Section 39 of The Guardians and Wards Act, 1890
The Court may, on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely:--
- (a)for abuse of his trust;
- (b)for continued failure to perform the duties of his trust;
- (c)for incapacity to perform the duties of his trust;
- (d)for ill-treatment, or neglect to take proper care, of his ward;
- (e)for contumacious disregard of any provision of this Act or of any order of the Court;
- (f)for conviction of an offence implying, in the opinion of the Court, a defect of character which unfits him to be the guardian of his ward;
- (g)for having an interest adverse to the faithful performance of his duties;
- (h)for ceasing to reside within the local limits of the jurisdiction of the Court;
- (i)in the case of a guardian of the property, for bankruptcy or insolvency;
- (j)by reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject: Provided that a guardian appointed by will or other instrument, whether he has been declared under this Act or not, shall not be removed
- (a)for the cause mentioned in clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that that person made and maintained the appointment in ignorance of the existence of the adverse interest, or
- (b)for the cause mentioned in clause (h) unless such guardian has taken up such a residence as, in the opinion of the Court, renders it impracticable for him to discharge the functions of guardian.
Summary
- This provision allows a court to remove a guardian for specific bad behaviours or changing circumstances, like abuse of trust or moving away.
- The court can act if someone complains or can decide to act on its own.
- Reasons for removal include ignoring duties, going bankrupt, mistreating the child, or getting convicted of a serious crime.
- A guardian named in a will gets special protection and cannot be removed just for moving away, unless the move makes it impossible to do the job.
- A guardian named in a will also cannot be removed for having competing interests, unless those interests came up after the person who wrote the will died, or the person did not know about them.
Practical examples
FAQ
1. Who can ask the court to remove a guardian under Section 39 of The Guardians and Wards Act, 1890?
Any interested person can apply to the court to remove a guardian under Section 39 of the Act, or the court can decide to remove the guardian on its own.
2. Can a guardian of property be removed for bankruptcy under Section 39 of The Guardians and Wards Act, 1890?
Yes, under Section 39 of the Act, a guardian of the property can be removed if they face bankruptcy or insolvency.
3. Can a guardian appointed by a will be removed easily under Section 39 of The Guardians and Wards Act, 1890?
No, under Section 39 of the Act, guardians appointed by a will have special protections and cannot be removed just for moving out of the area or having conflicting interests, unless specific strict conditions are met.
Test yourself
Q1.Under Section 39 of The Guardians and Wards Act, 1890, which of the following is a valid reason for a court to remove a guardian of a minor's property?
Q2.Under Section 39 of The Guardians and Wards Act, 1890, how does moving out of the court's jurisdiction affect a guardian appointed by a will compared to one appointed by a court?
Q3.Under Section 39 of The Guardians and Wards Act, 1890, who has the power to initiate the removal of a guardian?
Q4.Under Section 39 of The Guardians and Wards Act, 1890, when can a guardian appointed by a will be removed for having an interest adverse to the faithful performance of their duties?
Q5.Under Section 39 of The Guardians and Wards Act, 1890, what type of criminal conviction justifies removing a guardian?