ACKNOWLEDGEMENT

TABLE OF CONTENTS

Contents
1.2 OBJECTIVES OF THE STUDY....................................................................................4

1
1.3 RESEARCH QUESTIONS.............................................................................................4

1.4 RESEARCH METHODOLOGY....................................................................................4

1.5 SIGNIFICANCE OF THE STUDY................................................................................5

1.6 CONCEPT OF GUARDIANSHIP.................................................................................5

1.7 POWERS OF A GUARDIAN........................................................................................6

2. GUARDIANSHIP UNDER HINDU LAW........................................................................7

2.1 NATURAL GUARDIAN...............................................................................................8

2.1.1 Rights of guardian of person.......................................................................................8

2.2 TESTAMENTARY GUARDIAN..................................................................................9

2.3 GUARDIANS APPOINTED BY THE COURT............................................................9

2.3.1 Powers of certified guardians....................................................................................10

2.4 GUARDIANSHIP BY AFFINITY...............................................................................10

2.5 DE FACTO GUARDIAN.............................................................................................11

3.1 Natural Guardian...........................................................................................................12

3.2 Testamentary Guardian.................................................................................................13

3.3 Guardian appointed by Court........................................................................................14

4.1 Guardianship Under Christian Law..............................................................................15

4.2 Guardianship under Parsi Law......................................................................................16

Bibliography.............................................................................................................................20

1. INTRODUCTION

1.1 ROLE OF FAMILY LAW

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The area of law known as family law focuses on the family, which is one of the most
important and personal well as private aspects of society. The nature of domestic
partnerships, civil unions, and marriages; problems that arise during an institution called
marriage; the dissolution of the relationship; and ancillary matters like property settlements,
alimony, divorce, and orders regarding parental responsibility are among the domestic
relations and family-related issues it addresses.
A reasonable and acceptable framework for discussing very delicate subjects is provided by
family law. Regardless of how high the stakes are, justice must be served to all parties in a
family law dispute. Family laws provide you good direction and make your life easier.
Maintaining the integrity of relationships and ensuring that the bondage is strong and
unbreakable are two important goals of family law.

1.2 OBJECTIVES OF THE STUDY

The project team's goal is to get a better understanding of the subject. Providing a thorough
understanding of guardianship in Parsi, Christian, Muslim, and Hindu law is the goal of this
project. This effort also seeks to compare them.

1.3 RESEARCH QUESTIONS

- What is the current understanding of Guardianship in Parsi, Christian, Muslim and
Hindu Law?
- How do the above mentioned Laws compare with each other?

1.4 RESEARCH METHODOLOGY

This study lacks empirical support and is not based on the field. Utilizing software and library
access, secondary sources of data, including books and other publications, have been
gathered. The database for the project was put together using Google Books, online journals,
and libraries.

1.5 SIGNIFICANCE OF THE STUDY

The study has added to our growing comprehension of a wide range of family law issues.
When a child is involved, it makes it easier for us to understand the actual necessity for
guardianship. Along with family law, the objectives and rules of guardianship in Hindu,

3
Muslim, Christian, and Parsi law have also been extensively researched. They also performed
a comparative study when the job was completed.

1.6 CONCEPT OF GUARDIANSHIP

Guardianship originated from the natural inability of young children, mentally ill individuals,
and sometimes other groups of people to take care of themselves.1
A guardian, also known as a ward, is a person who has been given the responsibility and
permission to look after the belongings of another person. Often, a guardian is chosen for
wards who are too young, too frail, or too unable to care for themselves. The majority of
nations and jurisdictions have laws that designate a minor child's parents as the child's legal
guardians and provide the parents the power to choose a replacement legal guardian in the
child’s case of passing.
"Guardian" is a person tasked with taking care of a minor's belongings, person, or both. 2 A
guardian is usually someone who looks after the little or a person with a disability. In conflict
situations, like divorce cases, the issue of custody comes up since a natural guardian,
generally father of the child is his or her natural guardian although the mother could be
permitted to maintain the custody of the child. A mother is "entitled" to custody of a male
child for a maximum of five years of age and a female child for a maximum of seven years of
age under Hindu guardianship law. A mother is entitled to custody of a juvenile boy until the
boy becomes seven years old and of a minor daughter until the female reaches puberty,
according to Muslim law. This rule is not absolute, and the court may make custody decisions
based on the best interests of the minor, regardless of the child's age or the relationship
between the nominee and the minor. Mothers' rights to custody are usually the most
significant. The custody of a child can be allotted if the party approaches a competent court
whose jurisdiction the child lives, or through continuing marital processes before any other
court of competent jurisdiction.

