In the Hindu Dharamshastras, there is no proper information given about the guardianship. The reason behind this is the concept of joint families where children without parents are taken care of by the head of the joint family which is the Karta of the family. Thus, no specific laws were made regarding the guardianship. In modern times the concept of guardianship has changed from the paternal or male dominating power to the idea of protection of the child. For this, the Hindu Minority and Guardianship Act, 1956 codifies the laws regarding minority and guardianship with the motive of the welfare of the child at the core.
Under the Hindu Minority and Guardianship Act, 1956 a person is said to be a minor if he is below the age of Eighteen years. According to this act, he is incapable of taking care of himself or of handling his affairs and thus requires help, support and protection by any senior person. Under such a situation a guardian has to be appointed for the care of his body and his property.
According to Section 4 of HMG Act, 1956 Guardian means a person having the care of a person of a minor or of his property or of both the person and his property. This includes:
According to section 6 of HMG Act, a natural Guardian of a minor and for his property in the first place is his father in the case of a boy and an unmarried girl and after father’s death mother will be in the position of a natural Guardian. But, for the minor up to age of five years the mother will be the first natural Guardian (will not include his or her interest in the joint undivided family). In the case of illegitimate minor the mother will be the first Guardian and after her death father has to take the responsibility as the guardian. For the married minor girl her husband will be the natural Guardian. The person can’t act as a natural Guardian if he has ceased to be Hindu, i.e, if he has renounced the world of becoming vanaprastha or sanyasi. In section 6, the exceptions to the term father and mother are stepfather and stepmother.
In the case of Manik Chandra v. Ram chandra ,it was held that the meaning of “necessity” and “advantage” of a minor are quite wide and the courts have the power to widen their area as per the case facts before giving the permission. As per section 12, no guardian can be appointed for the undivided interest in the joint property of the minor. However, the court may appoint a guardian for the complete joint family if required.
In case of E.M. Nadar v. Shri Haran, 1992, it was held by the court that the father is guardian of minor even if living separately.
In case of Vijaylakshmi v. Police Inspector, 1991, it was held that when father conve rts to be non-Hindu then mother shall be natural guardian.
In case of Chandra v. Prem Nath, 1969, it was held that the guardian below the age of 5 years is mother.
Githa Hariharan v. RBI, AIR 1999 SC 1149
In this case under certain circumstances the mother has held to be the natural guardian of the minor under certain circumstances and the word “after” has interpreted to mean “in absence of” instead of “after the lifetime”. It is further held that absence would mean absence from the care of minor’s person or property for whatever reason.
Powers of Natural Guardian
Keeping in the view the importance of above lines the body of minor under Section 8 of the HMG Act that the natural guardian can perform all the function regarding care of the minor which are in his benefits.
The Power of Natural Guardian Property of Minor – Section 8 of HMGA 1956 describes the powers of a natural guardian as follows:
(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court,—
(a) Mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or
(b) Lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular—
(a) Proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof.
guardian appointed by the will of a natural guardian (testamentary guardian):
It is obvious that every parent want his child to be in better hands after them and that so in the legal manner. For this they appoint a person who can take of their child as the original parents. This person is known as the testamentary guardian of the child who would provide the child with every possible need and helps him bringing up as a better person. According to Hindu minority and guardianship act 1956, the power of appointing the Guardian was given to both, Mother and father. If father appoints the Guardian and mother is still alive then automatically she will become the natural Guardian and the testamentary Guardian appointed by father will be ineffective. If mother choose the testamentary Guardian then the father’s appointment will be considered void and if she does not choose any Guardian then the father’s appointment will be considered as a testament to Guardian of the minor child. The Hindu father has no right to appoint a Guardian for his minor illegitimate child.
In the case of Ram Chandra v. Sayarbhai, the husband died and in his will, he appointed his cousin as the testamentary guardian of his wife. The question before the court was for the guardianship of the wife of the deceased. Here, even though the Father in Law of the wife was living, the court gave the guardianship rights to the cousin of the deceased as the father in law used to ill-treat the wife and as any guardian is to be appointed keeping in mind the welfare of the party, he was given the guardianship rights. Welfare principle is to be given paramount consideration and hence cousin was given the rights.
A guardian appointed or declared by court:
The courts are empowered to appoint guardians under the Guardians and Wards Act, 1890. The High Courts also have inherent jurisdiction to appoint guardians but this power is exercised in a limited manner. The Hindu Minority and Guardianship Act is supplementary to Guardians and Wards Act. 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 that it is necessary for the welfare of the child. While appointing, court take into consideration various factors like age of child, sex, parent’s wish, and personal law of child. The welfare of the child is of paramount consideration. The District Court has the power to appoint or declare a guardian in respect of the person as well as separate property of the minor or for both. This power extends to the undivided interest of a coparcener. The guardian appointed by the court is known as a certificated guardian.
