the will he should be in full possession of his senses.

The executor of the testamentary guardian is designated variously by Muslim law giver, indicating his position and
powers. He is commonly called, wali or guardian. He is also called amin, i.e., a trustee. He is also termed as kaim-
mukam, i.e., the personal representative of the testator.3 As in other systems of law, it is the duty of the executor
under Muslim law to administer the estate and assets of the testator, to carry out the wishes of the testator with
utmost fidelity, and to act as guardian of the minor children whenever he is appointed as a testamentary guardian.

Guardian appointed by the court.—On the failure of the natural guardian and testamentary guardians, the kazi
was entrusted with the power of appointment of guardian of a Muslim minor. In modern India, the Muslim law of
appointment of guardians by the kazi stands abrogated. The matter is governed by the Guardians and Wards Act,
1890. The High Courts also have inherent powers of appointment of guardians, though the power is exercised very
sparingly.

Under the Guardians and Wards Act, 1890, the power of appointing or declaring any person as guardian is
conferred on the District Court. The District Court may appoint or declare any person as guardian of a minor child’s
person as well as property whenever it considers it necessary for the welfare of the minor, taking into consideration
the age, sex, wishes of the child and the personal law of the minor.4See Part III of this work.
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III POWERS OF NATURAL GUARDIAN AND TESTAMENTARY GUARDIAN OVER THE PROPERTY OF THE
MINOR

Muslim law practically makes no distinction between the powers of the father and testamentary guardian over the
property of minor children. Unless the power of wasi (executor) are specifically limited by the will, he, as kaim-
mukam of the testator, can do all those acts for the superintendence, administration, protection and management of
the child’s estate which the testator himself could have done had he been alive.

The father as well as the wasi, in a case of necessity, has the power of selling the property. A wasi can sell the
property and after discharging debts of the testator, and debts which are incurred in the administration and
management of the property and for the maintenance and education of children invest the balance, if any is left. In
every case the sale must be for an adequate consideration, i.e., such as is reasonable among the people of
business.1

From the point of view of de jure guardian’s power over minor’s property, Muslim law makes a distinction between
immovable and movable property. The powers over immovable property are limited, and the guardian can sell them
only in certain exceptional cases, while powers in respect to movable property are not so limited. The reason for
this distinction is thus explained in the Hadaya:

The ground of this is that the sale of movable is a species of conservation, as articles of this description are liable to decay,
and the price is much more easily preserved than the article itself. On the contrary, with respect to immovable property it is
in a state of conservation in its own nature whence it is unlawful to sell it, unless, however, it be evident that it will otherwise
perish or lost in which case the sale of it is allowed.2

The author of the Dur-ul-Muhtar has explained the same in the following passage:

I say, as stated by Zaile and Kassatani, that the more correct doctrine is, that the sale of immovable property is not valid as
its becoming lost is extremely rare.3

Under Muslim law, justification for selling movable property is not necessity. Whenever the guardian wants, he can
sell the movable property of the minor for an adequate consideration and invest the sale proceeds in a more
profitable undertaking. According to the Hadaya:

A guardian may sell or purchase movables on account of his ward either for an equivalent or at such rate as not to make
the loss great and apparent, because the appointment of an executor being for the benefit of the orphan, he must avoid
losses in as great a degree as possible; but with respect to in considerable loss as in the world of commerce is often
unavoidable, it is therefore allowed to him to incur it, as otherwise a door would be shut to the business of purchase and
sale.1

Inadequacy of consideration, when there is an indication of fraud, or when inadequacy is so considerable, though
there is no indication of fraud, as to cause serious loss or detriment to the minor, or when it is the result of culpable
negligence on the part of the guardian, would entitle the minor to get the sale avoided. However, the minor can
avoid it only with intervention of the court. If the transaction is bona fide and due care and diligence has been
exercised by the guardian, the guardian is not responsible for any unforeseeable consequences resulting to the
detriment of the minor.

As a general rule the guardian has no power to sell the immovable property to himself or to a stranger. But under
certain circumstances such power is recognized. According to the Dur-ul-Muhtar:2

It is lawful for the executor to sell other than immovable property against an absent adult heir, to pay the debt (or the
testator); even the sale of immovable is valid if there is imminent danger of its being lost.

In his commentary on Dur-ul-Muhtar, Tehtawai said: If the deceased dies heavily involved in debt, then by
consensus sale of immovable property is valid.

The Dur-ul-Muhtar itself lays down cases where the executor can sell the property:

When the testator’s heirs are minors, a sale of his immovable property by the executor is valid to some persons other than
himself at double of its value or for the maintenance of the minors or for the discharge of the debt of the deceased, or for
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payment of specific legacies which cannot be given effect to in any other way, or where the income does not exceed the
cost of its up-keep, or where there is the risk of its be going waste or destroyed, or where it is in the hand of muta-ghallab
(powerful misappropriator or usurper.)3

According to the author of the Fath-ul-Kadir the father to has the power to sell immovable property in such cases
provided he is ‘a man who bears good character among people or nothing is known against him’. The Dur-ul-Muhtar
also lays down that the father has the same powers as an executor.4 But if the father is untrustworthy, the child on
attaining majority can get it set aside unless the sale is for double of its value. The authorities are, it seems, of the
view that the powers of the father are not greater than the powers of the executor.

There is a difference of opinion among authorities of Muslim law whether the executor can sell the properties to
himself. According to Abu Hanifa he can. According to Abu-Yusuf only if the sale is to the manifest advantage of the
minor. According to Mohammed it is unlawful under all circumstances.

The cases in which guardian of a Muslim child may sell the child’s property are as under:

(a) when he can get double of its value,

(b) where it is for the manifest advantage of the child,
(c) there are some general provisions in the will, such as payment of legacies, which cannot be carried into
effect without the sale of property,
(d) when there are debts of the testator, and they cannot be liquidated save by the sale of property,
(e) the income of the property is less than the expenditure incurred in its management and administration,
(f) when it is in the imminent danger of being lost or destroyed by decay, etc.,
(g) when the property is in the hands of usurper and the guardian has reasonable fear that there in no chance
of its recovery, and
(h) when the minor has no other property and the sale is absolutely necessary for his maintenance.1

In a case of urgent need or necessity Muslim law allows a person in whose charge and control the child is, to
alienate minor’s property.

According to the Hadaya the acts in respect of minor-orphans are of the following three descriptions:

(i) Act of guardianship such as contracting an infant in marriage, or selling and buying goods for him; a power
which belongs solely to the wali or natural guardian whom the law has constituted the infant’s substitute in
those points.
(ii) Acts arising from the want of the child, such as buying or selling for him on occasions of need or hiring a
nurse for him, or the like: which power belongs to the maintainer of the child, whether he be a brother,
uncle or (in the case of a foundling) the Mooltakit or taker-up, or the mother provided she be the maintainer
of the child: and as these are empowered with respect to such acts, the wali or natural guardian, is also
empowered with respect to them in a still superior degree; nor is it requisite for the guardian that the child
should be in his immediate protection.
(iii) Acts which are purely advantageous to the minor such as accepting presents or gifts, and keeping them for
him; a power which may be exercised either by a Mooltakit, brother or uncle, and also by the child himself,
provided he be possessed of discretion, the intention being only to open a door to the child’s receiving
benefactions of an advantageous nature. The infant is therefore empowered in regard to these acts or any
person in whose protection he may happen to be.1

It seems that Muslim law first lays down the power of an executor and then states that the natural guardian too has
such powers. Further, Muslim law permits any person in whose charge the child is (he may be neither a de jure
guardian nor even a de facto guardian) to do all those acts which are beneficial to the child. Some authorities of
Muslim law, divide the acts in respect of minor under three heads—

(a) acts which are beneficial or advantageous to the child,

(b) acts which are absolutely injurious to the child, and
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(c) acts which are mid-way between these two.2

As to those acts which are purely beneficial or advantageous to the child, any person, whether a guardian or a
person in whose care the child is, can do them. Such acts are, for instance, acceptance of gifts or alms. If the child
is of the age of discretion he himself can do these acts. Those acts which are absolutely injurious to the child, such
as divorcing the wife or emancipating a slave, no person is empowered to do them. As to acts under the third
category, that is to say acts which are neither beneficial nor hurtful to a child, such as sale or hiring of property for
purpose of profit, can be done only by the father, the grandfather, and their executors, whether he has the actual
custody of the child or not, because their power to deal in this manner is by reason of their guardianship. They
being the legal guardians can exercise these powers and in their case it is not necessary that the child should be in
their custody.3

However, the lawful guardian, too, can sell property only in cases of imperative need and in the cases enumerated
above. An alienation made by the father beyond his powers is invalid and it can be avoided by the minor. Such an
alienation is voidable at the option of the minor.4

However, since after the demise of the father no guardian of the property of minor was appointed, alienation made
by the mother of minor’s property, was held void as mother is not a guardian of minor child’s property.5
Power of Alienation

The main basis of the guardian’s power of alienation is the need or necessity of the child. The majma-ul-Anhar very
aptly says that if such power is not given the life of the child or his goods and chattels might run the risk of injury or
destruction; such as he may stand in immediate need of ailment, clothing or nursing, or he may own slaves or live-
stock for whom food and fodder must be immediately procured. Such and like urgent and imperative need may
recur from time to time. In such cases the lawful guardian is permitted to incur debts or to raise money on the
pledge of child’s property. In the absence of legal guardian, this power can be exercised by a person in whose
charge the child and his property happen to be.1

The Mukhtasar-ul-Kuduri speaking of the power of the executor says that when all heirs are minors, the executor
can sell any property, whether immovable or movable belonging to the deceased whether he thinks it necessary for
the protection and the preservation of its price. But this view is not accepted by Shams-ul-aimma Halwani who calls
this as an old view. According to him, the sale of immovable property (akar) of a child is valid only when there are
debts left by the deceased which cannot be discharged otherwise than by the sale of akar or when the minor has
the need for the price thereof or a purchaser is eager to obtain it by giving double its price, or when there is a
specific legacy which cannot be paid save by the sale of the akar or when the sale is for the benefit of the minor
such as payment of tax or land revenue, or when expenses of its upkeep exceed the income, or when being a
house or a ship it is in a dilapidated condition: in all such cases the akar is to be sold only when there is no other
property available for the purpose.2

The legal guardian of Muslim child can lawfully sell or purchase any property on behalf of the minor, but it must be
for consideration usually current in transaction of that kind. If the sale is for inadequate consideration it can be set
aside at the option of the child, and the executor would also be liable.

As to interpretation of above provisions there is no controversy. It is judicially well recognized that the guardian can
sell the property of the child in cases of urgent necessity or for the manifest advantage of the minor. In Bhutnath v.
Ahmed Hossain,3 Norris, J., said that under Muslim law the guardian cannot sell the property of the minor unless
urgent necessity is shown.4 The Privy Council in Kai Dutt Tha v. Abdul Ali,5 said that the guardian can sell the
property only in certain circumstances.6 In this case the guardian sold a piece of land of the minor in regard to
which minor’s title was disputed thereby ending a dispute in respect to property of the minor which enabled the
Collector to effect settlement of a large part of land on the minor. The Privy Council held that alienation valid as it
was considered to be for the benefit of the minor and a fair price was obtained.

The Bombay High Court in Hurbai v. Hiraji,7 observed that the guardian could sell child’s properties only in a case
of absolute necessity or benefit of the child.8 Muslim law does not permit the guardian to mortgage the properties of
the minor. It is very interesting to note that their Lordships said that the same principle would apply to a mortgage
which applies to sales. The Madras High Court has also taken the same view. The court said that an agreement
between a minor entered into by his guardian and a co-owner not to divide a spes successionis cannot be for the
benefit of the minor and was therefore not valid.1

Following the Madras High Court, Shrivastay Ag, C.J., and Ziaul Hasan, J., of the Oudh Judicial Commissioner’s
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Court took a similar view.2 The Allahabad High Court said that the guardian may alienate the minor’s property when
sale is necessary for the maintenance of the minor and when there is no other property.3 But where there is neither
any need of the minor nor is the property in bad shape, alienation cannot be justified.4

In Abdul Hakim v. Jan Mohammed,5 a de facto guardian of a child entered into a transaction under which he
exchanged certain properties of the minor. The guardian justified the transaction by saying that by entering into the
transaction he prevented the property obtained by the minor from passing out of his possession by pre-emption and
that he has not changed immovable property into money but has merely exchanged it with another property.
Prasad, J., said that under Muslim law the reason for prohibiting alienation of immovable property by the guardian is
that policy of the law is to conserve the property and prevent its disintegration.6 The learned Judge said if that
principle is not violated an alienation by the guardian would be valid.