A court will often appoint a guardian for someone who needs further protection. The ward's
personal and financial wellbeing is under the supervision of a usual guardian. Furthermore,
someone may be appointed as ad hoc guardian, which grants them restricted control over the
affairs of the ward. For example, without having over the person of the ward any due

1
(Chakrobarty, 2007),pp.5
2
(The Guardians Ward Act, 1890) Sec 4(2)

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authority, a special guardian may have the legal authority to choose how to divide the ward's
possessions. An individual appointed to represent their interests in a particular court
procedure is known as a guardian ad litem.
A parent may act as a guardian in some legal systems without the appointment of a judge.
The parent acting as the child's "natural guardian" is a word that is often used to characterize
this duty.
The principal piece of legislation governing the appointment, upkeep, possession, and
management of a minor ward's assets is the Guardian and Wards Act. The Hindu Minority
and Guardianship Act3 specifies natural guardians' rights to minor custody and their authority
over a child's belongings. The guardianship law of Islam has historical roots.

1.7 POWERS OF A GUARDIAN

You may choose to choose a guardian in every circumstance or only some of them. 4 A parent
or guardian replaces the child's well-being assessment with their own. In terms of housing,
schooling, and general upbringing, the right is essential. Property belonging to a minor is not
sellable, not transferable, nor encumber able without the court's approval. It is voidable or
invalid if it is carried out by a natural guardian; nonetheless, it is void if it is carried out by
another person. The minor may reject the transaction in the first instance as it is not legally
binding, but in the second instance, the alienation must be disputed by an active act—such as
filing a lawsuit—within a certain time frame after the day of becoming a majority. A Karta
typically has more authority to manage the belongings of a subordinate member, including a
kid, in an intact Hindu family. Nevertheless, whether a Karta's gift is lawful will depend on
factors like need or familial benefit. The party seeking to defend the transaction that impacts
the minor's property rights must make both options available. Similar difficulties arise when
it comes to property protection and the custody and care of mentally ill individuals.
The guardian will have full control over all choices pertaining to the individual, including
where to live, how to handle belongings, and what kind of medical care to get.
In all conflict situations, excluding those involving minors, those with mental illnesses, or
people who are retarded, the court is the final arbitrator. The first step in any court process is
always to ascertain what the individual's "welfare" is; this is a subjective word that the court
will assess individually. If the court determines that the substituted judgment is not in the best

3
(Hindu Minority and Guardianship Act, 1956)
4
(Vide Black's Law Dictionary), Eight Edition, pp.725

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interests of the child, it has the authority to reverse the guardian's ruling and provide
suggestions for the future. If the court has not authorized the property arrangement, it is
unenforceable even if it involves a kid. The court rendered important rulings on the
continuation or discontinuation of a young girl's pregnancy and the minor’s belonging’s sale.

2. GUARDIANSHIP UNDER HINDU PERSONAL LAW

The topic of guardianship law was not included in the Dharmashastras. The guardianship
statutes were created by the courts under British rule. Following his passing, the mother was
deemed to be the children's natural guardian, and no one else was permitted to take on that
role for a minor child. The father is a child's natural defender. Hindu law established
testamentary guardianship as well. It was acknowledged that the State had parens patrie
authority over the minors' supreme guardianship, which the courts were authorized to
execute.5 Hindu law on minor child guardianship was amended and codified in 1956 with the
“Hindu Minority and Guardianship Act.”
i) Guardianship of minors' person;
ii) Guardianship of minors' property;
iii) Guardianship by affinity; and
iv) De facto guardianship are possible topics of discussion.
A person is considered a minor if they are younger than eighteen, as per Section 4(b) of the
Hindu Minority and Guardianship Act, 1956. 6 Minors are seen as immature and in need of
care due to their physical and mental deficiencies.
Children are protected in different ways by the majority of laws that are in effect today. A
conservator is defined as "a person having the care of the person of the minor or of his
property or both person and property." It should be noted that under current legislation, the
guardian's primary responsibility is to ensure the child's safety and wellbeing. This is
expressed as follows: The wellbeing of the kid is the most important factor. Welfare
encompasses both mental and physical well-being. A guardian might be any of the following
people: There are three kinds of guardianship: 1. natural; 2. testamentary; and 3. the court-
declared or appointed.
De facto guardians and guardians by affinity are the other two categories of guardians
acknowledged by Hindu law.

