Law on Minority and Guardianship

LAW ON MINORITY AND GUARDIANSHIP

Introduction

  • The Hindu Minority and Guardianship Act, 1956 governs modern rules on minority and guardianship.
  • The father is the child’s natural guardian, and following his death, the mother will assume responsibility for the child’s guardianship.

Definitions

  • A minor is defined as someone under the age of 18 years old, according to Section 4(a).
  • A guardian, according to Section 4(b), is a person who has reached the age of 18 and is responsible for a minor, as well as his/her own.

Natural Guardianship

According to Section 4(c) of the Act, the natural guardian assigns to the father and mother of the minor. For a minor wife, his husband is the guardian. Section 6 of the Act gives 3 types of natural guardian in the following:

  • Father- A father is the natural guardian of an unmarried boy or girl; the father is the first guardian, and the mother is the second. Only up to the age of five years is the mother the natural guardian of the child, according to the Act.
  • Mother- Even if the father is alive, the mother is the first guardian of a minor illegitimate kid.
  • Husband– The natural guardian of a minor wife is her husband.

1. Section 6 specifies that no person will be authorised to act as a natural guardian of a juvenile in this section, which reads as follows:
2. If he or she stopped being a Hindu.
3. If he or she has entirely given up the world and is preparing to become an ascetic (sayansi) or hermit (vanaprastha).

Powers of natural guardian

  •  According to Section 8, the natural guardian has the following powers to impose on the child:

1. A Hindu minor’s natural guardian has the authority to do any duties that are both obligatory and beneficial to the minor’s well-being. Protection or advantages of the minor’s situation
2. For the use of the gift transferred to him, mortgage, or any other valuable items of the minor, the natural guardian must obtain prior authorization from the Court.
3. For the lease of any part of a minor’s property for a period of more than 5 years or for a time that extends one year after the minor’s attainment of majority. In order to do so, the Court’s authorization is required in advance.
4. Any violation of a natural guardian’s disposal of immovable property shall be voidable in the case of the minor or any other person claiming on his behalf.
5. No court will allow the natural guardian to do anything that is not in the best interests of the minor.
6. The Guardians and Wards Act, 1890, governs the application for court authorization if it is made under Section 29 of that Act and for the following reasons:

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  • The natural guardian must obtain approval from the District Court or a court established under the Guardians and Wards Act of 1890.
  • Should file an application with the court in the jurisdiction in which a portion of the minor’s property is located.
  • When the Court denies the natural guardian’s request to do any acts of property transfer, an appeal will be denied, and this remedy is usually the consequence of the Court’s judgement.

Testamentary Guardianship

  • Only a will can appoint a testamentary guardian under Section 9 of the Hindu Minority and Guardianship Act, 1956.
  • The testamentary guardian is required to accept the guardianship adoption, which can be declared or implied.
  • A testamentary guardian has the option of declining the appointment, but once appointed, he or she cannot refuse to function or quit without the Court’s approval.
  • Both the father and mother have testamentary rights to choose a guardian under the Hindu Minority and Guardianship Act, 1956.
  • If the father appoints a testamentary guardian but the mother rejects him, the father’s appointed guardian becomes ineffective, and the mother becomes the natural guardian.
  • If the mother names a testamentary guardian, that person becomes the testamentary guardian, and the father’s appointment becomes null and void.
  • If the mother does not want to appoint a guardian, the father will appoint one for her.
  • Even if he is allowed to act as their natural guardian, it appears that a Hindu father cannot appoint a guardian for his minor illegitimate children.

Court Appointed Guardianship

  • The king’s total jurisdiction over the children was sanctioned in the early days of Smritis.
  • The king had the authority to appoint a minor’s closest relative as guardian.
  • Only relatives on the paternal side were given precedence over those on the maternal side.
  • This type of law was created by ancient lawgivers solely for the protection of children.
  • The Guardians and Wards Act, 1890, gives courts the authority to exercise these powers.
  • A certified guardian is a guardian who has been appointed by the courts.
  • While the appointment of any person as guardian is being considered by a Court under Section 13 of the Hindu Marriage and Guardianship Act, 1956, the benefit of the minor shall be the first consideration.
  • As a result, the king or the Court has been entrusted with the responsibility of appointing a guardian for the protection of a minor in both ancient and modern times.
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De facto Guardianship

  • A minor, who is under the age of majority, may obtain property through inheritance, gift, or other means, but because he or she is beneath the age of majority, he or she will be unable to properly care for the property.
  • According to the Smritis, the king is responsible for the minor’s property. Manu argues in this statement that the king should protect an inheritance accepted by a youngster until his studies are done or he reaches the age of majority.
  • According to Section 11, the De Facto guardian is not permitted to dispose of or deal with the minor’s property, and the guardian is not permitted to take any debt.
  • In the matter of Smt. Beti Bai vs. Jagdish Singh and Ors, Aparbal Singh was the plaintiff’s father, who is no longer alive. Aparbal Singh had two spouses because his first wife died during his lifetime owing to some issue, and then his second wife, who was the respondent, entered his life. And, for some reason, the child of the second wife perished as well. Finally, after Aparbal Singh died, the second wife seized all of the property, and the first woman’s son filed a case. According to Sections 4, 6, 8, and 11 of the Hindu Minority and Guardianship Act, 1956, the response was in favour of the plaintiff, and the plaintiff was entitled to the property. The Court further decided that because the respondent had a relationship with that person, she has the right to one-third of the property when she petitions the competent authorities for partition.
  • Hindu law attempted to find a solution to two difficult situations: first, when a Hindu child has no legal guardian, there would be no one to manage his property under law, and thus the child would not receive any benefits for his property; second, a person without a designation could not be allowed to interfere with the child’s property in such a way as to cause him loss; and third, a person without a designation could not be allowed to interfere with the child’s property in such a way as to As a result of this problematic situation, Hindu law established a legal status for De Facto guardians.
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Guardianship by Affinity

  • Child marriage was fairly common in the Smritis’ early days. Following the marriage of a minor girl to the husband, the husband was appointed as the girl’s guardian. If the spouse dies under whatever circumstance, the minor widow should not feel threatened.
  • According to Narada, when a juvenile girl becomes a widow, her husband’s relatives are obligated to safeguard and sustain her. If no one from the husband’s family is available, the widow’s father assumes the widow’s responsibility to protect her.
  • Before 1956, there existed a guardian known as affinity guardianship. The Guardianship and Wards Act, 1850 established a guardian for a minor widow.
  • The Hindu Minority and Guardianship Act, 1956 makes no provision for the guardianship of a minor widow.
  • In the case of Paras Ram vs. State, it was determined that the father-in-law of a minor widow pulled her away from her mother’s control and married her to an inappropriate person without her consent. The father-in-law was found guilty of forcibly removing the girl without her consent by the court.
  • He was found not guilty by the Allahabad High Court since he was the widow’s legal guardian.
  • On the death of the minor widow’s spouse, an issue has arisen in the Court as to whether the husband’s closest blood relations automatically become guardians of the minor widow or if he chooses to become a guardian and, as a result, he cannot serve as guardian but is appointed as such. Paras Ram appears to agree with the prior viewpoint.

Author: SAMEER AFZAL ANSARI,
GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY , THIRD YEAR , SIXTH SEMESTER , BACHELORS OF ARTS AND BACHELORS OF LEGISLATIVE LAWS

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