Christian Law of Guardianship in India

Christians in India are governed generally by the provisions of the Guardians and Wards Act (Central Act No 8 of 1890) in matters relating to guardianship of minors in respect of their person and property. However, Christians in the territories of the erstwhile Travancore area of the State of Kerala and Tamil Nadu are governed by the provisions of the Travancore Christian Guardianship Act of 1941.

An authoritative exposition and critical analysis of Christian law of Guardianship in India is given in the book Christian Law on Marriage, Adoption & Guardianship and Canon Law on Marriage by Dr. Sebastian Champappilly and published by Southern Law Publishers, Cochin-22, Kerala, India.

The Guardians and Wards Act

Guardianship of minors with respect to person and property are generally governed by the provisions of the Guardians and Wards Act of 1890. This law was enacted with the object to consolidate and amend the law relating to Guardians and Wards and was based on opinions elicited by a reference to Local Governments and High Courts on the subject so as to address certain defects in the then existing law relating to the guardianship of minors of all classes of Her Majesty’s subjects in British India. It was also intended to do away with the then existing rule that no person was entitled to institute or defend any suit connected with a minor's estate of which he claimed the charge until he obtained a certificate of administration. In appointing any person as the guardian of a minor, the primary consideration of the Court should be the 'welfare of the minor'. In other words, it is the bounden duty of the Court to ascertain and judicially conclude as to who shall be the person best suited to protect the interest of the minor and that person alone shall be appointed as guardian of the minor.

Jurisdiction of Courts

Under the Guardians and Wards Act, an application shall be made for appointing a person as guardian to the District Court having jurisdiction in the place where the minor ordinarily resides. However, with the establishment of Family Courts in India, the jurisdiction in matters connected with the appointment of guardian of the person of the minor now stands transferred to the Family Courts where ever such Family Courts are established. But with regard to the property of the minor, the District Court alone has jurisdiction. The application for appointment of a guardian is maintainable only in the Court in whose jurisdiction the minor ordinarily resides and the expression "ordinarily resides" connote a regularly settled home and not a place where the children are obliged to dwell by force of circumstances or compulsion of parent's employment.

The Travancore Christian Guardianship Act

The law relating to guardianship among Christians of the erstwhile Travancore area in the State of Kerala is the Travancore Christian Guardianship Act of 1941. This Act declares that the following persons, in the order named shall be the legal guardians of minors in respect of their person and properties, namely, the father, mother, paternal grandfather, full-brothers in the order of seniority, half-brother by the same father, paternal uncles in the order of seniority and maternal uncles in the order of seniority, provided always that the husband shall be the legal guardian of his minor wife in respect of her person and property.

In fact the provisions of the Travancore Christian Guardianship Act specifically declares as to who shall be the legal guardian of a minor. When a statute declares a person to be the legal guardian of a minor child, no further decree from a Court is necessary to establish the right of a person as guardian. This has been so held by the High Court of Kerala in Paily Joseph v. Union of India [1988 (2) K.L.T. 867]. As regards alienation of the property of a minor, the High Court of Kerala in Punnoose v. Koruthu, (1951 K.L.T. 223) has ruled that it cannot be alienated by an unauthorised person and such a transaction is void and the possession of the alienee would be that of a trespasser.

Conclusion

The law relating to guardianship is of great significance while dealing with and entering into any transaction concerning the property of a minor. One has to be specifically cautious and ascertain that the person dealing with the property of a minor is authorised by orders issued by the competent court as otherwise the entire transaction would be unsettled when the minor attains the age of majority.

See also

• Dr. Sebastian Champappilly
• Christian Law of Succession in India
• Christian Law of Divorce in India
• Christian Law of Marriage in India

References

• Christian Law on Marriage, Adoption & Guardianship and Canon Law on Marriage by Dr. Sebastian Champappilly and published by Southern Law Publishers, Cochin-22, Kerala, India.