5
(Crisp India, 2011), http://www.crisp-india.org/laws/67-guardianship-under-hindu-muslim-christian-and-
parsilaws.html
6
(Hindu Minority and Guardianship Act, 1956)

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2.1 NATURAL GUARDIAN
Hindu law recognizes only the husband, mother, and father as natural guardians. "Father's
minor legitimate children, sons and daughters, are naturally under his guardianship."
Notwithstanding any evidence to the contrary, a father retains natural guardianship over his
little children under Section 19 of the “Guardians and Wards Act, 1890”.
The significance of this section has been considerably lessened because of court decisions
and “Section 13 of the Hindu Minority and Guardianship Act”, which specifies that the
child's wellbeing comes first in guardianship proceedings. It does not accept the idea of dual
guardianship. The adopted children’s status is equal to that of biological children. The mother
is the minor's natural guardian, even in situations when the father lives; but, only in the case
that their father dies or is unable to care for them does she take on the role of natural guardian
for her minor legitimate children. As per the proviso to section (a) of the Hindu Minority and
Guardianship Act, a mother typically looks after a kid under five years old. 7 “The mother is
so entitled to custody of the child under five, unless the minor's welfare requires otherwise.”
In the cases of Gita Hariharan v. Reserve Bank of India 8 and Vandana Shiva v. Jayanta
Bandhopadhaya, the Supreme Court held that a mother might act as a natural guardian under
certain circumstances, even though the father is still alive. Section 6(a) interprets "after" as
"in absence of" rather than "after the life-time."

2.1.1 Rights of guardian of person

The following rights belong to the minor child's natural guardian: (a) Custody rights.
The freedoms to
(b) choose a child's religion,
(c) restrict travel,
(d) set travel restrictions, and
(e) receive appropriate reprimands
All of these rights are contingent upon the minor children's wellbeing, since the guardians
have been granted these powers in their best interests. Taking care of their young children is
an extra duty for the natural caregivers.

7
(Law of Adoption Minority Guardianship & Custody, 2000)
8
Gita Hariharan v. Reserve Bank of India (1998) 2 SCC 228

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2.2 TESTAMENTARY GUARDIAN
Both parents might choose a guardian by bequest thanks to “The Hindu Minority and
Guardianship Act of 1956”. However, the mother shall immediately assume the function of
the child's natural guardian in the case of the death of the father. In the event that the woman
nominates a testamentary guardian, the father's appointment will be revoked and her nominee
will take over. The guardian will act on behalf of the father if the mother does not make an
appointment. Given that S. 9(1) gives him testamentary jurisdiction over legitimate offspring,
it seems that a father who is a Hindu cannot choose a guardian for his young illegitimate
children, even if he is qualified by the law to serve as their natural guardian. Under , “Section
9(4), the mother is the sole person having authority over illegitimate offspring”.
“The Hindu Minority and Guardianship Act, Section 9”, states that a testamentary guardian
may only be named in a will. When a young girl marries, her guardian will not relinquish
custody of her; in fact, the guardianship will endure even if the girl marries while she is still
underage. The testamentary guardian must provide permission in order to take guardianship.
Acceptance be spoken in a silent or loud manner. The testamentary guardian may recognize
and proceed or reject the nomination, but once it is accepted, he cannot back out or resign
without the court's approval.

2.3 GUARDIANS APPOINTED BY THE COURT

A guardian appointed by the court is one who has a certificate.

“The Guardians and Wards Act of 1890” empowers judges to choose guardians.
Even while the High Courts are naturally able to appoint guardians, they seldom do so. The
Hindu Minority and Guardianship Act supplements the Guardians and Wards Act; it does not
replace it. According to the “Guardians and Wards Act of 1890”, the District Court has the
following jurisdiction: “The District Court may declare or designate someone as the guardian
if it finds that it is necessary for the child's care." When selecting a guardian, the court takes
into consideration a variety of factors, including the child's age, gender, parental preferences,
and personal law. The welfare of the children must come first above everything else.
A guardian for the minor's person and/or separate property may be appointed by the District
Court. The designated High Courts are vested with the power to appoint guardians for the
persons and personal belongings of young children. The whole interest of a coparcener is
covered by this power.

