Answer By law4u team
In India, when a parent dies, the question of who will assume the role of a child's guardian becomes crucial. While children do not have an absolute right to choose their own guardian, their welfare and best interests are the primary considerations under Indian law. There are specific legal provisions that govern the appointment of a guardian for a child after the death of one or both parents.
1. The Role of the Child in Deciding Their Guardian
Child’s Preferences: While children may not have an absolute legal right to choose their guardian, family courts often consider the child’s wishes or preferences, especially if the child is of an age and maturity to express a reasoned opinion. The older and more mature the child, the more weight their opinion may carry.
Age Consideration: Typically, if the child is over the age of 9 years, the court will take the child's preferences into account while deciding on a guardian. For younger children, the preference of the child may not be as influential, but the court still considers it as part of the overall decision-making process.
Best Interests of the Child: The welfare of the child is the primary concern of the court when deciding on a guardian. The child’s emotional, psychological, and physical needs are taken into account, and the court will prioritize the child's well-being over any other factors, including the child’s own preferences. This means that while a child may express a preference, the court may still appoint a guardian who it believes will better serve the child’s best interests.
2. Legal Provisions Governing Guardianship
Several laws govern the appointment of a guardian for a child in India after the death of a parent, including the Hindu Minority and Guardianship Act, 1956, the Guardians and Wards Act, 1890, and the Juvenile Justice (Care and Protection of Children) Act, 2015.
a) The Hindu Minority and Guardianship Act, 1956
This Act governs the guardianship of minor children in Hindu families. In the case of a minor child (under 18), the mother is typically considered the natural guardian of the child in the event of the father’s death. However, in the case of the death of both parents, or if the mother is unavailable, the court may appoint a guardian.
Father’s Role: If the father is alive, he remains the natural guardian. However, in the case of the father’s death, the mother automatically becomes the natural guardian.
Court Intervention: If there is any dispute between the family members or if the welfare of the child is at risk, the court can intervene and appoint a guardian. The court always prioritizes the welfare of the child, and the best interests of the child become the guiding principle.
b) The Guardians and Wards Act, 1890
The Guardians and Wards Act provides a legal framework for the appointment of a guardian for a child by the family court. Under this law, either parent, or any relative or friend of the child, can file a petition in the family court seeking the appointment of a guardian.
Court’s Decision: The family court will decide based on factors such as the child’s wishes (if they are old enough to express them), the ability of the prospective guardian to care for the child, and the welfare of the child.
c) The Juvenile Justice (Care and Protection of Children) Act, 2015
This Act deals with the care, protection, and rehabilitation of children who are orphaned or abandoned, including those whose parents have died. Under the Juvenile Justice Act, if a child is found to be without a guardian, the court or a Child Welfare Committee (CWC) may appoint a guardian or foster parent to ensure the child’s welfare.
d) Special Considerations for Different Religions
The provisions for guardianship may vary slightly depending on the religion of the child, especially in cases of Muslim, Christian, or Parsi children. For example, under Muslim personal law, the guardianship laws differ, where the mother generally retains custody of young children (up to a certain age), and the father or the paternal grandfather can take on the role of guardian as the child grows older.
3. Factors Considered by the Court in Appointing a Guardian
When a court is tasked with appointing a guardian, it will assess the following factors:
Age and Wishes of the Child: If the child is over 9 years of age, their preferences are taken into account. The older and more mature the child, the greater the weight given to their preferences.
Physical and Emotional Needs: The court considers the emotional, psychological, and physical welfare of the child. For instance, if the child has strong emotional bonds with a certain family member, that will be taken into account.
Parental Fitness: If the surviving parent or other family members wish to be appointed as the guardian, their ability to care for the child and their fitness to provide a safe environment will be assessed.
The Child’s Relationship with the Proposed Guardian: The court will evaluate whether the child has an existing relationship with the person seeking guardianship and whether the proposed guardian can offer the child stability.
4. Example
If a father dies and the child’s mother is alive, the mother will typically remain the natural guardian of the child unless there are reasons to doubt her ability to care for the child. However, if both parents pass away, and the child is old enough (over 9 years), the child’s wishes may be taken into account in the court’s decision on who should be appointed as the child’s guardian. For example, if the child has been living with the maternal grandmother and prefers to stay with her, the court may take this into consideration.
If there is a dispute between the maternal and paternal sides of the family, the court will prioritize the best interests of the child in making the decision.
Conclusion
While children do not have an absolute right to decide their own guardian after the death of a parent, their welfare and best interests are of paramount importance in Indian law. Children’s preferences, especially if they are over 9 years old, are taken into account, but the court’s decision will always focus on the child’s overall well-being. Legal provisions under the Hindu Minority and Guardianship Act, Guardians and Wards Act, and the Juvenile Justice Act outline the process and factors that courts use when appointing a guardian for a minor child after the death of one or both parents.