In our submission this is too broad a proposition which is not warranted by any rule of Muslim law. However, the
decision may be supported on the ground that the transaction was for the benefit of the minor.

Thus, in our submission the following three propositions emerge as to the power of alienation of property (strictly
speaking Muslim law only provides for sale) of the minor by a de jure guardian:

(a) As a general rule the guardian can alienate the immovable property of the minor only in cases of urgent
necessity or manifest advantage to the minor.
(b) The guardian has power to effect a bona fide sale of minor’s movable property with the object of investing
the sale proceeds safely, and also for increasing the income of the minor.
(c) For the support or ailment or education of the child. The guardian can also pledge the goods and chattels
of the minor.

Power to Grant Leases

It seems that the authorities of Muslim law were not in favour of giving any power to the guardian of leasing out the
minor’s properties. The following passage from the Fatwai Alamgiri may be noted:

If the executor gives a long lease of part of the estate for the payment of the deceased’s debts it would not be
lawful...........He has no power to lend to another the property of the orphan according to all authorities says the Muhit, and if
he should so do he would be responsible. Neither the judge has the power to do so.1

As the power of the father to lease out his child’s properties, there seems to be a conflict of opinion. The Fatwai
Alamgiri takes the view that the position of the father is similar to the position of the executor.2

Ameer Ali takes the view that the executor can let out the property of the minor if there is need to do so and if it is
advantageous to the minor; he has also the power to pledge the goods and chattels of the minor if it is necessary
for the maintenance of the minor.3

Not many cases have come before the courts in which the question of the guardian’s power of leasing out minor’s
property has been discussed. But it seems that our courts rightly applied the same test to leases as they have
applied to sale and have held that the guardian has power to lease out minor’s properties. In Zeebunissa Begum v.
H.B. Danagher,4 the Madras High Court held that under it, is within the competence of the natural guardian of the
minor to grant leases of the minor’s property if it is for the benefit of the minor.
Power to Carry on Business

As to the power to the guardian to carry on business on behalf of the minor and to enter into partnership for the
same purpose on behalf of the minor, the Fatwai Alamgiri provides:

An executor may give out the property of a minor in partnership (muzaribat) and may enter into partnership with another in
respect of it according to the Muhit.5

According to the Hadaya the guardian has power to carry on trade or business on behalf of the minor just like a
person of ordinary prudence can do in respect to his own business, though he cannot enter into and engage into
trade or business which is of speculative nature or hazardous.6 When the capital of the guardian as well as of the
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minor is invested in the same trade or business, then the guardian is bound to keep separate accounts of the
minor.7

The Privy Council in Jaffar Ali v. Standard Bank Ltd.8 said that the guardian of a minor has a power to enter into
partnership on behalf of the minor, but the minor would not be liable personally for losses, his liability would be only
to the extent to which he has a share in the partnership. In Abdul Raheem v. Abdul Hakeem,1 the Madras High
Court said that if the major members of a family made profit by carrying on business in which the property of the
minor was utilized, then the minor is entitled to a share in the profit; but in no case the guardian or other members
have any power of imposing any liability on the minor. The Allahabad High Court also took a similar view.2 But in
Dubash D.K. Ahmed Ibrahim v. Meyyappa Chettiar,3 Vardhachariar and Pandrang Raw, JJ., said that the guardian
has no power to carry on business which may involve minor’s estate, in speculation or loss. In this case, in our
submission, on facts it was not established that the minor was admitted to the benefit of the business.

The result of the above review leads one to the conclusion that the guardian has power to enter into partnership
also to carry on trade and business on behalf of the minor, provided the trade or business is not of a speculative
character or hazardous, and provided further that it is for the benefit of the minor; in no case the minor would be
liable for the losses in business or trade beyond his share.
Power to Effect Partition

The wasi has no power to make a partition among the minors, and if he does so, the partition is unlawful.4 But if
among the heirs some are minors and some are adults, the executor can separate the share of adults from the
share of minors and can hand over the share of adults to them and retain the share of minors in his own hand. But
in no case he should separate the share of each minor, if he does so it is unlawful and the entire partition is invalid.
But if the portion of the adult share is surrendered to them, and the portion of minors retained, and subsequently on
their attaining majority, their share is divided among them, the partition as between the adult and minor is valid.4

Similarly, if all the heirs are minors, the executor may allot the shares to legatees, and retain the residue in his
hands. In such a case if the share, or any portion of it, is lost or destroyed in the hands of wasi, the minors have no
right of recoupment either against the wasi or against the legatees, unless it is caused by the wilful neglect or
default of the wasi.

According to the Fatwai Alamgiri, if a wasi has been appointed by the judge with general power to deal with all
matters of minor, then a partition effected by him on behalf of the minor is valid.5

In Lal Bahadur Singh v. Durga Singh,6 the Bombay High Court held that the guardian has power to assert a right of
pre-emption on behalf of the minor or to refuse or accept an offer of a share in pursuance of such right and minor
would be bound by his act if done in good faith. The same view has been taken by the Allahabad High Court.7

The de jure guardian of a minor has power to acknowledge debts on behalf of the minor so as to give a fresh start
of period of limitation to the creditor.1 But a time-barred debt cannot be acknowledged. In this respect law is uniform
in India applicable to the guardian of all minors, Muslims and non-Muslims.
Power to Enter into Contracts

The guardian of a minor has power to incur debt on behalf of the minor if there is an urgent necessity for it. But if a
debt is contracted without any necessity, it is not binding on the minor.2 In Kashnupalli v. Ayina Kashim Shaeb,3
the Madras High Court held that the guardian has power to execute a promissory note on behalf of the minor for the
benefit of minor. In this case the promissory note was renewed by guardian to prevent a suit being filed against the
minor on the basis of the earlier note. (Please refer to our commentary on Hindu Minority and Guardianship Act,
under the sub head, “Promissory Notes”, where the entire case law has been reviewed).

The Privy Council in Waghela Rajsanji v. Shek Masludin,4 held that the guardian has no power to impose personal
liability on the minor. Before the Privy Council decision in Mir Sarvarjan v. Fakhruddin,5 this decision was used by
some of our High Courts for laying down the rule that the guardian has no power to enter into contracts so as to
bind the minor.

There has been conflict of judicial opinion before and after the decision in Mir Sarvarjan as to whether a guardian
can enter into contract on behalf of the minor and whether such a contract can be enforced against the minor,
specifically or otherwise. It seems the controversy has not ended6 even after the Privy Council decision in Kakulan
Subrahmanyama v. Kura Subba.7 This was a case decided under Hindu law. The entire matter has been discussed
by us in our commentary on section 8, the Hindu Minority and Guardianship Act, though the matter is discussed
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under Hindu law, in our submission the same principles should be applicable to all minors, Hindus and non-Hindus,
though there may be some variation in details. For instance, legal necessity has its own meaning under Hindu law,
and ‘urgent necessity’ has its own meaning under Muslim law. What is for benefit of estate or benefit of the minor
hardly differs in two systems of law. The Hyderabad High Court in Amir Ahmed v. Mir Nizam Ali,8 discussed the
question of guardian’s contracts from a general point of view and the majority in fact applied the Privy Council
decision in Subrahmanyama, which was a case under Hindu law. Wagehela,1 which is also a case of a Hindu Law,
has also been invoked before the courts in case where the question has come in the context of Muslim minors. On
the other hand, Mir Sarvarjan, a case of a Muslim minor, has been invariably invoked, in practically every case of
contractual capacity of the guardian of a Hindu minor since the date it was delivered, and it seems would continue
to dominate the legal thought till it is directly over-ruled by the Supreme Court. In view of this, the question of
contractual capacity of the guardian of a Muslim minor is discussed very briefly here.

The earlier reported case on the subject is that of the Calcutta High Court of the year 1893.2 In this case a Muslim
father on behalf of his minor daughter entered into a contract for the lease of certain lands from the defendant.
Pursuant to the agreement, the father on behalf of his daughter constructed a pucca building on the vacant land.
When the building was completed, the defendant asked for the increase of the rent, and on the father’s refusal to do
so, instituted a suit for ejectment. Thereafter the father on behalf of the minor instituted the present suit for specific
performance of the contract and prayed for an injunction against the defendant restraining him from proceeding with
the suit. Norris, J., all along in his judgment proceeds on the basis that the contract was entered into by the minor,
and therefore held that under the Contract Act, a minor’s contract being void2, (Flight v. Bollard,3 being applicable),
specific performance of the minor’s contract could not be granted, because such contracts lacked mutuality.

A similar question came before the court in Jugal Kishore v. Anand Lal,4 and the court said that unless the contract
was shown to be for the benefit of the minor, it cannot be specifically enforced. The court also said that a decree of
specific performance should not be passed against the minor during the period of minority. In the same year, the
question came for consideration before the Madras High Court.5 The guardian of a Hindu minor entered into a
contract for the sale of certain land, and the vendee filed a suit for specific performance. Ayyar and Best, JJ., said
that Flight v. Bollard,6 was not applicable as the contract was not entered into by the minor and that, at any event,
the doctrine of mutuality was not applicable in India. Specific performance was granted. This decision was followed
by the Calcutta High Court in Kharunnissa Bibi v. Loakenath Pal,7 where a contract was entered into for the lease
of certain lands and a tank on behalf of minors by their guardians. The decree for specific performance was granted
and the court expressly dissented from the Judgment in Fatima Bibi.8

In 1901 the Bombay High Court rejected the suit of a vendee of the property of a minor for specific performance as
it did not find the contract for the benefit of the minor.1 In Mt. Btawaria v. Chandra Nath,2 the question again came
before the Calcutta High Court, where a certificated guardian contracted to sell certain lands of the minor with the
permission of the court. The contract was for the benefit of the minor and specific performance was granted.

It was in this conflict of opinion in the Calcutta High Court that Mir Sarvarjan v. Fakhruddin,3 came for consideration
before Rampini, J., who thought it necessary to refer the matter to a Full Bench. One of the two questions referred
to the Full Bench was: “Can specific performance of a contract entered into on behalf of a minor be granted.” In the
Full Bench Maclean, C.J., in a very brief Judgment said: “If a contract is validly entered into on behalf of the minor,
and there is mutuality in such contract, it might be specifically enforced. Each case must depend upon its particular
circumstances and it is difficult to lay down any general rule.” Ghose, Ceidt and Holmwood, JJ., agreed with him.
Rampini J., also agreed though he, added that the rule in Flight v. Bollard,4 did not apply. When the case went back
for decision before the Division Bench consisting of Rampini and Woodroffe, JJ., very lengthy arguments were
addressed to the court as to the interpretation of the rule laid down by the Full Bench. Woodroffe, J., discussed
Waghela and said that case laid down that where an onerous covenant not in the interest of the minor is entered
into and personal liability is sought to be imposed on him, the guardian goes beyond his power and his action does
not bind the minor. The learned Judge then said that where a contract is entered into on behalf of the minor by a
guardian or manager within his powers and which binds the minor, such a contract, in the opinion of the Full Bench
can be enforced, if there is mutuality. From this Judgment the case went to the Privy Council.

The Privy Council said that it is not within the competence of the guardian or manager of minor’s estate to bind the
minor or his estate, by a contract for the purchase of immovable property and that as the minor in the present case
was not bound by the contract there was no mutuality, the contract cannot be specifically enforced.5

This decision of the Privy Council has had its overpowering sway over the Indian courts, for about seven decades.