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 2.3.1 Powers of certified guardians

The authority of certified guardians is governed by the “Guardians and Wards Act of 1890”.
Only so many things he can do without the court's prior consent. Ultimately, he is equal to the
sovereign in power and can do everything the sovereign can do with the approval of the
court. As of the date of appointment, a certificated guardian is guided, supervised and kept in
control by the court.

2.4 GUARDIANSHIP BY AFFINITY

Prior to 1956, Hindu law acknowledged a guardian by affinity. The guardian has
guardianship over a minor widow by affinity. Mayne said that "the husband's relation, if there
exists any, within the degree of sapinda, are the guardians of a minor widow in preference to
her father and his relations." 'The outcomes of the judges' decisions have been the same.
The Supreme Court extended guardianship by affinity to its natural conclusion in Paras Ram
v. State.9[Ct] Here, the widow's father-in-law pulled her away from her mother's home and, in
exchange for money, pushed her into marriage against her will. Whether or whether the
father-in-law had seized the daughter by force was the question on the court's agenda. He
wasn't, according to the Allahabad High Court, since he was the widow's legitimate guardian.
The question of whether the deceased husband's closest sapinda becomes the minor widow's
guardian upon his death or whether he just has a preferred right to guardianship and cannot
act in that capacity until designated has been contested in our courts. The Madras and Nagpur
high courts seem to support the latter view, whereas Paras Ram appears to favor the former.
The child's best interests must come first when designating "any person as guardian,"
according to “Section 13 of the Hindu Minority and Guardianship Act”. It is a bit concerning
that the father-in-law is eligible to be named guardian under Hindu law.
From a legal perspective, it would be preferable if the parents retained guardianship over the
underage wife's belongings. There is relatively little case law or textual guidance in our
family law pertaining to the affinity-based authority of the guardians. His abilities are
presumably akin to those of the natural guardian.

9
AIR 1960 All 479

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2.5 DE FACTO GUARDIAN
A de facto guardian is someone who regularly shows concern for the minor's well-being or
for the maintenance and administration of his possessions in the lack of statutory authority.
Hindu law has long recognized that if one takes on debt on behalf of another, even when it is
justified, they continue to be accountable for that person's deeds or, at the very least, their
belongings, even if no authorization was given to take on the duty.

The concept of a "de facto guardian" is not stated in any scripture, but Hindu law has always
10
acknowledged the presence of this individual. According to Kanta in Sriramulu, Hindu law
attempted to address two challenging situations: first, in the event that a Hindu child lacked a
legal guardian, no one could handle and manage his estate in law, preventing the child from
receiving any income from his property; and second, an untitled person could not be
permitted to meddle with the estate of the child in order to harm him.
The Hindu legal system gave de facto guardians legal capacity to address this issue.
A de facto guardian is more than just a middleman. An someone who handles a child's
belongings on their own or alone is not automatically a de facto guardian. In order to take on
the position of de facto guardian, an individual must demonstrate a consistent pattern of
behaviour. Stated differently, a de facto guardian is someone who has taken on guardianship
of a child's things without being recognized as such by official authorities or having the legal
right to do so. The idea of de facto guardianship holds that a person's previous actions define
their current situation. The precise translation of the word is "from that which has been
done."
Hindu law recognized the De facto guardian in 1856. The Privy Council held t3.hat in
Hanuman Pd11 "under Hindu law, the want of union of the De facto with the de jure title does
not affect the right of a bona fide incumbrancer who has taken a De facto guardian a charge
of land, created honestly, for the purpose of saving the estate, or for the benefit of the estate."

3. GUARDIANSHIP UNDER MUSLIM LAW

Some passages from the Qur'an and a few hadiths serve as the basis for the laws of
guardianship and custody. The guardianship of a minor's property is clearly mentioned in the

10
Ethilulu v Pathakal, AIR 1950 Mad 390; Kusicbai v. Chandrabtutga, AIR 1918 Nag 100
11
(1856) 6 MIA 393

10
Koran, the De facto, and other sources of Muslim law; the guardianship of the person is only
implied. We would talk about the following guardianship and custody laws:
“(a) Guardianship,”
“(b) Custody, and”
“(c) De facto guardian.”
In Muslim law guardians fall under the following three categories :
(i) “ Natural guardians,”
(ii) “ Testamentary guardians, and “
(iii) “ Guardians appointed by the court”

