Guardianship under Hindu Law with Cases by Shruti Chauhan | Law Notes | Family Law

The Dharmashastra did not deal with the law of guardianship of minors in detail. During the British regime, the law of guardianship was developed by the courts. The Guardian and Wards Act was passed in 1890 and conferred on the district court power of appointing a guardian of minor children belonging to any community.

Later, the Hindu law of guardianship of minor children has been codified and reformed by the Hindu minority and guardianship act, 1956.

Object of Hindu Minority and Guardianship Act 

The whole and sole object of this Act is the interest and welfare of the child. The object of this act is that the child should be taken care of physically as well as morally.

Application of this Act (sec-3) This act applies to a person who is Hindu, Jain, Buddhist or Sikhs by religion.

Who is minor under this Act?[sec-4(a)]

Minor means a person who has not completed the age of 18 years and who is not physically and intellectually perfect and immature and hence need someone’s protection.

Guardian- means a person having care of the person of minor or of his property or of both his person and property.

Types of guardian

Ø  Natural guardian
Ø  Testamentary guardian
Ø  Guardian appointed by the courts

Other two types of guardians under Hindu law-

Ø  de facto guardians i.e. self-appointed guardian
Ø  guardians by affinity, i.e.guardian of a minor widow

NATURAL GUARDIAN (sec-6)

Hindu law recognizes three persons as a natural guardian: Father, Mother and husband.

The natural guardian of a Hindu minor, in respect of the minor person as well as in respect of the minor’s property (excluding his or her undivided interest in the joint family property), are –

• in case of a boy or unmarried girl- the father, and after him the mother provided that custody of the minor who has not completed the age of the 5 years shall vest with 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.

The proviso to Sec. 6 says that no person shall be entitled to act as natural guardian -

• If he has ceased to be a Hindu
• If he has completely and finally renounced the world

Explanation- “father” and “mother” do not include step-father and step-mother.

Natural guardianship of adopted son (sec-7)

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.

Cases-

Githa Hariharan v. RBI, AIR 1999 SC 1149

In this case under certain circumstances the has held to be the natural guardian of the minor under certain circumstances and the word “after” has interpreted to mean “in absence of” instead of “after the lifetime”. It is further held that absence would mean absence from the care of minor’s person or property for whatever reason.

Subhashappa P. Meti v. Maroti L. Savarkar, AIR 2006 (NOC) 608 (Bom)

In this case it was held that alienation of minor’s property by the natural guardian of a minor, without prior permission of the court is void ab initio.

Iruppakutty v. Cherukutty AIR 1972 Ker 71

 It was held that Alienation of property without the permission of the court is voidable at the option of minor.

Sundra Murthy v. Shanmugandar AIR 1980 Mad 207

It was said that the mother can’t be natural guardian so long as the father is alive but she can act with the permission of the court if the father refuses, neglects or fails to act as the guardian.

Rights of natural guardian

• Right to custody
• Right to determine the religion of children
• Right to education
• Right to control movement
• Right to reasonable chastisement

Powers of natural guardian (sec-8)

(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 sub-section (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.

TESTAMENTARY GUARDIAN

TESTAMENTARY GUARDIAN is a person who is appointed in a will to act as guardian. testamentary guardians are appointed by a widowed parent of a minor child or disabled adult child to render assistance to the children. Parents through their own preference may appoint a guardian in a valid will to assist and guard minor.  Court will determine the availability or suitability of the decision or preference of the parent.

When, during the British period, testamentary powers were conferred on Hindus, the testamentary guardians also came into existence. It was father's prerogative to appoint testamentary guardians. By appointing a testamentary guardian the father could exclude the mother from her natural guardianship of the children after his death but now it is not allowed.

Under the Hindu Minority and Guardianship Act, 1956, a testamentary power of appointing a guardian has now been conferred on both parents.

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 not to effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as the 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.

** The father may appoint a testamentary guardian but if the mother survives him, his testamentary appointment will be ineffective and the mother will be the natural guardian. If mother appoints testamentary guardian, her the appointee will become the testamentary guardian and father's appointment will continue to be ineffective. If the mother does not appoint, father's appointee will become the guardian.

A Hindu father cannot appoint a guardian of his minor illegitimate children even when he is entitled to act as their natural guardian, as Sec. 9(1) confers testamentary power on him in respect of legitimate children. In respect of illegitimate children, Section 9(4) confers the  power of appointing a testamentary guardian on the mother alone
Sundra Murthy v. Shanmuganadar AIR 1980 Mad 207

Where the grandmother appoints a testamentary guardian for the property bequeathed to minor, during the lifetime of father, the mother cannot alienate the property of the minor as grandmother has no power to appoint the testamentary guardian .such alienation would be void abinitio.

Guardians Appointed by the Court

The courts are empowered to appoint guardians under the Guardians and Wards Act, 1890. The High Courts also have inherent jurisdiction to appoint guardians but this power is exercised scarecely. The Hindu Minority and Guardianship Act is supplementary to Guardians and Wards Act. Under the Guardians and Wards Act, 1890, the jurisdiction is conferred on the District Court: The District Court may appoint o any person as the guardian whenever it finds that it is necessary for the welfare of the child. While appointing court take into consideration various factors like age of child, sex, parent’s wish, and personal law of child. The welfare of the children is of paramount consideration.

The District Court has the power to appoint or declare a guardian in respect of the person as well as separate property of the minor or for both. This power extends to the undivided interest of a coparcener.

The guardian appointed by the court is known as a certificated guardian.

Powers of Certificated guardians

Powers of certificated guardians are controlled by the Guardians and Wards Act, 1890. Only a few acts can be performed without seeking the prior permission of the court. His powers are co-extensive with the powers of the sovereign and he may do all those things (though with the permission of the court) which the sovereign has the power to do. A certificated guardian from the date of his appointment is under the supervision, guidance and control of the court. entire acts of the certified guardian are under the surveillance of the court.

Guardianship by affinity

Guardianship by affinity is the guardian of a minor widow. This was taken into its logical end in the case of Paras ram v. state, in this case, father-in-law of a minor widow forcibly took away minor from her mother’s house and married her to unsuitable person for sake of money. The question arose that whether father-in-law was guilty of forcibly removing widow from her house or not. The Allahabad High court held that he was not guilty as he was a lawful guardian of the minor widow.

Under Section 13, Hindu Minority and Guardianship Act, in the appointment of any person as guardian, the welfare of the child is the paramount consideration. The fact that under Hindu law father-in-law has preferential right to be appointed as guardian is only a matter of secondary consideration.

DE FACTO GUARDIAN (sec-11)

A de facto guardian means self – appointed guardian. He is a person who takes continuous interest in the welfare of minor’s person or in management or administration of minor’s property without any authority of law. alienation made by de facto guardian is void.

This is all about guardianship under Hindu law and whole and sole purpose of guardianship is the welfare of the child.

References

•      Modern Hindu Law by PARAS DIWAN
•      Wikipedia.org

    Shruti Chauhan is student of law at PSIT, Kanpur.