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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Indian Legal System > Civil Laws > Family Laws > The Hindu Minority and Guardianship Act, 1956 > De Facto Guardian and Guardian Appointed by Court

The post Guardian Appointed by Court appeared first on The Fact Factor.

A Testamentary Guardian is one who is appointed by a will of the natural guardians of the minor.  The testamentary guardian becomes entitled to act as the guardian of the minor after the death of the natural guardian. He can exercise all the rights and powers of a natural guardian to such extent and subject to such restrictions as are specified in the Act and in the will. It is necessary for the testamentary guardian to accept ‘the guardianship. Acceptance may be express or implied. A testamentary guardian may refuse to accept the appointment or may disclaim it, but once he accepts, he cannot refuse to act or resign except with the permission of the court.

Section 9: The Hindu Minority and Guardianship Act, 1956:
Testamentary guardians and their powers.—

(1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both.

(2) An appointment made under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.

(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both.

(4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property or in respect of both.

(5) The guardian so appointed by will has the right to act as the minor’s guardian after the death of the minor’s father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.

(6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.

Under Section 9, of the Hindu Minority and Guardianship Act, a testamentary guardian can be appointed only by a will.  Under the Hindu Minority and Guardianship Act, 1956, testamentary power of appointing a guardian for the natural or adoptive minor has now been conferred on both parents. There is nothing in the act which limits the choice of natural guardian to appoint any person as the guardian under a validly executed will. But the person so appointed must be one who is not suffering from any disqualifications like a minority, renunciation of the world or being a non-Hindu or insanity.

In Case of Legitimate Child:

Under old Hindu Law, a testamentary guardian appointed by father could function even though when the mother was alive. But according to Section 9 Subsections (1), (2) and (3), father can appoint guardian of his minor child, but even though the father has appointed a guardian if the mother is alive, she would be minor’s guardian, and she also can appoint under her will a guardian of her own choice. If mother appoints testamentary guardian, her appointee will become the testamentary guardian and father’s appointment will continue to be ineffective. If the mother does not appoint, father’s appointee will become the guardian. Thus where the father dies during the lifetime of his wife (minor’s mother) after appointing a guardian by will, the appointment of the guardian by the father will not become effective and the mother by virtue of the provisions in Section 6 of the Act will become the natural guardian of the minor. But where the widowed wife, i.e., minor’s mother dies without appointing any person as guardian by the will of the minor, the appointment made by the father will revive.

in Case of Illegitimate Child:

As per Section 9 Subsections (4) where the child is illegitimate, the biological mother of the child being a natural guardian can appoint a guardian by will even during the lifetime of her husband. In such case, the father has no right to appoint any person as the guardian.

In Case of Married Minor Girl:

Under Section 9 Subsections (6) the guardian of a minor girl will cease to be the guardian of her person on her marriage, and the guardianship cannot revive even if she becomes a widow while a minor.

Under Section 9 Subsection (5) the testamentary guardian becomes entitled to act as the guardian of the minor after the death of the natural guardian. He can exercise all the rights and powers of a natural guardian to such extent and subject to such restrictions as are specified in the Act and in the will.

Powers of Testamentary Guardian:

The testamentary guardian becomes entitled to act as the guardian of the minor after the death of the natural guardian. He can exercise all the rights and powers of a natural guardian to such extent and subject to such restrictions as are specified in the Act and in the will. Thus the powers of testamentary guardian and the natural guardian are the same (Section 8 of the the Hindu Minority and Guardianship Act, 1956) subject to the provisions of the law if necessary or found to be beneficial to the estate of the minor except that the power of a testamentary guardian to deal with property belonging to the minor is also subject to the restrictions imposed by the will.

Removal of Testamentary Guardian:

Section 39 of the Guardian and Wards Act lays down certain grounds on which a testamentary guardian could be removed. It may be noted here that the above section has not been abrogated by the present Act of 1956 hence it stands a good law even today. Thus a testamentary guardian could be removed on the following grounds as mentioned in Section 39 in the Guardian and Wards Act:—

1. Abuse of his trust.
2. Continuous failure to perform the duties.
3. Incapacity to perform the duty.
4. Ill-treatment or neglect to take proper care of his ward.
5. Continuous disregard to any of the provisions of the Act.
6. Conviction in case of an offence relating to lapses in the character.
7. Keeping an adverse interest.
8. Ceasing to reside within the local limits of the jurisdiction of the court, and
9. Insolvency or bankruptcy.