3.1 Natural Guardian

Even after the father's passing, no school of Muslim law recognizes the wife as a guardian,
whether by birth or otherwise. This applies to the legal systems of both Sunnis and Shias. In
all these situations, the father is recognized as a guardian, just as a natural guardian would be.
The father is still entitled to guardianship even if the mother or any other female is qualified
to raise the kid. A parent is entitled to choose the education, upbringing, and travel
destinations of his minor children. For the remainder of his life, the father serves as the minor
children's only and most significant guardian.12
Only legally recognized minor children may have a parent serve as their guardian. His
younger child, born outside of marriage, has no legal claim to custody or care. 13 Even though
she is not their biological guardian, the mother is entitled to custody of her minor illegitimate
children under Islamic law.14
Among Sunnis, the father is the sole one who naturally looks after the younger children.
After the father passes away, the guardianship is inherited by the executor. According to Shia
custom, if the father names an executor, the executor only assumes guardianship while the
grandfather is not there. The grandfather is the next in line for guardianship after the father.
There was no way the brother could be a natural protector. Guardianship will go to the
grandfather's executor, if any, if the grandfather is not present.

12
(Imambandi v. Mutsaddi, 1918) 45 Cal 887
13
( Gohar Begum v Suggi, 1960) 1 SCR 597
14
(Kusum, 2010) pp. 305

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3.2 Testamentary Guardian
There are no official requirements for appointing testamentary guardians under Muslim law.
You may make an appointment by phone or in writing. The request of a testamentary
guardian must always be expressed clearly and explicitly. An executor may be named in a
broad or specific role, although a testator's testamentary deposition may be deemed void. In
order to create a will, the testator had to be of legal age at the time it was performed. This
implies that the testator must be major with a sound mind in order for the will to be carried
out, which necessitates that he have full sensory awareness at that same moment. The parent
has complete authority among the Sunnis when designating a guardian via a will. The
grandpa may choose a testamentary guardian if the father and his executor are not present.
The father's identification as a testamentary guardian is only recognized by the Shia
community in the event that the grandpa passes away. The grandfather also has the option of
exercising the option of appointing a testamentary guardian. There is no one else with this
kind of power.
It is forbidden for a mother to choose a testamentary guardian for her kid among the Shias or
Sunnis. A mother may name a testamentary guardian of her minor children's property only in
two situations: either she appoints an executor in her will if the child's father has named her a
general executrix, or she appoints an executor for her own property, which will pass to her
children upon her death.
If the father or grandfather is competent to do so, they may designate the mother as a
“testamentary guardian” or “executrix”. The Sunnis recognize the appointment of a non-
Muslim mother as a testamentary guardian, however the Shias maintain that “a non-Muslim
cannot be a guardian of a minor's person in addition to their possessions”. 15 Even if the Kazi
has the right to revoke it, it seems that the appointment of the non-Muslim fellow-subject
(iiinmi) is legitimate. A zimmi may be a duly designated testamentary guardian of the minor's
property but not of their person, in accordance with Malikis and Shafii law. The Shias have a
similar perspective.
If two people are designated guardians and one of them is determined to be unfit, it seems
that one guardian may assume the role of guardian. A squanderer or someone with a
noticeably bad public reputation cannot be appointed as a guardian:
Accepting the testamentary guardianship assignment is required; assent might be expressed
explicitly or implicitly. However, the guardianship cannot be terminated without the consent
of the court after it has been granted.
15
(Diwan, Family Law, 2007) pp.293

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There are no formal requirements imposed by Muslim law on the selection of testamentary
guardians. You may make an appointment by phone or in writing. The request of a
testamentary guardian must always be expressed clearly and explicitly. An executor may be
named in a broad or specific role, although a testator's testamentary deposition may be
deemed void. In order to create a will, the testator had to be of legal age at the moment it was
performed. This implies that the testator must be major and of sound mind, which entails
having complete sensory awareness, in order for the will to be carried out.
Muslim jurists appoint the testamentary guardian's executor in a variety of ways, dependent
on his status and authority. Most individuals refer to him as their wali or protector. He also
goes by Amin, which sounds like a trustee. He is also referred to as the testator's personal
representative, or kaim-mukam.16

3.3 Guardian appointed by Court

In the event that a Muslim juvenile's natural and testamentary guardians failed, the Kazi was
empowered to appoint a guardian. The Guardians and Wards Act of 1890 now governs the
terms. This Act governs the appointment of guardians for any juvenile residing in a
community. The High Courts are vested with the inherent power to appoint guardians,
although they seldom use it.
By virtue of the Guardians and Wards Act of 1890, the District Court may appoint or declare
any person as a guardian. Considering the minor's age, sex, and desires in addition to those of
the parents and personal law, the District Court may name or proclaim any individual
guardian of the minor's person and property if it finds that doing the same is essentially in the
interest for the minor's welfare.

