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GUARDIANS AND WARDS ACT

Ministry of Law and Justice

Act nº 8 of 1890


  • Chapter I
  • Chapter II
  • Chapter III
  • Chapter IV
  • Schedules
  • Act nº 8 of 1890

Preamble

GUARDIANS AND WARDS ACT, 18901

[Act, No. 8 of 1890]

[21st March, 1890]

PREAMBLE

An Act to consolidate and amend the law relating to Guardian and Wards.

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward; It is hereby enacted as follows:

1. For Statement of Objects and Reasons, see Gazette of India, 1886, Pt. V, p. 77; for Report of the Select Committee, see Gazette of India., 1890, Pt. V, p. 77; and for Debates in Council, see Gazette of India, 1886, Supplement, pp. 419 and 666, and Gazette of India, 1890, Pt. VI, pp. 33 and 45.

This Act has been declared to be in force in the Sonthal Parganas by the Sonthal Parganas Settlement Regulation (3 of 1972), section 3; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), Section 3 and Schedule; and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), Section 3 and Schedule.

It has been declared not to be in force in the scheduled districts in Ganjam and Vizagapatam by notification under section 3 (b) of the Scheduled Districts Act, 1874 (14 of 1874), see Gazette of India, 1898, Pt. I, p. 872.

It has been extended to the portions of the partially excluded areas in the Madras State, in which the provisions of this Act are not in force by the Madras (Partially Excluded Areas) Guardians and Wards Regulation, 1940 (Mad. Reg. 6 of 1940), to Berar by the Berar Laws Act, 1941 (4 of 1941).

It has been extended, with modifications, to the district of koraput by the Koraput Guardians and Wards Regulation, 1943 (Orissa Reg. 7 of 1943).

It has been extended to the Union territory of Pondicherry by the Pondicherry (Extension of Laws) Act, 1968 (26 of 1968), subject to the following proviso:-

"Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry".

It has been supplemented by the Hindu Minority and Guardians Act, 1956 (32 of 1956), section 2.

This Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, Section 2 and Schedule I and to the whole of the Union territory of Lakshdweep by Reg. 8 of 1965, Section 3 and Schedule.

This Act has been enforced in the State of Sikkim, w.e.f. 1st September, 1984, vide S.O. 644(E), dated the 24th August, 1984, Gazette of India, Extraordinary, Pt. II, section 3(ii).


Chapter I

Section 1. Title, extent and commencement

(1) This Act may be called the Guardians and Wards Act, 1890.

(2) It extends to whole of India1 [exceptthe State of Jammu and Kashmir]. 2 [***]; 3 [***].

(3) It shall come into force onthe first day of July, 1890.

1. Substituted By Act 3 of 1951,section 3 and Schedule, for "except Part BStates".

2. Repealed by the A.O., 1948, forthe words "inclusive of British Baluchistan".

3. The Word "and" omitted byAct 40 of 1949, section 3 and Schedule II.


Section 2. [Repealed]

[Repealed by the Repealing Act, 1938 (1 of 1938), Section 2 and Schedule].

Section 3. Saving of jurisdiction of Courts of Wards and Chartered High Courts

This Act shall be read subject to every enactment heretofore or hereafter passed relating to any Court of Wards by1[any competent Legislature, authority or person in2[any State to which this Act extends]]; and nothing in this Act shall be construed to effect or in any way derogate from, the jurisdiction or authority of any Court of Wards, or to take away any power possessed by3[any High Court4[* * *]].

1. Substituted By the A.O., 1937 for "the Governor-General in Council or by a Governor or Lieutenant Governor in Council."

2. Substituted By Act 3 of 1951, section 3 and Schedule, for "Part A States and Part C States".

3. Substituted By the A.O., 1937, for "any High Court established under the Statute 24 and 25 Victoria, Chapter 104 (an Act for establishing High Courts of Judicature in India)".

4. The words "established in Part A States and Part C States", omitted by Act 3 of 1951, Section 3 and Schedule


Section 4. Definitions

In this Act,unless there is something repugnant in the subject or context,-

(1)"minor"means a person who, under the provisions of the Indian Majority Act, 1875 (9 of1875), is to be deemed not to have attained his majority;

(2) "guardian" means aperson having the care of the person of a minor or of his property or of bothhis person and property;

(3) "ward" means aminor for whose person or property or both there is a guardian;

(4) "District Court"has the meaning assigned to that expression in the Code of Civil Procedure, 1882(14 of 1882)1, and includes a High Court in theexercise of its ordinary original civil jurisdiction;

2 [(5)"the Court" means-

(a) the District Court havingjurisdiction to entertain an application under this Act for an order appointingor declaring a person to be aguardian; or

(b) where a guardian has beenappointed or declared in pursuance of any such application-

(i) the Court which, or the Courtof the officer who, appointed or declared the guardian or is under this Act deemed to have appointedor declared the guardian; or

(ii)in any matter relating to the person of the ward the DistrictCourt having jurisdiction in the place where the ward for the time beingordinarily resides; or

(c) in respect of any proceedingtransferred under section 4A, the Court of the officer to whom such proceeding has been transferred;]

(6) "Collector" meansthe chief officer in charge of the revenue administration of a district andincludes any officer whom the State Government, bynotification in the Official Gazette may, by name or in virtue of his office,appoint to be a Collector in any local area or with respect to anyclass of persons, for all or any of the purposes of this Act;

3 [(7)[* * *]; and

(8) "prescribed" meansprescribed by rules made by the High Court under this Act.