In addition to the above, the Hindu Minority and Guardianship Act, 1956 mentions the following grounds:

1. If he ceases to be Hindu, or
2. Has completely and finally renounced the world by becoming a hermit or an ascetic.

Section 10: The Hindu Minority and Guardianship Act, 1956:
Incapacity of minor to act as guardian of property.—

A minor shall be incompetent to act as guardian of the property of any minor.

Thus a minor cannot be appointed as testamentary guardian.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Minority and Guardianship Act, 1956 > Testamentary Guardians

The post Testamentary Guardians appeared first on The Fact Factor.

In the last article, we have seen meaning of the term natural guardian. In this article, we shall study the rights and power of a natural guardian under the Hindu Minority and Guardianship Act, 1956.

Rights of Natural Guardians:

The natural guardian of having the following rights in respect of minor children:

• Right to custody
• Right to determine the religion of children
• Right to education
• Right to control movement
• Right to reasonable chastisement

These rights are conferred on the guardians in the interest of the minor children and therefore of each- of these rights is subject to the welfare of the minor children. The natural guardians have also the obligation to maintain their minor children.

Powers of Natural Guardian and Restrictions on Him:

Section 8: The Hindu Minority and Guardianship Act, 1956:

Powers of natural guardian:

(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the court,—

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or

(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.

(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in subsection (2) except in case of necessity or for an evident advantage to the minor.

• As per Section 1 of the Act,  the natural guardian of a Hindu minor has the power to do all acts, which are mandatory or reasonable and proper for the benefit of the minor for the realization, protection or benefit of the minor’s estate, but the guardian can in no case bind the minor by a personal covenant.
• As per Section 8 Subsection 2 Clause (a) of the Act, the natural guardian should get the prior permission of the court, to mortgage or transfer by sale, gift, exchange or any part of the immovable property of the minor.
• As per Section 8 Subsection 2 Clause (b) of the Act, prior permission from the court is needed to lease any part of minor’s property for a term exceeding five years (5 years) or for a term extending one year beyond the date on which the minor attains majority.
• As per Section 8 Subsection 3 of the Act, any disposal of immovable property by the natural guardian, in contravention of Section 8 Subsections (1) and (2) of the Act is voidable at the instance of the minor or any person claiming under him.
• Section 8 Subsection 4 lays down that no court will grant permission to the natural guardian to do any of the acts such as Transfer of Property or Lease of a Property under Subsection 2 only in case of necessity or for an evident advantage to the minor.

Application for Obtaining Permission From Court:

Section 8: The Hindu Minority and Guardianship Act, 1956:

Powers of natural guardian (Contd):

(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular—

(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof;

(b) the court shall observe the procedure and have the powers specified in Subsections (2), (3) and (4) of Section 31 of that Act; and

(c)an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the Acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.

In Radheshyam v. Kisan Bala, AIR 1971 Cal. 341 case, the Court held that the Court can also enforce specific performance of a purchase agreement at the instance of natural guardian, if it is satisfied that the purchase is for the benefit of the minor, having regard to all the facts and circumstances of the case.

Section 5 of the Act, lays down the procedure to be followed by the guardian for obtaining the permission of the Court to transfer or lease a minor’s property.

• The guardian needs to apply for permission to the city civil court, or a district court or a court empowered under the Guardians and Wards Act, 1890 (8 of 1890).
• Submit the application to the concerned court within the local limits of whose jurisdiction any portion of the property of minor is situated.
• An appeal reclines from an order of the court refusing permission to the natural guardian to do any of the acts of property transfer to the court to which appeals ordinarily lie from the decisions of that court.

Meaning of the term “Court” Under the Act:

Section 8: The Hindu Minority and Guardianship Act, 1956:

Powers of natural guardian (Contd):

(6) In this section, “Court” means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Minority and Guardianship Act, 1956 > Powers of Natural Guardians

The post Powers of Natural Guardians (S. 8) appeared first on The Fact Factor.

