Minority And Guardianship Under Hindu Law: Family Law Notes

Hindu Minority and Guardianship Act 1956 Notes

Guardianship under Hindu Law

It is a relationship where a person acts on behalf of another in taking care of the minor and his properties. A minor is one who is of below 18 years of age. The guardian is appointed as of by the will or appointed by the court. Sometimes a guardian is appointed to take care of incompetent adults who are mentally unstable. The guardian can be another family member or a close relative or a friend who can be appointed by the court.

Thus the guardianship is recognised and be valid only until the minor turns 18 years of age. They are entitled to take care of the property of the minor.

Section 4 (b) of the Hindu Minority & Guardianship Act, 1956

“Guardian” means a person having the care of the person of a “minor” or of his property or both of his person and property, includes –

1. A natural guardian
2. A guardian appointed by the will of the minor’s father or mother (Testamentary guardian)
3. A guardian appointed or declared by the court, and
4. A person empowered to act as such by or under any enactment relating to any court of wards ;

Custody vs. Guardianship

• Custody is granted specifically as a matrimonial relief to a parent who seeks such custody, whereas guardianship exists at law.
• A guardian need not be a custodian; or a custodian, a guardian of the child.
• Guardianship is more comprehensive term and connotes wider rights than mere custody.
• Custody could be for a short duration or for a specific purpose but guardianship is more permanent in nature.

Who is a Natural Guardian under Hindu law?

Section 6 of HMGA – Legitimate Minor Child where the father is the Guardian and if father is not there, then the mother is the guardian.

• Father > Mother ( Custody with mother if child is below 5 years of age )

Illegitimate Minor Child where the mother is the Guardian and if mother is not there, then the father is the guardian.

• Mother > Father

Minor Married Girl where her husband is the guardian

• Husband ( if husband is also minor, then mother / father of the girl )

MARRIAGE UNDER HINDU MARRIAGE ACT, 1955

Section 7 of HGMA – Adopted Child where the father is the Guardian and if father is not there, then the mother is the guardian.

• Father > Mother

Disqualification from Natural Guardianship under Hindu Law

1. if he has ceased to be a Hindu , or
2. if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic ( yati or sanyasi )

Powers of Natural Guardian under Hindu Law (Section 8 of Hindu Minority and Guardianship Act)

• To do all acts which are necessary or reasonable and proper for the benefit of minor, or for the benefit of minor’s estate but cannot bind the minor under a contract.
• Guardian can lease the property but not for more than 5 years or for a term which extends more than a year of the date of the minor attaining majority.
• Guardian cannot transfer/ mortgage / charge / sale / gift / exchange any immovable property in name of the minor without prior permission of the court. The court will grant such permission only if there is a necessity or there is an evident advantage to the minor.
• If the guardian makes a contract regarding the minor or his immovable property which violates any of these conditions then the contract shall be voidable at the instance of minor.

Kinds of Guardianship under Hindu Law

   The guardianship recognised under Hindu Minority and Guardianship Act, 1956.

• The natural guardianship (Sec 6)
• Guardianship through Will
• Guardianship through court’s order
• De facto guardians

The natural guardianship is the minor’s own birth father. He acts as a natural guardian of the minor.  In case of illegitimate children the mother of the minor acts as a natural guardian. In case of adopted child the adoptive father act as a natural guardian and the adoptive mother next to him (Sec 7)

The guardianship through will is that, the parents of the minor mentions someone as the legal guardian to their minor child through will. Then that person mentioned in the ‘Will’ will be appointed as the guardian to the minor.

Guardianship through court order, the jurisdiction lies with the district court, considering the age, sex, and welfare of the minor the court can appoint the guardian to the child.

The de facto guardianship is that where the guardian has no rights in the property dispersion. (Sec 11)

Rights, Obligation and disqualification of the guardian

They have the rights like taking custody, determining the religion, giving the education, controlling the movements, for giving reasonable chastisement to the minor children.

Also the guardian has the rights to represent the minor in his legal proceedings in arbitration and litigation. He also has the possession in the minor’s property. He has the right to recover his legal expenses from the minor. He also has the right to sue minor in case the minor attains the expenses in large.

Family Law Notes:

The obligation of the guardian ends when the minor reaches the age of 18. The guardian is liable to manage the affairs of the minor and he is not entitling to any expenses unless specified in the will. The guardian cannot take the adverse possession in the property of the minor. When the minor reaches the age of 18 the guardian should settle all the property to the minor.

The disqualification of the guardian happens, when the minor turns 18, in between time that the guardian can he disqualified in consideration of the children

Sec 13, of the ‘Hindu Minority and Guardianship Act, 1956’ it is clearly explained that “the welfare of the child is the paramount consideration”. If the child feels unsecure and threatened then the guardian ship can be terminated. If the child is adopted, or the court interfered, then the termination can be done.

Hindu Minority and Guardians Act, 1956 Notese

 This act is applicable to Hindu, Buddhist, Sikhs and Jain, it also applicable to the illegitimate child too. This act defines who is minor and a guardian? and its kinds.

The testamentary guardians (Sec 9)

According to the act, it was said that the father of the minor is his natural guardian and he can appoint the guardian through will (which is not valid until his death) with respect to the minor’s property. Mother will be the natural guardian after the death of the father. The mother of the illegitimate child is his/her natural guardian. The guardianship ends, when the minor girl is married.

As said before the welfare of the child is considered to be the paramount consideration. (Sec 13)

When the parents of the minor are getting divorced the guardianship of the child will be in question. Considering the welfare of the child the decision will be.

Guardians and Wards Act, 1890

• Power of minor in appointing the guardian: (Sec 6)

 The minor does not have to the power to appoint his guardian concerned and said n the act.

• Application form: (Sec 10)

 Thus the application contains every details of the minor and the property of the guardian verified by the collected specified in the act. The application is to be attested by witnesses (two people) and to be processed to the court.

• Procedures to be followed: (Sec 11)

The guardian cannot be appointed until the court hears all the people who have interest in taking care of the minor and substantial documents(evidence – sec -13) supporting the idea of the person applied for guardianship. The welfare of the minor is the considered as paramount and the decision is made.

• The interim protection of the minor (Sec12) is decided by the court during the pendency of the guardianship application. In case the minor is a girl then the public view is not needed.
• Circumstances in which court cannot appoint guardian: (sec 19)

In case the mother is a married woman and father of the minor is alive and he is nor capable of taking care of the child, then it will be difficult for the court to appoint the guardian.

As the duties, rights, obligation and disqualification of the guardian is mentioned above according to the view of the act.