Indian Legal System > Civil Laws > Family Laws > The Hindu Minority and Guardianship Act, 1956 > Introduction
In this article, we shall study the need for the Hindu Minority and Guardianship Act. The changes it brought about in uncodified Hindu law.
Due to the concept of joint family, the Hindu Texts, do not much discuss about the guardianship. The minors generally lived in a joint family and were always under the protection of the Karta. The Karta of the joint family was under a legal obligation to protect the minors and the women and to maintain them, even after the death of the father or the husband, as the case may be. When the minors were in Gurukul or in the Ashram of the Guru during their learning phase, the Guru was their protector.
Guardians may be of the following types:
- Natural guardians,
- Testamentary guardians, and
- Guardians appointed or declared by the court.
There are two other types of guardians, existing under Hindu law,
- de facto guardians, and
- guardians by affinity.
In modern times the concept of guardianship has changed from the paternal power to the idea of protection. The modern law of guardianship has its basis in the incapacity which law attributes upon the minors and persons deficient in mental capacity in the matter of looking after themselves, their property or entering into contracts. The Hindu Minority and Guardianship Act, 1956 codifies the laws regarding minority and guardianship with the welfare of the child at the core. During the British regime, the law of guardianship was developed by the courts. It came to be established that the father is the natural guardian of the children and after his death, the mother is the natural guardian of the children and none else can be the natural guardian of minor children. In the absence of both father and mother, the court was required to appoint a guardian from among the nearest blood-relations firstly from the paternal side and in their absence from the maternal side. So far as the minor wife was concerned the husband himself whether a minor or a major was her natural guardian.
The general law relating to guardianship is contained in the Guardians and wards Act, 1890. This Act which applies to all persons in India, including Hindus. The Guardian and the Wards Act, 1890 made certain changes in the position of natural guardians. It is important to note that the Guardian and Wards Act of 1890 remains the basis of the rights and duties of a natural or a testamentary guardian or of a guardian appointed by a court although with certain necessary changes the present Hindu Minority and Guardianship Act, 1956 has been adopted and enacted on 25th August, 1956. The provisions of this Act are in addition to, and not in substitution or derogation of, the Guardian and Wards Act of 1890. Apart from these two Acts, the Hindu Marriage Act, 1955, also declares certain persons to be guardians in marriage.
Objects of The Hindu Minority and Guardianship Act, 1956:
The law of guardianship is based on the incapacity which the law attributes to minors and to persons who are deficient in mental capacity (e.g. lunatics and idiots). It is presumed that such persons are incapable of looking after themselves or maintaining their property or entering into a contract. Hence it is necessary to entrust the management of their affairs to proper guardians. This act was passed with an object of defining rights, obligations, relationships between adults and minors. The Hindu Minority and Guardianship Act was established to empower the Guardians and Wards Act of 1890 and provide better right and protection to children instead of acting as a replacement of already prevalent act.
Changes made by the Hindu Minority and Guardianship Act:
- The age of minority amongst Hindus has been made the same as under the general law i.e. eighteen years (Section 4(a) of the Act)
- The long list of natural guardians existing under old Hindu law has been reduced to three only, namely the father, the mother, and the husband. (Section 6 of the Act)
- Some control has been imposed on natural and testamentary guardians. (Sections 8 and 9 of the Act)
- It has been provided that a de facto guardian has no power to deal with a Hindu minor’s property. Prior to this Act, the de facto guardian has that power to deal with such property.
- The Act has improved the status of the mother as one of the natural guardians. The right of the father to appoint a guardian for the minor by will, during the lifetime of the mother, has been taken away. Thus if the father appoints a testamentary guardian, upon the death of the father, it is not the testamentary guardian but the mother of the minor would act as the natural guardian (Section 9(1) of the Act)
- The Act has vested the mother with the power to appoint by will, a guardian, who would act in preference to a guardian appointed by the father in certain cases.
- The Custody of minor child below 5 years is ordinarily to be with mother (Section of the Act). Prior to this Act father was entitled to such custody.
- No person shall be entitled to act as guardian if he or she has ceased to be a Hindu or has renounced the world by becoming a Sanyasi.
- The Act has considerably restricted the powers of a natural guardian regarding alienations of the immovable property of the minor. Now under the Act, he cannot alienate the immovable property of the minor without the previous permission of the court (Section 8 (2)). Prior to the Act, the father used to exercise unlimited powers with respect to the minor’s person and property.
- The powers of the testamentary guardian have also been considerably limited under the Act.
- Under the Act of 1956 no minor can himself be a guardian of the property of another minor. So a minor husband cannot now claim guardianship over the property of his minor wife.
Next Topic: Who are Natural Guardians Under the Act?