Guardianship
Definition of Guardian
Guardian means a person who takes care of and provides maintenance for him/her. A
guardian may be natural such as father, or mother, or legal who is appointed by the court.
According to Section 4(2) of The Guardian and Wards Act,1890 “guardian” means a
person having the care of the person of a minor or of his property, or of both his person
and property.
Guardianship of Minors
According to Section 4(1) of the guardian and Wards Act 1890 “minor” means a person who,
under the provisions of the Majority Act, 1875, is to be deemed not to have attained
his majority.
Here is an overview of the different categories concerning the age of minors:
Under Muslim Law: A person under the age of 15 is considered a minor.
Under the Indian Majority Act: The age of majority is set at 18 years.
Under the Guardians and Wards Act, 1890: A person under 21 who has a court-
appointed guardian is still considered a minor.
kinds of guardianship
Muslim law recognizes three kinds of guardianship, namely
1. Guardianship of person
2. Guardianship of property
3. Guardianship in marriage
De facto guardian
A person who is neither a legal guardian nor a guardian appointed by court but has voluntarily
placed himself in charge of the person and property of a minor is known as de facto guardian. He
is a mere custodian of the person and property of the minor and has no right over them.
Types of De Jure or legal guardian
1. Guardians appointed by the court
Guardians appointed by Court In case of the absence of a natural and legal document
guardian, the court is authorized to appoint a guardian for the aim of the minor’s person
or property or for both. The appointment of a guardian by the court is ruled by the
Guardianship and Wards Act, 1890 which is applicable to all the Bangladeshis
irrespective of their religion.
2. Natural guardian
Natural guardian is defined as first legal guardian of the minor. Father is considered as a
natural guardian. But instead of his absence, the grandfather has the authority to act as
guardian of the minor.
3. Testamentary guardian
A testamentary guardian may be a one that is appointed as guardian of a minor beneath a
will. Only father or, in his absence, paternal grandfather has the right to appoint a
testamentary guardian. A non-Muslim and a feminine might also be appointed as a
testamentary guardian. Shia Law A non- Muslim cannot be chosen as a testamentary
guardian.
Removal of guardian section 39
A guardian can be removed in the interest of the minor. The court may remove a guardian
appointed or declared by court or a guardian appointed by will or other testament if:
Abuse of trust
Continue failure to perform duties
Incapacity to perform duties
Ill-treatment or neglect of ward
Disregard of Court order
Conviction in offence
adverse interest
Neglect of ward
Cessation of residence within local limits
Bankruptcy or insolvency
Cessation of guardianship
Guardianship in marriage
The following persons can act as guardians in the marriage of a minor
The father
Father’s father
The brother
The mother and maternal relations
The court
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Matters to be considered by the Court in appointing guardian:
According to section 7 , welfare of the minor.
Guardian must be citizen of bd
Md. Abu Bakar Siddique v. S.M.A Bakar 38 DLR 106 AD
In this case, Following are the matters to take into consideration for the appointment of guardian-
Welfare
Wishes of the minor
Age
Sex
Religion of minor
Character and capacity of proposed guardian
Nearness of kin to the minor
Wishes of the deceased parents
Relationship with minor
Intelligence of old minor
Who apply guardian?
Competency for application for guardianship:
According to section 8 of the Guardians and Wards act, 1890
Following persons may apply for appointment of guardian:
Desirous
Any relative or friend of the minor
The collector
Collector with respect to class
