GUARDIANSHIP UNDER HINDU LAW
This article is written by Surbhi Jain, the student of B.COM LL.B.(H), 3rd year in Amity University Madhya Pradesh.
In this article is related to guardianship under Hindu law. In this article, I will try to explain the whole guardianship concept in the very short and simple way.
The Dharmashastra did not cope up with the law of guardianship of minors in detail. During the British authorities, the law for the guardianship was developed by the courts.
The Guardian and Wards Act was passed in 1890 and conferred at the district court power of appointing a guardian of minor children belonging to any of the community.
Later on, the Hindu law of guardianship of minor has been codified and reformed through the Hindu minority and guardianship act, 1956.
First of all, before we jump onto the topic deeply, we need to have a clear understanding of the basics to assist us understand it better. In India, guardianship in a Hindu family is regulated by the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890 which deals with the basic concepts of the very topic and laws regarding the appointment of a guardian.
What’s the actual meaning of the term guardian?
So, Guardian means that a person who taking care of the minor physically or of his property or of both, person and his property.
A guardian can be a person who has an established and positive relationship with that child or young person, like any relative or kinship carer, a family friend or an authorised carer also. A Guardian as defined u/s 4(b) of the Hindu Minority and Citizenship Act, 1956.
He may be a person who is appointed by a court to make personal decisions for a minor child or an incapacitated adult, which is commonly called as ward. Such decisions usually include day-to-day living arrangements or health care, education, and other matters associated with the ward’s comfort and well-being too.
Types of guardian:
- Natural Guardian: Father, Mother and Husband (impliedly repealed).
- Testamentary Guardian: A person appointed by the will of the minor’s father or mother.
- Certified Guardian: Appointed or declared through the court.
Other two kinds of guardians under Hindu law-
- De facto guardians: Self-appointed guardian
- Guardians by affinity: Guardian of a minor widow
Natural Guardian of a Hindu Minor:
In Hindu Minority and Guardianship Act, 1956, section 6 recognises the three persons as natural guardians, the father, the mother and the husband.
Clause (a) – In case of a boy or an unmarried girl, the father and then after him, the mother: It is provided that in case of a minor child, if the age is less than 5 years, then the custody shall rest with the mother.
But before 1956, a father would have been successful in curbing the guardianship rights of the mother by appointing a testamentary guardian before his death however after the 1956 Act, the appointment of a testamentary guardian is rendered ineffective, if the mother of the child is still alive.
Although, the law says that when the father is alive, is the natural guardian of the child and only after his death the mother woul. become a natural guardian. There are certain exceptions to it. The SC has clarified that the word ‘after’ as mentioned in the section itself does not only connotes, ‘after the death of’ but also entails ‘in absence of’ as well. Where the father has not raised any of the objection to any actions of the mother because of his indifference or wherein the minor has been in the specific care of the mother and the father hasn’t taken care of the property of the minor or of him in person, due to some kind of mental or physical incapacity he would be deemed absent for the purpose of this section.
Sundra Murthy v. Shanmugandar AIR 1980 Mad 207
It was said in this case that the mother can’t be a natural guardian so long as the father is alive, but she can act with the permission of the court if the father refuses or neglects or fails to act as the guardian.
Subhashappa P. Meti v. Maroti L. Savarkar, AIR 2006 (NOC) 608 (Bom)
In this case, it was held that alienation of minor’s property by the natural guardian of a minor without prior permission of the court is void ab initio.
Iruppakutty v. Cherukutty AIR 1972 Ker 71
In this case, it was held that the alienation of property without the permission of the court is voidable at the option of the minor.
Clause (b) – Mother: lawful Guardian of her illegitimate children.
In this clause, mother is held to be the natural guardian of the illegitimate child even if the father of that minor is alive. No preferential right will be given to the father.
Clause (c) – Husband: lawful guardian of a minor wife.
This clause is impliedly repealed, due to the provisions of s.3 of the Prohibition of Child Marriage Act, 2006.
Under this section, the guardianship can be terminated in the two situations only if,
- If such guardian ceased to be a Hindu, or
- If he has completely renounced the world by becoming a hermit (vanaprastha) or an ascetic (sanyasi).
Thus the Hindu Law recognizes only three persons as natural guardian i.e., father, mother and husband.
