The Guardians and Wards Act, 1890

What it does

The Act (Act No. 8 of 1890) lets a court appoint a guardian for the person or the property of a minor, or declare someone to be one. A minor is a person who has not attained majority under the Indian Majority Act, 1875, which is eighteen years. The application is made to the District Court within whose jurisdiction the minor ordinarily resides, and a family court has the same jurisdiction where it has been established.

The Act has a single governing test. In appointing or declaring a guardian, the court is to be guided by what appears to be the welfare of the minor, consistent with the law to which the minor is subject. In deciding what is for the welfare of the minor, the court considers the age, sex and religion of the minor, the character and capacity of the proposed guardian and the nearness of kin, the wishes of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or the minor's property. The court may also consider the minor's own preference if the minor is old enough to form one.

Who it binds

Any minor who is within the jurisdiction of an Indian court, and the parents and others who claim guardianship or custody. It applies across religions, but it works alongside the personal laws, and in particular it is read with the Hindu Minority and Guardianship Act, 1956 for Hindus, which names the natural guardian of a Hindu minor. The Act does not displace the personal law on who has a right to guardianship. It supplies the forum and the test for the court's decision.

What has changed, and when

The Act is more than a century old and has had few amendments of substance. What has changed is how courts apply the welfare test, which has moved away from a presumption in favour of the father and towards an assessment of the child's needs, with the child's age and relations with each parent weighed. The Family Courts Act, 1984 brought suits and proceedings in relation to guardianship of the person, custody of, or access to, a minor within the jurisdiction of the family court where one exists.

What turns on it in practice

The usual use of the Act in a matrimonial dispute is a petition for custody of a child, filed by one parent against the other, either with or after a petition for divorce. The Act allows interim orders on custody and access while the petition is pending, and a court may order the child to be produced. The order for custody is not final in the sense of a decree for property: it is always open to change if the welfare of the child requires it, which is why the facts at the date of the later application count and not only those at the date of the first order.

Practice under the Act involves a few recurring points. The court, not the parents' agreement, decides what is in the interest of the child. Visitation and access are commonly ordered for the parent without custody, and a court weighs the risk of a child being taken out of the jurisdiction. A foreign order on custody does not bind an Indian court on the question of welfare, and an Indian court will look at where the child is habitually resident and at what is best for the child. Where a ward has left or been taken from the custody of a guardian, the court may order the ward's return if that is for the welfare of the ward.

The matrimonial and family work of this practice includes custody proceedings, and the Act is the starting point for them, together with the personal law that applies to the parties. The site's note on divorce, maintenance and the welfare of the child treats the Act in that setting.