Guardianship Under Hindu Minority and Guardianship Act, 1956

Theoretical overview

In the premature stage of one’s life, a child is incapable of taking care of his/her own body and his/her property because of his minority. A child cannot handle his/her own matters. A child is even unable to understand what is right and what is wrong. So, he requires the help of some other person to take care of himself. For the advantage of the minors, the lawmakers have made specific laws which allow some relaxation and support to the lives of the minors. The modern laws on minority and guardianship are regulated by the Hindu Minority and Guardianship Act, 1956. According to Section 4(a), a “minor” means who has not completed the age of 18 years. According to Section 4(b), a “guardian” means a person having the care of the person of a minor or of his property or both his person and property. 

Types of Guardians 

As per Section 4(b) of The Hindu Minority and Guardianship Act, 1956, there are three types of guardians:

1. Natural Guardian 
2. Testamentary Guardian i.e., a guardian appointed by the will of the minor’s father or mother
3. A Guardian appointed by the court or a certified gaurdian

Natural Guardian 

In Hindu Law, only three persons are recognized as natural guardians:

1. Father: A father is the first and the foremost a natural guardian of a boy or unmarried girl; the father is the first guardian and the mother is the next guardian of the minor. In Essakkayal Nadder v Sreedharan Babu, the mother of the minor children was dead, but the father was not residing with the children, who were being looked after by the aunty. It was held that though father was not residing with his children, this does not authorise any other person to assume the role of natural guardian and alienate the minor’ property. 
2. Mother: The mother is the natural guardian of the minor illegitimate children even if the father is alive. However, she is the natural guardian of her minor legitimate children only if the father is dead. Section 6(a) of the Hindu Minority and Guardianship Act lays down that the custody of minor who has not completed the age of five years shall ordinarily be with the mother. In Githa Hariharan v Reserve Bank of India,  if the father is physically unable to take care of minor for any reason whatsoever, the father can be considered to be absent and mother being recognised natural guardian can act validly on behalf of the minor as the guardian. The term ‘after’ used in Section 6(a) has been interpreted as “in absence of” instead ‘after the lifetime’, 
3. Husband: The husband is the natural guardian of his minor wife. The courts, in interpreting the provision have subjected it to the welfare of the minor wife. In Arumugo v Viraraghava, it has been held that it is ordinarily not in the welfare of an immature minor to live in the custody of her husband.  

Powers of a Natural Guardian

As per Section 8, the powers of the natural guardian to impose on the child are as follows:

1. The natural guardian of a Hindu minor has the power to do all work, which are necessary, or reasonable and proper for the benefit of the minor. condition. The guardian cannot bind the minor by a personal covenant. 
2. The natural guardian should bring the prior permission from the Court, for the use of the gift transferred to him, mortgage or any other valuable things of the minor.
3. For the lease of any part of minor’s property for about exceeding 5 years or for a term of extending one year beyond the date on which the minor attains the majority. The prior permission from the Court is very much needed for doing so.
4. Violation of any disposal of the immovable property by a natural guardian, it will be voidable at the case of the minor or any other person claiming on the behalf of him. In Iruppakutty v Cherukutty, it was held that alienation of property without the permission of the court is voidable at the option of the minor.
5. No Court shall grant permission to the natural guardian to do any act of the acts mentioned in Section 8(2) except in the case of necessity or for an evident advantage to the minor. 
6. The Guardians and Wards Act, 1890 will apply in respect of an application for obtaining the permission of the court under Section 8(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.

Testamentary Guardian

Under Section 9, of the Hindu Minority and Guardianship Act, 1956 testamentary guardian only authorized by a will. It is compulsory for the testamentary guardian to receive the guardianship adoption which may be expressed or implied. A testamentary guardian has the right to decline the appointment, but once he /she receives the guardianship then he/she cannot decline to perform or resign without the permission of the Court.

a) Father: A Hindu father entitled to act as a 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 minor’s separate property, or both. If the father executes a will to appoint a guardian and if he dies in the lifetime of his wife, then the appointment will be of no effect and mother will be the guardian of minor, but in case the widowed mother of the minor dies without appointing any person as guardian of the minor, the appointment made by father shall revive. 

b) Mother: After the death of the father the natural guardian of a minor child is his or her mother. The mother may also appoint a guardian in respect of minor’s person or in respect of minor’s property or both by will. The Hindu mother may also appoint testamentary guardian in respect of her illegitimate children. The natural guardian of an illegitimate child is the mother, and after her the father. 

c) Widowed mother: A Hindu widow who is entitled to act as the natural guardian of her legitimate children may by will appoint a guardian for any of them in respect of the minor’s person or property or both. 

