Christian Law of Guardianship in India
Encyclopedia
Christian
s 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.
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 Government
s 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.
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 Court
s 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
.
, mother
, paternal grandfather, full-brothers in the order of seniority, half-brother by the same father, paternal uncle
s 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
.
Christian
A Christian is a person who adheres to Christianity, an Abrahamic, monotheistic religion based on the life and teachings of Jesus of Nazareth as recorded in the Canonical gospels and the letters of the New Testament...
s in India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
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
Travancore
Kingdom of Travancore was a former Hindu feudal kingdom and Indian Princely State with its capital at Padmanabhapuram or Trivandrum ruled by the Travancore Royal Family. The Kingdom of Travancore comprised most of modern day southern Kerala, Kanyakumari district, and the southernmost parts of...
area of the State of Kerala
Kerala
or Keralam is an Indian state located on the Malabar coast of south-west India. It was created on 1 November 1956 by the States Reorganisation Act by combining various Malayalam speaking regions....
and Tamil Nadu
Tamil Nadu
Tamil Nadu is one of the 28 states of India. Its capital and largest city is Chennai. Tamil Nadu lies in the southernmost part of the Indian Peninsula and is bordered by the union territory of Pondicherry, and the states of Kerala, Karnataka, and Andhra Pradesh...
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
Kerala
or Keralam is an Indian state located on the Malabar coast of south-west India. It was created on 1 November 1956 by the States Reorganisation Act by combining various Malayalam speaking regions....
, India.
The Guardians and Wards Act
Guardianship of minors with respect to person and propertyProperty
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
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 Government
Local government
Local government refers collectively to administrative authorities over areas that are smaller than a state.The term is used to contrast with offices at nation-state level, which are referred to as the central government, national government, or federal government...
s 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 Court
Family court
A family court is a court convened to decide matters and make orders in relation to family law, such as custody of children. In common-law jurisdictions "family courts" are statutory creations primarily dealing with equitable matters devolved from a court of inherent jurisdiction, such as a...
s where ever such Family Courts are established. But with regard to the property of the minor, the District Court
District Courts of India
The District Courts of India are the district courts established by the State governments in India for every district or for one or more districts together taking into account the number of cases, population distribution in the district. They administer justice in India at a district level...
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
Employment
Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as:- Employee :...
.
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 fatherFather
A father, Pop, Dad, or Papa, is defined as a male parent of any type of offspring. The adjective "paternal" refers to father, parallel to "maternal" for mother...
, mother
Mother
A mother, mum, mom, momma, or mama is a woman who has raised a child, given birth to a child, and/or supplied the ovum that grew into a child. Because of the complexity and differences of a mother's social, cultural, and religious definitions and roles, it is challenging to specify a universally...
, paternal grandfather, full-brothers in the order of seniority, half-brother by the same father, paternal uncle
Uncle
An uncle is a type of familial relationship.Uncle may also refer to:* Uncle , by J. P. Martin* U.N.C.L.E., a fictional organization in the TV series The Man from U.N.C.L.E....
s 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
Wife
A wife is a female partner in a marriage. The rights and obligations of the wife regarding her spouse and others, and her status in the community and in law, varies between cultures and has varied over time.-Origin and etymology:...
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
Trespasser
In the law of tort, property, and criminal law a trespasser is a person who commits the act of trespassing on a property, that is, without the permission of the owner. Being present on land as a trespasser thereto creates liability in the trespasser, so long as the trespass is intentional...
.
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
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