Guardianship Under Hindu Law

Section 4 of the Hindu Minority and Guardianship Act, 1956 deals with the relevant definitions of the minors and the guardians under the guardianship act,1956. This definition can be inapplicable in case of any other enactment. Sec 4 encompasses definition of the terms – minor, guardian and a natural guardian.

Minor

Minor as defined u/s 4 (a) Act means a person who has not completed the age of 18 years.

Guardian

A Guardian as defined u/s 4(b) of the Hindu Minority and Citizenship Act, 1956 means a person taking care of the minor physically or of his property or of both him and his property and includes the following:

  • A Natural Guardian: Father, Mother and Husband (impliedly repealed).
  • Testamentary Guardian: A person appointed by the will of the minor’s father or mother.
  • Certified Guardian :Appointed or declared by the court.
  • A Person empowered by any enactment relating to any Courts of Wards.

Types of Guardians

Guardians are appointed to ensure the welfare of the child. Apart from the three major types that are defined and included in Section 4 of the Act i.e. natural, testamentary and the ones appointed by the court, there also exist de facto guardians (Self appointed Guardians) and guardians by affinity(Guardians of a minor widow). De-facto Guardians are mentioned in Sec 11 of the Hindu Minority and Guardianship Act, 1956 and discussed under limitations in this article.

Clause (a)- In case of a boy or an unmarried girl- The father, and after him, the mother: provided that the i case of a minor child less than the age of 5 years, the custody shall rest with the mother.

Clause (b)– Mother lawful Guardian of her illegitimate children:

Mother is held to be the natural guardian of the illegitimate child even if the father of such minor is alive. No preferential right is given to the father.

Clause (c)– Husband lawful guardian of a minor wife:

This clause stands impliedly repealed due to the provisions of s.3 of the Prohibition of Child Marriage Act, 2006.

Proviso to Section 6 of the Act states that a person shall not be entitled to act as the natural guardian of a minor only if he has either ceased to be a Hindu or he has completely renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Testamentary Guardian

Testamentary guardians are the ones that are appointed by the will of the parents of the minor. Section 9 of the Hindu Minority and Guardianship Act deals with the provisions related to the testamentary guardians. Sub-section 1 and Sub-section 2 deals with the rights of the father and states that the hindu father has the right to appoint a guardian and if he dies before the death of the mother, then such an appointment shall fail. It will only revive if the mother dies without appointing, by will, any person as guardian.

The rights of the mother include appointing a guardian for her illegitimate child. In this case even if she has predeceased the father, the father won’t have the right to appoint the guardian though he would be deemed at the natural guardian of the child. The testamentary rights are also vested in the widows and mother who are entitled to act as the natural guardian due to disentitlement of the father. In the case of a minor girl, as soon as she gets married, the testamentary rights of the guardian extinguish.

Testamentary Guardians have the same rights and limitations as that of a natural guardian.

Guardians appointed by the court (Certified Guardians)

The Guardians appointed by the court are termed as certified Guardians and the Court appoints a Guardian keeping in mind various psychological, physical and financial factors. The powers of such Guardians are regulated by the Guardians and Wards Act, 1980. The power to appoint a guardian in respect of as mitakshara hindu family minor who has an undivided interest only rests with the High Court (sec 12 of the The Hindu Minority and Guardianship Act, 1956.)

Powers of the Guardians

Section 8(1) of the Hindu Minority and Guardianship Act, 1956 vests in the natural guardian the power to take all the actions that are necessary or reasonable and proper for the benefit of the minor or take any action to realise, benefit or protect minor’s estate. A minor’s estate means a minor’s definite property and not his fluctuating indefinite interest in the joint Hindu family estate. Section 8 is in pari materia with sec 29 of the Guardianship and Wards Act, 1890.[3]

Liabilities of the Guardians

  1. The Guardian in carrying out the above mentioned powers can in no case bind the minor by a personal covenant. This means that though the guardian may impose a financial liability on the minor’s estate yet cannot make him personally liable for the losses or the liabilities that arise later due to such contract.
  2. Sub section 2 of Section 8 read with section 5 of the Hindu Minority and Guardianship act, 1956 supersedes the power vested in a natural minor to dispose of the immovable property of a Hindu minor. It is laid down explicitly that a natural guardian without the previous permission of the court-
  • Can not Mortgage, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor, or
  • Can not Lease any part of such property for a term more than that of five years or for a term more than that of one year after the date from the minor’s majority.

Conclusion-

It can be clearly deduced that ensuring the welfare of the minor and that a safe and nourishing environment is made accessible for the minors growth can be clearly derived as the biggest liability or the responsibility of the guardians and paramount guiding principle for the judiciary.

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