Friday, January 27, 2012


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Q: 6   Who are the Persons Competent to file an APPLICATION for the Appointment of Guardian?


A:                Section 8 of the Guardians and Wards Act lays down that:

“ An order shall not be made under the last foregoing section 7 except on the application of:

1.                   The person desirous of being or claiming to be, the guardian of the minor.

2.                 Any relative or friend of the minor.

3.                 The Collector of the District or other local area within which the minor ordinarily resides or in which he has property.

4.                 The Collector having authority with respect to the class to which the minor belongs.”

An application for the appointment of a guardian can be made either by the person who wishes to be appointed or by any relative or friend of the minor, or by the Collector. Clause (b) gives wide scope for all interested in the minor to apply. Ties of blood are not necessary. It is competent to any friend of minor to approach the Court in case of the minor being ill-treated and to invoke the protection of the court on behalf of the minor. Thus, where a Hindu father was going to marry his daughter at the young age of four years, and the Guru of the community to which the father belonged applied to be appointed guardian of the person of the minor on the ground of her early marriage of which would expose her to the risk of premature widowhood, it was held that any friend of a minor may approach the court in the case of the minor being ill-treated and invoke the protection of the court on behalf of the minor. But it is not competent for a friend of the minor who is an outsider and not a relative to invoke the protection of the court for a minor who is in the lawful custody of her father, unless the applicant can satisfy the court that it is for the welfare of the minor that an order should be made against the father.

APPLICATION BY DEBTOR: Where a debtor offered to deposit in the court the amount alleged by him to be in deposit with him on behalf of the minor and asked the court to appoint a guardian for minor in respect of that amount, it was held that the debtor could be regarded as a friend of the minor and, therefore, he had locus standi to file the application.

AN INSTITUION CANNOT APPLY: under clause (a) the person who is desirous of being appointed can apply for being appointed. The duties and qualifications of a guardian do not permit any institution coming under this clause for being appointed a guardian of a minor.

AN OFFICIAL TURSTEE CANNOT BE APPOINTED: Excepting the Collector there is no other office who can be appointed a guardian of the property of minor.

MINOR CANNOT APPLY: Under the English Law, an infant possessed of property, whose father and mother are dead, and for whom there is not testamentary guardian has, after attaining the age of 14 (in the case of female, 12) the power of applying to the court for appointment of a guardian for himself, or herself. But the law gives the minor no such power. The persons who can make an application for the appointment of a guardian have been enumerated in the various clauses. A minor is not covered by any of the clauses and hence he cannot make an application himself for the appointment of a guardian for his person or property. This is also because a minor not being sui juris is incapable of making an application in a court For the same reason a minor cannot make an application as a fried or relation under clause (b) for the appointment of guardian of an other minor.

APPLICATION ESSENTIAL: From the language of Section 8 it is clear that a guardian cannot be appointed without an application under this Act. It is not open to a court to appoint a guardian at its own initiative. But once an application has been made in accordance with the provisions of Section 8 the jurisdiction of the court under the Act comes into play and it is open to it, as a result of the enquiry initiated on the application to appoint any other person as guardian of the minor provided the former has expressed his willingness to act as a guardian. But the court is competent to appoint only such person as guardian who either claims by his own application to be appointed guardian, or is proposed for appointment by some relative or friend of the minor. But a third person (i.e. one who neither applies himself nor is proposed by anybody else) cannot be appointed guardian. 

SECOND APPLICATION AFTER REFUSLA OF THE FIRST: Where an application has been dismissed on merits a second application for the appointment of the same person is not competent. But if the same person files the second application proposing the name of another person than himself for the appointment of a guardian the application is competent. Nor is a court precluded from entertaining a second application for appointment of guardian to the same minor, where the first was made by another person nor notwithstanding that a previous application by the same person has been dismissed in default. But where an order appointing guardian has been made no attempt to set aside at the instance of the party who opposed the appointment should be countenanced.

LIMITATION: there is no limitation for presenting an application for guardianship. It could be presented at any time within two limits namely:

1.       The date of the birth of the minor

2.       The date of the completion of 18 years at the time of the appointment and not at the time of the application.

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