4. GUARDIANSHIP UNDER OTHER LAW

4.1 Guardianship Under Christian Law

Another alternative is the “Guardians and Wards Act, 1890”, which is classified as secular.
The pertinent sections are reprinted below:.

16
(e-book to you, 2011)

13
Section 17 of the aforementioned Act states that the court will consider the case's
circumstances while selecting a guardian. The sentence says:
“(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 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.”
“Section 19, which forbids the Court in some circumstances from designating guardians,
says:”
“S.19. Guardians 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 a married female and whose husband is not, in the opinion of the
Court, unfit to be guardian of her person. or”
“(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”
“(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."
“S.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.”
S.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.”
“(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.”

14
“(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."
In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka17 the Court determined -It seems
that the specified legal requirements for child care are being followed. It is general known
that when thinking about and deciding on any matter affecting children, the welfare and best
interests of the children must always come first. When dealing with matters involving
juveniles, the court has an additional duty to protect the juvenile's interests and consider their
welfare. When determining whether to award the minor custody, the court must only consider
what is in the best interests of the kid.18
But it's crucial to keep in mind that the Indian Divorce Act specifies that female daughters of
Indian fathers forfeit their status as minors at the age of thirteen, and their male daughters
forfeit their status at the age of sixteen: III, (5). Accordingly, under Sections 41 and 42 of the
Divorce Act, the Court would no longer be able to make any instructions concerning the elder
son and the girl in this specific case. The respondent-husband argues that the Divorce Act no
longer views the children as minors, nullifying the court's rulings and prohibiting him from
asking for child custody relief in these specific situations. The husband claimed that this gave
him the right to implement Section 25 of the Guardians and Wards Act.

4.2 Guardianship under Parsi Law

While guardianship is not mandated by law in general, it is allowed for a very specific group
of people under Hindu law and tradition. Adoption is categorized under personal law as it
impacts a child's legal status. Adoption rules do not apply to Muslims, Christians, or Parsis;
instead, they must file a case under the Guardians and Wards Act of 1890. The
aforementioned Act allows Muslims, Christians, or Parsis to adopt children only via foster
care. Foster children are able to sever all ties once they reach adulthood. Furthermore, the
concerned kid is not entitled to inherit. According to the aforementioned Act, adopting Indian
children requires a court application from foreigners. Adoption is allowed in provided the
court gives the go-ahead for the child's exit from the nation.19
A guardianship legislation that is applicable outside of the nation is referred to as a foreign
law.

17
(Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, 1982)
18
(Law of Adoption Minority Guardianship & Custody, 2000)
19
(Law of Adoption Minority Guardianship & Custody, 2000) pp. 234

