Akta Penjagaan Budak 1961
Applies to: Federal Act — see s 1 (Short title and application) · Official text ↗
- Defines who is considered an infant and who acts as a Protector (s 2)
- Outlines the duties of a guardian regarding the child's person and property (ss 3–4)
- Establishes that mothers and fathers have equal rights and authority (s 5)
- Details how guardianship is handled when a parent dies or both parents die (ss 6–8)
- Allows the Court to remove a guardian or appoint a new one (s 10)
- Requires the Court to prioritize the welfare of the infant in all decisions (s 11)
- Restricts a guardian's power to sell or lease the infant's property without Court leave (s 15)
- Provides a mechanism for resolving disputes between joint guardians (s 19A)
- Applies in Peninsular Malaysia only (s 1(2)), and not to persons professing Islam in a State until that State adopts it by its own law (s 1(3))
What this law is
The Guardianship of Infants Act 1961 (Akta Penjagaan Budak 1961) is numbered Act 351 in the Laws of Malaysia. Where it applies is set out in section 1 (Short title and application).
Its long title, as printed in the official text: An Act to provide for the guardianship of infants.
Read every section, the amendment history and the official copy on our law library page for this Act.
Laws cited on this page
| Act 351 | Guardianship of Infants Act 1961 Akta Penjagaan Budak 1961 | PDF · PDF (BM) · Official ↗ |
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Key sections
| Provision | What it says, in plain words |
|---|---|
| s 2 | Defines an infant as a person who has not attained majority, which is 18 for Muslims and 21 for others, and lists who qualifies as a Protector. |
| s 3 | States that the guardian of a child's person must have custody and be responsible for the child's support, health, and education. |
| s 4 | Requires a guardian of a child's property to manage it carefully, like a prudent person would manage their own, and allows reasonable acts to protect or realize that property. |
| s 5 | Confirms that a mother has the same rights and authority as a father regarding the child's custody, upbringing, and property, and can apply to the Court on the same basis. |
| s 6 | Provides that the surviving parent becomes the guardian after the other parent's death, either alone or jointly with an appointed guardian, with the Court able to appoint a joint guardian if needed. |
| s 7 | Allows a parent to appoint a testamentary guardian by deed or will, who acts jointly with the surviving parent unless the Court orders otherwise based on objections or unfitness. |
| s 8 | If both parents have died without appointing a testamentary guardian, a Magistrate, penghulu, police officer or Protector may cause the child to be taken before the Court, and the Court shall appoint a guardian of the child's person and property, or either of them. |
| s 10 | Empowers the Court or a Judge to remove any guardian, whether a parent or not, and appoint another person in their place at any time. |
| s 11 | Requires the Court or Judge to primarily consider the welfare of the infant and, where applicable, the wishes of the parent or parents. |
| s 12 | Allows a Judge to direct a person with custody to produce the infant in Chambers or another place and make orders for temporary custody and protection. |
| s 15 | Prohibits a guardian from selling, charging, or leasing the infant's property for more than one year without Court leave, and allows such acts to be declared void if they contravene this section. |
| s 19A | Allows any joint guardian to apply to the Court for direction if they cannot agree on matters affecting the infant's welfare, including custody, access, and maintenance orders. |
Worked examples
Facts. David is the guardian of the property of his young nephew Ken. He wants to sell Ken's house to pay for Ken's education, without asking the court.
The law. A guardian of an infant's property shall not sell or part with possession of the infant's property without the leave of the Court or a Judge (s 15(1)(a)). A disposal in contravention may be declared void (s 15(2)).
Outcome. David must first get the leave of the Court or a Judge. A sale made without leave may be declared void, and the Judge may order the property restored to Ken's estate (s 15(2)), if that is necessary or advisable in Ken's interests (s 15(3)).
Facts. Mei Ling and her brother are joint guardians of their niece Anna. They cannot agree on which school Anna should attend.
The law. If joint guardians are unable to agree on any question affecting the infant's welfare, any of them may apply to the Court for its direction (s 19A(1)).
Outcome. Either of them may apply to the Court, which may make such order on the matter in difference as it thinks proper (s 19A(1)), having regard primarily to Anna's welfare (s 11).
Facts. Raj dies, leaving his wife Priya and their young son Arun. In his will Raj appointed his brother Vijay as Arun's guardian.
The law. On a parent's death the surviving parent is guardian, alone or jointly with any guardian appointed by the deceased parent (s 6). A guardian appointed by will acts jointly with the surviving parent (s 7(2)).
Outcome. Priya and Vijay act jointly as Arun's guardians. If Priya objects to Vijay acting, or Vijay considers Priya unfit to have custody, Vijay may apply to the Court, which may refuse to make any order, order joint guardianship, or make Vijay sole guardian (s 7(2)).
Examples are simplified illustrations with invented names; real cases turn on their own facts.
Questions & answers
Who is considered an infant under this Act?
An infant is a person who has not attained their majority (s 2(1)). For those professing the religion of Islam, majority is attained at 18 years, and for others, at 21 years (s 2(2)(a)).
Do mothers and fathers have equal rights?
Yes, a mother shall have the same rights and authority as the law allows to a father, and their rights and authority shall be equal (s 5(1)). The mother also has the same powers of applying to the Court as the father (s 5(2)).
What happens if one parent dies?
The surviving parent shall be guardian to the infant, either alone or jointly with any guardian appointed by the deceased parent (s 6). If no guardian was appointed, or if the appointed guardian dies or refuses to act, the Court may appoint a guardian to act jointly with the surviving parent (s 6(a)-(b)).
Can a guardian sell the child's property?
No, a guardian of the property of an infant shall not sell, charge, mortgage, or otherwise part with the possession of the infant's property without the leave of the Court or a Judge (s 15(1)(a)).
What if joint guardians cannot agree?
If two or more persons act as joint guardians and are unable to agree on any question affecting the welfare of the infant, any of them may apply to the Court for its direction (s 19A(1)). The Court may make such order regarding the matters in difference as it may think proper (s 19A(1)).
Can the Court remove a guardian?
Yes, the Court or a Judge may at any time remove from his guardianship any guardian, whether a parent or otherwise, and may appoint another person to be guardian in his place (s 10).
Does this Act apply to Muslim families?
Nothing in the Act applies in a State to persons professing Islam until the Act has been adopted by a law of that State (s 1(3)). The guardianship and custody of Muslim children is mainly governed by each State's Islamic family law enactment and decided by the Syariah courts — see our guide to Muslim family law.
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Sources
Related
Family law: marriage, divorce, maintenance and custodyChild Act 2001Law Reform (Marriage and Divorce) Act 1976Muslim family law and Islamic estate planning