Natural Guardian under Hindu Law

Guardianship is a legal concept which refers to the relationship where one person, called the guardian, is entrusted with the care and management of a minor child’s person and property. Under Hindu law, the rules governing guardianship were codified in the Hindu Minority and Guardianship Act, 1956 (hereinafter the “1956 Act”). This Act was enacted to clarify the rights and duties of guardians, especially natural guardians, and to protect the welfare of Hindu minors.

This article aims to explain the concept of natural guardianship under Hindu law in a simple yet detailed manner. It discusses who qualifies as a natural guardian, their powers and limitations, relevant court interpretations, and the important topic of gender equality in guardianship. The discussion is based on statutory provisions, judicial decisions, and practical considerations.

Meaning and Types of Guardianship under Hindu Law

A guardian, in the legal sense, is someone who is given the responsibility to look after the personal and financial interests of a minor. The 1956 Act defines a guardian as a person who may take care of the person of the minor, the minor’s property, or both.

Guardianship is generally classified into three types under Hindu law:

• Natural Guardians: Guardians who inherit their position by operation of law.
• Testamentary Guardians: Guardians appointed through a will or testament by the minor’s parents.
• Guardians Appointed by Court: Guardians declared or appointed by courts under the Guardians and Wards Act, 1890.

This article focuses primarily on natural guardians, who are most commonly involved in the guardianship of Hindu minors.

Who is a Natural Guardian? (Section 6 and Section 7 of the 1956 Act)

Natural Guardians of Biological Hindu Minors (Section 6)

Section 6 of the 1956 Act provides the list and order of natural guardians for Hindu minors, covering both the person and property of the minor, except for their undivided interest in joint family property.

The natural guardians are as follows:

• In case of a boy or an unmarried girl:
  • First, the father is the natural guardian.
  • After the father, the mother becomes the natural guardian.
  • Proviso: For minors who are under five years of age, custody is ordinarily with the mother, recognising the mother’s primary role in early child care.
• In case of an illegitimate boy or an illegitimate unmarried girl:
  • The mother is the natural guardian first.
  • After the mother, the father becomes the guardian.
• In case of a married girl: The husband is the natural guardian.

The Act also specifies that no person who has ceased to be a Hindu, or who has renounced the world by becoming a hermit or ascetic, can act as a natural guardian.

Importantly, the Act clarifies that the terms “father” and “mother” do not include stepparents.

Natural Guardians of Adopted Sons (Section 7)

Section 7 provides that the natural guardianship of an adopted son passes on adoption to the adoptive father and then to the adoptive mother. Although the Act specifically mentions “adopted son,” courts have recognised that this principle should extend by analogy to adopted daughters as well, to promote fairness and equality.

Powers and Limitations of a Natural Guardian (Section 8)

The 1956 Act grants natural guardians certain powers over the person and property of the minor, while also placing important limits to protect the minor’s interests.

General Powers of Natural Guardians

• The guardian has the power to do all acts which are necessary, reasonable and proper for the benefit and welfare of the minor and for protecting or realising the minor’s estate.
• These powers are not absolute; they must be exercised with the minor’s best interest as the paramount consideration.
• The guardian cannot bind the minor by personal covenants—that is, they cannot enter into contracts that impose personal liabilities on the minor beyond what is necessary for the minor’s benefit.
• The guardian can manage, invest, or acquire property for the minor without court approval, so long as it benefits the minor.

Restrictions on Immovable Property Transactions

• A guardian cannot mortgage, charge, sell, gift, exchange, or transfer immovable property of the minor without the prior permission of the court.
• The guardian can lease the immovable property for up to five years without court permission, but leases exceeding five years or leases extending beyond one year after the minor attains majority require court approval.

Consequences of Unauthorised Transactions

• If a guardian disposes of the minor’s immovable property in violation of the above restrictions, such transaction is voidable at the option of the minor (upon attaining majority) or any person claiming under the minor.
• This means the minor or such claimant can seek to have the transaction set aside and recover the property.

Role of the Court in Granting Permission

• Courts will grant permission for the sale, mortgage, or lease of immovable property only if the transaction is necessary or clearly advantageous for the minor.
• The process for seeking court permission follows the procedure laid down under the Guardians and Wards Act, 1890.

Judicial Interpretations: Mother’s Role as Guardian and Welfare Principle

Mother’s Guardianship even if Father is Alive

Before 1999, the phrase “after him” in Section 6 was interpreted strictly to mean only after the death of the father does the mother become the natural guardian. However, landmark Supreme Court judgments have changed this understanding.

• In Gita Hariharan v. Reserve Bank of India (1999) and Vandana Shiva v. Jayanta Bandhopadhaya (1999), the Supreme Court held that “after him” means “in the absence of the father.”
• “Absence” can mean physical absence, legal incapacity, neglect, or complete indifference towards the minor’s welfare.
• Where the father is unfit or indifferent, or the minor lives with the mother, the mother may act as the natural guardian despite the father being alive.

Welfare of the Minor is Paramount

• The welfare of the minor is the paramount consideration in guardianship decisions.
• Section 13 of the 1956 Act requires that guardianship be exercised with the minor’s welfare in mind, not just parental rights.
• Welfare is not merely financial or physical comfort but includes moral, educational, and ethical well-being.
• Courts will override the statutory hierarchy of guardians if it conflicts with the minor’s welfare.

Gender Discrimination in Guardianship Laws: Criticism and Reforms

Historically, Hindu law has been criticised for gender bias, often privileging fathers over mothers. The 1956 Act, by naming the father as the primary natural guardian, appears to continue this trend.

Courts have progressively recognised the mother’s equal or superior role in guardianship where the father is absent, unfit, or neglectful.

Law Commission Reports have recommended reforms:

• The 133rd and 257th Reports suggested equal legal status for mother and father as natural guardians.
• The 2019 National Commission for Women recommended amending the 1956 Act to say “father or mother” instead of father followed by mother.
• The Law Commissions also recommended removing stigmatic terms such as “illegitimate” and replacing “adopted son” with “adopted child” for equality.

Constitutional Concerns

• Critics argue that Section 6(a) violates Articles 14 and 15 of the Constitution of India, which guarantee equality before law and prohibit discrimination on grounds of sex.
• However, despite repeated recommendations, the Act has not yet been amended, leaving the statutory wording unchanged.

Conclusion

Natural guardianship under Hindu law is a blend of statutory provisions and judicial interpretation aimed at protecting Hindu minors. While the father is the primary natural guardian according to the 1956 Act, courts have clarified that the mother may act as guardian when the father is absent, unfit, or neglectful. The welfare of the minor remains the supreme consideration. The Hindu Minority and Guardianship Act remains a vital piece of legislation safeguarding the rights and interests of Hindu minors through the institution of natural guardianship.