Guardianship Under Hindu Law

Introduction

Laws concerning Guardianship were nowhere to be found in the earlier sources of texts of Dharmashastras, albeit extant, very few and scanty in numbers. Most of the texts talked about, were related to the protection of the properties of orphan minors and not of the ones with living parents.

The King being regarded as the supreme guardian was the parens patrie and every minor and their property, within his territorial jurisdiction came under his protection. Parents were not entitled to the designation of guardians in any texts except for those of Narada.

The lack in the development of the law was majorly due to two reasons. For starters, due to the prevalence of joint family systems children mostly were part of the joint families and were under the care of the Karta (manager of joint family and joint family properties) even after the death of their father.

Secondly, the children who resided out of the joint families and were of the first three classes were bound to study in guru’s ashrama and were under the protection of the guru. Again, if the child suited neither of the conditions, the general principle of parens patrie ^[1]was laid down.

The law was finally brought to existence during the British regime by the courts where the father and mother were held to be the “natural guardians of minor children”^[2]. The concept of Testamentary guardians was also introduced and the courts resided with the duty to exercise the powers of the King with whom the authority of supreme guardianship vested.

In the past few decades, guardianship has taken up the notion of security and protection from that of parental rights and obligations and the Act prescribes the rules governing minorities and guardianship, with the child’s welfare concentrated at its center. Additionally, “The Guardians and Wards Act of 1890” conferred district courts the authority to assign guardians for children belonging to any community.

Established in 1956, the “Hindu Minority and Guardianship Act”, codified as act number 32, reinforced “The Guardians and Wards Act 1890”, rather than serving as its replacement.^[3] It was enacted and enforced under the rule of Pandit Jawaharlal Nehru on 25^th August 1956.

It comes under the ambit of the Ministry of Law and Justice and the Legislative Department covers the subject. Section 3 of the Act talks about the extent of its applicability where any persons belonging to the Hindu community i.e, Hindus, Buddhists, Jains ad Sikhs are covered under this act.

This law is also applicable to everyone who is not a Muslim, Christian, Parsi, or Jew living or domiciled in the region covered by this statute. Sections 4 and 5 provide the definition of minors & guardians and the overriding effect of the Act. It entails that any law or customs in existence before the commencement of the Hindu Minority and Guardianship Act would be subject to cessation if any of their interpretations conflict with the provisions contained in the Act.

Furthermore, under the Act, the subject is divided into majorly two categories: (i) Guardianship of the Persons (ii) Guardianship of Property of Minors. Additionally, De facto Guardians and Guardians by affinity form a sub-major part of the topic. The following shall be discussed in the upcoming chapters.

Guardianship of the Person

Originally conceived solely as a concept of an extension of parental powers and rights, guardianship came a long way to shaping itself into the idea of protection under modern law. Section 4(b) of the Act narrows down the broadened definition of guardian to a person endowed with the obligation for looking after the minor’s physical well-being or his possessions or both. Accordingly, they are divided into 3 categories:

• Natural Guardian
• Testamentary Guardian
• Certified Guardian

Natural Guardians

Section 6 recognizes the father, mother, and husband as the natural guardians of a Hindu minor^[4].

• Father- The natural protector of his minor legitimate offspring, boys and girls, is the father. A father’s guardianship cannot be taken away unless he is deemed unsuitable for the position, according to Section 19 of the Guardianship and Wards Act 1890. However, judicial judgments whittled down this clause and by S. 13 of the HMGA, the father’s right is lesser to the welfare of the minor.⁵ Prior to 1956, the father could curb the mother’s rights of guardianship by assigning a testamentary guardian post his demise.
• Mother– The codification of the “Hindu Minority and Guardianship Act” brought amendments to the previous rule and now the mother is an authoritative guardian after the father. Irrespective of the living status of the father, she is the natural guardian of her minor illicit child. A father’s appointee would be ineffective if the mother is alive. Nonetheless, if the mother chooses a TG after the father’s passing and then eventually dies, the mother’s appointed one would take over the role rather than the father’s.

If the father is alive and non-functioning or if the father is absent despite him being alive^[5] or if he refuses to assume the role of a guardian or if a minor brings a suit against the father^[6], and the mother has been looking after all of the minor’s needs and properties, she will be able to execute all of the duties of a natural guardian of the legitimate kid without the need for a judicial decree,

A mother would not lose her claim on guardianship if she gets married to a person belonging to a different faith^[7] or if she converts to another religion^[8], given the condition, she’s taking proper care of the child. The mother’s rights are unaffected by adoption, and her standing is maintained throughout.

“Section 6 of Hindu Minority and Guardianship Act lays down that the custody of a minor who has not completed the age of five shall be with the mother unless the welfare of the minor requires otherwise^[9].”¹¹

• Husband– This clause stated that a husband is the guardian of his minor wife and her property but this clause is affirmatively revoked on account of the provisions of S.3 of the Prohibition of Child Marriage Act, 2006.^[10]

Natural parents’ right to be the natural guardians of the child gets terminated as soon as the child is placed for adoption. In the case where both father and mother are incompetent at looking after the child, the protection home under whose care the child has been living would be treated as the guardian and they have the capacity to give up the child for adoption.

