HINDU MINORITY AND GUARDIANSHIP ACT, 1956 BY TWINKLE KWATRA

INTRODUCTION

The Hindu Minority and Guardianship Act were established in the year 1956 as part of the Hindu Code Bills. This act extends to the whole of India  and applies to Hindus domiciled in our country. This act was launched to enhance the rules under Guardians and Wards Act, 1890. Hindu Minority and Guardianship act was introduced to modernize the Hindu legal tradition and to codify certain parts of the laws relating to minority and guardianship among Hindus. This act serves explicitly to define guardianship relationships between minors and adults, as well as between the people of all ages and their respective property. In this article, we view the various aspects of the Hindu Minority and Guardianship Act, 1956 in detail.

According to act – a Hindu means not only a person that follows Hinduism but also includes other sects of Hinduism, such as- Buddhists, Jains, Sikhs, Virashaiva, Lingayat, or members Arya Samaj. As a matter of fact, the Hindu Adoption and Maintenance Act covers everyone residing in India who is not a Christian, Muslim, Parsi or Jew.

LET’S UNDERSTAND THE ACT THROUGH BARE ACT

SEC 6:NATURAL GUARDIANS OF A MINOR

The natural guardian 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—

  •  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
  • in case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father
  • 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—

  •  if he has ceased to be a Hindu, or
  • 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 expression “father” and “mother” do not include a step-father and a step-mother.

SEC 7: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.

SEC 8:POWERS OF NAURAL GUARDIANS

  • 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.
  • 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.
  •  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 by any person claiming under him.
  • No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in the case of necessity or for an evident advantage to the minor.
  • The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining 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 sub-sections (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 this section “court” means the city civil court or a district court or a court empowered under section 4A of the Guardian 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.

SEC 9:TESTAMENTARY GUARDIANS AND THEIR POWERS

  • 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 in section 12) or in respect of both.
  • 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.
  • 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.
  • A Hindu mother entitled to act as the natural guardian of her 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 or in respect of both.
  • 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.
  • The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.

SEC 10:IN CAPACITY OF MINOR TO ACT AS GUARDIAN OF PROPERTY

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

SEC 11: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.

SEC 12: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.

SWC 13:WELFARE OF MINOR TO BE PARAMOUNT CONSIDERATION

  • In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
  • 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.

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