In layman’s terms, guardianship is a legal responsibility conferred on a person either by a will or assigned by the court order to look after a minor child or an insane adult. Such guardian is obliged to perform certain duties towards the ward qua under the ambit of guardianship. The significance of child guardianship is that since minor lacks the mental capacity, which an adult possesses as qua they are in a growing phase. Hence, in front of the law, children are known to be incompetent. Consequently, the legal rights available to adults will not grant to minors unless and until they attain the age of eighteen. Per contra, there are several inherent legal rights with which a child is born example, the right to healthy food, Medicare, a safe environment, and education. Withal, accessible to several rights (ancestral property, filing suit) which the guardian will take care of, on behalf of the ward. In order to safeguard the body and property of the minor, a guardian will be appointed.
As far as Hindu Law is concerned, the umbrella legislation which addresses Hindu guardianship is the Hindu Minority and Guardianship Act of 1956. Back then, there was no statutory law to deal with Hindu guardianship since the Hindu Vedic families were joint families. If a child happens to lose his natural guardian alias parents, then the head of that family took responsibility for that concerned child. Howbeit, the status quo family structure is indifferent and necessitates such a law to settle the subject.
The said specific Hindu Act has its trace from the Guardian and Ward Act of 1890, which elucidates the notion and principles of guardianship along with the prescription of guardian appointment. Even though the concept of guardianship is a broad range of the spectrum, the definition of guardianship under Hindu law concerns the minor and his property.
Guardianship under the Hindu Minority and Guardianship Act of 1956:
Since the child is incapable of handling his own affair, he needs a competent adult to take care of his body and property. Section 3 of the Act expounds that it is particular for people who belong to Hindu, Buddhist, Jain, or Sikh by religion and excludes Christian, Muslim, Jews, or Parsi from its definition of application. Further, it defines the father as a natural guardian of a minor child, whereas the biological mother can act as a natural guardian only after the father’s demise or disqualified to be a guardian.
This Act considers no one other than the parents of the minor as a natural guardian. Withal empowers the court to appoint a guardian on the grounds of the doctrine of parens patrie, which bestows the state with inherent authority to safeguard legally incapable people. Testamentary guardianship has also secured its place under this Hindu law. Altogether, the quo animo of this Act is to ensure the welfare of minors and their interest.
Who is a minor? And who could be a guardian?
Section 4(a) of the Act explicitly defines a minor as a person who has not attained the age of 18. Naturally, subsequent clause (b) definition for major connotes guardian as an adult, who has vested with the responsibility of safeguarding the ward as a person and their property. Following are the types of guardianship mentioned in the Hindu Minority and Guardianship Act of 1956.
Significant types of guardians:
- Natural guardian
- Testamentary guardian
- Court appointed guardian
The aforementioned categories are not the all-inclusive type of guardianship. The Act per se considers an adult who voluntarily looks after the ward even without any legal authority within the realm of its definition under Section 4 and labels it as De facto guardian. The De facto guardianship comprises both the self-appointed guardian and the guardian of a minor widow (guardian by affinity).
- De facto guardian
- Guardian by affinity
Section 1(2) provides that this Act’s jurisdiction extends to all Hindus domiciled in and out of the motherland.
Section 2 of the Act clarified that it has not enacted to derogate the Guardians and Wards Act of 1890, whereas it is an extension of the same.
As per Section 3, this Act applicable to the wholesome Hindu community no matter whether the minor is a legitimate or illegitimate child of a Hindu parent. Withal, any person who converts or reconverts to the Hindu religion is also within the ambit of the Act’s definition.
Section 6 elucidates the concept of the natural guardians (inclusive of both body and property) and excludes step-mother and step-father from its definition. It recognizes the biological father as a natural guardian for the legitimate child and after him, the biological mother; whereas, it admits the biological mother as a natural guardian for the illegitimate child, and after her, it passes to the biological father. If the child of both categories is under the age of 5, then the mother would be the natural guardian.
If the minor girl is married, her husband is authorized to be a natural guardian under this Act.
Following Person restricted from becoming the guardian of a Hindu minor,
- A person who ceased Hinduism, or
- A person who follows ascetic life or becomes a hermit
The natural guardian of an adopted son is the adoptive father when he predeceased the adoptive mother, then guardianship passes to her as per Section 7. However, the law considers the adoptive parents as equal to the biological parents.
