In Ancient India there were no laws regarding guardianship of a child. It was only during the British era that laws of guardianship were evolved in courts. A guardian is a person who is formally appointed by the court to look after a child after the death of its parents until he is of age. Guardianship laws are codified under The Hindu Minority and Guardianship Act, 1956 (hereinafter ‘the Act of 1956’). Under sec. 4(b), a “guardian” means a person having the care of the person of a minor or of his property or of both his person and property.
WHO IS A NATURAL GUARDIAN?
A natural guardian is a type of guardianship, where the father and the mother or adopted parents are the guardians. They become so because of their natural relationship with the minor. The natural guardian of a minor boy or an unmarried girl is a father. After the death of the father, the mother is the next in line to become a natural guardian.
Sec. 6 of the Act defines who is a natural guardian. The natural guardians of a Hindu minor child and his/her property.
In the case of a boy or an unmarried girl is the father and after him, the mother provided that the custody of a minor who is below the age of five shall remain with the mother.
But this was changed in the two landmark cases of Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya, the Supreme Court held that in some instances, the mother can be the natural guardian even when the father is alive. The court stated that the words ‘after him’ should be elucidated as ‘in absence of’. The word ‘absence’ here means the absence of the father’s presence from the minor’s life and property. If in a case it happens that the parents have separated and are living separately for a prolonged time and if the minor child is residing with the mother then she would automatically become the natural guardian of the minor.
If the father of the minor is unconcerned about life and matters of the minor or if he is unable to take care of the minor physically then the father can be considered absent and the mother can validly act on behalf of the minor as its natural guardian.
In the case of Jijabai Vithalrao Gajre v. Pathankhan, the parents had a fallout and had been living separately and the minor daughter was residing under the care of the mother. The court held the mother to be the natural guardian of her minor daughter even when the father was alive because he was disinterested in taking any part in the life of the child.
- In the case of an illegitimate child whether it is a boy or an unmarried girl, the mother and after her father shall be the natural guardian.
- In the case of a married girl – the husband shall be the natural guardian.
A person shall cease to be the natural guardian of a minor –
- If they have ceased to be a Hindu, or
- If they have completely renounced the world by becoming a hermit or an ascetic.
It is to be noted that parents do not include step-parents.
POWERS OF NATURAL GUARDIAN
A natural guardian has the following powers in respect of a minor child –
- Right to custody,
- Right to determine the religion of children,
- Right to education,
- Right to control movement, and
- Right to reasonable chastisement
These powers are given to the guardians to take care of the interests of the minor. Hence these powers are to be used for the welfare and to maintain the interests of the minor and their property.
As per sec. 8 of the Act, the powers of the natural guardian to impose on the child are as follows:
1. A natural guardian of a Hindu minor has to perform all the work which is mandatory and valuable for the minor interests and its protection.
2. A natural guardian must take prior permission from the court to mortgage or transfer any sale, gift or any other immovable property of the minor and before leasing any of the minor’s property for a term of more than five years or for a term more than one year from the date when the minor turns into a major.
3. The disposal of any immovable property by the natural guardian shall be held as voidable at the instance of the minor itself or any other person claiming on its behalf.
4. A court shall not permit the natural guardian to do any act stated above until and unless it is proved that in is for the best interest of the minor.
5. For the application for getting the permission of the court, sec. 29 of the Guardians and Wards Act, 1890 shall be applied and the applications should be submitted to the Court within the local limits of whose jurisdiction the property of minor is situated.
HUSBAND AS NATURAL GUARDIAN OF HIS WIFE
Sec. 6 of the Act of 1956 states that a husband is the natural guardian of his wife after marriage. This law can be misused when people take away minor girls from their legal guardians through enticement or kidnapping and then marry them to evade from prosecution of legal guardianship under sec. 361 of Indian Penal Code.
Marriage of minors is prohibited by The Prohibition of Child Marriage Act, 2006. According to Section 12 of this Act, a marriage with a minor who has been kidnapped shall be termed as avoid marriage. Thus, when marriage with minor itself is a prohibited act by law then how can the right of guardianship be conferred upon someone who was part of an unlawful act? Furthermore, it can also happen that the husband may be minor too. In such a situation who may be conferred the right of a natural guardian? And if a minor’s guardianship is transferred after marriage, then an adult woman should be allowed to be the natural guardian of a minor boy. The probability of such an instance happening is low but not zero. This means that this section also discriminates between man & woman and is violative of Article 14 of the Constitution.
