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Section 42: Appointment of successor to guardian dead, discharged, or removed

Guardians and Wards Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1890
Section 41 All 53 Sections of Guardians and Wards Act Section 43

Legal Commentary & Landmark Judgments: Section 42

Section 42 empowers the court to appoint a successor guardian upon the death, removal, or discharge of an existing guardian, ensuring continuous protection of the minor.

  • Successor Appointment Jurisdiction: When a guardian appointed or declared by the court dies, is discharged under Section 40, or is removed under Section 39, the court may appoint another guardian in his place.
  • Welfare Standard Applied: The successor is selected by applying the paramount welfare criteria under Section 17, evaluating the age, sex, and character of candidates.
  • Summary Transfer of Office: Ensures immediate continuity of custody and estate management without restarting litigation ab initio.
Key Landmark Precedents:
  • Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413: The Supreme Court held that in appointing a successor guardian under Section 42, the court must conduct a fresh inquiry into the emotional compatibility and fitness of the new custodian.
  • Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42: Reiterated that the welfare of the child remains the guiding star at every stage of successor appointment.
Courtroom Practice & Strategic Litigation Guidance:

Upon the demise or removal of a guardian, any relative or interested party can move an application under Section 42 in the same file. There is no need to pay fresh ad-valorem court fees for a new original petition.

Section 41 All 53 Sections of Guardians and Wards Act Section 43