Section 7 of this act states that the natural guardianship of an adopted son who is minor at the time of the adoption passes to the adoptive father and after him to the adoptive mother.
Testamentary guardians are the ones who are appointed by the will of the parents of the minor to act as guardian. Parents may appoint a guardian through their own preference in a valid will to assist and guard minor. Then court will determine the availability or suitability of the decision or the preference of the parent.
Section 9 of the Hindu Minority and Guardianship Act, 1956 determines the provisions related to the testamentary guardians. Sub-section 1 and Sub-section 2 of this section deals with the rights of the father and states that the Hindu father has the right to appoint a guardian, and if he dies before the death of the mother then such an appointment will be failed. It will only revive, if the mother dies without appointing any person as guardian by will.
The rights of the mother of the minor include appointing a guardian for her illegitimate child. In that case, even if she has predeceased the father then also father won’t have the right to appoint any guardian, though he would be deemed as the natural guardian of the child. The testamentary rights will also vested in the widows and mother also who are entitled to act as the natural guardian due to the disentitlement of father.
In case of a minor girl, when she gets married, the testamentary rights of the guardian will be abolished.
Testamentary Guardians have the same rights and limitations as that of a natural guardian.
Duraiswamy vs Balasubramanian AIR 1977Mad 304:
In this case, the child’s testamentary guardian can’t sell or transfer any part of the immovable property of a minor without seeking the permission of the court.
Sundra Murthy v. Shanmuganadar AIR 1980 Mad 207
Where the grandmother appoints any testamentary guardian for the property bequeathed to minor during the lifetime of the father, then the mother cannot alienate the property of the minor as grandmother has no power to appoint any testamentary guardian. Such alienation would be void ab initio.
Guardians appointed by the court (Certified Guardians):
The Guardians appointed by the court are known as Certified Guardians and the Court when appoints a Guardian, kept in mind about different psychological, physical and financial factors. The powers of such Guardians are defined in the Guardians and Wards Act, 1980. The power to appoint any guardian in respect of the mitakshara hindu family, minor who has an undivided interest only rests with
the High Court under sec 12 of the The Hindu Minority and Guardianship Act, 1956.
The Hindu Minority and Guardianship Act, 1956 is supplementary to The Guardians and Wards Act, 1980. Under the Guardians and Wards Act, 1890 the jurisdiction is conferred on the District Court. The District Court may appoint any person as the guardian, whenever it finds to be necessary for the welfare of the child. While appointing the guardian, court take into consideration various factors like, age of child, sex, parent’s will, and personal laws of child also. The welfare of the children is of the paramount consideration.
And the District Court has the power to appoint or declare a guardian in respect of person as well as the separate property of the minor or of both. This power will extend to the undivided interest of a coparcener.
De Facto Guardianship:
- A self-appointed guardian is termed as de facto guardian. He is the person who is appointed by reason of the fact becomes the guardian of a child. After the death of the natural guardians of that child, any person who takes continuous interest in the welfare of the minor’s person or in management of minor’s property or of both, without any authority of the law becomes the de facto guardian. He may be any person such as, the uncle or aunt of that child or any elder brother or elder sister or he may be anybody who provides necessities to the minor child. The de facto guardian are like as the natural guardian. They cannot dispose of or alienate the property of a minor child, until and unless it is necessary or for the welfare of the child. The permission of the court will still be required. Alienation made by the de facto guardian is void. There is a kind of controversy regarding the status of a de facto guardian; some HC consider that alienation by de facto guardian is void while alienation by de jure guardian is voidable. It was held in the case of Ashwini Kr v. Fulkumari, Cal HC 1983.
While some HC held that both are voidable in Sriramulu’ case 1949.
According to Section 11 of the said act, De Facto guardian is not allowed to dispose or deal with the property of the minor and it is given that the guardian have not any rights to take any debt.
Guardianship Act talks about the de facto guardian of the minor.
- Hanuman Prasad V/s Mst. Babooee Mumraj
Guardianship By Affinity:
Before the period of 1956, there was a guardian which is known as guardianship by affinity. It was the guardian of a minor widow which was defined under Guardianship and Wards Act, 1850. Whereas, in Hindu Minority and Guardianship Act, 1956, there is no provision given for the guardianship of a minor widow.
