The defendants claimed that Zohra was not a married wife and that the children were illegitimate and that the shares were not passed as part of the sale. The Privy Council ruled that Sohar and his children were entitled to the shares. The important issue was whether the plaintiffs had acquired a right to the child`s share in the mother`s sale. The defendants argued that the mother did not have the authority to communicate her children`s interests to the plaintiffs. It was decided that, although the mother is entitled to custody of the minor, she is not the natural guardian and the father alone or, if he is deceased, his executor (under Sunni law) is the legal guardian. The mother does not have the power to manage the property of the minor child. It can assume its responsibilities, but cannot impose an obligation on the child. This rule is subject to certain exceptions for the protection of a minor child when there is no de jure guardian, i.e.: The court may appoint the mother as guardian of the property. It has also been found that if the mother pledges the property of the minor child, this is illegal, unless she is the executor (of the father) or is authorized by the guardian of the minor or the judge. Then it is legal and the right of possession and use is established in the murtahil (pledge/mortagagee) without the selling authority. [19] Termination of HizanateThe disqualification of Hizanate can be divided into 5 counts:-General disqualifications – a minor cannot act as guardian of a minor other than his own wife or child, a non-Muslim parent, etc. i) Disqualification of women – the mother or members of the woman`s family may be disqualified for the following reasons: has. She leads an immoral life – i.
adultery; Kil becomes a prostitute; iii. has committed a criminal offence; iv. Is a professional singer or a weeper b. It neglects the child; c. marries a person who is not related to the child to prohibited degrees (Rahima Khatoon v. Saburjanesa)[20]; d. During the existence of the marriage, she leaves and lives in a place far from that of the father; ii) Forfeiture affects men – No male relative, other than prohibited diplomas, may have custody of an unmarried girl. iii) Disqualification of parents – § The mother relinquishes custody of boys after 7 years and girls after puberty (Sunni law) and boys after 2 years and girls after 7 years (Shia law). The mother does not lose custody as a result of the divorce from the father.§ The father is a natural guardian, but is disqualified by the court for cruelty to his wife or children; o Crime;o adultery (but not if the woman does not come into contact with the child)o; If he is not suitable in character and behaviour; o if he is unfit for external circumstances; o If he renounces custody; o If he agrees otherwise, if he evades the jurisdiction of the court or intends to travel abroad; [21] The Persons with Disabilities Rights Act 2016 contains provisions for involuntary guardianship. Under section 13 of the Act, if the District Receiver is of the opinion that a mentally handicapped person is incapable of supporting himself, he may appoint a legal guardian for that person. Full guardianship, i.e.
full authority over the decisions of such a person, or limited guardianship, i.e. the guardian and the mentally ill person would make all decisions by mutual consent. Issues of residence and access usually arise in the case of divorce (dissolution of marriage), annulment and other legal proceedings in which children may be involved. In most jurisdictions, the question of which parent the child will reside with is determined in accordance with the best interests of the child standard. Family law proceedings involving residency and access issues often lead to the most bitter conflicts. While many parents work together when it comes to sharing their children and using mediation to resolve a dispute, not all do. For those involved in litigation, there seem to be few limits. [27] Court records quickly fill with mutual accusations from one parent to another, including sexual, physical and emotional abuse, brainwashing, parental alienation syndrome, sabotage and manipulation.
It is these rare tough custody battles that make headlines and sometimes distort public perception, so they appear more often than they are and the court`s response seems inadequate. The search for the most favorable jurisdiction takes place both between nations and when laws and practices differ from one region to another within a nation, the Hague Convention tries to avoid this, also in the United States of America, the uniform law on jurisdiction and enforcement in matters of custody of children has been adopted by all 50 states, Family courts have been forced to transfer jurisdiction to the country of origin. In some places, courts and lawyers are starting to use the term parenting plan instead of custody and visitation. The new terminology removes the distinction between custodial and non-custodial parents and also seeks to reinforce so-called best interests of children by creating schedules that meet children`s developmental needs. For example, younger children need shorter, more frequent time with their parents, while older children and teens may tolerate and demand less frequent shifts but longer blocks of time with each parent. [28] The Guardianship and Wards Act of 1890, which is a secular law, establishes guardianship of Christians. The guardian designated for the child for property must take into account the child`s health in accordance with section 17 of the Act. The article stipulates that when appointing a guardian, the sex, age, faith, character and abilities of the proposed guardian, the wishes of the child`s parents and, if the minor child is old enough, his choice must also be taken into account.
If the father or husband is fit to be the guardian of the child or wife, section 19 of the Act stipulates that the court does not have the power to appoint a guardian or if the property is under the control of the Court of Wards. Article 24 stipulates that the guardian shall take custody of the child and that he or she shall be responsible for providing for the child`s health, educational and other needs. The 2000 Hague Convention on the Protection of Adults also highlights the mentally disabled and the elderly who are unable to fend for themselves. However, the Convention has so far only been ratified by the Czech Republic, Estonia, Finland, Germany, France, Switzerland and the United Kingdom (in particular Scotland). Even Article 23 of the UN Convention on the Rights of Persons with Disabilities (CRPD) provides that a state party must take appropriate measures to grant adequate guardianship to persons with disabilities, and it is important to note that it has about 162 signatories with 181 ratifications. Thus, it has become an international obligation of countries to care for adults with mental illness. As stated above, India also has the National Trust Act, the Disability Rights Act 2016 and, in relation to the Mental Health Act 2017, the government has granted certain rights to the legal guardian when it comes to making decisions about health, property, education, legal rights, etc. Only three persons are considered natural guardians under section 6 of the Hindu Minority and Guardianship Act 1956: mother, father and husband. The father or husband of a minor child or woman may be deprived of natural guardianship only if the court finds him incapable of caring for the minor child or woman in accordance with section 19 of the Guardians and Wards Act 1890. According to section 13 of the Hindu Minority and Guardianship Act 1956, the welfare of a minor child is of paramount importance. And if the court decides that guardianship of a person is not in the best interests of the child, it can remove that person as guardian of the child. Even if the father is still alive, the mother is the natural guardian of illegitimate minor children under section 6 (b) of the Hindu Minority and Guardianship Act 1956.
The natural guardianship of the adopted son under section 7 passes to the adoptive father and, after his death, to the adoptive mother. In the case of a legitimate child, a mother can become guardian only after the death of the father or the inability to become one. Article 6 (a) provides that the custody of a child under five years of age shall be the responsibility of the mother, unless the court determines that it is detrimental to the welfare of the child. In the case of Ms. Githa Hariharan and anrs. v. Reserve Bank of India and anrs., the question was raised as to whether custody of a minor child could be transferred to the mother in the absence of the father. It was decided that the word “after” in paragraph 6(a) should be interpreted broadly to include “in the absence of” rather than “after life”. Submit your article via our online form Click here Note* we only accept original articles, we do not accept articles that have already been published on other websites.
For more information, please contact: editor@legalserviceindia.com If an institution is appointed as a guardian, it must be registered under the relevant laws, and if the institution subsequently proves to be incompetent, the local committee may make other arrangements at this time. In addition, the applicant must live in close proximity to the disabled person and, finally, no male member is entitled to guardianship of a disabled person other than the child`s father.