1. Now the Code of CivilProcedure, 1908 (5 of 1908).

2. Substituted by Act 4 of 1926,Section 2, for the original clause (5).

3. Clause (7) omitted by Act 3 of1951, section 3 and Schedule.


Section 4A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers

1[4A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.-

(1) The High Court may, by general or special order, empower any officer exercising original civil jurisdiction subordinate to a district Court, or authorize the Judge of any District Court to empower any such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer under the provisions of this section.

(2) The Judge of a District Court may, by order in writing, transfer at any stage any proceeding under this Act pending in his Court for disposal to any officer subordinate to him empowered under sub-section (1).

(3) The Judge of a District Court may at any stage transfer to his own Court or to any officer subordinate to him empowered under sub-section (1) any proceeding under this Act pending in the Court of any other such officer.

(4) When any proceedings are transferred under this section in any case in which a guardian has been appointed or declared, the judge of the District Court may, by order in writing, declare that the Court of the Judge or officer to whom they are transferred shall, for all or any of the purposes of this Act, be deemed to be the Court which appointed or declared the guardian.]

1. Inserted By Act 4 of 1936, section 3.


Chapter II

Section 5. Power of parents to appoint in case of European British subjects [Repealed]

[Rep. by the Part BStates (Laws) Act, 1951 (3 of 1951), section 3 and Schedule].

Section 6. Saving of power to appoint in other cases

In the case of a minor1[***], nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property or both, which is valid by the law to which the minor is subject.

1. The word "who is not an European British subject", omitted by Act 3 of 1951, section 3 and sch


Section 7. Power of the Court to make order as to guardianship

(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made

(a) appointing a guardian of his person or property or both, or (b) declaring a person to be such a guardian,

the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.

Section 8. Persons entitled to apply for order

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

(a) the person desirous of being, or claiming to be, the guardian of the minor; or

(b) any relative or friend of the minor; or

(c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has property; or

(d) the Collector having authority with respect to the class to which the minor belongs.

Section 9. Court having jurisdiction to entertain application

(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides, or to a District Court having jurisdiction in a place where he has property.

(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.

Section 10. Form of application

(1) If the application is not made by the Collector, it shall be by petition signed and verified in manner prescribed by the Code of Civil Procedure, 1882 (14 of 1882)1, for the signing and verification of a plaint, and stating, so far as can be ascertained,-

(a) the name, sex, religion, date of birth and ordinary residence of the minor;

(b) where the minor is a female, whether she is married, and if so, the name and age of her husband;

(c) the nature, situation and approximate value of the property, if any, of the minor;

(d) the name and residence of the person having the custody or possession of the person or property of the minor;

(e) what near relations the minor has, and where they reside;

(f) whether a guardian of the person or property or both, of the minor has been appointed by any person entitled or claiming to be entitled by the law to which the minor is subject to make such an appointment;

(g) whether an application has at any time been made to the Court or to any other Court with respect to the guardianship of the person or property or both, of the minor, and if so, when, to what Court and with what result;

(h) whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both;

(i)where the application is to appoint a guardian, the qualifications of the proposed guardian;

(j)where the application is to declare a person to be a guardian, the grounds on which that person claims;

(k) the causes which have led to the making of the application; and

(l) such other particulars, if any, as may be prescribed or as the nature of the application renders it necessary to state.

(2) If the application is made by the Collector, it shall be by letter addressed to the Court and forwarded by post or in such other manner as may be found convenient, and shall state as far as possible the particulars mentioned in sub-section (1).

(3) The application must be accompanied by a declaration of the willingness of the proposed guardian to act, and the declaration must be signed by him and attested by at least two witnesses.

1. Now the Code of Civil Procedure, 1908 (5 of 1908).


Section 11. Procedure on admission of application

(1) If the Court is satisfied that there is ground for proceedingon the application, it shall fix a day for thehearing thereof, and cause notice of the application and of the date fixed forthe hearing-

(a) to be served in the mannerdirected in the Code of Civil Procedure, 1882 (14 of 1882)1 on-

(i) the parents of the minor ifthey are residing in 2 [any State to which this Act extends;]

(ii) the person, if any, named inthe petition or letter as having the custody or possession of the person or property of the minor;

(iii) the person proposed in theapplication or letter to be appointed or declared guardian, unless that person is himself the applicant;and

(iv) any other person to whom, inthe opinion of the Court special notice of the applicant should be given; and

(b) to be posted on someconspicuous part of the Court-house and of the residence of the minor, andotherwise published in such manner as theCourt, subject to any rules made by the High Court under this Act, thinks fit.

(2) The State Government may, bygeneral or special order, require that when any part of the property describedin a petition under section 10,sub-section (1), is land of which a Court of Wards could assume thesuperintendence, the Court shall also cause a notice asaforesaid to be served on the Collector in whose district the minor ordinarilyresides and on every Collector in whose districtany portion of the land is situate, and the Collector may cause the notice to bepublished in any manner he deems fit.

(3) No charge shall be made bythe Court or the Collector for the service or publication of any notice servedor published under sub-section (2).

1. Now the Code of CivilProcedure, 1908 (5 of 1908).

2. Substituted by Act 3 of 1951,section 3 and Schedule, for "a Part A State or a part C State".