It must be noted that the step-parents don’t come under the ambit of natural guardianship and they can only exercise their powers if the court appoints them.

Rights of Natural Guardian of the Person

1. Right to custody
2. Right to determine the religion of children
3. Right to control education
4. Right to control movement
5. Right to reasonable chastisement^[11]

All the rights are conditional on the minor’s well-being, and the needs of the parents come secondary.

Testamentary Guardians

Section 9 of the Act deals with the legal provisions of the guardians appointed by the parents of the minor also known as testamentary guardians. The right to appoint the guardian has been conferred on both the parents as far as their competency to act as natural guardian follows and it can be done through a will only. The testamentary guardian appointed by the father would be ineffective if the mother is still alive and capable to act in the capacity of a natural guardian. It goes as-

• Father (dies)  TG appointed by the father (ineffective)  Mother (survives)
• Father (dies)  TG appointed by the father (effective)  Mother (dies)
• Father (dies)  TG appointed by the father (ineffective)  Mother (dies)  TG appointed by mother (effective)^[12]

Sub-section 4 of S.9 confers the mother alone with the appointing powers and despite the father’s capacity to act as a natural guardian in the particular instance of an illegitimate child, he is not allowed to assign a testamentary guardian for the minor.

A minor girl’s testamentary guardianship ends with her marriage, and it cannot be reinstated regardless of whether she becomes a minor widow.

The TG must demonstrate his acceptance of the position, whether express or implied. And once he accepts the appointment, he’s bound to act on it and is forbidden from resigning unless a permit is granted from the court.

All the powers of the natural guardian are exercised by the testamentary guardian unless some acts are forbidden or limited in the will provided by the NG and follow what’s stipulated in the Act. His responsibility to give maintenance is not personalized, and it only arises to the degree that the minor has property.

Certified Guardians

Taking into account a variety of factors such as age, sex, the child’s and parents’ wishes, and the child’s personal law, district courts are endowed with the powers to appoint a guardian regulated by the Guardians and Wards Act 1890. These guardians are specially called certified guardians. However, S.12 states that only the High Court has the authority to assign a guardian for the minor of a “Mitakshara Hindu family” who has an undivided interest in the joint family.

The CG can’t do anything unless the court grants its permission, and his authorities are co-extensive with those of the sovereign. From the moment he was appointed, he is under constant monitoring, direction, and control of the court.

Guardianship of Minor’s Property

Often a minor may get property by inheritance, gift, or other means, but since he or she is beneath the age of majority, he or she will be unable to properly care for the property. Thus, guardians exist to carry out the care and legal duty of the property until the child attains majority. Though neither the natural nor the appointed ones can exercise their right to guardianship of a child’s undivided interest in the “joint family property” except for the regions where the High Courts have the inherent jurisdiction under special enactments to appoint a guardian for the same.^[13]

Natural Guardians

The natural guardians of a minor’s property are the same as the ones for the minor in person. Section 8 of the HMGA consigns the general powers to the NG. Fraudulent and speculative means are not to be entertained, and a guardian has the right to do whatever is crucial and rational for the minor’s well-being and the estate’s protection. Sub-section 2 lays down that the natural guardian doesn’t hold the power of alienation of the property without the prior consent of the court.

A minor can execute a decree of recovery of possession if his property was unreasonably and fraudulently sold off or any part of it was leased out for a term exceeding 5 years or for a term exceeding 1 year beyond the date on which the minor would attain majority^[14]. Thus, the consideration obtained from the improper transaction when repudiated by the minor must be returned.

No act of alienation must be granted by the court unless the situation demands the necessity or benefit of the child, says sub-section 4. Sub-section 3 also entails that any disposition of immovable property made in violation of the preceding provisions is voidable at the minor’s request.

Testamentary Guardians

The testamentary guardian of a minor’s property acts under the purview of the will constituted by the natural guardians, and no property can be sold without the permission of the court, equivalent to the conditions specified forth for guardianship of the person.

Certified Guardians

It’s the general powers laid under section 27, which provides the guardian with the obligations of the property especially if no limitations are conferred to him by the court. Under S. 32, at the time of the appointment, the court has the powers to define, restrict or extend the powers of the guardian and by employing S. 33, The guardian himself can request the court to fix and define the scope of his powers.

Guardianship by Affinity over Minor’s Property

A person legally responsible for the minor widow and her properties is called the guardian by affinity. After marriage, the dominion of the minor girl and her property is passed onto her husband and his family and her parent’s right to exercise their powers is extinguished. After the passage of her husband, the nearest sapinda of the husband’s family gains authority over the minor widow.^[15] Though if the interests of that family member collide with that of the widow, they will not be appointed as the guardian. ^[16]

De-facto Guardian’s Interest over the Property

A self-appointed guardian who indulges himself in a continuous course of conduct in looking after the minor and his property without any legal status conferred to him is called a de-facto guardian^[17]. Since he lacks legal authority, a de-facto guardian is restricted in dealing with any of the property. He has the power to alienate the property conditioned it’s for the legal requisites or advantage of the estate and any improper alienation is void per se law.²³

Conclusion

Guardianship although completely focused on the benefits of a minor also comes up with the rights entrusted to the protector of the minor aka the guardian. A guardian is entitled to represent the minor in the litigations and suits and accordingly, through his interests, the proceedings are initiated further.

