The guardianship laws for minors vary based on the religion of an individual. The Hindu guardianship of a minor child is governed by the Hindu Minority and Guardianship Act, 1956 whereas for a Muslim it is governed by Quran and the Guardianship and Wards Act. Since the Guardianship and Wards Act is a secular act, the statute governs other religions like Christian and Parsi.
Hindu Minority and Guardianship Act 1956
Applicability:
The Act is applicable to:
a. Hindus including people belonging to communities like Virashaiva, Lingayat, Brahmo Samaj, Prarthana Samaj and Arya Samaj.
b. Any individual who is not Christian, Parsi or Muslim by religion.
c. Any individual who practices Sikhism or Jainism by religion.
Definitions:
1. Minor- Minor is a term defined under the act as any person who has not reached the age of 18 years.
2. Guardian- Guardian is a term defined under the act as any person who is major and completely responsible for the minor’s wellbeing and maintenance of property.
Different types of Guardians:
1. Natural:
a. The father is considered to be a natural guardian for both boy child as well as a girl child. However, the custody of a child who has not completed 5
b. The mother is a natural guardian for an illegitimate child. The father is considered as a natural guardian after the mother.
c. The father of an adopted child is the natural guardian of such a child, and the adopted mother is the natural guardian after the father.
The following people shall not be natural guardians if:
i. The person ceases to be a Hindu.
ii. The person renounces from the world.
Rights and Duties of a Natural Guardian:
In terms of the Act, a natural guardian is expected to always act for the beneficial interest of the minor. Additionally, the guardian ought to seek consent from the court before transferring, mortgaging or leasing the property of a minor.
2. Testamentary:
As per the provisions of the Act, a Testamentary Guardian is a guardian appointed by the Natural Guardian. The father may appoint a testamentary guardian for a minor child. However, if the father passes away before the mother, the appointment made by the father shall become void. The mother may appoint a guardian for a minor child in case the father becomes ineligible to act as guardian. Such testamentary guardians may be appointed for both the well-being of the minor as well as the property of the minor. The Act provides the Testamentary Guardian with the same powers as the natural guardians.
3. Court appointed:
The Act also provides the courts with the right to appoint guardians. However, the Hindu Minority Act, does not give the Court any right to appoint a guardian for minors.
4. De facto:
De facto guardian is a guardian who assumes responsibilities of a guardian without being legally appointed as one. The Act provides that such guardians cannot dispose of or deal with the property of the minor.
Laws for Muslim Minors
The guardianship of Muslim minors is governed by Quran, Muslim law jurisprudence and the Guardianship and Wards Act 1890.
The Guardianship and Wards Act 1890
Types of Guardians
1. Natural Guardian:
The natural guardian of the child is the father. Even after the death of the father, the mother shall not be considered as the natural guardian. The guardianship of the father only extends to his legitimate children and not his illegitimate children.
- Rights and Duties of Natural Guardian:
The guardian can alienate property, enter contracts or debts, grant lease, carry on business, make partition, etc. for benefit of the minor. The guardians are expected to defend the minor, support the minor, file suits on behalf of the minor amongst others.
2. Testamentary Guardian
Such guardians are appointed by way of WILLS. These guardians can be appointed by the father or grandfather, such appointment cannot be revoked without in the absence of a Court order. The acceptance of guardianship can be express or implied. The mother can only appoint a guardian if she has been appointed as Executor based on the WILL of the father. The rights and duties of testamentary guardians are the same as natural guardians.
- Grounds for Removal of Guardians:
i. When the Guardian does not perform duties or responsibilities towards the minor.
ii. If the guardian violates the provisions of the Act.
iii. If the guardian has committed abuse of trust towards the minor, which has resulted in some adverse effects towards the minor.
The concept of custody is called Hizanat as per Muslim law, the legal guardians are responsible for well -being and growth of the minor.
- Sons:
a. Hanafi and Shafi schools- The mother has custody of the child for 7 years.
b. Shia school- The mother has custody of up to 2 years.
c. Maliki school- The right exists up to the age of puberty.
- Daughters:
a. Hanafi school- The right of the mother exists up to puberty.
b. Maliki and Shafi school- The right exists until the daughter gets married.
c. Shia school- The right extends up to 7 years of age.
Laws for Christian Minors
The guardianship laws for Christians minors are also dealt with under the Guardianship and Wards Act, as it is considered a secular law. The Act provides that the Court cannot interfere with the appointment of guardian if one is appointed by way of a WILL. The court can appoint joint guardians for the minor and their property. In case one of the guardians dies, the other guardian can take responsibility for the same. The Act further provides that the court cannot appoint a guardian for a child if the property of such child is under the superintendence of the court of wards, if the women is married and the Court is of the opinion that the husband is a fit guardian and if the women is not married and the court is of the opinion that her parents are fit to be guardian. The Act also provides that the guardian cannot remove the ward of the minor without the consent of the court.
Conclusion
In view of the above, the guardianship laws for minors are governed by various laws in India. The rights and wellbeing of minors are protected by the said laws.
Thank you for getting in touch! 
