“Reforming the Law For Maximizing Justice in Society &Promoting Good Governance under the Rule of Law” ~ Law Commission of India , GoI
GUARDIANSHIP and CUSTODY laws are pertaining to Safeguard the interest of ‘Welfare of the Child’. Though it needed a succinct discussion to understand in legal framework of our constitution.
GUARDIANSHIP : Guardian is the person, who is having responsibility to undertake care of the person of a minor or his property or both person and property. A father is the ‘natural guardian’ of the minor or an unmarried girl and in the absence, the mother shall be the natural guardian. The husband becomes the natural guardian of a minor girl on marriage and the mother alone shall act as such if the child is illegitimate. A step father or step mother is not be a natural guardian.
A guardian could be so named through a WILL, who be called as the testamentary guardian. In situations when a court appoints a person to take care of person or property of a minor or conduct litigation on behalf of the minor,as he or she will be called as a Court guardian.A court requiring the protection of minor may appoint or declare even a person other than a parent as a guardian. Apart from a minor to whom guardian may be appointed, in conditions of persons who due to mental illness cannot take care of themselves, guardians may be appointed by the court.
A welfare institution also posses to be a guardian or be appointed as guardian, which has custody of a minor or a mentally challenged person or an abandoned child. In inter-country adoption cases,even a foreign national seeking adoption may be appointed as a guardian initially with directions to adopt as per the law of the country to which the foreign national may belong.
LEGAL STRUCTURE FRAMEWORK
The principal enactment that deals with appointment, care, custody and administration of property of a ward who is a minor is Guardian and Wards Act.
- The Hindu Minority and Guardianship Act deals with rights of natural guardians relating to custody of a minor and also details the powers of dealing with the property of a Hindu minor.
- The Muslim law of guardianship is governed by custom.
- The Mental Health Act and the National Trust for Welfare of Persons with Autism, cerebral Palsy, Mental Retardation and Multiple Disabilities Act provide for appointment of guardians for persons who have some physical and mental disabilities and for their care and protection.
- Medical Termination of Pregnancy Act contains provisions for taking decision on behalf of a minor girl for terminating pregnancy in certain types of situations.
The CPC, Civil procedure code empowers the court to appoint a guardian for prosecuting and defending the rights of a minor involved in litigation matters.