As in earlier period of the Smritis, child marriages were very common. In that period of time, after the marriage happened of a minor girl with the husband, the husband became the guardian of that girl. If in any of the situation, the husband died then the minor widow should not feel unsafe because when a minor girl becomes a widow, then the husband’s relatives have all the responsibilities to protect and maintain her, but if in any case, in husband’s family no one is there, then the father of the widow have to take the responsibilities of the widow to protect and to maintain her.
Under Section 13 of the Hindu Minority and Guardianship Act, 1956, it is said that in the appointment of any person as guardian, the welfare of the child is the paramount consideration and the fact that is given under Hindu law, father-in-law has preferential right to be appointed as the guardian is only a matter of the secondary consideration.
Paras Nath v. State, Allahabad HC 1960
It was held in this case that the rightful guardian of a minor widow is the father-in-law. Therefore, it is clear that, this view has not been adopted by Nagpur HC and Madras HC also did not hold this view and also held that the welfare of the child is to be considered to be the first before anything else. The question arose that, whether the father-in-law will be guilty of forcibly removing widow from her house or not. Then, the Allahabad High court held that he will not be guilty, as he was a lawful guardian of the minor widow.
Powers of the Guardians:
In Hindu Minority and Guardianship Act, 1956, section 8(1) vests in the natural guardian, the power to take all the actions that are necessary and proper for the welfare of the minor or to take any of the action to realise benefit or protect minor’s estate. A minor’s estate means that a minor’s definite property and not his fluctuating indefinite interest in the Joint Hindu family estate.
Narayan Laxman Gilankar vs Uday Kumar Kashinath Kaushik, AIR 1994 Bom 152.
The power of Natural Guardian can be defined under two heading:
- Right regarding the body of the Minor
- Right regarding the property of the Minor.
These powers also include the following rights:
- Right in education
- Right to determine religion
- Right to custody
- Right to control movement
- Right to chastisement
Now, Section 8 of the Hindu Minority and Guardianship Act, 1956, describes the powers of a natural guardian as follows:
- A guardian can do any act, subject to provisions of this section that are necessary or reasonable and proper for the benefit of the minor or the benefit of the minor’s estate. But the guardian will not bind the minor by a personal covenant in any case.
- The guardian cannot, without prior permission from the court,
- Mortgage, charge, or transfer of the immovable property of the minor, by way of sale, gift, exchange, or otherwise.
- Lease the immovable property, for a term more than 5 years and where the lease ends in one year after the minor attains majority.
- Any sale of immovable property in violation of these above two points is voidable at the insistence of the minor.
- The court shall not give permission for the sale of immovable property until and unless it is necessary or clearly in the benefit of the minor.
Manik Chandra v. Ram Chandra AIR 1981 SC
It was held in this case that, the meaning of “necessity” and “advantage” of a minor are quite broad and also the courts have the power to widen their scope as per the case facts before giving the permission. As per section 12 of the act, no guardian can be appointed for the undivided interest in the joint property of the minor. Therefore, the court may appoint a guardian for the complete joint family (if required).
Minor cannot be the guardian of another minor as described in the Section 10 of the Act, that no minor can be a guardian of another minor. In the case of Ibrahim v. Ibrahim, 1916, it was held that the minor can be the guardian of his wife but cannot be guardian of her property.
After studying the laws formulated and the diverse precedents set through the judiciary, it can be certainly deduced that ensuring the welfare of the minor and that a secured and nourishing environment is made accessible for the minors growth can be actually derived as the important liability or the responsibility of the guardians and paramount guiding principle for the judiciary.
If any guardian appointed a child, then it is like creating a relationship of the child and the guardian. It creates the subject matter of the personal law. It is mandatory for a minor to protect his property and for that reason, there is a guardian who will take care of him and his property too. From the above explanation, we can clearly understand that the guardian is very necessary for a minor for the welfare of the child and to protect him physically or mentally and secure him from any danger.
This article is all about the guardianship under Hindu law and I have tried to explain in a very simple and short way that, the whole and sole purpose of the guardianship is the welfare of the child.
Author: Surbhi Jain,
Amity University Madhya Pradesh/ 3rd year student