Indian Legal System > Civil Laws > Family Laws > The Hindu Minority and Guardianship Act, 1956 > De Facto Guardian and Guardian Appointed by Court
In this article, we shall study two more types of guardians under the Hindu Minority and Guardianship Act, 1956 (i) de facto Guardian and (ii) Guardian appointed by Court.
De Facto Guardian:
A de facto guardian is a person who takes continuous interest in the welfare of the minor’s person or in the management and administration of his property without any authority of law as though he was a guardian. De facto guardianship is a concept where past acts result in present status. The term literally means ‘from that which has been done’. The term ‘de factor guardian’ as such is not mentioned in any of the texts, but his existence has never been denied in Hindu law.
The de facto guardian was recognized in Hindu law as early as 1856. The Privy Council in Hanuman Prasad Singh v. Bhaguati Prasad Singh (1897) ILR 19 All 357 case, said that ‘under Hindu law, the right of a bonafide incumbrancer, who has taken a de facto guardian a charge of land, created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not affected by the want of union of the de facto with the de jure title
In Sriramulu v. Pundarikakshyya 1949 F.C.218 case, Kania J. said that Hindu law tried to find a solution out of two difficult situations : one, when a Hindu child has no legal guardian, there would be no one who would handle and manage his estate in law and thus without a guardian the child would not receive any income for his property and secondly, a person having no title could not be permitted to intermeddle with the child’s estate so as to cause loss to him. The Hindu law found a solution to this problem by according legal status to de facto guardians.
Section 11: The Hindu Minority and Guardianship Act, 1956:
De facto guardian not to deal with minor’s property.—
After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.
Section 11 of the Hindu Minority and Guardianship Act, 1956 prohibits a de facto Guardian to deal with minor’s property. According to Section 11 of the Act, no person shall be entitled to dispose of, or deal with, the property of Hindu minor merely on the ground of his or her being the de facto guardian of the minor. It is now well settled that de facto guardian does not have the right to assume debt, or to gift a minor’s property, or to make reference to arbitration.
In Nathuni Mishra v. Mahesh, AIR 1963 Pat. 146 case, the Court held that Section 11 of the Hindu Minority and Guardianship Act, 1956 cannot be pleaded as a bar to the disposal of the joint family property by the Karta (the manager) of a joint family for legal necessity.
Guardian Appointed by the Court:
Section 13 of the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890 have provisions that the Court may appoint a guardian in certain cases.
Section 13: The Hindu Minority and Guardianship Act, 1956:
Welfare of minor to be paramount consideration.—(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.
Where the court is satisfied that it is for the Welfare of minor, then it is empowered to appoint guardians under the Guardians and Wards Act, 1890. The High Courts also have inherent jurisdiction to appoint guardians but this power is exercised sparingly. The Hindu Minority and Guardianship Act is supplementary to and not in derogation to Guardians and Wards Act. Section 13 Subsection (1) of the Hindu Minority and Guardianship Act, 1956 provides for the appointment of a guardian by the empowered Court with intention of the welfare of the minor as the paramount consideration.
The term ‘welfare’ should be understood in a very wide sense and includes not only the material and physical wellbeing of the minor but every factor connected with the moral and religious welfare, education and upbringing of the minor.
Section 17 of the Guardians and Wards Act, 1890 deals with the matters to be considered by the Court in appointing a guardian. In determining as to what will be for the welfare of the minor, the age, the sex, personal laws, the character and capacity of the guardian, his nearness of kin to the minor, the wishes (if any) of the minor’s deceased parent and previous and existing relations of the minor with the proposed guardian. If the minor is old enough to form an intelligent preference, the Court may also consider such preference.
The guardian appointed by the court is known as a certificated guardian. Powers of certificated guardians are controlled by the Guardians and Wards Act, 1890.
There are very few acts which the guardian appointed by the court can perform without the prior permission of the court. In the ultimate analysis, his powers are co-extensive with the powers of the sovereign and he may do all those things (though with the permission of the court) which the sovereign has power to do. A certificated guardian from the date of his appointment is under the supervision, guidance, and control of the court.
In Bimla v. Subhash, 1992 Pat 96 case, the Court held that under the Guardians and Wards Act, 1890, the jurisdiction of appointing guardians is conferred on the District Court. The District Court may appoint or declare any person as the guardian whenever it considers it necessary in the welfare of the child.
In Mohini v. Virendra, AIR 1977 SC 1359 case, the Court held that in appointing or declaring a person as the Guardian of a minor Welfare of the minor shall be the paramount consideration.
In Kumar v. Chetana, AIR 2001 SC 2179 case, the Court held that in matters related with the custody of a minor child, what is important is interest and welfare of a child and not a convenience or pressure of the parents.
In Onkar Walia v. Urmila Devi, AIR 1985 HP 100 case, the mother of a male child filed an application against the child’s father for custody of the child. As the child was below five years of age and as father has ceased to be a Hindu, the Court gave custody of the child to mother. The Court reiterated the principle that the mother is entitled to custody of such a child, in the absence of any exceptional circumstances as would disentitle her to such custody.
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