Powers of the Testamentary Guardian 

a) The testamentary guardian has the power to exercise all the rights of the natural guardian to such an 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 the will shall, where the minor is a daughter, cease on her marriage. 

b) The restrictions on testamentary guardian’s powers are imposed by the Hindu Minority and Guardianship Act and the will of the testator.

c) The testamentary guardian cannot alienate the property of the minor without the permission if the court. In Iruppakutty v Cherukutty,  it was held that alienation of property without the permission of the court is voidable at the option of the minor.

Removal of Testamentary Guardian

Under Section 39 of the Guardians and Wards Act, 1890, a testamentary guardian can be removed by the Court. Some of the grounds for the removal of a testamentary guardian are as follows:

• Abuse of his trust
• Continuous failure to perform his duties
• Incapacity to perform the duty
• Ill-treatment or neglect to take proper care of his ward.
• Continuous disregard to any of the provisions of the Act
• Conviction of an offence for moral turpitude
• Having an adverse effect
• Ceasing to reside within the local limits of the jurisdiction of the court.
• On being adjudged insolvent.

De facto guardian

The term de facto has not been mentioned in any text but its relevance in hindu law can not be denied. When one person takes the liability on befalf of a minor without any legal sanctity, it is termed as de facto guardian. This type of guardian make continuous effect to take care of a minor without any lega obligation. He is not a legal guardian but has a justification about his conduct.

Certified guardian

A certified guardian is that guardian who is appointed by the court. The district court is empowered to appoint a person as a guardian for the welfare of the child.

Guardian by affinity

Guardian by affinity is the guardian of the minor widow, though the marriage with a minor is voidable. The persons within the sapinda degree of the widow minor are her guardians.

Relevant sections – Hindu Minority and Guardianship Act, 1956

Section 6. 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.

Section  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. 

Section 8. Powers of natural guardian – (1) 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. (2) 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. (3) 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 any person claiming under him. (4) No court shall grant permission to the natural guardian to do any of the acts mentioned in subsection (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the 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. (6) In this section, “Court” means the city civil court or a district court or a court empowered under section 4A of the Guardians 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.

Section  9. Testamentary guardians and their powers – (1) 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 to in section 12) or in respect of both. (2) 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. (3) 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. (4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate 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. (5) 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. (6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.

Section  10. Incapacity of minor to act as guardian of property – A minor shall be incompetent to act as guardian of the property of any minor. 

Section 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.

Important case laws

Essakkayal Nadder v Sreedharan Babu, the mother of the minor children was dead, but the father was not residing with the children, who were being looked after by the aunty. It was held that though father was not residing with his children, this does not authorise any other person to assume the role of natural guardian and alienate the minor’ property.

Paras Ram v. State – in this case the father-in-law of a minor widow forcibly took away the widow from her mother’s house and married her for mone to an unsuitable person against her wishes. The question before the court was whether the father-in-law was guilty of removing the girl forcibly. The allahbad high court held that he was not, since he was the lawful guardian of the widow.

Gita Hariharan v. Reserve Bank of India – the supreme court has held that under certain circumstances, even where the father is alive, mother can act as a natural guardian. The term after used in section 6(a) has been interpreted as in absence of instead after the life time.

Points to remember

• According to Section 4(a), a “minor” means who has not completed the age of 18 years. According to Section 4(b), a “guardian” means a person having the care of the person of a minor or of his property or both his person and property. 
• A father is the first and the foremost a natural guardian of a boy or unmarried girl; the father is the first guardian and the mother is the next guardian of the minor 
• The mother is the natural guardian of the minor illegitimate children even if the father is alive 
• The natural guardian of a Hindu minor has the power to do all work, which are necessary, or reasonable and proper for the benefit of the minor. condition. The guardian cannot bind the minor by a personal covenant. 
• Under Section 9, of the Hindu Minority and Guardianship Act, 1956 testamentary guardian only authorized by a will. It is compulsory for the testamentary guardian to receive the guardianship adoption which may be expressed or implied 
• The term de facto has not been mentioned in any text but its relevance in hindu law can not be denied.   
• Guardian by affinity is the guardian of the minor widow 
• A certified guardian is that guardian who is appointed by the court