In 1952, the question that came directly for the consideration before a Full Bench of the Hyderabad High Court was
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whether a de jure guardian of a Muslim minor could bind the minor by personal covenants even when covenant was
for the purchase of immovable property. The exact question referred to the Full Bench was in general terms, without
any specific reference to the Muslim minor. Khan, J. (with whom Siddiqi, J., agreed) categorically said that such a
contract by the de jure guardian of a Muslim minor is binding and enforceable, if it is for the benefit of the minor or
for necessity. The learned Judge reviewed the entire case law and relied on the Privy Council decision in
Subrahmanayam.1 On the other hand, Despande, J., said that a contract for the purchase of immovable property
cannot be for the benefit of the minor and it cannot be enforced; though a contract for sale of minor’s property for
necessity or benefit is binding on the minor and enforceable against him. Mir Sarvarjan2 continues to influence our
judicial thinking. In our submission, distinction between a contract for sale and contract for purchase is purely
artificial and arises out of overpowering influence of Mir Sarvarjan. Palekar, J., of the Bombay High Court said that
cases are conceivable where purchase of immovable property would become necessary or beneficial to the estate
of the minor. The learned Judge illustrated this observation by saying that suppose a minor’s house is destroyed by
fire and the guardian contracts to purchase a new house for the residence of the minor. Such a contract will be for
necessity and binding on the minor.3 Thus, it is submitted that every case should be examined on its own facts and
if a contract is for the benefit of the minor or for necessity, whether it is for sale or purchase, or whether for lease or
mortgage, it is binding and enforceable.
IV HIZANAT (CUSTODY)

All Muslim authorities recognize the mother’s right of hizanat. According to the Rudd-ul-Muktar, “the right of the
mother to the custody of her child is recognized whether she be a mosalman, or a kitabia or a majoosia, even
though she be separated from her husband. But it does not belong to one who is an apostage.”4 The Fatwai
Alamgiri puts it thus: “The mother is of all persons the best entitled to the custody of her infant children during
connubial relationship as well as after its dissolution”.5 The term hizanat is applied to the woman to whom belongs
the right of rearing up a child.

Of all the persons, the first and foremost right to have the custody of children belongs to the mother, and she cannot
be deprived of her right so long as she is not found guilty of misconduct.6 Mother has the right of custody and care
of children during the period laid down in Muslim law. Hizanat is recognized in the sense that it can be enforced
against the father or any other person. But it is a right to which obligations are attached. The mother’s right of
hizanat is solely recognized in the interest of children, and, in no sense, it is an absolute right; she cannot exercise
it the way she likes to exercise it. Mother’s right of hizanat is, in fact, a right of rearing up of children. If she is not
found suitable to bring up the child, or her custody is not conducive to the physical, moral and intellectual welfare of
the child, she can be deprived of it.

Since Muslim law considers the right of hizanat as no more than the right of rearing up the children; it terminates at
an early age of the child. In this regard Muslim law makes a distinction between the son and the daughter.
The Son.—

According to the Fatwai Alamgiri, the mother is entitled to the custody of a boy until he is independent of her care,
that is, until he is seven years old.1 According to the Hanafis, it is an established rule that the mother’s right of
hizanat over her son terminates on the latter’s completing the age of seven years.2

The Shias hold the view that the mother is entitled to the custody of her son until he is weaned,3 (this is considered
to be the completion of two years) and that during this period the mother cannot be deprived of the custody of her
son under any circumstances whatever, except with her own consent.4 On the completion of the age of two by the
son, the mother’s right of custody terminates.

According to the Malikis, the mother’s right of hizanat over her son continues, till the child attains puberty.5 The rule
among the Shafis and the Hanbalis is the same as among the Hanafis. But these schools hold the view that on
completion of the age of seven years, the child is given a choice of living with either parent. But in every case, the
father is entitled to the custody of his son when it attains puberty.6
The daughter.—

Among the Hanafis, the mother is entitled to the custody of daughters till they attain the age of puberty.6 Among the
Malikis, the Shafiis and the Hanbalis, the mother’s right of custody over her daughters continues till they are
married.7 On the other hand, under the Ithana Ashari law, the mother is entitled to the custody of her daughters till
they attain the age of seven.8 In all the schools of Muslim law, the mother has the right to the custody of her
married daughter below the age of puberty in preference to the husband.9
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The mother has the right of her children upto the ages specified in each school, irrespective of the fact whether the
child is legitimate or illegitimate.

Since the right of hizanat of the mother is a right of rearing up of children given to her in the interest of children, she
cannot surrender her right to any person, including her husband, the father of the child. For instance, if she abstains
khula from her husband on the stipulation that she would surrender her right of hizanat to the father of the child, the
khula will be valid and the stipulation will be void. Further, the mother cannot be deprived of her right of hizanat on
the ground of her poverty; it is for the father of the child to provide her with sufficient funds for the maintenance of
the child.
Other females who are entitled to hizanat.—

Among the Hanafis, the following females are after the mother, entitled to hizanat of the minor children of the age
upto which the mother is entitled to it:

(a) Mother’s mother, how high soever.1

(b) Father’s mother, how high soever.2
(c) Full sister.
(d) Uterine sister.
(e) Consanguine sister.3
(f) Full sister’s daughter.
(g) Uterine sister’s daughter.
(h) Consanguine sister’s daughter.
(i) Maternal aunts, in like order as sisters.
(j) Paternal aunts, in like order as sisters.4

Tayabji5 and Ameer Ali,6 give a different list.

The rule is that among the females, the nearer excludes the remoter.

Under the Shia school, after the mother, the hizanat belongs to the father.7 In the absence of both the parents, or
on their being disqualified the grandfather is entitled to the custody. Authorities are not clear as to who is entitled to
the custody after the grandfather.8 Some Shia authorities have laid down certain rules of preference on the basis of
which the text-books writers have compiled a list of persons who are entitled to the custody of minor children in the
absence of the grandfather. Ameer Ali holds the view that after the grandfather, hizanat belongs to the
grandmother, after her it belongs to the ascendants, then to collaterals within the prohibited degrees, the nearer
excluding the remoter.9

Among the Malikis the following are entitled to the custody of minor in the absence of the mother: (a) the maternal
grandmother, (b) the maternal great grandmother, (c) the maternal aunt and grand-aunt, (d) the full sister, (e) the
uterine sister, (f) the consanguine sister, and (g) the paternal aunt.
Father’s right of hizanat.—

All the schools of Muslim law recognize the right of the father to the custody of his minor children in the following
two cases: (i) on the completion of the age by the child upto which mother or other females are entitled to its
custody, and (ii) in the absence of the mother or other females who have the right to hizanat of minor children. The
father cannot be deprived of the right of hizanat of his male child of seven years if he is not found to be unfit.1

The father’s right of hizanat continues till the child attains puberty. It appears that among the Shafiis and the
Hanbalis, the father is entitled to the custody of his female children till they are married. Whether or not the father
can deprive the mother, or any other female entitled to the custody of a child, by appointing a guardian by his Will,
is not free from doubt. In Baillie’s Digest it is stated that the father has the power to entrust the custody of his
children to the executor appointed by his Will.2 On the other hand, the courts have taken the view that the father
has no power to deprive the mother or any other female relation from hizanat of the child upto the age to which she
is entitled to the custody.3 In our submission, the father has the power of appointing a testamentary guardian and
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entrusting him with the custody of his children, but the mother or other females will be entitled to the custody of the
children upto the specified ages. The testamentary guardian will be entitled to the custody of the minor children only
in those cases where the father is entitled to it.
Other male relations entitled to hizanat.—

In the absence of the father in both the aforesaid cases, the following persons are, according to the Hanafis, entitled
to the custody of children:

(i) Nearest paternal grandfather,

(ii) Full brother,
(iii) Consanguine brother,
(iv) Full brother’s son,
(v) Consanguine brother’s father,
(vi) Full brother of the father,
(vii) Consanguine brother of the father,
(viii) Father’s full brother’s son, and
(ix) Father’s consanguine brother’s son.4

Among the above, the rule is that the nearest excludes the remoter.

Among the Shias, hizanat, belongs, in the absence of the father, to the grandfather. As to who is entitled to hizanat
after the grandfather, the Shia authorities are not clear. In no case a person not related to the child within the
prohibited degrees is entitled to the custody. Among the Malikis, the persons entitled to the custody after the father
are, the father’s executor, the father’s son, the father’s nephew, the father’s uncle, and the father’s cousin.1
When right of hizanat may be lost by a hazina.—

According to the Rudd-ul-Muhtar,”.........hazina (female entitled to custody) should be free, adult, trustworthy and
capable of bringing up the child, and not married to a stranger.2 It seems that all the schools of Muslim law agree
that a hazina should be (i) of sound mind, (ii) of good moral character, (iii) living at such a place where there is no
risk, morally or physically, to the child, and (iv) of such an age which would qualify her to bestow on the child the
care it may need—this will not apply to mother.3

All the schools of Muslim law also agree that a hazina will forfeit her right of hizanat in any of the following cases:

(i) by her insanity and minority,

(ii) by her apostasy,
(iii) by her marriage to a person not related to the child within the degrees of prohibited relationship,
(iv) by her going away and residing, during the subsistence of marriage, at a distance place from the father’s
place of residence.
(v) Removal of the child by the hazina.

(i) Insanity and minority.—

Insanity is a disqualification, and no person of unsound mind is entitled to the custody of a child. Minority is also a
disqualification; but a minor mother is entitled to the custody of her children.
(ii) Apostasy.—

A non-Muslim mother is entitled to the custody of her minor children, and she cannot be deprived of this right on the
ground that she belongs to another faith, provided she was a non-Muslim at the time of her marriage. A Muslim
mother who converts to another religion, forfeits her right of hizanat.4 No other female who is non-Muslim is entitled
to the custody of a child. The orthodox Muslim authorities laid down that a woman who changed her religion should
be confined to prison till she returned to her faith. In its modern ramification, it means that a hazina who ceases to
be a Muslim forfeits her right of hizanat. The Shia law is very categorical, and lays down that a person who has
ceased to be a Muslim is not entitled to the custody of a child. It is submitted that apostasy is no longer a bar to the
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right of hizanat after the coming into force of the Caste Disabilities Removal Act, 1850. The Act provides that no law
or usage shall inflict on any person who renounces his religion any ‘forfeiture of right or property’. The predominant
judicial view is in favour of this interpretation,5 Ameer Ali takes a contrary view.1 Mulla differs from Ameer
Ali.2Under the Guardians and Wards Act, 1890, the court, in deciding the question of guardianship, is required to
consider the personal law as well as the welfare of the child. Under the Act, in determining the question of custody,
the paramount consideration is the welfare of the child.3 In several cases it has been held that the change of
religion by the guardian by itself is not enough to deprive him or her of the right of guardianship or custody.4
(iii) Subsequent marriage of hazina.—

The Muslim law givers of all schools have laid down that a hazina who marries a person who is not related to the
child within the degrees of the prohibited relationship forfeits her right of hizanat. The underlying notion of this rule is
that in the home of her new husband (if a stranger) she will not be able to look after the child, with the same love
and affection. Thus, according to the Rudd-ul-Muhtar, “The right of hizanat is lost by the mother (or any other
female) marrying a ghair-mahram (i.e., a person not related to the child within the prohibited relationship) of the
minor, for a stranger will not be agreeable to her bringing up the child with affection and care.5 A corollary to this
rule is that if the hazina marries a mehram, the rights of hizanat is not lost. But the mehram must be by
consanguinity.6 Thus, the mother will not forfeit her right of hizanat if she marries child’s paternal uncle, who is
mehram by consanguinity.

The judicial opinion on this point is conflicting, though the predominant view is that the disqualification is not
absolute.7 Recently, the Jammu and Kashmir High Court observed that though a Muslim mother may lose her
preferential right of hizanat if she marries a ghair-mehram, but that fact alone is not enough to disqualify her from
being appointed a guardian by the court, the welfare of the child being the paramount consideration.8 The present
law may be stated thus:

(a) A Muslim female who marries a mehram does not lose her right of hizanat.8
(b) If a Muslim female has married a ghair-mehram then she may lose her preferential right of custody, if a
person preferentially entitled to it is suitable in all respects. But, if the person preferentially entitled is not
suitable, then the mother will be entitled to the custody of the child, the disqualification being not absolute.
(c) A mother or a female who has married a gair-mehram may also be appointed as a guardian of the minor
child by the court, if otherwise found suitable.
(d) In all cases, the question is to be considered mainly from the point of view of the welfare of the child.

