Review of Laws and Legislative Measures Affecting Women
by National Commission for Women (NCW)

No. 16: The Guardians and Wards Act, 1890


Existing Provision

1. Section 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) for the signing and verification of a plain, 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.

2. Section 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 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 Ward competent to appoint a guardian of the person of the minor.

3. Section 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.

4. Section 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; 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 hr 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 a 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.

Suggested Amendments by NCW

1. Section 10 : Form of application - Clause ( b ) of Section 10 ( 1 ) be amended as follows - 'Whether the minor is married and, if so, the name, religion, date of birth and ordinary residence of the spouse'.

2. Section 19: Guardian not to be appointed by the Court in certain Cases - Section 19(a) of the Act provides that nothing in this Chapter shall authorise Court to appoint or declare a guardian of the person:

  1. of a minor who is a married female and whose husband is not, in the opinion of the Court, fit to be guardian of her person, or

  2. of a minor whose father is living and is not, in the opinion of the court, fit to be guardian of the person of the minor. To make i) Section 19(a) applicable to both females and males and ii) to bring the living mother or father within the purview of Section 19 (b) the following amendments were suggested - 'a) of a minor who is a married person and whose spouse is, in the opinion of the Court, unfit to ge a guardian of the minor's person or b) of a minor whose mother or father is living and is, in the opinion of the Court, unfit to be guardian of the person of the minor'.

3. Section 21 : Capacity of minors to act as guardians - Substitution of existing Section 21 as follows - 'A minor is incompetent to act as guardian of any minor a) except his/her spouse or child; or b) where he/she is the managing member of an Undivided Hindu Family, the spouse or child of another minor member of that family'.

4. Section 41 : Cessation of authority of guardian - Section 41(1)(a) provides that 'The powers of a guardian of the persons cease - a) by his death, removal or discharge;, b)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 the marriage to a husband who is not, in the opinion of the Court so unfit; for To extend the provisions of this section to females also following amendments in ( i ) Section 41 (!)(a) and 41(1)(d) were suggested - '41(1)(a) - by death, removal or discharge, ii) 41(1)(d) - 'i) by the marriage of the ward to an individual who is fit to be guardian of the person of the ward or; ii) if the guardian was appointed or declared by the Court, by the marriage of the ward to an individual who is, n the opinion of the Court, so fit'. Section 41(1)(e) provides that 'powers of a guardian of the person cease in the case of a ward whose father was unfit to be a 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. To widen the scope of clause (e) of Section 41, Sub-section (1) the following amendment was suggested - '41(1)(e) - i) In the case of a ward whose mother or father was unfit to be a guardian of the person of the ward, by the mother or father ceasing to be so, or ii) if the mother or father was deemed by the Court to be so unfit, by his or her ceasing to be so in the opinion of the Court'.

 

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