15
 5. CONCLUSION

A guardian is tasked with taking care of a minor's belongings, person, or both. A father is a
child's or an unmarried woman's "natural guardian"; if the father is not there, the mother takes
on this responsibility. Following marriage, the husband becomes a minor girl's natural
guardian; if the child is not biological, only the mother will take on this responsibility. The
stepparent of an individual is not their biological parent. Testamentary guardians are those
designated as guardians by a will. A court designates a someone, referred to as a court
guardian, to take care of a minor's person or belongings or to act as their legal representative.
When a kid is in need of protection, a court may appoint or proclaim an individual who is not
a parent to be the child's guardian. Courts have the authority to assign guardianship to people
who are mentally ill and incapable of taking care of themselves, in addition to children. If a
welfare institution takes care of a minor, a person suffering from a mental illness, or an
abandoned child, it may also be designated as a guardian or function in that capacity. Even a
foreign national seeking adoption might be named the guardian at first, with guidelines to
adopt in compliance with the rules of the country the foreign person would live in.
India is home to a multicultural population that follows many different religions. Numerous
personal laws that address matters pertaining to families, including guardianship, divorce,
marriage, and succession, apply to them. The Guardians and Wards Act of 1890, Muslim law,
and Hindu law are the three primary legal systems that regulate guardianship of a little kid,
much as other areas of family law. Guardianships come in three varieties: testamentary,
natural, and court-appointed. In order to determine guardianship, the minor's person and
possessions must be taken into account separately. It is quite rare for one person to get both.
The Hindu Minority and Guardianship Act, 1956 codifies Hindu laws related to guardianship
and minorities. Like uncodified regulations, it has safeguarded the father's higher claim. It
states that a child is considered a minor until the age of eighteen. When it comes to boys and
girls who are unmarried, the father is the primary caregiver, with the mother playing a
supporting role. When it comes to custody of children under five, mothers are at a
disadvantage. The mother has greater rights than the putative father when the kid is born
outside of marriage. Guardianship means having control over both the minor's person and
belongings since the law does not make a distinction between the two.
The Hindu Minority and Guardianship Act, 1956 states that the father of a Hindu minor girl
and the father of a Hindu minor boy who is single are their first natural guardians. After the
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father, the mother is the child's natural guardian. Nonetheless, a recent ruling by the Supreme
Court mandates that both parents must share natural guardianship of a Hindu kid. As the
child's natural guardian, the mother does not have to assume the role of the father.
Muslim law places a strong emphasis on the father. It also makes a distinction between
guardianship and custody. According to Sunnis, the father is favored for the role of executor
in his absence as well as guardianship, which is often used to refer to guardianship of
property. The paternal grandfather takes guardianship and acts as the father's replacement
executor if the father does not choose an executor. However, both schools agree that, for the
duration of his life, the father is the exclusive guardian. It's not accepted that the mother is the
child's natural guardian, even after the father dies.
A parent undoubtedly has inherent rights to safeguard both people and things. Even in
situations when the mother is given custody of the younger child, the father still has broad
power to supervise and manage the youngster. Conversely, the father may designate the
mother as a testamentary guardian. Thus, even in the event that the mother is not
acknowledged as the father's natural guardian, nothing prevents her from being suggested as
his guardian.
Islamic law grants a mother custody and guardianship of her children until the minor reaches
a certain age. After that age, she is no longer eligible to act as the minor's guardian and
custodian. It recognizes a mother's unalienable right to custody of her little children
(Hizanat). Her father isn't even able to remove her from it. This right may only be taken away
from the mother in cases of disobedience. Regarding the age at which a mother's claim to
custody expires, the Shia school holds that a mother's right to the Hizanat is only valid during
the childrearing period, which ends when the child is two, while the Hanafi school extends
the time until the minor boy becomes seven. Shia law mandates that girls attend Hanafi
education until puberty and safeguards their relationship with their mothers until they are
seven years old.
The personal laws of Christians and Parsis do not have any legislation pertaining to
guardianship or minorities. Moreover, there's no specific legislation that addresses the matter.
It is believed that the father acts as the minor children's natural guardian and handles their
possessions. It's said that his mother becomes his natural caregiver after him. Fathers,
including Christians and Parsis, are permitted to choose testamentary guardians for their
young children under Section 60 of the Indian Succession Act of 1925. The mother does not
seem to have named a testamentary guardian.

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The general laws of guardians and wards are found in the Guardians and Wards Act of 1890.
It states that the father has the right to be nominated first and that no one else may do so
unless the father is deemed to be unsuitable. Furthermore, while choosing a guardian, the
court must take the child's best interests into account, according to this Act.

BIBLIOGRAPHY

Bibliography
Gohar Begum v Suggi (1960).
393 (MIA 1856).

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(2000). In P. Diwan, Law of Adoption Minority Guardianship & Custody (p. 225). Delhi:
Universal Law Publishing Co. Pvt. Ltd.
Chakrobarty, R. (2007). Law Relating to Guardians and Wards. Orient Publishing Co.
Crisp India. (2011, May). Retrieved from http://www.crisp-india.org/laws/67-guardianship-
under-hindu-muslim-christian-and-parsilaws.html
Diwan, P. (2007). Family Law. Faridabad: Allahbad Law Agency.
e-book to you. (2011, May). Retrieved from www.ebooktoyou.net/ebook/hindu-law-by-paras-
diwan-pdf.php
Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, 1276 (Supreme Court 1982).
Imambandi v. Mutsaddi, 887 (Cal 1918).
Kusum. (2010). Family Law Lectures Family Law II. Nagpur: LexisNexis Butterworths
Wadhwa.
The Guardians Ward Act. (1890).
(n.d.). Vide Black's Law Dictionary.

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