According to the ‘Merriam Webster’s Dictionary, the English Meaning of the Word ‘Guardian’ means one who guards or takes care of person or property of another. Legally, Guardian means a person who is entrusted by law with the care of the person or property, or both, of another, as a minor or someone legally incapable of managing his or her own affairs. One important thing to be noted here is that One can be a guardian only for a Minor Person or an unsound person who cannot manage his own affairs. A Guardian can never be there for a Major Person. According to the Indian Majority Act, 1875, Major Person means a person who had completed the age of 18 years.
TYPES OF GUARDIANS UNDER HINDU LAW
Our Ancient Hindu Law or ‘Vedas’, ‘Smritis’, Shrutis’, does not talk that much about Guardianship. It is only after British Regime that the concept of Guardianship emerged and evolved. The Concept of Guardianship was developed by British Courts.
Guardians may be divided into three classes, namely:
- Natural Guardians,
- Testamentary Guardians, and
- Guardians appointed under the Guardians and Wards Act, 1890
Also, The Hindu Minority and Guardianship Act, 1956 (Hereinafter called “the Act”) incidentally abolished the concept of “De Facto Guardians” under Section 11 of the Act (discussed later in this article).
Section 4(b) of the Act defines “Guardian” as:
- A person having the care of the person of a minor or of his property or of both (person and property)
- Natural Guardian (Section 6)
- A Guardian Appointed by the will of Minor’s father or mother
- A Guardian appointed or declared by Court
- A person empowered to act as such by or under any enactment relating to any court of wards
As far as Natural Guardians are concerned;
- In the case of Boy or an unmarried girl (Minor)- The Father and after him, the Mother (custody of a child below 5 years shall ordinarily vest with the mother of the Child.)
- In the case of Illegitimate child- the Mother and after her, the Father.
- In case of a Married Girl- the Husband
The Father and Mother mean Biological Father and Mother and not Step Father or Mother.
Due to the usage of the word “After Him” This section brought many controversies with respect to constitutionality of the provision as violative of Article 14 of the constitution as these provisions discriminate between father and mother. It was in the case of Githa Hariharan v. Reserve Bank of India that SC held that ”the phrase the father and after him the mother, the word after him need not necessarily mean after the lifetime of the father. Apex court using the purposive rule of Interpretation said that the context in which it appears in Section 6(a) it means ‘in the absence of, the word ‘absence’ therein referring to the father’s absence from the care of Minor’s Property or person for whatsoever reason like insanity, carelessness, renunciation this world etc.
DE FACTO GUARDIAN
A de factoguardian is a person who takes continuous interest in the person of the Minor or his property or both without any authority of law. Although a de facto guardian is not appointed by any court or not given authority by any authorized person.
The term de facto as such is not defined in any of the texts but his existence has never been denied in Hindu Law. In the case of Ethilulu v. Pathakal, Hindu Law tried to find a solution out of two difficult situations: firstly, when a Hindu Child has no legal guardian there would be no one who would handle and manage his estate, in law and thus without a guardian, the child would not receive the profits which could arise from his estate and Secondly, a person having no title could not be permitted to intermeddle with the child’s estate so as to cause loss to him.
The Hindu Law finds solution to the above two problems by according legal status to de facto guardians. Although Section 11 of The Hindu Minority and Guardianship Act, 1956 abolished the authority or status or powers given to de facto Guardian.
Section 11: De Facto Guardian not to deal with Minor’s Property
After the Commencement of 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.
STATUS OF DE FACTO GUARDIAN BEFORE 1956
The thing to be noted down here is that the absolute power to dispose or deal with the property of a minor to a de facto guardian was not given even before the commencement of the Act. Meaning thereby: only few alienation by de facto guardian (i.e. which is justified on the reason of legal necessity and Benefit of Estate) were allowed. The power of a de facto guardian to alienate or deal with the property of Minor is discussed in the case of Hanuman Prasad V/s Mst. Babooee Mumraj. A de facto guardian of minor’s property has powers to bind minor’s estate by a simple contract or debtor to borrow money on the security of Negotiable instrument, provided that the contract, debt or loan is for legal necessity or benefit of the minor’s estate and provided further that the guardian has not excluded his liability under the contract, debt or negotiable instrument.
POSITION OF DE FACTO GUARDIAN
In the case of Amanat Hussain and Anr. Vs. Sahida Begum and Ors.
The alienation made by de facto guardians are on a par with those made by de jure guardian under the Hindu Law and if they lack justification, they are voidable and as such application of Article 44 of the Limitation Act, 1908 is an inescapable corollary which is not the position in respect of transfers made by a de facto guardian under the Mahomedan Law, where all transfers made by a de facto guardian are void.
In the case of Jadav Prabhatbhai Jethabhai vs. Parmar Karsanbhai Dhulabhai
Under the old Hindu law, a de facto guardian enjoyed the same powers as a natural guardian. Alienation by a natural or de facto guardian should be supported by necessity or benefit. Alienation by a natural guardian not supported by benefit or necessity is only voidable and is valid unless set aside. Such an alienation by a de facto guardian is void and the minor on attaining majority can ignore it or ratify it and need not be set aside.
After the commencement of Hindu Minority and Guardianship Act, 1956, through Section 11 of the Act, No person shall be entitled to dispose of, or to deal with, the property of a Hindu minor merely on the ground of his/ her being the de facto Guardian. The one who can deal with the property of Minor is either his natural guardian or testamentary guardian or any other person who has been declared by Court as his guardian. Still, if any alienation or management is done by any de facto guardian and not de jure then the minor on attaining majority, can file a suit to rescind or repudiate that transaction within three years from the date of attaining majority. It is also settled now that the de facto guardian has no power to acknowledge debt on behalf of the Minor. It is also settled law that the de facto guardian has no power to make reference to arbitration or to make a gift of Minor’s Property.
 See, Statement and objects and Reasons, The Hindu Minority and Guardianship Act, 1956
 AIR 1999 SC 1149
 SEE, Family Law (Dr. Paras Diwan)
 AIR 1950 Mad 390
 (1856) 6 M.I.A. 393
This article has been written by Neha Gupta Kaushik, 2nd Year, LLM student at DDEKUK.
Also Read – Guardianship Under Hindu Law