Adoption & Guardianship | Family Law

The blog presents the basic theory of adoption and guardianship that forms the introduction of Family Law in India. This can be useful for students preparing for Law and other Competitive Exams.

Q1. What is adoption ?

Ans. Adoption is the act of establishing a person as parent to one who is not in fact or in law his child. It is the means by which a legal relationship is established between the parent and child who are not so related biologically.
It is also defined as a process by which people take a child who was not born to them and raises him or her as a member of their family.

Q2. What are the statutes governing adoption in India ?

Ans. The only statute governing adoption in India is the Hindu Adoption and Maintenance Act, 1956, confined only to Hindus. There is no law on adoption for Christians, Parsis and Muslims. A person belonging to these communities has to get himself appointed as guardian under the Guardians and Wards Act, 1890. Though this Act applies to all communities and castes, the court takes into consideration the personal law of the minor while appointing or declaring a person as a guardian under this Act.

Q3. Who is a guardian ?

Ans. A guardian is a person who has rights and duties with respect to the care and control of minor’s (a person who has not completed the age of 18 years) person (in relation to body) or property (estate or wealth of minor).

Q4. What isĀ  the right and duty of a guardian?

Ans. The rights and duties of a guardian include :

  • right to determine the child’s upbringing in the regard to religion, education and other matters such as the disposal of properties and so on.
  • duty to act for the welfare of the minor.

The welfare of the child is paramount consideration for the court in matters pertaining to custody and guardianship

Q5. What are the types of guardians ?

Ans. The different types of guardians are :

  • de-jure guardian (authority vested by law)
    • natural guardian (by birth)
    • testamentary guardian (Guardians appointed by will)
    • certified guardians (Guardians appointed by the court under the Guardian and Wards Act, 1890)
  • de-facto guardian (exercising power without being legally established)

Q6. Who is a functional guardian ?

Ans. A functional guardian is a person who is looking after the welfare of the child and is actually taking care of the child.

Q7. Who is natural guardian in Hindus ?

Ans. Generally father and mother are recognized as natural guardians of the child. However under the Hindu Minority and Guardianship Act, 1956, mother is entitled to guardianship “after” (in absence of) the father. Thus the functional guardian is given responsibility of the guardianship. It is immaterial whether that person is a father or mother. The paramount consideration given is to the welfare of the child.

Q8. Who is natural guardian in Muslims ?

Ans. In Muslims, the father is considered as the natural guardian. The mother is not considered as a guardian, whether natural or otherwise. But the mother has the “right of hizanat”, which is the right of the mother to have custody of child during the early childhood, also recognized as a principle in Hindus.

Q9. Who is a testamentary guardian ?

Ans. A guardian appointed by “will” is known as testamentary guardian. Under the Hindu Minority and Guardianship Act, 1956, both the parents can appoint testamentary guardian for the child.
In Muslims, the testamentary guardian can be appointed only by the father. The mother do not have such a power.

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