(iv) Misconduct of the hazina.—

The Muslim law-givers have laid down that a hazina who is unworthy of credit is not entitled to hizanat of the child.
The term “unworthy of credit” is applied to a woman who habitually leaves her home, neglects the children, or
allows them to starve.1 It is further laid down by the authorities that an adulterous woman is also not entitled to the
custody of the child. The Rudd-ul-Muhtar lay down the general rule thus: hazina is not disentitled to custody in
every case of misconduct, but only in the case of misconduct of such a nature which causes detriment to the child
or is likely to cause injury to the child.1 Thus a woman who remains outside the home for a considerable time,
either on account of work or otherwise and she leaves the child in the home uncared for, is a woman of unworthy
credit. But, if, before going out, she makes adequate arrangements for the care of the child, she cannot be deprived
of the custody. Similarly, a woman, particularly the mother, though leading an immoral life, may continue to have
the custody of the child so long as no evil effect may be apprehended on the child, and so long as her nurturing is
necessary for the child.1

The cardinal principle of hizanat in Muslim law, as in most of the modern systems of law, is the welfare of the child.
This is the reason why Muslim law gave preference to mother over the father in the matter of custody of children of
tender years. Thus, if the hazina treats the child with cruelty or neglects it, she forfeits her right of hizanat. However,
her right of hizanat cannot be lost on account of her poverty or want of funds to maintain the child.2 If the hazina
has no house where she can live with the child, or where hazina has no funds to maintain the child, then it is the
duty of the father to provide her with a house and with funds, together with such attendants, within his means, which
are necessary for the maintenance of the child. Poverty of the mother is no ground for depriving her from custody.3
In case the child, has property, then the hazina may provide habitation and maintenance out of that property. In
case the child has no property, the father, or any other person, who has the obligation to maintain the child, must
pay for the habitation and maintenance of the child.4
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What is remarkable about the Muslim law of hizanat is that every other consideration is subordinated to the welfare
of the child. A woman who is unworthy of credit, may still retain the custody of child, if welfare of the child so
requires. This means that every misconduct which otherwise disentitled a hazina from the custody of the child is
tested on the touchstone of the welfare of the child. Thus no misconduct is absolute, and what amounts to
misconduct will vary from case to case.
(v) Removal of the child by the hazina.—

The Muslim authorities lay down that the home where the husband and wife live together is the place where the
child should be brought up. Neither the father nor the mother has the right to remove the child from the matrimonial
home. If either of them wants to do so, then the permission of the other is necessary.1 Thus, a hazina is liable to
forfeiture of her right of hizanat if she removes the child, without the prior permission of the father of the child, to
such a distance from the matrimonial home so as to prevent the father from exercising the necessary control and
supervision over child.2 In the following two cases she may remove the child from the matrimonial home: (i) when
the change of residence has been made with a view to benefiting the child or, on account of unavoidable
circumstances. Thus, exigencies of her employment may compel a hazina to change her place of residence; and (ii)
when the mother separates from the father of child, she is entitled to return to her native place wherever it might be.
The Fatwai Alamgiri lays down that she cannot go to a place where her marriage did not take place, unless the
place is so near that if the father of the child should leave his residence to see the child in the morning he should be
able to return before nightfall. It is submitted that this rule relates to a period when the means of communication and
transport were primitive, but now-a-days the rule has no validity. If the mother has to live away at a distant place for
a justifiable reason, she should not be deprived of her right of custody.

The question came before the Allahabad High Court directly in Khurshid Gauhar v. Siddiqunnisa,3 where in a
considered judgment Amarendra Nath Verma, J., said that the basic postulate underlying the theory of the mother’s
right to Hizanat is that for rearing the child of tender age, mother is the best suited person and this right is not lost
by the mere fact that she has been divorced by the husband and is living away from the husband. This principle is
based on practical experience based on considerations which are conducive to the proper growth of the child. It
cannot be disputed that a child of tender age would feel psychologically most secure in the company of the mother
rather than of the father. No one can compete with the mother in that respect. The amount of love and care which a
child receives from the mother cannot be had or expected from any other relation including the father. It is normal
and natural for a divorced wife to reside separately away from the husband and so long as it is not demonstrated
that general supervision of the child to which the father is entitled as the natural guardian has not become
impossible, the mother cannot be deprived of the right of hizanat. Moreover, as has been repeatedly stressed in the
conflict of rival claims put forward by the father and the mother in regard to the custody of a child of tender age
based on their respective rights under the personal law, the interest of the child cannot be sacrificed. The overriding
consideration in all such cases and in all circumstances is the interest of the child and all other claims of rival
parents must be subordinated to it. In this case the father has divorced the mother, turned her away from the
matrimonial home, took away the child from her custody and entrusted it to his second wife. Under these
circumstances mother applied for custody under section 25, the Guardians and Wards Act.

The question came for consideration before the Madhya Pradesh High Court in Mumtaz Begum v. Mubrak
Hussain,1 where the mother filed a writ of habeas corpus praying for the restoration of custody of the child to
herself. Almost after three months of the birth of the child, the parties separated. The father took away the child. He
also remarried. The question before the court was: Does the mother lose her right of custody of her child to tender
years just because she is not residing with her husband, the father of the child? In a judgment, erudite with learning,
Dr. T.N. Singh, J., answered the question in the negative. It is submitted that our main difficulty lies in the fact that
we still rely on old text books on Muslim law which display a strange adherence to mechanical jurisprudence. The
villain of the present tragedy is the following statement in Mulla: Principles of Mohomedan Law (which existed in the
first edition and has been faithfully reproduced in all later editions): the mother would lose her right of custody:

If she goes and resides, during the subsistence of the marriage, at a distance from father’s place of residence.2 And this
will be so even if she has been turned out of the house and has to live per force away from her husband.

In our submission Dr. Singh, J., rightly observed that the statement of law in textbooks like Mulla’s Mohamedan Law
or Tayabji’s Muslim Law are inadequate to meet the challenges thrown by the contemporary society. He added (in
our submission, rightly), indeed, the need for judicial activism in the field stems from state’s failure to implement the
constitutional mandate of Article 44. Then the learned Judge added that there is a judicial sanction for construing
any law in the light of Directive Principles and particularly, in the present context to clauses (e) and (f) of Article 39
oblige the state to take steps to ensure, inter alia that the tender age of children is not abused “and that” children
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are given opportunities and facilities to develop in a healthy manner “so that” childhood and youth are protected
against exploitation and against moral and material abandonment. Then the learned Judge, drawing strength and
authority from Article 51(c), quoted principle 6 of the Declaration of the Rights of the Child of 1959:

The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever
possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection
and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from
his mother..............

The learned Judge then referring to principle 2 of the Declaration said that there is a mandate for enactment of laws
for “special protection” of the child to enable him to “develop physically, mentally, morally, spiritually and socially in
a healthy and normal manner” postulating further that in this matter “the best interests of the child shall be the
paramount consideration”. Principle 4 envisages the right for the child to have “adequate nutrition, housing,
recreation and medical services.” Dr. Singh, J., added that Mulla’s aforesaid passage should be read “in the light of
norms and nuances of the progressive interpretative technology, sanctioned by the Constitution and our judicial
mentors”. So read, he observed:

The mother of the child shall not suffer disqualification to have custody of the child for the mere fact that she is not residing
with her husband, the child’s father. If there exist circumstances to show that it was difficult for her to reside with her
husband or that she had not forsaken voluntarily her husband’s company, she should not be penalised. That apart,
importance must be attached to the main rider, namely, she resides “at a distance from the father’s place of residence”.
Indeed, we must read the underlying meaning of the rider. Even if the mother must have custody of the child of the tender
age, till he attains the age of 7 years, the father must not be denied access to the child. When personal law are divinely
sanctioned, a presumption will naturally arise that such laws have a humanistic content because when great seers, saints
and prophets found any faith, they act as benefactors of the mankind as a whole, if man is God’s child and if child is the
father of the Man, no personal law claiming divine sanction, can afford to deny paramount consideration to the welfare of
the child.1

When Right to Hizanat may be lost by Hazina.—

A male entitled to the custody of the child is known as hazin. The Muslim law-givers have not dealt with the
disqualifications of hazin in any detail, but it seems to be clear that just as in certain cases a hazina may be
deprived of the custody of the child, similarly, a hazin may also be deprived. Thus, a hazin who is a minor, or of
unsound mind, has no right to the custody of the child. A hazin who is a profligate has no right to the custody of the
child.2

A ghair-mehram is also not entitled to the custody of the child. We have seen earlier that any male relation of the
child who is not within the prohibited degrees by consanguinity is not entitled to the custody of the child.3 The
Muslim authorities lay down that a minor girl should not be handed over to an agnate not within the prohibited
degrees so long as a non-agnate within the prohibited degrees such as maternal uncle, is available. In short, if a
marriage is possible between the hazin and the child, then the former is not entitled to the custody of the child. It is
submitted that this prohibition can apply in respect of female child only. Thus, a boy may be entrusted to the
custody of the paternal uncle’s son, but a girl cannot be.1 The basis of this rule is that where a marriage between
the guardian and the girl is possible, the guardian is not entitled to the custody of the child.2 It seems that this rule
is not recognized by the Shias.3
Welfare of the child is Paramount Consideration.—

Just as under the personal law of any other community so also under Muslim law, in determining all questions
relating to minor children, including custody, the welfare of the child is the paramount consideration. In Salamat Ali
v. Majjo Begum,4 the Allahabad High Court observed that under the personal law if mother is entitled to custody of
a minor child she should normally get it, but the court should also consider whether in so doing it would be for the
welfare of the minor. If evidence shows that she would not be a fit person to have the custody or that it would not be
in the welfare of the child to give her custody.4 In Abdulsattar Husen v. Shahina Abdulsattar,5 the parents were
separated and father had remarried and was in a touring job. The mother was neither remarried nor was likely to
remarry. She was earning Rs. 3000 p.m. Taking into account the welfare of the minor, custody was given to mother
and father was given access to the child. In Rahima Khatoon v. Saburjaneesa,6 the court held that grand-mother
was a better guardian for the minor in comparison to the mother who had remarried after the death of the minor’s
father. The court should not give effect to the personal law, but should be guided by the paramount consideration of
the welfare of the child.
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V DE FACTO GUARDIAN

It appears that both Hindu law and Muslim law recognize de facto guardians, but what has happened is that by
judicial interpretation the powers of the de facto guardians were enlarged under Hindu law, while they were limited
under Muslim law.

When a person having no right to do so assumes the charge of another’s estate and carries on the administration
and management of the estate—this continuous course of conduct results in conferring on him the status of de
facto manager. In respect of a minor’s estate, such a person is known as de facto guardian. Whether this status
gives him some powers, or rights, different systems of law differ, yet all agree that it imposes on him certain
liabilities and obligations. Thus, de facto guardianship is a concept under which past acts result to present status. A
de facto guardian is a self-appointed guardian. A fugitive or isolated act of a person in regard to minor’s property
does not make him a de facto guardian, nor does staying with the minor for some time. It is only some continuous
course of conduct in respect of a minor’s property that makes him a de facto guardian.1 Tayabji defines a de facto
guardian as “an (unauthorised) person who as a matter of fact (de facto) has custody and care of the person and/ or
of his property”.2
Powers of the de facto guardian.—

It may be recalled that the Muslim authorities classify the acts which are required to be done in respect of a minor
under three categories viz., acts of guardianship, acts arising out of the want of the minor, and acts which are purely
advantageous to the minor. The Muslim authorities hold the view that the last two acts may be performed by a
‘maintainer’ or ‘taker-up’ of the minor. The ‘maintainer’ or the ‘taker-up’ may be relative or a stranger, but he is not a
de jure guardian. He is nothing but a de facto guardian. But the Privy Council put a damper on de facto guardian’s
power at an early date. In Matadeen v. Md. Ali,3 the Privy Council said: “It is difficult to see how the situation of an
unauthorised guardian is bettered by describing him as a de facto guardian. He may by his de facto guardianship,
assume important responsibilities in relation to minor’s property, but he cannot thereby clothe himself with legal
powers to sell it.” Then came Imambandi v. Mustsaddi,4 which is considered to be the leading case, and which laid
down that under Muslim law, a de facto guardian has no power of alienation of a minor’s property, and that such an
alienation is void. In Md. Amin v. Vakil Ahmed,5 reiterating this position, the Supreme Court observed: A de facto
guardian has no power to convey any right or interest in immovable property which the transferee can enforce
against the minor. This has come to be the established position.6 Such an alienation is void.7 An alienation by the
de facto guardian can be challenged only by the minor and not by a third person.8 But if a co-sharer as de facto
guardian of a minor sells his interest as well as of the minor’s, sale will be valid as to the former’s interest but void
as to the minor.