GUARDIANSHIP BY AFFINITY
In pre-1956 era of Hindu law, there existed a type of guardianship known as ‘guardian by affinity’. It means the guardian of a minor widow. Mayne said that “the husband’s relation, if there exists any, within the degree of sapinda, are the guardians of a minor widow in preference to her father and his relations”.
In the case of Paras Ram v. State, a minor widow was forcibly taken away from her mother’s house by her father-in-law and was married against her wishes to an unfitting person for money. The question which arose before the court was that whether the father-in-law was guilty of taking away the girl from her mother and marrying her forcibly. The Allahabad High Court held that the father-in-law was not guilty as he was the lawful guardian of the widow after the death of her husband.
However, this view has not been adopted by the Nagpur and Madras High Court. The Madras High Court held that the welfare of the child should be considered first. Sec. 13 of the Act of 1956, states that while appointing any person as a guardian, the welfare of the child should be of paramount consideration. Under Hindu law, after the death of the husband the father-in-law has the preferential right to be appointed as the natural guardian. But this is only a matter of secondary consideration as the welfare of the minor widow must be given priority.
NATURAL GUARDIANS UNDER MUSLIM LAW
Under both, Shia and Sunni law, only the father is recognized as a natural guardian. In Muslim law, the mother is not recognized as a guardian, natural or otherwise, even after the death of the father. The mother cannot be the natural guardian of her children even if they are illegitimate, but she is entitled to their custody.
The father’s right of guardianship exists even when the mother is entitled to the custody of the minor. The education, upbringing, religion and movement of the minor, all are controlled by the father. The father shall be the first and foremost guardian of his minor children, as long as he is alive. The father can be the natural guardian only of his minor legitimate children. He cannot be the natural guardian or take custody of his minor illegitimate children.
In Sunni law, the father is the only natural guardian of the minor children. After the death of the father, the guardianship passes over to the executor. In Shia law, after the death of the father, the grandfather becomes the natural guardian, even if the father would have appointed an executor. The executor of the father will only become the guardian in the absence of the grandfather. No other person, not even the brother can be a natural guardian. If there exists no grandfather, then the guardianship will extend to the grandfather’s executor.
Previously in Hindu law, there existed no guardianship rules as people used to live in joint families. Therefore, to have proper guardianship laws in the country The Hindu Minority and Guardianship Act, 1956 was introduced.
Section 6 of the Act defines natural guardians and Section 8 of the Act talks about the powers of a natural guardian. Section 6 states that the father is the natural guardian and after his death, the mother becomes the natural guardian. It meant that only after the death of the father the mother could become the natural guardian and they both cannot be natural guardian at the same time. Only after the case of Gita Hariharan v. Reserve Bank of India, the interpretation of the word ‘after him’ was extended to ‘in absence of’. It was found that there exists gender discrimination in the section as the first preference was given to the father. Many Law Commission Reports recommended removing the gender discriminations but the act was never amended.
The concept of guardianship and the Hindu Minority and Guardianship Act, 1956 need a renovation. For many, maternity is merely a matter of fact, but paternity is perceived as a matter of belief. In its 257th report on ‘Reforms in Guardianship and Custody Laws in India’, the Law Commission of India advocated for amending the required sections of the Act to fulfill the requirement for the right of equality under Article 14 of the Indian Constitution.
Accepting the recommendations in its 133rd report they stated that they would work towards removing the superiority of one parent over the other and also recommended that the welfare of the minor shall be of paramount consideration in every case and that both the father and the mother should be considered as the natural guardians of a minor at the same time.
 Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya (AIR 1999 SC 1149)
 Jijabai Vithalrao Gajre v. Pathankhan (1970 2 SCC 717)
 Paras Ram v. State (AIR 1960 All 479)
This article has been written by Malvika Verma, 4th Year BBA.LLB student at Sandip University.
Also Read – Guardianship Under Hindu Law