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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Family is one of the most important social institutions. It is the most pervasive and universal social institution. They usually share common residence, at least for some part of their lives. There is the relational aspect among the members. Members have reciprocal rights and duties towards each other. In this article, we shall study different kinds of families on various basis.

Kinds of Families On the Basis of Authority:

Patriarchal Family:

Patriarchal families are commonly found in all parts of the world since most societies in the world are patrilineal societies. It is a form of family in which authority is centered in the husband or father.  In patriarchal families, the head of the family is a male, and authority is vested in him. He is instrumental in making all the decisions on behalf of the family. He is the administrator of the family and presides over all the religious rites of the family. He is assumed to be protector and ruler of the family and has control over all the members of the family. Descent and property are passed through the male line and children are brought up in father’s house. Such families are patrilocal in nature.

In olden days such families were prevalent amongst the Hebrews, the Romans, the Greeks, and the Aryans.

Characteristics of Patriarchal Society:

• In a patriarchal system, the father is the supreme lord of the family property. He makes all decisions in both society and in his family unit, holds all positions of power and authority, and are considered superior. He presides over all the religious rites of the family.
• After marriage, the wife comes to live in the husband’s and in-laws home. She has to bear the surname of her husband and forfeit maiden surname. Head of the family is assumed to be protector and ruler of the family and has control over all the members of the family.
• The descent is reckoned through the father, and the children are known by the name of the family of father. Children are brought up in father’s house.
• The children often inherit the property of the father only and is generally passed through the male line

Matriarchal Family:

Matriarchal families are found only in matrilineal societies, which are very limited in number all over the world. They are found in parts of Latin America, Ceylon, parts of Africa and India (the Khasis and the Garos tribes of Assam and Meghalaya, among Nayars of Malabar in Kerala). It is a form of family in which authority is centered in the wife or mother.  In a matriarchal family, a woman is the head of the family, and authority is vested in her. After marriage, the husband resides in the wife’s house and descent is traced through the mother’s side. Here, children are brought up in mother’s house. Descent and property is passed through the female line and children are brought up in mothers’s house. Such families are matrilocal in nature.

Characteristics of Matriarchal Society:

• In a matriarchal system, the mother is the supreme lord of the family property. She makes all decisions in both society and in her family unit, hold all positions of power and authority, and are considered superior.
• After marriage, the husband comes to live in the wife’s and in-laws home.
• The descent is reckoned through the mother, and the children are brought up in mother’s house.
• The children often inherit the property of the mother only and is generally passed through the female line

Kinds of Families On the Basis of Structure:

Nuclear Family:

A nuclear family is a small group consisting of a husband, a wife, and children, natural or adopted. It is the smallest composite autonomous family unit. It is free from the control of adults or elders of the family. It consists of two generations only. The children leave their parental home as soon as they are married. Separate residence ensures a physical distance between parents and married children. In all modern societies, the nuclear family is the most common type of family. A typical American family is an example of a nuclear family. The disintegration of the joint family system is resulting in nuclear families.

Extended Family:

Extended family comes into existence due to a merger of several nuclear families. It may include a husband and his wife, their unmarried daughters, their married sons, their wives, and their unmarried children. They may live together in the same house or may occupy a cluster of houses within the same locality. Such type of families is large in size compared to the nuclear family. The eldest male is the head of the family and all adult members share responsibilities of household tasks. Such families are good for children. Children enjoy the care, attention of elders. Children learn to adjust to persons of varying age levels and with persons of different attitudes. They also learn some qualities like co-operation, sympathy, etc. at an early age.  This system may make the children more dependent and they may lose self-confidence, self-reliance, and initiative.

The difference between the nuclear family and the extended family is that a nuclear family refers to a single basic family unit of parents and their children, whereas the extended family refers to their relatives, as well – such as grandparents, in-laws, aunts, and uncles, etc. The extended family is continuous while the nuclear family is not. A nuclear family comes to an end when one of the parents dies. The nuclear family is independent while the extended family is run by the eldest person in the family.

Joint Family:

A joint family is a form of an extended family consists of three or more generations, living together under the same roof, sharing the same kitchen and purse or economic expenses. It is a family consisting of three nuclear families living together. They are blood relatives or close kins. A Hindu Undivided Family (HUF) is the best example of a joint family. In patriarchal families, only unmarried daughters, or at times widowed daughters are a part of the family. Married daughters no longer belong to the family as they become a part of their husband’s family. However, in the case of matriarchal joint families daughters are a part of the joint family, whereas sons become a part of their wives’ families.

Kinds of Families On the Basis of Residence:

Matrilocal Family:

In this system, after marriage, the husband resides in the wife’s house and descent is traced through the mother’s side. Here, children are brought up in wife’s mother’s house.

Patrilocal Family:

In this system, after marriage, the wife resides in the husband’s house and descent is traced through the father’s side. Here, children are brought up in husband’s father’s house.

Bilocal:

In this system, the couple decides to live with the parents of either the groom or the bride. When a family stays in the husband’s house for some time and moves to the wife’s house, stays there for a period of time, and then moves back to the husband’s parents.

Family Changing Residence:

In this system, the couple decides to live with the parents of either the groom or the bride. When a family stays in the husband’s house for some time and moves to wife’s house, stays there for a period of time, and then moves back to husband’s parents, or starts living in another place, the family is called a family of chang­ing residence.

Avunculocal:

The word ‘avuncu’ means maternal uncle i.e. the brother of the mother. In this system, the couple lives in maternal uncle’s house after their marriage.

Neo-local:

Here, the husband and wife live in separate residences, which are usually close to their respective jobs. These families are found in West and developed nations in which both the husband and the wife are career-minded and work in different cities. In such a case, the husband may spend a weekend at the wife’s home and vice versa.

The marriage couple stays in a completely new residence neither in the groom’s family nor in the bride’s family. They can also fall under changing residence families.

Kinds of Families On the Basis of Marriage:

Monogamous Family:

In this system, the family consists of one husband and one wife, including children and is based on monogamous marriages. Under the Christian, the Parsi, and the Hindu Marriage Acts, neither the husband nor the wife can marry again in the lifetime of his or her spouse.

Polygamous Family:

In this system A family consisting of one husband, and his more than one wife at the same time. This type of family has its basis in the polygamous form of marriage. It is practiced by Muslims.

Polyandrous Family:

A family made up of one wife and her more than one husband at the same time. This family is based on poly­androus marriage. It is followed in some parts of Assam.

Kinds of Families On the Basis of Ancestry or Descent or Lineage:

Matrilineal Family:

When ancestry or descent is traced through the female line, or through the mother’s side, the family is called matrilineal family. In such a system the rights of members of the family depend on such member’s relationship with the mother. The members inherit property and titles from the female line.

Patrilineal Family:

A family in which the authority is carried down the male line and descent is traced through the male line or the father’s side is called a patrilineal family. In such a system the rights of members of the family depend on such member’s relationship with the father. The members use the father’s surname and inherit property and titles from the male line.

Kinds of Families On the Basis of Blood Relations:

Conjugal Family:

It refers to a family system of spouses and their dependent children. The emphasis is placed on the marital relationship that exists between spouses. In modern times, the term ‘conjugal family’ is being used for partners, who have a long- term sexual relationship but are not actually married.

Consanguine Family:

A consanguine family is made up of members among whom a blood relation exists, or those who are consanguineal kin, i.e., a family consisting of parent(s) and children, or siblings (brothers, sisters, or brothers and sisters).

Other Forms of Family:

Single Parent Family

The single-parent family consists of one parent raising one or more children on his own. This family may include a single mother with her children, a single dad with his kids, or a single person with their kids.

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