A guardian-appointed ad litem^[18] represents the minor when a suit is filed against the child. The matter can be referred to arbitration at the request of the guardian as well. In situations where the compromises and claims seem to be benefitting the minor, the guardian can give himself up to those measures. Additionally, the guardian enjoys the right to be indemnified if he incurs the damages in protecting the minor. The sum indemnified is taken out of the child’s property.

If the minor refuses to reimburse the guardian ad litem, the guardian has every right to sue him after the termination of the guardianship.

A guardian though handed down by several rights and obligations is still subjected to certain obligations and powers which he cannot step on. It has been laid down implicitly that a NG cannot indulge himself in the acts of alienation or to be specific cannot “mortgage, or transfer by sale, gift, exchange, or otherwise any part of the immovable property of the minor or 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.”^[19]

These provisions also apply to the testamentary and certified guardians and any conduct in contravention of the above-mentioned conditions can result in the removal of the said guardian.

The court can exercise its power to remove the guardian if it’s in the interest of the child. Very specifically, Section 17 demands courts to take into consideration of personal laws of the minor. If the guardian has stopped being a Hindu and is interfering with the minor’s religious rights, or if the guardian has completely and finally renounced the world, he will be subjected to the removal of the said status under Section 6 of the HMGA1956.

To summarise, the major obligation or responsibility of the guardians and the crucially important fundamental principle for the judicial system that has been deduced from the laws devised and the innumerable precedents established by the judiciary is for the minor’s welfare in order to provide a secure haven for the child’s proper growth.

References

[1] Banke v. Banke, 1943 Cal. 203; Budh v. Thakur, (1942) 1 Cal. 19

[2] Kristo V. Kedar, 2 C.L.R. 563; Pursliotam v. Brundavan, 1931 Mad 537; Chennappa v. Onkarappa, (1940) 2 Mad. 358; Jiwan v. Salindra, 1945 Gal. 273.

[3] Section 2 of the Act. See Raj v. Indra, 1972 M.P.L.J. 775; Madhu v. Arun, 1987 Del. 81

[4] DR. PARAS DIWAN. MODERN HINDU LAW, 271 (Allahabad Law Agency 25^th ed. 2021) ⁵ Lilita V. Ganga, 1973 Raj. 93 (Earlier cases have been reviewed).

[5] JiJabai v. Patban, 1971 S.C. 315 at 319

[6] Rajendra Kumar v. Deepak Makwana, 2008 Del. 92

[7] Lekshmi v. Vasantha Kumari, 2005 Ker. 249

[8] Sheela v. Soli. 1981 Bom. 175

[9] Muhammad Badaruddin, Guardianship in South Asia with special reference to Alienation and Limitation, SOAS RESEARCH ONLINE (Mar. 9, 2022, 12:35 PM), https://eprints.soas.ac.uk/33660/1/11010421.pdf  ¹¹ Chandra v. Prem, (1969) Del. 283

[10] Mridul Tripathi, Liabilities of a Guardian under Hindu Law, IPlEADERS (Mar. 9, 2022, 1:10 PM), https://blog.ipleaders.in/liabilities-of-a-guardian-under-hindu-law/#Natural_Guardian_of_a_Hindu_Minor

[11] DR. PARAS DIWAN. MODERN HINDU LAW, 274 (Allahabad Law Agency 25^th ed. 2021)

[12] Section 9 (2).

[13] S. 12, Hindu Minority and Guardianship Act, 1956 and S. 3, Guardians and Wards Act, 1890 ¹⁶ Rajendra Kumar v. Deepak Makwana, 2008 Del. 92.

[14] Hindu minority and guardianship act, INDIAFILINGS (2019) (Mar. 9, 2022, 3:22 PM), https://www.indiafilings.com/learn/hindu-minority-and-guardianship/ (last visited Mar 10, 2022). ¹⁸ G. Annumalai v. Revenue Officer, 1985 Mad 35.

[15] Paras Ram v. State, 1960 All. 479.

[16] Rai Chand v. Sayer, 1966 Mad. 172.

[17] Hanuman Prasad vs. Mussumat Babooee, 1856 6 M.I.A. 393. ²³ Madhegowda v. Ankegowda, 2002 SC 215.

[18] Nagaiah v. Chowdamma, 2018 SC 459.

[19] Powers of Natural Guardian: Hindu minority and guardianship act, 1956: BARE ACTS: LAW LIBRARY ADVOCATEKHOJ ((Mar. 9, 2022, 3:55PM), https://www.advocatekhoj.com/library/bareacts/hinduminority/8.php?Title=Hindu+Minority+and+Guardianship+Act%2C+19 56&STitle=Powers+of+natural+guardian (last visited Mar 10, 2022).

This article has been submitted by Ananya Mishra, a student at Hidayatullah National Law University, Raipur.