In Mohini v. virendra, the court held that while appointing or declaring a person as the guardian of the minor, welfare of the minor shall be the paramount consideration.
In Bimla v. Subhash, court held that under the guardian and ward act, 1890,the jurisdiction of appointing guardian is conferred on the District court. The court may appoint or declare any person as the guardian whenever it considers it necessary in the welfare of the child.
A person empowered to act as such by the order of Court of Wards.
This list of 4 types of guardians is not complete. A person, who is taking care of a minor without orders of law, can also be a guardian under the above definition under the term de facto guardian. De facto guardians include self-appointed guardians and guardians by affinity or empathy, such as guardian for a minor widow. However, a person does not have right to sell or deal with minor’s property if he is merely a de-facto guardian as per section 11, as a restriction to law.
In earlier times, child marriage was very common and after marriage the husband would become the natural Guardian of the minor girl. In case if the husband died, the minor widow should not feel unsafe. In this situation, the husband’s relatives have the duty to protect and maintain her. And if there are no relatives, the widow’s father takes the responsibility to protect and maintain her.
But it was always preferred that the minor widow’s custody should remain with her mother or father rather than her in laws for better bringing up of the child. She will be safer in the hands of her own parents and would be more comfortable with her needs and wants.
The relatives of the husband act as the Guardian for the minor widow and are known to be the Guardian by affinity.
In the case of Paras ram v. state, the father-in-law of a minor widow forcibly took her away from her mother’s house and married her to unsuitable person for sake of money. The question arose that whether father-in-law was guilty of forcibly taking widow from her house or not. The Allahabad High court held that he was not guilty as he was a lawful guardian of the minor widow.
Under Section 13 of the Hindu Minority and Guardianship Act, in the appointment of any person as guardian, the welfare of the child is the paramount consideration. The fact that under Hindu law, father-in-law has preferential right to be appointed as guardian is only a matter of secondary consideration.
Position of Unwed Mothers for Sole Guardianship:
A glimpse of patriarchal society can be seen in our Hindu Minority and Guardianship Act where the first natural guardian of a child for both property as well as person is father and after him is the mother. But as society is modernizing, its laws have to change accordingly so that people also change and develop. The apex court had understood this proposition very well. Consequently, in recent judgments, Supreme Court allowed an unwed mother to apply for sole guardianship of a minor child.
In case of Ms. Githa Hariharan & Anr vs Reserve Bank Of India & Anr, an educated and employed mother wanted to make her five-year-old child nominee for her investments but was asked for the paperwork in which she was either required to provide the name of the father or guardianship certificate. The district court rejected her claim because under section 11 of the Guardians and Wards Act, 1890 she needs to disclose the information of the father of that child which she denied to do.
When this case was transferred to the high court, they gave the reasoning for upholding this case that even if the mother is unmarried, the father of that child could have an interest in the child. But the Supreme Court bench headed by Justice Vikramjit Sen overturned this judgment by laying down two fundamental rules; firstly the interests of the child are supreme and in the pursuance of that a mother can be considered as guardian; secondly on the ground of privacy, woman has a fundamental right to protect the father’s identity.
The judgment of this case had at least given a ray of hope to unwed women who have fought for the equal rights in guardianship, which will ease out their daily life chores from school admission and bank account opening forms to investment papers, official documentation insists on the father’s name. In Gita Hariharan case where she appealed to the Supreme Court on not able to make an investment for her son as his guardian because of the fact that it required for father’s information should be mentioned. In this case, the couple was separated and the mother was the guardian of the child.
The court of law held that both parents will be treated on equal footing for the purpose of guardianship and the word ‘after’ in Hindu minority and guardianship act should not be assumed that the mother’s position would be secondary. But the father’s information is still required by many private and public institutions.
This new ruling had benefitted the society in two ways, firstly protection of rights of a child born out of wedlock and secondly provided a legal status to single mother especially for the children of sex workers. This judgment will at least do some good and safeguard the rights of unwed mothers or illegitimate child which Guardianship act had mentioned but society had still not accepted.
 Hindu Minority and Guardianship Act, 1956
 AIR 1981 SC
 AIR 1969 DELHI 283
 AIR 1999 SC 1149
 AIR 1977 SC 1359
 1992 PAT 96 case
 Allahabad HC 960
 (AIR 1999, 2 SCC 228)
Author Details: Tanishka Ruia (PES University)