There is sufficient authority for the view that a de facto guardian has the power to sell or pledge movable properties
of the minor for the minor’s imperative needs, such as food, shelter, clothing or medical care.1

In Md. Amin v. Vakil Ahmed,2 the Supreme Court held that a de facto guardian had no power to enter into a family
arrangement on behalf of the minor.2 In this case, a brother of a minor had entered into a family arrangement on
behalf of the minor. It also seems to be clear that a de facto guardian has no power to refer to dispute relating to the
minor’s property to arbitration.3 The minor is not bound by any award rendered by the arbitrator in such a case.
Even if the de facto guardian is later on appointed as guardian by the court, the award will not be binding on the
minor.4 Similarly, the de facto guardian has no power to sign an agreement on behalf of the minor for the
continuance of a business in which minor’s deceased father was a partner.5 A de facto guardian can also not
validate a bequest to an heir by consenting on behalf of the minor who is a co-heir.6

In Md. Moizuddin v. Molini,7 the Calcutta High Court said that a de facto guardian cannot bind the minors by
execution of a hand note for a debt which their father owned.8 It seems what the de facto guardian can borrow
money for the minor’s imperative needs. But if it is not done to meet the imperative needs of the minor, or, no
emergent need for borrowing is shown, then such a debt will not be binding on the minor.9

In a series of cases it has been held that a partition of properties effected by the de facto guardian is void, and not
binding on the minor, even if the arrangement is for the benefit of the minor, and has been followed for a long time,
since the partition amounts to alienation of property.10 Under Hindu law it is an established position that partition is
not an alienation.11

Since in the majority of cases the view is held that an alienation made by the de facto guardian is void, the period of
limitation to set aside a transfer by the de facto guardian is twelve years.12
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1 Thus, in Tayabji’s Muhammandan Law, section 231 runs: “Guardianship of the person is referred to in Muslim law as
Hizant”. Raffi and Paggot, JJ. Said: “The right of guardianship of female minor primarily rests with the mother.” Salim-
un-nissa v. Saddat Hussain, (1944) 36 All 446. To the same effect are the remarks of Jailal, J. in Nur Begum v. Begum,
1934 Lah 274 and Davis, J. in Re Isso, 1942 Sind 204.
2 In the following case which were under section 488 Cr PC (old code) the mother is referred to as guardian; Sarfraz v.
Miran, 29 Cr LJ 1052; Zahura v. Yusuf, 32 Cr LJ 247; Muzafaruddin v. Hazara, 1952 Cr LJ 996; Yusuf v. Hazi, 37 Bom
71; Allah Rakhi v. Karam Illahi, 35 Cr LJ 344: ILR (1933) 4 Lah 770 .
1 The following verses in Koran are considered to be the foundation of law of guardianship:
“Given unto orphans their substance; and give them not the bad in exchange for the good; and devour not their substance
by adding it to your own substance. Verily that would be a great sin. Give not unto the weak of understanding the
substance which God has appointed you to preserve for them, but provide them therewith and clothe them and speak
to them with kindly speech. Provide orphans until they attain the age of marriage; then if he perceive that they are able
to manage their affairs well, then deliver unto them their substance, and devour it not wastefully or hastily for they are
growing up. Let him that is rich abstain generously (entirely from taking the property of orphans); and that who is poor
let him take thereof in reason. And when ye deliver up their substance unto orphans, have (the transaction) witnessed
in their presence”—The Koran, iv, 2, 5, 6.
Another verse runs as under:
“Come not near the wealth of the orphans save with that which is better, till he comes to strength” (xvii, 34; iv, 153.)
The following verse may also be noted: “............and they question the concerning orphans, say: to improve their lot is the
best. And if you mingle your affairs with theirs, they (are) your brothers, Allaha knoweth him who spoileth from him who
improveth. Had Allaha willed, He could have overburdened you. Allaha is mighty, Wise”. (ii, 220). It is interesting to note
that like Hindu law, the Koran also speaks only of the property of the minors. Nothing is said about the person of the
minor children.
The Koran permits a guardian of property of a minor to take reasonable recompense for the trouble of looking after the
affairs of an infant. (iv, 5).
2 The following Hadis traces the history of the obligation and liability of guardians of minor children:
“When these revelations came down, viz., meddle not with the substance of the orphan, otherwise than for improving
thereof “and’ surely they who devour the possessions of the orphans unjustly, shall swallow down nothing but fire into
their bellies and shall broil in ragging flames’-all those who have orphans in their care went home, and they separated
their own food from orphans, and also their water, fearful lest they might be mixed. Then when the orphans left any of
their meat or drink, it was taken care of for them to eat afterwards. Then this method was unpleasant to the orphans,
and they mentioned it to the Prophet, then the God sent down this revelation, ‘O! Mohammed, they will ask the
concerning orphans, answer to deal righteously with them is best and if ye mix your things with theirs, verily they are
your brother. Then they mixed their meat and drink together. (Misccat-ul-Messabib. Book XIII Chapter XVII part 3).
3 See the Rudd-ul-Muhtar, V. 524.
4 Quoted in, Imambandi v. Mustsaddi, ILR (1918) 45 Cal 887 .
1 Fathima Bi v. Sadhakautalla, AIR 1977 Mad 251 ; Gurbux v. Rafia, AIR 1979 HP 66 .
2 Abdul Aziz v. Nanha, ILR 39 All 332; Nandi Mirza v. Muni Begum, AIR 1930 Oudh 411 .
3 Imambandi v. Mustsaddi, ILR (1918) 45 Cal 887 .
4 Vol. V 524; see also Macnaughten, (5th Edn.,) 304; Shama Charan Sarkar: Tagore Law Lecturers on Muhammedan
Law, 477.
1 See Imambandi v. Mutsaddi, ILR (1918) 45 Cal 887 (892).
2 This is the view of Mohammed which is followed under the Shia school.
3 See Tyabji, Muhammedan Law, 285.
4 See Imambandi v. Mustsaddi, ILR (1918) 45 Cal 887 ; See also Ameer Ali, Mohammedan Law, Vol. II, (5th Edn.,) p.
453.
5 See Tyabji, Muhammedan Law, Chapter VII, Faizee, Muhammedan Law, Chapter VI.
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6 See Radha Bai v. Dr. Basumul, 41 IC 572; Abdul Aziz Khan v. Nanhe Khan, ILR 39 All 332; Nandi Mirza v. Muni
Begum, AIR 1930 Oudh 471 .
7 See Mulla’s Muhammedan Law, 15th Edn., p. 292.
8 Fatwai Kazi Khan, Vol. IV. 420.
1 The Fatwai Alamgiri, VI, 214; See also Mohammed Ameeroodeen v. Md. Chunderoobeen, (1825) Sd Rep IV 490.
2 This is so according to the Juma-ush-Shittat.
3 The Dur-ul-Muhtar 835.
4 The Fatwai Alamgiri, IV. 214.
5 The Fatwai Alamgiri, IV. 214. See also the Rudd-ul-Muhtar 689.
1 The Rudd-ul-Muhtar, V. 689; Fatwai Alamgiri, VI, 212.
2 The Fatwai Alamgiri, VI. 218-19.
3 The Fatwai Alamgiri, VI. 221.
4 Section 17.
1 Fatwai Alamgiri, Vol. VI, 220; Dur-ul-Muhtar, 837.
2 Hadaya, Vol. IV, 553.
3 Dur-ul-Muhtar, 839.
1 Hadaya, Vol. V, 533, Rudd-ul-Muhtar and Jama-ush-Shittat are also to the same effect.
2 Dur-ul-Muhtar, 838.
4 Dur-ul-Muhtar, Vol. V, 696.
1 Fatwai Alamgiri, Vol. VI, 222, Dur-ul-Muhtar, 846. The Jama-ush-Shittat and the Kitab-ul-Anwar are to the same effect.
1 MacNaughten, Chapter VIII, Cl. 14; Fatwai Alamgiri Vol. VI, 222-24.
2 Hadaya, Vol. IV, 124.
3 Tahinul Haqaiq, Vol. VI, 34.
4 Janab Haji v. Samsunnissa, (1967) 2 MLJ 195 [LNIND 1966 MAD 164].
5 Meethiyan v. Md. Kunju, AIR 1996 SC 1003 [LNIND 1996 SC 9].
1 Vol. II, 571; see Jaitoon Begum v. Central Bank Ltd., PLD 1961 (WP) Lah 888.
2 Vol. V, 696; The Dur-ul-Muhtar, and the Fatwai Alamgiri also take the same view. They also include another head:
when property is in the hand of a usurper and there is no possibility of its recovery.
3 ILR (1885) 11 Cal 417 . See also Mohamud v. Govindarajulu, AIR 1971 Mad 44 [LNIND 1970 MAD 14].
4 The case was decided on another point also; the person alienating the property was not a legal guardian, but see Abdul
Hakim v. Jan Mohammed, AIR 1951 All 247 [LNIND 1950 ALL 183].
5 ILR (1888) 16 Cal 627 (PC).
6 Reference was made to Macnaughten’s Principles of Mohammedan Law, Chapter VIII, Cl. 14.
7 ILR (1895) 20 Bom 116 .
8 In the earlier cases the same view was taken; Mt. Bukshum v. Mt. Dookin, 12 WR 337; Mt. Syedan v. Syed, 17 WR
239.
1 Thottoli Kotilan v. Kunhammed, ILR (1910) 34 Mad 527 .
2 Mohammed Abdul Rehman v. Mohammed Ibdul Gani Khan, AIR 1937 Oudh 56 .
3 Asafudaulla Beg v. Ram Ratan, AIR 1940 All 74 .
4 Eishu v. Ranglal, AIR 1973 Cal 164 .
5 AIR 1951 All 247 [LNIND 1950 ALL 183].
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6 The passage from Hadaya (quoted above) was referred to by the court in support.
1 Fatwai Alamgiri, Vol. VI, 227.
2 Fatwai Alamgiri, Vol. VI, 227-28.
3 Ameer Ali, Vol. 1 (4th Edn.) 686.
4 ILR (1936) 49 Mad 942 .
5 Fatwai Alamgiri, Vol. VI, 227; Muzaribat is a type of partnership in which one person invests his capital while the other
his labour but both share profits.
6 See Ameer Ali, Vol. I, 683.
7 Tayabji, Mohammedan Law, 3rd Edn., 302.
8 AIR 1928 PC 130 .
1 ILR (1931) 54 Mad 549 .
2 ILR (1932) 54 All 916 .
3 AIR 1940 Mad 285 .
4 Fatwai Alamgiri, Vol. VI, 221.
5 Fatwai Alamgiri, Vol. VI, 221 (222).
6 ILR 3 Bom 437.
7 Umrao v. Dalip Singh, ILR (1901) 23 All 129 .
1 Subbandari v. Shrimulu, ILR (1893) 17 Mad 221 .
2 See Ameer Ali, Vol. 1 (4th Edn.) 680; see also, Rayesthna v. Mahboob Sahib, AIR 1940 Mad 106 [LNIND 1939 MAD
394], where it was held that Mohammedan law was against the award of interest on the loan taken by a minor. It is
doubtful whether this would be enforced under the modern law.
3 AIR 1935 Mad 1041 [LNIND 1935 MAD 237]; Abdul v. Md. Ibadul, AIR 1937 Oudh 56 .
4 (1887) 14 IA 89.
5 ILR (1911) 39 Cal 232 .
6 The Assam High Court even after Subrahmanyama relied on Mir Sarvarjan in Hari Mohan v. Sheo Narayan, AIR 1949
Assam 57 .
7 AIR 1948 PC 95 .
8 AIR 1952 Hyd 120 (FB).
1 (1887) 14 IA 89.
2 Fatima Bibi v. Sebunath, ILR (1893) 20 Cal 508 .
3 4 Russ 298.
4 ILR (1895) 22 Cal 545 .
5 Krishnasami v. Sundarappayyar, ILR (1895) 18 Mad 415 .
6 ILR (1900) 27 Cal 273 .
7 ILR 20 Cal 508.
8 (1905) 10 CWN 763.
1 Jamsetji N. Tata v. Kashinath, ILR (1902) 26 Bom 326 .
2 ILR (1906) 34 Cal 163 .
4 (1912) 39 IA 1.
5 Amir Ahmed v. Meer Nizam Ali, AIR 1952 Hyd 120 (FB).
1 AIR 1948 PC 95 .
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2 (1912) 39 IA 1.
3 Popat Namdeo v. Jagu Pandu, AIR 1969 Bom 140 [LNIND 1968 BOM 26](148).
4 The Rudd-ul-Muhtar, II, 1041.
5 The Fatwai Alamgiri, I. 728.
6 Md. Shafi v. Shamim Banon, AIR 1979 Bom 156 [LNIND 1978 BOM 171].
1 Baillie I, 435. See also Imtiaz v. Masood, AIR 1979 All 25 .
2 Farjanb v. Ayub, AIR 1989 Bom 357 [LNIND 1989 BOM 64].
3 See the Sharaya-ul-Islam.
4 Sherkhan v. Ajbhoi, 11 Bom LR 75.
5 Sautayra, 1, 348.
6 The Fatwai Alamgiri, I. 730; The Fatwai Kazi Khan, I. 478.
7 The Rudd-ul-Muhtar, II. 1054.
8 Baillie, II. 95.
9 In the Matter of Khatija Bibi, ILR (1870) 5 Bom LR 557; In the matter of Mohim Bibi, (1874) 13 BLR 160. See also
clause (a) of section 19, the Guardians and Wards Act, 1890.
1 Fatima Bibi v. Shaik Peda, AIR 1941 Mad 944 [LNIND 1941 MAD 176]; Nur Begum v. Begum, AIR 1934 Lah 274 ; In
re, Ghulam Md. AIR 1924 Sind 154 .
2 Boocha v. Elahi Bux, ILR 11 Cal 574.
3 In the Hedaya and the Fatwai Alamgiri the consanguine sister is not mentioned. Mulla holds the view that the omission
is purely accidental, since the paternal aunt is expressly mentioned. Ameer Ali puts her after full sister’s daughter and
uterine sister’s daughter. (II 253). It is submitted that there seems to be no reason why she should be relegated to such
a low position.
4 Tayabji considers that the inclusion of father and paternal aunt is expressly mentioned. Ameer Ali puts her after full
sister’s daughter and uterine sister’s daughter. (II 253). It is submitted that there seems to be no reason why she should
be relegated to such a low position.
Tayabji considers that the inclusion of father’s mother and paternal aunt is Father’s anomalous as the basis of this principle
is that the custody of a minor child belongs by right to its mother’s relations. (3rd Edn.) 275.
5 Tayabji (3rd Edn.), 275. Tayabji has based his list on the Hedaya and the Fatwai Alamgiri. He does not include
consanguine sister and consanguine sister’s daughter.
6 Mohammedan Law, 5th Edn., 253-54.
7 Baillie, II. 96 Solimunissa v. Saddat, ILR (1914) 36 All 466 ; Kundan v. Aisha, ILR (1938) All 963.
9 Mohammedan Law, II 255. The Sharay-ul-Islam mentions the following rules of preference among some females; the
consanguine half-sister is preferred to the uterine half sister, the paternal grandmother to sister, and the paternal and
maternal aunts are equally entitled to custody.
1 Md. Jameel v. Ishrath Sajeeda, AIR 1983 AP 106 [LNIND 1982 AP 231].
2 Baillie I, 676.
3 Bahadur Ali v. Bibi, (1910) PR 154 (number 48).
4 This list is based on Mulla’s Mohammedan Law, 17th Edn., p. 336.
1 Ameer Ali, II. 253.
2 The Rudd-ul-Muhtar, II. 1042.
3 Ameer Ali, II. 256.
4 The Hedaya, I. 392.
5 Munchoo v. Arjun, (1866) WR 235; Gur Md. v. Wazir, ILR (1901) 25 Bom 551 . But see in the matter of Mahim Bibi,
(1874) Beng LR 160.
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1 Ameer Ali, II. 259.

