GUARDIANS UNDER HINDU LAW THE HINDU MINORITY AND GUARDIANSHIP ACT
Custody VS. Guardianship
- Custody is granted specifically as a matrimonial relief to a parent who seeks such custody, whereas guardianship exists at law.
- A guardian need not be a custodian; or a custodian, a guardian of the child.
- Guardianship is a more comprehensive term and can notes wider rights than mere custody
- Custody could be for a short duration or for a specific purpose but guardianship is more permanent in nature.
Who is a guardian?
Section 4 (b) of The Hindu Minority and Guardianship Act, 1956
“guardian” means a person having the care of the person of a “minor” or of his property or of both his person and property, and includes –
- A Natural guardian,
- A guardian appointed by the will of the minor’s father or mother, (Testamentary Guardian)
- A guardian appointed or declared by a court, and
- A person empowered to act as such by or under any enactment relating to any court of wards;
WHO IS NATURAL GUARDIAN?
Section 6 of HINDU MINORITY AND GUARDIANSHIP ACT
- Legitimate minor child – custody with mother if child is below 5 years of age (FATHER > MOTHER)
- Illegitimate minor child (MOTHER > FATHER)
- Minor married girl – If husband is also minor then Mother /Father of girl.(HUSBAND)
- Adopted child (SECTION 7) – (FATHER>MOTHER)
Disqualification from Natural Guardian
- If he has ceased to be a Hindu, or
- If he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)
POWER OF NATURAL GUARDIAN (SECTION 8)
- To do all acts which are necessary or reasonable and proper for the benefit of the minor,or for the benefit of the minor under a contract.
- Guardian can lease the property but not for more than 5 years or for a term which extends more than a year of the date of the minority attaining majority.
- Guardian cannot transfer /mortgage/charge/sale/gift/exchange any immovable property in name of the minor without prior permission of court. The court will grant such permission only if there is a necessity or there is an evident is an evident advantage to the minor.
- If the guardian makes a contact regarding the guardian or his immovable property which violates any of these conditions then the contract shall be voidable at the instance of minor
(SECTION 9) GUARDIAN AND THEIR POWERS
- A testamentary guardian 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 the Act.
(SECTION 10) – A minor can be a guardian of another minor but cannot be guardian for minor’s property.
(section 11) – De facto guardian not to deal with minor property. After the commencement of this 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.
(section 12) – Guardian not to be appointed for minors undivided interest in joint family property. Where a minor has an undivided interest in joint family property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest .
(SECTION 13) – Welfare of minor to be paramount consideration.