The natural guardian is empowered with certain powers regarding the body and the property of the ward. It has been given in Section 8 that, since the primary consideration of guardianship is the welfare of the ward; the minor should be granted basic rights. For instance, clause (1) prescribes the natural guardian to perform their duties in accordance with the welfare and interest of the minor. Concerning the property of the minor clause (2) of the said Section barred the guardian from the mortgage, transfer, or exchange of any immovable property entitled to the ward without seeking prior permission from the court of law. Withal, mandate the natural guardian to request permission from the court, in case of leasing any immovable property of ward for more than five years, or the period of such lease exceeds a year beyond the date when the ward attains 18 years.
The testamentary guardianship is described in Section 9, as a person nominated by the legitimate natural guardian stated in the previous section of the ward via a will. They possess all the powers conferred upon natural guardian but subject to restrictions mentioned in the will. Such testamentary guardianship of the girl ward ends with her marriage.
As per Section 10, a minor cannot take the award of another minor’s property. For instance, this Section allows the minor husband to be a guardian of his minor wife but not to her property.
A de facto guardian is a person, who acts in the interest of the minor or administers the properties of the minor without the authority of law. Section 11 denotes the alienation or sale of a minor’s property by such de facto guardian is void.
Further, Section 12 restricts the appointment of a guardian for the management of the minor’s undivided interest in joint family property and managed by the head of the family. Since, as per the Hindu law in relation to the joint family property. The Karta (the father or family’s head) is entitled to manage the property. The trace of this Hindu law principle is noticeable in this Section.
The enactment of this Act is solely for the welfare of Hindu minor. Thus, anyone can be appointed as a guardian, but his performance should be lucrative to the ward. Section 13 of the Act is alludes the same since the welfare of the minor is a paramount consideration. Under the realm of this Section, any court can cease a person from his guardianship, if it was against the benefit of the child.
In this case of Rajalakshmi v. Ramachandran, it was held that a person who donates or gift a property to a minor could not appoint a guardian to manage the same.
The consideration of guardianship is the welfare of the minor, but not upon the right of the parents. It has been held in the case of Rosy Jacob v. Jacob Chakramakkal.
The case of Essakkayal Nadder v. Sreedharan Babu, Wherein the mother, natural guardian of a minor was predeceased his biological father. Since the father was far from the child, he has been taken care of by his aunty. The court held that, unless and until the biological father was declared barred from being guardian on the grounds of Section 6, he is obliged to discharge the duties as a natural guardian. Withal, the court will never entertain a third person to perform the duties of the natural guardian.
In the case of Subhashappa P. Meti v. Maroti L. Sawarkar, the court has held that the alienation performed by a natural guardian without prior permission from the court is void ab initio. Per contra, the same has been held voidable in Iruppakutty v. Cherukutty case. In Sundaramurthy v. Shanmuganadar, the grandmother appoints the mother of the minor as testamentary guardian for the property given. But since the father is alive the mother cannot act as such a guardian. Additionally, the grandmother has no right to appoint a testamentary guardian, and the court held it void ab initio.
Regarding the guardianship of affinity, clarity was given in the case, Paras ram v. state, where the father-in-law of a minor widow girl took her away from her mother and forcibly married her to a man. It was held that the father-in-law was not liable since him the legitimate guardian of the minor by citing Section 13 of the Act. However, it was contented later by other courts.
The enactment of the Hindu Minority and Guardianship Act of 1956 is a lucid example of the fact that law-makers are concerning about the rights and safety of minors and assuring to provide them a better environment. Since children are the wealth of a nation, an offence against them in any form is punishable. Hence as whole statutory legislation inclusive of all religious communities should be enacted for the welfare of children.
 Chandra v. Prem Nath, 1969.
 Vijaylakshmi v. Police Inspector, 1991.
 Mohideen Ibrahim Nachi vs L. Mahomed Ibrahim Sahib, (1916) ILR 39 Mad 608.
 AIR 1967 Mad 113: ILR (1967) Mad 338: (1966) 1 MLJ 420.
 AIR 1973 SC 2090: (1973) 3 SCR 918: (1973) 1 SCC 840.
 AIR 2006 (NOC) 608 (Bom).
 AIR 1972 Ker 71.
 AIR 1992 Mad 214.
This article has been written by Snegapriya V S, final year of B.A LLB student at Vellore Institute of Technology (VIT law School).
Note - The information contained in this post is for general information purposes only. We try our level best to avoid any misinformation or abusive content. If you found any of such content on this website, please report us at [email protected]
Interested to publish an article at Law Corner? Click Here to submit your article.