The motive behind creation of the Hindu Minority And Guardianship Act, 1956 is to amend and compile certain parts of the law regarding minority and guardianship among Hindus. It extends to the whole of India except the State of Jammu and Kashmir. It also applies to those Hindus who reside in the territories mentioned in this Act but are outside the area.
Application of the Hindu Minority And Guardianship Act, 1956
Section 3 of the Act details the applicability of the law. The Act applies to any person who belongs to any form of Hindu, including ‘Virashaiva’, ‘Lingayat’, or a follower of Brahmo, Prarthana, or AryaSamaj. It is also applicable to a person belonging to the religion of Buddhist, Jain, or Sikh and to any person who resides in territories to which this Act extends but is not a member of Muslim, Christian, Parsi, or Jew by religion unless proven that the person would not have been governed by the Hindu Law or by any custom as part of that law in respect of any of the matters dealt with here if this Act had not been passed.
The following people are considered to be Hindus, Buddhists, Jains, or Sikhs by religion under the Hindu Minority And Guardianship Act, 1956:
- Any legitimate or illegitimate child whose parents are both Hindus, Buddhists, Jains, or Sikhs by religion;
- Any legitimate or illegitimate child whose one parent is a part of Hindu, Buddhist, Jain, or Sikh by religion and is brought up as a member of the tribe, community, group, or family, which such a parent is or was a part of;
- Any person who is a convert or a re-convert to Hindu, Buddhist, Jain, or Sikh.
“Minor” and “Guardian”
Section 4 (a) of the Act defines “minor” as a person who has not completed the age of 18 years. Section 4 (b) defines a “guardian” as a person who is taking care of the minor and/or his property. A ‘guardian’ includes a “natural guardian”, a guardian who is appointed by the will of the minor’s father or mother, a guardian who is appointed or declared by a court, and a person who is empowered to act as such by any enactment to any Court of wards.
Overriding Effect of Hindu Minority And Guardianship Act, 1956
Section 5 mentions the overriding effect of the Hindu Minority And Guardianship Act. Any text, rule, or interpretation of Hindu Law or any other practice which is a part of the law in force, right before the commencement of this Act, shall not have effect with respect to any matter for which provision is made in this Act.
Any other law in force right before the commencement of this Act shall not have an effect so far since it is inconsistent with any of the provisions contained in this Act.
Section 6 of the Act defines the term “natural guardian”. This is in respect of the minor’s person and property, irrespective of their undivided interest in the joint family property.
The natural guardians of a Hindu minor are as follows:-
- The father will be the natural guardian for a boy or an unmarried girl. After him, the mother becomes the natural guardian, provided that the custody of a minor who has not completed 5 years shall ordinarily be with the mother.
- For an illegitimate boy or an illegitimate unmarried girl, their mother will be the natural guardian. After her, it is the father.
- For a married girl, the natural guardian is the husband.
No one shall be entitled to act as the natural guardian of a minor, as mentioned in this section, if he has stopped being a Hindu, or if he has renounced the world by becoming a hermit ‘vanaprastha’ or an ascetic ‘yati or sanyasi’. It is to be noted that the terms ‘father’ and ‘mother’ do not include step-father or step-mother.
Natural guardianship of adopted son.
Section 7 of the Hindu Minority And Guardianship Act, 1956 states that the natural guardianship of an adopted minor son who passes to the adoptive father on adoption and after him the adoptive mother.
Powers of a natural guardian.
Section 8 of the Hindu Minority And Guardianship Act, 1956 discusses the powers of a natural guardian.
The natural guardian of a Hindu minor has the power to do all necessary acts which will benefit the minor’s personal and/or property. The guardian cannot be binded to the minor by a personal covenant.
The natural guardian without the permission of the court shall not mortgage, charge, sell, gift, exchange or transfer otherwise any part of the immovable property of the minor. Also, the guardian shall not lease any part of the property for a term more than five years or for a term more than a year past the date on which the minor will turn major.
If the natural guardian disposes of any immovable property, breaching Subsection 2 of Section 8, it is voidable at the time of minor or any other person claiming under him.
The natural guardian will not be granted permission by any court to do any action mentioned in Subsection 2 of Section 8, except in case of necessity or for an evident advantage to the minor.
The Guardians and Wards Act, 1890, shall apply to an application for getting the permission of the court under Subsection 2 of Section 8 as if it were an application for getting the permission of the court under Section 29 of the Act, specifically
- Proceedings regarding application shall be considered to be proceedings under the Act within the meaning of Section 4A;
- The court shall observe the procedures and will have the powers specified in Section 31(2), (3), and (4) of the Act;
- An appeal shall lie from an order of the court, not permitting the natural guardian to do any of the acts mentioned in the Subsection 2 of Section 8, to the court which appeals ordinarily lie from the verdicts of that court.
In this section, the term “Court” refers to the city civil court or a district court or a court empowered under Section 4(A) of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction is the immovable property mentioned in the application is situated and where the immovable property is situated within the jurisdiction of more than one such court, which means the court within the local limits of whose jurisdiction any portion of the property is situated.
Testamentary guardians and their powers.
Section 9 defines the term “testamentary guardians”.
A Hindu father who is authorized as a natural guardian of his minor and illegitimate children, may willingly appoint a guardian for any of them for the minor’s person and/or property. If the father dies before the mother without willingly appointing a guardian, then the appointment made under this Section shall have no effect.
A Hindu widow and a Hindu mother who has a minor legitimate child is entitled to act as the natural guardian (the father has become disentitled to Act as such), may willingly appoint a guardian for any of them for the minor’s person and/or property. The same is the case for a Hindu mother with minor illegitimate children.
The guardian appointed willingly will have access to the ‘right to act’ as the minor’s guardian, after the death of the minor’s mother or father. The person so appointed can exercise all the rights of a natural guardian under this Act and subject to any restrictions as specified in this Act and in the will. This right will cease in marriage, in the case of a minor girl.
The incapacity of a minor to act as the guardian of property.
Section 10 states that a minor is not competent to act as a guardian of the property of any minor.
De facto guardian is not to deal with the property of a minor.
Section 11 states after the commencement of the Act, no person shall be entitled to dispose or be dealt with the property of a Hindu minor, solely based on them being the ‘de facto’ guardian of the minor.
The guardian is not to be appointed for the undivided interest of the minor in the joint family property.
Section 12 states that no guardian shall be appointed for the minor where the minor has an undivided interest in joint family property and the said property is under the control of an adult member of the family, 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.
The welfare of minors to be a paramount consideration.
Section 13 discusses the welfare of minors. The welfare of a Hindu minor shall be of paramount consideration on the appointment of the Court after the declaration of a person as the guardian of the minor in question. No one shall be entitled to guardianship on account of the provisions of this Act or of any other law relating to the guardianship in marriage among Hindus if the Court is of the opinion that the guardianship will not be for the welfare of the minor.
This article has been written by Nithyakalyani Narayanan. V, B.A. LL.B(Hon) student at Amity Law School, Noida.
Also Read – Guardianship Under Hindu Law