2 Mulla, (15th Edn.), 234.
3 Section 25.
4 Buden v. Bahadur Khan, AIR 1942 Pesh 41 .
5 The Rudd-ul-Muhtar, II. 656.
6 The Rudd-ul-Muhtar, 251-56: The Fatwai Alamgiri. I, 729.
7 In Ansar v. Samidan, AIR 1928 Oudh 220 ; Mehraj Begum v. Yar Md, AIR 1932 Lah 493 ; Mir Md v. Mujee Bunnisa
Begum, AIR 1952 Mad 280 [LNIND 1951 MAD 33]; it was held that where the law is definite, the court cannot
disregard it in the interest of the child. On the other hand, in Gunna v. Dargahi, AIR 1925 Oudh 623 ; Somusunissa v.
Saida Khatun, AIR 1944 All 202 (627); Tumina Khatun v. Goharjan Bibi, AIR 1942 Cal 281 ; Abdul v. Zebunissa, AIR
1951 Cal 205 ; Hasan v. Ghulam, AIR 1961 J&K 5 ; Sundari v. Md. Fafoe, AIR 1971 J&K 43, the court took the view
that prohibition was relative and it could be disregarded in the interest of the child.
8 Sundari v. Md Fafoe, AIR 1971 J&K 43 ; Hasmat Ali v. Suraya Begum, AIR 1971 All 260 ; Khalija v. Gulam, AIR 1976
AP 128 [LNIND 1975 AP 2]; S. Rehan Fatima v. Syed Badinudin Pariviz, AIR 1984 AP 1 .
1 The Rudd-ul-Muhtar, II 1042.
2 Amar Illahi v. Rashida PLD, (1955) Lah 501.
3 Suharbi v. D. Muhammad, AIR 1988 Ker 30 [LNIND 1987 KER 76].
4 Siddiqunnissa v. Nizamuddin, ILR (1931) 54 All 128 ; Allah Rakhi v. Karam Illahi, ILR (1933) 4 Lah 770 : 35 Cr LJ 344.
1 The Fatwai Alamgiri, II, 1054.
2 The Fatwai Alamgiri, I. 731.
3 AIR 1986 All 314 [LNIND 1986 ALL 31].
1 AIR 1986 MP 221 [LNIND 1986 MP 178].
2 Para 252 (2).
1 Para 252(2) at 225.
2 The Fatwai Alamgiri, 130; Baillie 433; Sheohan v. Abdul, ILR (1930) 38 Cal 477 .
3 The Fatwai Alamgiri, 1. 972.
1 The Rudd-ul-Muhtar, II. 1050.
2 Haliman Khatun v. Ahmadi Begum, AIR 1949 All 627 .
3 Tayabji (3rd Edn.), 281.
4 AIR 1985 All 29 [LNIND 1984 ALL 135].
5 AIR 1996 Bom 134 [LNIND 1995 BOM 575].
6 AIR 1996 Gau 33 [LNIND 1995 GAU 37].
1 Chinna Alagum Persumal v. Vinayakathamal, AIR 1929 Mad 110 [LNIND 1928 MAD 188].
2 Tayabji, 4th Edn., 213.
3 (1912) 34 All 213.
4 ILR (1918) 45 Cal 887 .
5 AIR 1952 SC 358 [LNIND 1952 SC 55].
6 Antto v. Reoti, AIR 1936 837 (FB); Mosi Uddin v. Ahmed, ILR (1920) 47 Cal 713 ; Md. Sardan v. Babu Gyanu, AIR
1952 Nag 17 ; Rang Illahi v. Mohboob Illahi, ILR (1925) 7 Lah 35 ; Kunhi Bi v. Kalliani, AIR 1939 Mad 881 [LNIND
1939 MAD 134]; Jhulan v. Ram, AIR 1979 Pat 54 .
7 In the following cases the court has taken the view that alienation is void; Vemana v. Abdul Kadir, AIR 1948 Mad 37
[LNIND 1947 MAD 98]; Kadir v. Koya, AIR 1956 Mad 368 ; Maimunissa v. Abdul, AIR 1966 Mad 468 [LNIND 1964
MAD 27]; Ali Mohammed v. Ramnivas, AIR 1967 Raj 258 ; Tikam Chand v. Rahim Khan, AIR 1971 MP 23 ; Azeez v.
Chitamma, ILR 1954 TC 370; Md. Sardan v. Baboo Gyanu, AIR 1952 Nag 17 ; Kharag Narayan v. Bibi Hamida, AIR
Page 22 of 22
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1955 Pat 475 ; Sheik Md. Zafar v. Sheik Amiruddin, AIR 1963 Pat 108 ; Ranga Illahi v. Mahboob Illahi, ILR (1925) 7
Lah 35, but the court said that it has power under section 42, Specific Relief Act (old Code) to make it a condition
precedent that the minor should refund the amount by which his estate has benefited. The Madras High Court followed
this decision in Abdul Majeed v. Ramzan Bibi, AIR 1931 Mad 881, said that there was no such obligation on the minor
under the general law. In Ayderment v. Syed Ali, ILR (1912) 37 Mad 514, the court said that the alienation by the de
facto guardian is neither void nor voidable, but remains suspended until the minor on attaining majority ratifies it or
repudiates it. The decision preceded the Privy Council decision in Imambandi, and therefore, may be treated as
overruled. In Firm Jawahar Singh v. Municipal Committee Khat, AIR 1937 Pesh 74 the court said that an alienation by
the de facto guardian is voidable. Abdul Hakim v. Jan Mohammed, AIR 1951 All 247 [LNIND 1950 ALL 183];
Cyasuddin v. Allah Tala Wakf, AIR 1986 All 39 [LNIND 1984 ALL 316].
8 Jhulan v. Ram, AIR 1979 Pat 59 .
1 Rugia Begam v. Iqbal, AIR 1989 AP 30 [LNIND 1987 AP 24].
2 AIR 1952 SC 358 [LNIND 1952 SC 55].
4 Md. Ejaz v. Iftikar, ILR (1932) 59 All 92 ; Moshiuddin v. Ahmed, ILR (1920) 47 Cal 713 ; Johara v. Mohammed, AIR
1951 Mad 997 [LNIND 1951 MAD 46]; Abdul Karim v. Mauniram, AIR 1954 Pat 6 .
5 Ahmed Ibrahim v. Meyyappa, AIR 1940 Mad 285 ; Khorasany v. Acha, AIR 1928 Rang 160 .
6 Bibi Kulsoon v. Mariam, AIR 1933 Oudh 97 .
7 AIR 1935 Mad 1041 [LNIND 1935 MAD 237].
8 Nazir v. Kharag Narayan, AIR 1939 Pat 29 .
9 Kunhi Bi v. Kakhn, AIR 1939 Mad 881 [LNIND 1939 MAD 134].
10 Ajiz v. Chittamma, AIR 1954 TC 370 ; Sheik Md. Zafar v. Sheik Amiruddin, AIR 1963 Pat 108 ; Tikam Chand v. Rahim
Khan, AIR 1971 MP 23 .
11 Article 144, the Limitation Act, (old).
12 Gutta Radhakrishnayya v. Lutta Sarasamma, AIR 1951 Mad 217 ; Commissioner of Income-tax v. Keshavlal Lallubhai,
AIR 1965 SC 866 [LNIND 1964 SC 309].

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed > Dr Paras Diwan:
Law of Adoption, Minority, Guardianship and Custody, 5th ed > PART V INDIAN MAJORITY ACT,
1875

Law of Adoption, Minority, Guardianship and Custody

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

PART V INDIAN MAJORITY ACT, 1875*

(9 of 1875)

[2nd March, 1875]

An Act to amend the law respecting the age of majority.

Preamble.—

WHEREAS, in the case of persons domiciled in **[India] it is expedient ***[to specify the age of majority]; It is
hereby enacted as follows:—

Comments

1. Domiciled in India

In the Preamble the words “domiciled” in India should be noted. This means all those persons who are
domiciled in India, whether they are Indian citizens or foreigners, will be governed by the Act. Conversely, if
Indian citizens are not domiciled in India, they would not be governed by the Act.

The Act also applies to Europeans British subjects or subjects or nationals of any country provided they are
domiciled in India. Mention of the “European British subjects”, is made specifically here as before
independence, they were an important segment of India, as most of these people were those who governed
India on behalf of the British Empire. They have also been mentioned here because customarily in a
commentary on the Preamble of the Indian Majority Act they have been mentioned. Prior to coming into force of
the Act, their age of majority was regulated by English law.