In this article, we shall look at the introduction of the Hindu Minority and Guardianship Act and the meaning of the term natural guardians.

As per Section 1 Clause (2) of the Act, the Act extends to the whole of India except the State of Jammu and Kashmir and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

As per Section 2 of the Act, The provisions of this Act are in addition to, and not in substitution or derogation of, the Guardian and Wards Act of 1890.

As per Section 3 of the Act, not only Hindus but Lingayat, Virashaiva, Brahmo followers, Prathana Samaj followers, Arya Samaj followers, Buddhist, Sikhs, and Jains are also covered under this Act.  Muslims, Christians, Parsis, and Jewish are not covered under this act.

Similarly, under Section 3 of the Act, it is applicable to

1. any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion;
2. any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and
3. any person who is convert or re-convert to the Hindu, Buddhist, Jain or Sikh religion

Section 4 Clause (a) says “minor” means a person who has not completed the age of eighteen years.

Section 4 Clause (b) says “guardian” means a person having the care of the person of a minor or of his property or of both his person and property, and includes— (i) a natural guardian, (ii) a guardian appointed by the will of the minor’s father or mother, (iii) a guardian appointed or declared by a court, and (iv) a person empowered to act as such by or under any enactment relating to any Court of wards.

The above-mentioned types of guardians are not exhaustive. A person who is taking care of a minor without the authority of law can also be a guardian under the above definition and is called a de facto guardian. De facto guardians include self-appointed guardians and guardians by affinity, such as guardians for a minor widow. However, a person does not have the right to sell or deal with minor’s property if he is merely a de-facto guardian as per section 11. Testamentary guardians were also introduced in Hindu law: It was also accepted that the supreme guardianship of the minor children vested in the State as parens patrie and was exercised by the courts.

Concept of Natural Guardians:

Section 6 of the Act, defines the meaning of the term “Natural guardians”.

Section 6: The Hindu Minority and Guardianship Act, 1956:

Natural guardians of a Hindu minor:

The natural guardians of a Hindu minor; in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;

(c) in the case of a married girl—the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—

(a) if he has ceased to be a Hindu, or

 (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation.—In this section, the expressions “father” and “mother” do not include a step-father and a step-mother

In case of Legitimate Boy and Legitimate Unmarried Girl:

Under Sec. 6 Clause (a) of the Hindu Minority and Guardianship Act, in case of a legitimate boy and legitimate unmarried girl, his/her biological father is the natural guardian. It is only when the father is disqualified or is no more; the biological mother becomes the natural guardian. The explanation appended to section 6 clarifies that the ex­pression “father” and “mother” do not include a “step-father” and a “step-mother”.

In case of a minor boy or unmarried girl of age less than 5 years, ordinarily, the guardianship of such a child is given to the mother.

In case of Illegitimate Boy and Illegitimate Unmarried Girl:

Under Sec. 6 Clause (ab) of the Hindu Minority and Guardianship Act, in case of an illegitimate boy or illegitimate unmarried girl, his/her biological mother is the natural guardian. It is only when the mother is disqualified or is no more; the biological father becomes the natural guardian.

In Case of Married Girl:

In the case of married girl her husband is her natural guardian provided that he is not minor.

Persons Barred From Becoming Guardian of Hindu Minor:

The section 6 Clause (a) sub-clauses (a) and (b) further lies down that a person will be disentitled to be the natural guardian of a minor if he has ceased to be a Hindu, or if he had completely renounced the world by becoming a hermit (Vanaprasthi) or an ascetic (Yati or Sanyasi).

Section 7: The Hindu Minority and Guardianship Act, , 1956:

Natural guardianship of adopted son.

The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.

Section 7 refers to the guardianship of the adopted son. Accord­ing to this section the natural guardianship of an adopted son who is a minor pass, on adoption, to the adoptive father and after him to the adoptive mother. Thus the adoptive parents are treated as biological parents in eyes of law.

This Section speaks only of an adopted son but makes no mention of an adopted daughter. The uncodified Hindu Law also did not recognize the adoption of a daughter. However, it may be noted that the Act came into force before passing of the Hindu Adoptions and Maintenance Act, 1956, which now recognizes the adoption of a daughter also, and confers that right both upon male and female Hindu.

