Family Law 1 - Assignment 2 - Part A - Testamentary Guardian

Testamentary Guardian under Indian Law

A testamentary guardian is a person appointed by a parent through a will to take care of their minor child and manage the child’s property in the event of their demise. This legal concept is governed primarily by the Hindu Minority and Guardianship Act, 1956 (HMGA) for Hindus and the Guardians and Wards Act, 1890 (GWA) for other religions in India.

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Legal Provisions on Testamentary Guardianship

1. Testamentary Guardian under Hindu Law

Section 9 of the Hindu Minority and Guardianship Act, 1956 lays down the rules for the appointment of testamentary guardians:

• Father's Right to Appoint a Testamentary Guardian:

  • A Hindu father has the right to appoint a guardian for his minor child through a will.
  • If the mother is alive, the guardian appointed by the father will not have power until after the mother's death.

• Mother's Right to Appoint a Testamentary Guardian:

  • If the father has passed away and did not appoint a guardian, the mother has the right to appoint a guardian through her will.
  • Her decision takes precedence if she is the sole surviving parent.

• Adoptive Parents:

  • The adoptive father has the right to appoint a testamentary guardian, but this does not override the rights of the adoptive mother.

2. Testamentary Guardian under General Law (Guardians and Wards Act, 1890)

For non-Hindus (Muslims, Christians, Parsis, and others), testamentary guardianship is governed by the Guardians and Wards Act, 1890.

• A father can appoint a testamentary guardian for his minor child through a will.
• The mother’s right to appoint a testamentary guardian varies depending on religious laws.
• The guardian so appointed must be approved by the court to ensure the best interests of the child.

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3. Testamentary Guardianship under Muslim Law

Muslim law recognizes the concept of testamentary guardianship but follows distinct rules based on different schools of thought:

• Father’s Right: Under Sunni law, only the father has the right to appoint a testamentary guardian. However, under Shia law, the mother can also appoint a guardian if given the right in her husband’s will.
• Maternal and Paternal Relatives: In some cases, maternal grandfathers or other male relatives may be preferred over a testamentary guardian if they are fit to act as natural guardians.

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4. Role and Responsibilities of a Testamentary Guardian

Once appointed, a testamentary guardian assumes the responsibilities of:

• Custody and Care: Ensuring the child's welfare, education, and overall well-being.
• Property Management: Managing the minor’s financial and property affairs responsibly.
• Legal Decision-Making: Acting in the best interest of the minor regarding legal and financial matters.
• Court Supervision: The court may intervene if a testamentary guardian is found to be acting against the child's best interests.

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5. Powers and Limitations of a Testamentary Guardian

A testamentary guardian has broad powers, but they are subject to legal restrictions:

• Cannot act against the minor’s welfare: Any decision harming the child can be overturned by the court.
• Court approval needed for property transactions: Under Section 8 of HMGA, a guardian cannot mortgage, sell, or transfer the child’s immovable property without court approval.
• Not absolute authority: The appointment can be challenged if it is not in the child’s best interests.

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6. Revocation and Termination of Testamentary Guardianship

A testamentary guardian’s authority may be revoked under the following circumstances:

1. If the will is invalid – If the parent’s will appointing the guardian is not legally valid, the appointment does not stand.
2. If the guardian is found unfit – The court may remove a guardian due to misconduct, mismanagement, or incapacity.
3. If the child attains majority – A testamentary guardian’s role automatically ends when the minor reaches 18 years of age.
4. If the guardian refuses to serve – If the appointed guardian declines the responsibility, the court may appoint another guardian.

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7. Case Laws on Testamentary Guardianship

1. Githa Hariharan v. Reserve Bank of India (1999)

• The Supreme Court ruled that the mother can act as a natural guardian even during the father’s lifetime if it is in the child's best interest.
• This case challenged the preferential treatment of fathers in appointing guardians and strengthened the rights of mothers.

2. Raj Laxmi v. State of Rajasthan (2017)

• The Rajasthan High Court held that the court must intervene if a testamentary guardian is found to be misusing their authority or acting against the minor’s welfare.

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Conclusion

Testamentary guardianship plays a crucial role in protecting the welfare of minors in the absence of their natural guardians. While Hindu law grants both parents testamentary rights, Muslim law primarily recognizes the father’s right. The Guardians and Wards Act, 1890, ensures that all testamentary appointments are subject to court scrutiny. Indian courts have reinforced that the child’s welfare is paramount, and any testamentary guardian must act in the child’s best interest.