The age of majority of those persons, it may be emphasised, whether Indian nationals or nationals of any
country, who are not domiciled in India, will not be governed by the Indian Majority Act. Their age of majority will
be governed by the law of their domicile, or by the law of their nationality in systems where such matters are
governed by the law of nationality.
2. Object of the Act
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Prior to the coming into force of the Act there was some confusion and uncertainty about the age of majority.
Mostly it was governed by the personal laws of each individual in almost all matters. This related to capacity to
contract also. The object of the Act is to remedy this state of affairs, and to lay down a uniform age of majority
for all persons domiciled in India in all matters except certain matters pertaining to personal laws of Indian
communities.

** Subs. by Act 3 of 1951, sec. 3 and Sch., for “Part A States and Part C States”.

*** Subs. by Act 33 of 1999 sec. 2, for certain words (w.e.f. 16-12-1999).

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed > Dr Paras Diwan:
Law of Adoption, Minority, Guardianship and Custody, 5th ed > PART V INDIAN MAJORITY ACT,
1875

Law of Adoption, Minority, Guardianship and Custody

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

PART V INDIAN MAJORITY ACT, 1875*

(9 of 1875)

[2nd March, 1875]

An Act to amend the law respecting the age of majority.

1. Short title.—

This Act may be called the *[***] Majority Act, 1875.

Local extent.—**[It extends to the whole of India ***[except the State of Jammu and Kashmir]];

Commencement and operation.—and it shall come into force and have effect only on the expiration of three
months from the passing thereof.

Comments

1. Scope

This is the usual first section of the Indian statutes dealing with the extent, commencement and operation.
2. Jammu and Kashmir

Like most Indian statutes, this statute also does not extend to the State of Jammu and Kashmir. The State of
Jammu and Kashmir has its own statute on the age of majority.
3. Other parts of Indian Union

Except the State of Jammu and Kashmir, in all other parts of the Indian Union, the age of majority is governed
by this statute. After the independence of India and with the process of merger of Princely states and with the
liberation of remaining foreign pockets, the Act was gradually made applicable to all parts of the Indian Union
with the exception of the State of Jammu and Kashmir. The latest part to come under the Act are Dadra Nagar
Haveli, Laccadive, Minicoy, Amindivi Islands, Goa, Daman, Diu and Pondicherry.
4. Commencement and Operation
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The third para of the section lays down that the Act shall come into force and have effect only on the expiration
of three months from the passing thereof.

* The word “Indian” omitted by Act 33 of 1999, sec. 3 (w.e.f. 16-12-1999).

** Subs. by the A.O. 1950, for the original para.

*** Subs. by Act 3 of 1951, sec. 3 and Sch., for “except Part B States”.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed > Dr Paras Diwan:
Law of Adoption, Minority, Guardianship and Custody, 5th ed > PART V INDIAN MAJORITY ACT,
1875

Law of Adoption, Minority, Guardianship and Custody

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

PART V INDIAN MAJORITY ACT, 1875*

(9 of 1875)

[2nd March, 1875]

An Act to amend the law respecting the age of majority.

2. Saving.—
Nothing herein contained shall affect—
(a) the capacity of any persons to act in the following matters (namely),—marriage, dower, divorce and
adoption;
(b) the religion or religious rites and usages of any class of *[citizens of India]; or
(c) the capacity of any person who before this Act comes into force has attained majority under the law
applicable to him.

Comments

1. Scope

Pursuant to the policy of the Raj of not interfering with the personal matters of the Indian communities, this
section lays down that the “capacity to act” in certain matters will still be governed by the individual personal
laws. This section puts this theme in a negative form. The Act will not affect:

(a) the capacity of any person to act in the following matters (namely)— marriage, dower, divorce and
adoption, and
(b) the religion, religious rites and usage of any class of citizens of India.

Clause (c) of the section is not relevant presently. It lays down that the capacity of any person who before the
Act came into force has attained majority under the law applicable to him, then he would not be affected by the
Act.
2. Clause (a): Marriage

Marriage is one of the matters in which capacity to act is allowed to be governed by the personal law.
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On this matter, all the precedents available are pre-independence precedents. The Child Marriage Restraint
Act, 1929 as amended in 1976 now lays down that the capacity to marry is acquired at the age of 21 by a male
and at the age of 18 by a female. This age applies uniformly to all Indian citizens belonging to any caste,
community or religion. There are several precedents practically under all the personal law holding that capacity
to marry will be governed by the personal law of the parties. But these precedents should be taken now with
caution in view of the Child Marriage Restraint Act. We are not reviewing these precedents, but merely noting
some of them in the footnote.1
3. Clause (a): Divorce

In Naksetan Bibi v. Habibar Rehman2, the Calcutta High Court said that when a Muslim files a suit for
dissolution of marriage, his capacity to sue is governed by Muslim law.3 But the Madras High Court in Abdul
Ajeez v. Pathumma Bai,4held that clause (a) did not save the capacity to sue for divorce. It was held that a
Muslim woman who had acquired capacity under Muslim law, could not sue for divorce without a next friend if
she was minor under the Indian Majority Act. The Calcutta High Court takes the view that section 2 of the Indian
Majority Act does not merely create certain exceptions to section 11 of the Contract Act, but the words “to act”
are wide enough to include the institution of a suit.5 Thus a suit for divorce filed by a Muslim girl of 15 is
covered under the expression “the capacity of any person to act” in the matter of marriage, divorce,.......... 6

When a Muslim delegates to her the power to divorce (talaq-a-tafweez), the wife can exercise that power before
attaining the age of eighteen years.7

The age of majority of an Indian Christian for the purpose of divorce is 218 and thus an Indian Christian does
not attain capacity to sue for divorce on the completion of the age of 18 years.9

Under the Hindu Marriage Act also, it seems, no one can sue for divorce before he had attained the age of
majority, i.e., eighteen years of age.
4. Clause (a): Dower

Fixing of the amount of dower is a matter of capacity to act in the matter of dower, and a Muslim who has not
attained the age of 18 years can fix an amount of dower of his wife and can also enter into a contract for
payment of the dower.10 But if a gift to the wife, as distinguished from dower, is made, a Muslim below the age
of 18 years has no capacity to do so.11

Is relinquishment of dower by a Muslim wife “is a matter of dower”? Our High Courts differ. The Madras High
Court held that this is not a matter where the wife acts in the matter of dower and hence a Muslim woman
below 18 years cannot validly relinquish her claim to dower.1 On the other hand, the Allahabad High Court
takes a contrary view.2

In our submission, it seems, section 2 merely relieves a person of some of the consequences of the minority,
but if one wants to file a suit one can do so only through the next friend under Order XXXII, rule 1, the Code of
Civil Procedure.3

This is also the view taken by Madras, Allahabad and Patna High Courts. The Madras High Court holds the
view that section 2(a) saves only the capacity to act in matters of dower, etc., but not to act in suits, or legal
proceedings relating in such matters, and therefore a suit can be filed only through a next friend.4 The Bombay,
Calcutta, Allahabad and Jammu and Kashmir High Courts take a contrary view.5
5. Clause (a): Adoption

Adoption is recognized only under Hindu law and now under the Hindu Adoptions and Maintenance Act, no
minor can make an adoption. In view of this the pre-Hindu Adoptions and Maintenance Act precedents have no
relevance.
6. Clause (b): Matters of Religion

This clause lays down that in matter of religion, religious rites and usage of any class of citizens of India, the
age of majority is not regulated by the Indian Majority Act. Thus the age of majority under the Act does not
apply to offices involving performance of religious rites. A Muslim under the age of 18 years can be appointed a
mutawalli of a mosque.6Reade v. Krishna,7 is an interesting illustration. A boy aged 16 years left his father’s
custody and went to a Christian Missionary where he got converted to Christianity. When father sued for the
custody of the child, it was held that since the boy had attained the age of 16 years, he was a sui juries
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according to Hindu law and competent to change his religion, and the father had no right to interfere with the
right of his son to change his religion. But, the court added, since the suit by the father was to enforce his right
of custody, it was not Hindu law but the Indian Majority Act which governed the age of minority and since the
child was minor, the father is entitled to the custody of the child.

* This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I and the whole of the Union
territory of Lakshadweep by Reg. 8 of 1965, sec. 3 and Sch.
This Act has been extended to Pondicherry by Act 26 of 1968, subject to the following modification:—
In section 1 at the end, insert:—
“Provided that nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry.”.
* Subs. by the A.O. 1950, for “His Majesty's subjects in India”.
1 Bai Shirinbai v. Kharshedji, ILR 22 Bom 430. (Parsis, under Parsi Law capacity to marry is acquired at the age of 21);
Maung Nyein v. Ma Myin, 46 IC 421 (Burmese - Buddhists: breach of promise to marry; The capacity to marry is
acquired at the age of 16 under Burmese Buddhist law): but see Maung Tun v. Ma E Eye, AIR 1936 Rang 212 (FB)
(where a contrary view was taken); Bhagwati v. Distt. Judge, AIR 1933 All 480 (Hindu girl of 17 has capacity to marry);
Mst. Ghulam Kubra v. Md. Safi, AIR 1940 Pesh (Muslim girl of 15 has capacity to marry).
2 ILR (1946) 21 Cal 349 .
3 See also Achia Khatoon v. Abdul, AIR 1952 Cal 381 ; Bai Shirinbai v. Khurshedji, ILR 22 Bom 430.
4 AIR 1952 Mad 754 [LNIND 1951 MAD 288].
5 Nakesetam Bibi v. Habibai Rahmai, AIR 1948 Cal 66 .
6 See also Hanafa Bibi v. Mohshed Ali, AIR 1961 Cal 59 [LNIND 1960 CAL 71] where a similar view was expressed.
7 Fatima v. Fazlal Karim, AIR 1928 Cal 302 .
8 Christian Marriage Act.
9 G.E.G.R. v. E.M.R., AIR 1925 Sind 95 .
10 Mazharal v. Abdul Gani, AIR 1925 Cal 322 ; Sayakhan v. Beebee Khathoo, 29 IC 587 (Mad).
11 Subramanian v. Daraising, 24 MLJ 49.
1 Abidhunnisa v. Mahommad Fathi, 35 MLJ 648; see also Najumunias v. Sirajuddin, ILR 17 Pat 302 taking the same
view.
2 Qasim Hussain v. Kaniz Sakina, AIR 1932 All 649 .
3 Usman Ali v. Khatun Banu, AIR 1942 Oudh 243 .
4 Abdul Azeez v. Pathumma Bibi, AIR 1952 Mad 754 [LNIND 1951 MAD 288]; See also Usman Ali Khan v. Khatoon
Banu, AIR 1942 Oudh 243 .
5 Shirinbai v. Khurshedji, ILR 22 Bom 430; Ahmed Sulaiman v. Bai Fatima, AIR 1931 Bom 76 ; Nakasetan Bibi v. Habibar
Rahman, AIR 1948 Cal 86 ; Quasim Hussain v. Kaniz Sakina, AIR 1932 All 649 ; Abdulla Balia v. Adeba Khatoon, 64
CWN 786; Abdulla Dar v. Mst. Noori, AIR 1964 J&K 66 .
6 Mahomed Kadir v. Ghulam Mahomed, 28 IC 934.
7 ILR 9 Mad 391.

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed > Dr Paras Diwan:
Law of Adoption, Minority, Guardianship and Custody, 5th ed > PART V INDIAN MAJORITY ACT,
1875

Law of Adoption, Minority, Guardianship and Custody

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

PART V INDIAN MAJORITY ACT, 1875*

(9 of 1875)

[2nd March, 1875]

An Act to amend the law respecting the age of majority.

*[3. Age of majority of persons domiciled in India.—

(1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen
years and not before.
(2) In computing the age of any person, the day on which he was born is to be included as a whole day
and he shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that
day.]

Comments

1. Scope

This is substantive section of the Act and lays down that:

(a) a person domiciled in India attains the age of majority on the completion of his age of eighteen years,
but
(b) a person domiciled in India will not attain the age of majority on the completion of his eighteenth year if
for his property or person or both a guardian (other than a guardian for suit) has been appointed or
declared before he completed the age of eighteen years or if his property is under the superintendence
of the Court of Wards or has been assumed by a Court of Wards before he attained the age of
eighteen years; such a person will attain the age of majority on the completion of his age of twenty-one
years.