Section 12 of the Hindu Adoptions and Maintenance Act, 1956 provides that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with the effect from the date of the adoption.

Case Laws Explaining the Term Natural Guardians:

In P.T. Chathu Chettiar v. K. K. Kanaran, AIR. 1984 Ker. 118 case, the Court held that when the father is alive and is not disqualified to act as the guardian of the minor, it is incompetent for the mother to interpose herself as the guardian of the minor.

In Rajalakshmi v. Ramachandran, AIR 1967 Mad 113 case, the Court held that if a person donates property to a minor and appoints himself a guardian to look after the property he would not be a guardian within the meaning of the Act

In Essakkayal nadder v. Sreedharan Babu, AIR 1992 Ker 200 case, the mother of the minor was dead, but the father was not residing with his children. The Court held that the father is still alive, has not ceased to be a Hindu or renounced the world and has not been declared unfit, this does not authorize any other person to assume the role of natural guardian and alienate the minor’s property.

In Gita Hariharan v. Reserve Bank of India, AIR 1999 SC 1149 case, an educated and employed mother wants to make her five-year-old child nominee for her investments but asked for the paperwork in which she was either required to provide the name of the father or guardianship certificate. The Supreme Court held that under certain circumstances, even when the father is alive mother can act as a natural guardian. The Court also said that the term ‘after’ used in Section 6(a) has been interpreted as ‘in absence of husband’ instead ‘after the life-time of husband’. This new ruling had benefitted the society in two ways, firstly protection of rights of a child born out of wedlock and secondly provided a legal status to single mother especially for the children of sex workers. This judgment will at least do some good and safeguard the rights of unwed mothers or illegitimate child which Guardianship act had mentioned but society had still not accepted.

In a case Jajabhai v. Pathankhan, AIR 1971 SC 315 case, where a mother and father had fallen out and were living separately and the minor daughter was under the care and protection of her mother, the Court held that the mother could be considered as the natural guardian of minor girl.

In Smt. Dr. Snehalata v. Mahendra Narain, AIR 1979 Raj. 29 case, the Rajasthan High Court held that till the girl attained the age of 5 years it was not possible for the applicant’s father to have moved for the custody of the girl as contained in section 6 of the Act of 1956. Hence mother alone was entitled to the custody of the minor daughter

Empowerment of Mother as natural Guardian Under the Act:

The Hindu Minority and Guardianship Act, 1956 has im­proved the status of the mother as the natural guardian. Under the old Hindu Law, a mother could not act as a natural guardian of the child if the father has written any testament depriving her of the natural guardianship of the minor. Now under the Hindu Minority and Guardianship Act, 1956, the mother is considered as natural guardian after father or in absence of the father.

When studying Section 6 of the Act we have to understand provisions of Section 12 of the Act.

Section 12:The Hindu Minority and Guardianship Act, , 1956:

Guardian not to be appointed for minors undivided interest in joint family property.—

Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest: Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.

Section 12 substantially confirms the old Hindu Uncodified Law. If the minor is a member of the join mitakshara family, the father, as Karta, is entitled to management of whole coparcenary property, including the minor’s interest. After his death, this right of management passed on to the eldest son as next Karta. Now, the reason why guardian cannot be appointed of the undivided interest of such a member is not separate or undivided property. Such a case would, therefore. be governed by the general principles of Hindu Law relating to joint family property.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Minority and Guardianship Act, 1956 > Concept of Natural Guardians

The post Natural Guardians (Ss. 1 to 7 and 12) appeared first on The Fact Factor.

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:

1. Natural guardians,
2. Testamentary guardians, and
3. Guardians appointed or declared by the court.

There are two other types of guardians, existing under Hindu law,

1. de facto guardians, and
2. 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 25^th 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:

1. 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)
2. 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)
3. Some control has been imposed on natural and testamentary guardians. (Sections 8 and 9 of the Act)
4. 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.
5. 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)
6. 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.
7. 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.
8. 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.
9. 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.
10. The powers of the testamentary guardian have also been considerably limited under the Act.
11. 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.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Minority and Guardianship Act, 1956 > Introduction

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