Guardians under the Hindu minority and Guardianship Act, 1956

The Hindu Minority and Guardianship Act, of 1956 has been enacted to modify and codify certain provisions of Hindu law dealing with minority as well as guardianship. It regulates the entire territory of India. Furthermore, it governs Hindus who reside within the areas referred to in the Act but are not in the area. It is relevant for Hindus as well as Buddhists, Jains and Sikhs. 

 A child cannot care for himself, his own body and property in the early years of life owing to his minority. He is incompetent to manage his problems. Nonetheless, understanding the difference between what is correct and what is not is beyond the capacity of a minor. He needs someone’s support and guardianship of someone for take care of himself. Laws have been implemented by taking into consideration the well-being of minors.

Definitions

“Minor” and “Guardian” are defined in Section 4 of the Hindu Minority and Guardianship Act, 1956.

1. Minor

Minor is defined under section 4(a) of the Hindu Minority and Guardianship Act, 1956 as a person who is below the age of 18 years is a minor.

2. Guardian

A guardian is defined under section 4(b) of the Hindu Minority and Guardianship Act, 1956 as a person who is responsible for the property and well-being of a minor. There are 4 types of guardians under the Act-

i.Natural Guardian (Section 6)

ii. Testamentary Guardian (Section 9)

iii. De facto Guardian (Section 11)

iv. Guardian appointed by the court (Section 12)

Types of Guardians under the Hindu minority and Guardianship Act, 1956

The aforementioned types of guardians have been authorized by the Hindu Minority and Guardianship Act of 1956-

1. Natural Guardian

“Natural Guardian” is described under section 6 of the Hindu Minority and Guardianship Act,1956. It asserts that a Hindu minor’s natural guardian about his well-being as well as his property (eliminating his or her undivided interest in the family property that is jointly owned) shall be

I. Father will be the natural guardian of a boy and an unmarried girl. Mother will be their natural guardian after him. Furthermore, the mother will have the custody of a minor who is below the age of 5 years.

ii. Mother will be the natural guardian of an illegitimate boy and an illegitimate girl. Father will be their natural guardian after her.

iii. The husband will be the guardian of a married girl.

In addition, Section 6 of the Hindu Marriage Act, 1956 also asserts that no person is authorized to act as a natural guardian of a minor on the following grounds:

i.If he has lost his Hindu identity by converting to a different religion.

ii. If he has entirely and finally left the world by becoming an ascetic or a hermit (vanaprastha).

Moreover, the terms “father” and “mother” do not include a stepfather and a stepmother. 

Natural guardian of an adopted son

The natural guardian of an adopted son has been described under section 7 of the Hindu Minority and Guardianship Act,1956. The natural guardianship of a child who has been adopted and is a minor goes to the adoptive father after adoption, followed by the adoptive mother.

Powers of a natural guardian

The powers of a natural guardian are outlined in section 8 of the Hindu Minority and Guardianship Act, 1956.

• As per section 8 (1), the natural guardian of a Hindu minor is authorized to perform any act which is essential or appropriate and is suitable for the good of the minor or for safeguarding the minor’s estate. Under any circumstances, the minor cannot be bound by a personal covenant by his guardian.

• As per section 8 (2), a natural guardian must have prior consent of the court to

a.mortgage or charge, or sell, gift, interchange, or transfer any part of the minor’s immovable property; or 

b.lease any portion of the property in question for a duration that exceeds five years or for a duration that exceeds one year immediately after the minor attains majority.

• As per section 8 (3), if a natural guardian disposes of any immovable property by violating sub-section (1) or sub-section (2), it can be revoked at the minor’s request or by anyone who has claimed on his behalf.
• As per section 8 (4), the natural guardian is not permitted by any court to perform any of the acts referred to in subsection (2), unless in cases where it is necessary or the child will undoubtedly benefit from it.
• As per section 8 (5), The Guardians and Wards Act, 1890 must be applicable to and in regards to an application seeking court permission under subsection (2) in all circumstances as though it was an application seeking court permission according to section 29 of that Act. 

2. Testamentary guardian

“Testamentary Guardian” and their powers are described in Section 9 of the Hindu Marriage Act,1956.

• As per section 9 (1), a father who is the natural guardian of his legitimate minor children is authorized to appoint any individual as their guardian by will, about the minor person and his property (excluding the undivided interest mentioned in section 12).

• As per section 9 (2), the appointment of a guardian made under sub-section (1) will be ineffective if the father dies before the mother, but will resurrect if the mother passes away without assigning a guardian in her will.

• As per section 9 (3), a Hindu widow who is qualified to act as the natural guardian of her minor legitimate children and a Hindu mother who is qualified to act as the natural guardian of her minor legitimate children because the father is no longer authorized to act as the natural guardian may appoint a guardian by will with regards to minor’s property and well being (excluding the undivided interest mentioned in section 12).

• As per section 9 (4), a Hindu mother who is qualified to act as a natural guardian of her minor legitimate children is authorized to appoint a guardian by will for the minor’s property and well-being.

• As per section 9 (5), the guardian whose appointment has been made by the will has the authority to act as the minor’s guardian following the death of the minor’s father or mother, depending upon the facts and circumstances of the case and exercise all rights of a natural guardian by certain restrictions mentioned in the will and Act.

• As per section 9 (6), the rights of the testamentary guardian whose appointment has been made by will, for a minor girl, shall terminate after her marriage. 

3. De facto guardian

According to section 11 of the Hindu Minority and Guardianship Act, 1956, a de facto guardian is a person who is interested in taking care of the minor and his property. He is not a legal guardian of a minor and has no authority over the property of the minor.

4. Guardian appointed by the court

The court is authorized to appoint any individual as a guardian for a minor. Minor’s welfare is taken into consideration while appointing a guardian for him. According to the Act’s specifications, no one is entitled to act as a minor’s guardian if the court deems that his or her guardianship is not appropriate for the minor’s well-being.

Conclusion 

Children are the future leaders of our country. They should be nurtured in a positive environment which will be fruitful for their personality development. In the initial years, they cannot make their own decisions and understand the difference between right and wrong. 

They need someone who can look after them, provide love, and support and take care of their basic needs. They bring pleasure and optimism and play a crucial role in the growth, development and prosperity of the society. They are the upcoming generation who will contribute to the cultural and economic development of the country. 

Their actions towards society depend on the kind of environment they are brought up. They are highly influenced by their surroundings.  If they are nurtured in a positive environment, they will develop a positive outlook for other people. They will develop a positive approach to bringing changes beneficial to society and contribute to the progress of the nation.   Hence, a guardian for a child should be appointed only after taking consideration of his safety, protection and welfare. The Court takes into account the welfare of the minor while assigning a guardian for him.

Footnotes

[1]https://www.advocatekhoj.com/library/bareacts/hinduminority/index.php?Title=Hindu%20Minority%20and%20Guardianship%20Act,%201956

[1]https://www.legalserviceindia.com/legal/article-6542-who-are-the-guardians-recognized-under-the-hindu-

minority-and-guardianship-act-1956-.html

[1]https://www.indiacode.nic.in/bitstream/123456789/1649/1/195632.pdf

This article has been contributed by Asmita Shrivastava, a student at  pursuing BA LLB (H) from NMIMS, Indore.