In traditional Indian society, the question of guardianship was not much prominent as everything was controlled and headed by the elderly member of the family that is the Karta but as time passed and the question of heirs property and care came into the picture. It became difficult for the law to have control over different methods followed by different religions. Therefore, to make it uniform and easy to regulate the guardianship and wards act, 1890 was introduced by the East India Company to protect and for the benefit of the minor, this act was secular in nature and gave a wide variety of powers to the guardian. This was then followed by the Hindu Minority and Guardian Act, 1956 this act was restricted to the people of the Hindu religion.
Guardian as per sec4 (b) of Hindu Minority and Guardian Act, 1956
Guardian means a person having the care of the person of another or of his property or both. ‘Guardian’ is a person having the care of the person of a minor or of his property or of both his person and property and includes
- Natural Guardian
- Testamentary Guardian
- Appointed or declared by a court
- A person empowered to act as such by or under any enactment relating to any court of wards.
Sec 6 of the HMGA act defines a natural guardian as a person who becomes so by reason of the natural relationship with the minor who nurtures a child and he does not in this matter, required the support of any court’s order for the purpose.
In the case of a legitimate child, the natural guardianship is given to the Father after him the mother and if the child is below 5 yrs of age, the custody as well, the guardianship is given to the mother. In the case of an illegitimate child, guardianship is firstly given to that mother and after her father. In an adopted child, the father is the natural guardian after him the mother. Lastly, in the case married girl child, the husband is the natural guardian, and in the case where the husband is a minor, the guardianship of the girl is given to the father and mother of the girl. After him/her in this means in absence of and not after the death of if the natural guardian is absent from the care of minor or minor’s property, indifferent to the matter or in understanding, or has no capacity to mentally or physically provide or maintain the minor then the right can be transferred.
Disqualification from natural guardianship can happen if
- The guardian ceased to be a Hindu or
- Has renounced the world.
Power of the natural guardian
- To do all the necessaries or what Is reasonable and proper for the benefit of the minor and the minor’s property.
- The guardian can lease the property of the minor only for a maximum of 5 years and 1 year if the minor attained majority.
- Guardian cannot transfer/ mortgage/charge/sale/gift or exchange any immovable property in the name of the minor without the prior permission of the court. In case if the transfer or the mortgage is reasonable and for the benefit of the minor then it might be allowed by the court.
- The guardian cannot bind the minor in any contract
- Provided if the guardian does anything beyond the prescribed capacity of the law then it will be considered as void ab initio from the side of the minor.
A testamentary guardian as per sec 9 is a person who is appointed by the will of the minor’s natural guardian. And has the right to act as a guardian in the absence of the natural guardian. The power of the testamentary guardian is the same as that of the natural guardian.
The guardian appointed by the law or the de facto guardian
Before the enactment of HMGA, the de facto guardian had the same power as that of the natural guardian but now the guardian has no right to deal with or dispose of minors’ property.
Guardianship is not the right of the parent but is made for the welfare of the minor and the interest of the minor is of paramount importance.