The application is made for guardianship under the provisions of the Guardians and Wards Act, 1890 in the court having jurisdiction of the place where the minor ordinarily resides. If the application is with respect to the guardianship of the property of the minor, then it may be made either in the court having jurisdiction of the place where the minor ordinarily resides, or in a court having jurisdiction of the place where the minor has property.
A guardian can be a de facto or a de jure one. Legal guardians and those appointed by the court are de jure guardians. A father is the natural guardian of a child under the age of 18 years.While appointing a guardian, the character, the capacity, and the fitness of the individual should be taken into consideration.
A guardian appointed by the court with the courts permission, cannot remove the ward from the limits of the courts jurisdiction. The permission could be special or general and could be specified in the court order. Illegal removal of the ward from the courts jurisdiction is punishable with a fine not exceeding Rs 1000 or a jail term extending to six months.
Under the Majority Act 1875, minority ceases upon the completion of 18 years, unless a guardian of the person, or property, or both, of the minor has been, or shall be appointed before the minor has attained the age of 18 years, or the property of the minor is under the superintendence of a court of wards. In such cases, the age of minority is prolonged, until the minor has completed the age of 21 years. Accordingly, notwithstanding Shariah, minority of a child continues until the completion of 18 years. Until then, the court has the power to appoint a guardian for the child and her or his property or both under the provisions of the Guardian and Wards Act.
Any person, including a relative or friend, interested in becoming a guardian must apply to the court under the provisions of the GWA for being appointed as a guardian until his legal title or fitness to act as guardian is disputed by another person. The procedure for such an application is stated in section 10 of the GWA, and no order should be made unless notice of the application is given to persons interested in the minor.
During the court proceedings, the court exercises parental jurisdiction over the child. The court is also empowered to give temporary custody and order protection of the person and property of the minor during the maintenance of the case.
While appointing a guardian, the court must have regard to the welfare of the minor which covers factors such as the age, sex, and the childs religion, the character and capacity of the proposed guardian and his nearness to the child; the wishes, if any, of the deceased parents, and any existing or previous relations of the proposed guardian with the minor or his or her property; and if the child is old enough to form an intelligent preference, then such preference should also be considered.
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