2. Applicability of the Section

The section applies only to those persons who are domiciled in India, Indian citizens or foreign nationals. If an
Indian citizen is not domiciled in India, the section will not apply. His age of majority will be determined by the
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law of his domicile. Secondly, as we have seen in our commentary on section 2, the age of majority in respect
of certain matters mentioned therein is not governed by the Act but by the personal law.
3. Completion of age of Eighteenth Years

A person domiciled in India and for whose person or property or both no guardian has been appointed before
he completed the age of eighteen years or whose property has not been taken over under the superintendence
of the Court of Wards, attains majority on the completion of the age of eighteen years. The age of eighteen
years is computed from the date of his birth (and not from the date of his conception1) and each year is
completed on the day preceding the anniversary of the birth date.2 Section 4 lays down that in computing the
age of any person, the date of which he was born is to be included as a whole day and he shall complete the
age of eighteen years at the beginning of the eighteenth anniversary of that day.3
4. Age of majority of a person who has a certificated guardian

The section extends the age of majority of a person whose guardian was appointed or declared by the court
before he completed the age of eighteen years by three years, i.e., he attained the age of majority on the
completion of twenty-one years of his age. The same is true of a person whose estate was brought under the
Court of Wards before he completed the age of eighteen years. This means that for all purposes such a person
attains the age of majority on the completion of his age of 21 years. Even where guardian of a part of property
is appointed the age of majority is extended to 21 years. Thus, an execution application filed by his certificated
guardian is maintainable even if the ward has attained the age of 18 years, if he has not attained the age of 21
years.4

The grant of Letters of Administration under section 23 of the Probate and Administration Act does not lead to
the extension of age of majority from 18 to 21 years.5 A testamentary guardian on obtaining a probate of the
Will does not become a certificated guardian so as to extend the age of minority to 21 years.6
5. Guardian appointed or declared by the Court

The appointment or declaration of a guardian by the court should be final, then alone the age of majority will
stand extended. If an order appointing or declaring a person as guardian is set aside by the guardian court itself
on a review or by a higher court on appeal or revision, there is no order for the appointment or declaration of a
guardian and therefore the age of majority will remain the completion of 18 years.7 Similarly, a conditional order
does not operate to extend to the age of majority.8Divatia, J., rightly observed, “The word ‘appointed’ in section
3 of the Majority Act means finally and validly appointed. A conditional order cannot operate to prolong the
period of minority if the condition is not fulfilled with the result that the order does not come into operation at all.”
But once a guardian is validly appointed the age of majority stands extended to 21 years of age and
subsequent discharge of the guardian1, or termination of guardianship for any cause,2 or the release of the
minor from the guardianship,3 or death of guardian,4 or his removal or cancellation of the certificate of
guardianship3 does not affect the age of majority which will be attained on the completion of age of 21 years.
6. Appointment must be Valid

Only a valid order appointing a guardian will extend the period of minority.5 An order passed by a court not
competent to appoint a guardian is invalid.6
7. Appointment of Guardian of Property

Even when guardian of minor’s property alone is appointed, the age of majority stands extended to 21 years.
The term “property” has been used in widest possible connotation. It does not mean only separate property of
the minor.7
8. Age of Minority is Extended only when a Guardian is Appointed or Declared by the Court

The age of minority is extended only when a guardian is appointed or declared by the court, otherwise in all
other cases a minor attains the age of majority on completion of age of 18 years. The provision of age of
majority laid down under the Hindu Minority and Guardianship Act, 1956 is not inconsistent with section 3 of the
Indian Majority Act as the age of minority is extended only on the appointment or declaration of a guardian by
the court.8
9. Proof of Age and Burden of Proof

The burden of proof of age of a person whose guardian was appointed by the court is on the person who
alleges that he was a major at the time of appointment of guardian.9 Similarly, the burden of proving that a
person was born on a particular date is on the person who alleges it.10
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The age of majority can be proved by several modes of evidence. It has to be proved like any other question of
fact. The entry in the matriculation or school leaving certificate is considered to be good evidence.1 The entry in
the municipal register of birth and death is also regarded as a good evidence.2 It may be proved by entry in any
public record. Horoscope is also produced as a evidence of age in India. In Ganganand v. Rameshwar,3the
Patna High Court said that where the statement in the horoscope as to the date of birth of the minor is the
statement of a person who is dead and who has special means of knowledge as to the date of birth, the
horoscope is admissible and is valuable evidence as to the date of birth. But if conditions of section 32(5) of the
Indian Evidence Act are not satisfied, horoscope cannot be treated as good evidence.4 Where the person who
prepared the horoscope is alive and is called to give evidence he can refer to the horoscope to refresh his
memory as the horoscope is treated as a record prepared by him at the time of the birth of the child.5 In Raja
Goundan v. Raja Goundan,6the Madras High Court said that a horoscope though not produced by the
defendants themselves but by the mother of plaintiff could be relief upon as it is an admission to which sections
17 and 18 of the Indian Evidence Act apply.

But a horoscope by itself is of little evidentiary value. The date of birth mentioned in such document cannot be
treated as true and correct unless the person who prepared it or who caused it prepared is able to testify to the
correctness of the date of birth as given in the horoscope.7

The date of birth can be proved by any other mode also as any question of fact can be proved.

A certificate of guardianship is no proof of age of minority.8 It is not part of public record.9

10. Minor in one District, Major in Another

A minor may have property in several districts and guardian may be appointed of his property in one district
only. This does not mean that he is minor in one district and major in others, when he attains the age of
eighteen years. He will uniformly attain the age of majority when completes his 21 years of age.10
11. Minor in Respect of One Property, Major in Respect of Others

It may happen that guardian of minor’s some property is appointed and in respect of other properties, there may
not be any guardian. This cannot happen that he is minor in respect of property whose guardian has been
appointed and major in respect of others whose guardian has not been appointed when he attains the age of 18
years. He will become major only when he attains the age of 21 years.1
12. Section and Article 14 of the Constitution

In Gopashwar v. State of Bihar,2 where the constitutional validity of the section was challenged on the ground
that it was violative of Article 14, the Patna High Court observed that the equal protection clause does not
prevent classification and does not prevent drawing of lines. The selection of age of legal majority is artificial in
any case, and if legislature has fixed different age limit in the case of a ward whose estate is under the Court of
Wards, it cannot be said that classification adopted therein is unreasonable.

5 Lakshma v. Tyagaraju, 24 MLJ 450.

6 Jogesh v. Umatara, 2 CLR 577.
7 Jay Singh v. Pratap Singh, AIR 1945 Bom 243 .
8 Jay Singh v. Pratap Singh, AIR 1945 Bom 243 . (in this case the appointment was made subject to furnishing security;
since no security was furnished, the guardian did not come into being and meanwhile the child attained the age of 18
years.
1 Sadho Lal v. Murlidhar, ILR (1907) 29 All 672 (FB); Jagon Ram v. Mahadeo, ILR (1909) 36 Cal 763 ; Gordhandas v.
Harivallabhdas, (1897) 2 Bom 281; Peerayya v. Ramakrishnayya, AIR 1958 AP 766 .
2 Rudra Prakash v. Bholanath, ILR (1886) 12 Cal 612 .
3 Sheikh Abdul Rahim v. Barira, AIR 1921 Pat 166 .
4 Md. Yusuf v. Abdul Walid, AIR 1948 All 296 ; Dipa Koer v. Lakshmi, 6 IC 6; Durga Devi v. Gur Narayan, AIR 1924 Lah
157 .
5 Dholandas v. Sadhu Mal, AIR 1932 Sind 243 ; Nagardas v. Anand Rao, ILR (1907) 31 Bom 590 .
6 Dholandas v. Sadhu Mal, 32 SLR 215.
7 Narsi Takersey & Co. v. Sachindranath, AIR 1929 Bom 475 : ILR (1930) 54 Bom 39.
8 V.N. Swaminathan v. Angayarkanni Ammal, AIR 1964 Mad 229 ; see also (1970) 72 Punj LR 67.
9 Gharibullah v. Khalak, ILR 25 All 407 (PC).
10 Ramanathan v. Murugappa, 33 IC 969.
1 There is a long line of cases. Some are noted here. Maharaj Bhaudas v. Krishnabai, ILR (1926) 50 Bom 716 ; Indian
Cotton Co. Ltd. v. Raghunath, AIR 1931 Bom 178 . But see Janakidas v. Jyohsh Chandra, AIR 1941 Cal 41 .
2 Anwari Jan v. Baldua, AIR 1936 All 218 ; Krishnamachariar v. Krishnakmachariar, ILR (1915) 38 Mad 166 .
3 AIR 1927 Pat 271 .
4 Satish Chandra v. Mohendro, ILR (1890) 17 Cal 849 ; Krishnamachariar v. Krishnamachariar, ILR (1915) 38 Mad 166 .
5 Banwari Lal v. Hanesh, AIR 1918 PC 118 .
6 ILR (1894) 17 Mad 134 .
7 Vishnu Maheswaran v. K.K. Kuruvila, AIR 1957 Ker 103 [LNIND 1957 KER 13].
8 Naina Khatun v. Basant Singh, AIR 1934 All 406 (FB).
9 Said-un-nissa v. Ruqaiya, AIR 1931 All 307 ; Satish Chandra v. Mohendro, ILR (1890) 17 Cal 849 .
10 Ramchander v. Chheda Lal, (1905) 2 ALJ 460.
1 Chambi v. Tarachand, AIR 1924 All 892 .
2 AIR 1951 Pat 570 .

End of Document
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody,
5th ed
Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed
Paras Diwan

Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed > Dr Paras Diwan:
Law of Adoption, Minority, Guardianship and Custody, 5th ed > PART V INDIAN MAJORITY ACT,
1875

Law of Adoption, Minority, Guardianship and Custody

PART IV GUARDIANSHIP AND CUSTODY UNDER MUSLIM LAW

PART V INDIAN MAJORITY ACT, 1875*

(9 of 1875)

[2nd March, 1875]

An Act to amend the law respecting the age of majority.

4. Age of Majority how Computed.—

In computing the age of any person, the day on which he was born is to be included as a whole day, and he
shall be deemed to have attained majority, if he falls within the first paragraph of section 3, at the beginning of
the twenty-first anniversary of that day, and if he falls within the second paragraph of section 3, at the beginning
of the eighteenth anniversary of that day.

Illustrations

(a) Z is born in “India” on the first day of January, 1850, and has “an Indian domicile”. A guardian of his person
is appointed by a court of Justice. Z attains majority at the first moment on the first of January, 1871.

(b) Z is born in “India” on the twenty-ninth day of February, 1852, and has an Indian domicile. A guardian of his
property is appointed by a court of Justice. Z attains majority at the first moment of the twenty-eighth day of
February, 1873.

(c) Z is born on the first day of January, 1950. He acquires a domicile in India. No guardian is appointed for his
person or property by any court of Justice, nor is he under the jurisdiction of any Court of Wards. Z attains
majority at the moment of the first day of January, 1968.

Comments

1. Scope

This section lays down the mode of computation of age.

2. Computation of Age
Page 2 of 2
(IN) Dr Paras Diwan: Law of Adoption, Minority, Guardianship and Custody, 5th ed

As we have seen earlier, the child who has a certificated guardian attains the age of majority when he
completes the age of 21 years, while in other case majority is attained on the attainment of age of 18 years.

In computing the age of a person, the computation is to begin from the date of his birth (he might be born at any
time on that day) and the day preceding the day of the calendar when he was born. In G. Vatasala Rani v.
Selection Committee for Admission to Medical College, Bangalore,1 the Mysore High Court said that specified
age in law has to be computed as having been attained or completed on the day preceding the anniversary of
the birth day, that is, the day preceding the day of calendar corresponding to the day of birth of the person. The
court gave the following illustration: P was born on 2-10-1950. P completed the age 16 years on 2-10-1966. In
Jacob A. Chakramakkal v. Rosy J. Chakramakkal,2 the court observed that a person who was born on 8-12-
1957 would attain majority at midnight of 8-12-1975, the first moment of the latter day.

Minority continues till majority is attained. Cessation of minority and attainment of majority are simultaneous. In
Sushila Devi v. Prem Kumar,3 the court said that age of majority would end at the end of the day preceding the
18th anniversary of the birth day which is also the beginning of the birthday anniversary.

1 AIR 1967 Mys 135 .

2 AIR 1976 Mad 390 .

3 AIR 1981 All 83 .

End of Document

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