Who is a De Facto Guardian?

Guardianship of minors is a critical area under Hindu law, designed to protect the rights, welfare, and property of children who are below the age of majority. The Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as “the Act”) governs the legal framework for guardianship. 

While the Act defines the roles and responsibilities of natural and legal guardians, it does not expressly define the term “de facto guardian.”

What Does “De Facto Guardian” Mean?

The term “de facto guardian” literally means a guardian “in fact” or “in reality,” without any formal legal appointment. Unlike a de jure guardian, who is legally appointed by statute or court, a de facto guardian assumes responsibility for a minor’s care out of necessity or circumstance.

In simple terms, a de facto guardian is a person who, by the facts of the situation, takes charge of a child’s welfare when the natural or legal guardians are absent, deceased, or incapable of performing their duties.

Common Examples

• A relative or neighbour who looks after an orphaned child.
• A person who assumes care of a child during the temporary absence of natural guardians.
• A caretaker appointed informally without any court order.

Though such guardians act in good faith, the law limits their powers, especially concerning the minor’s property.

Legal Framework Under the Hindu Minority and Guardianship Act, 1956

The Act is the primary legislation dealing with guardianship of Hindu minors. While it does not explicitly define “de facto guardian,” it provides key provisions relating to guardianship and powers regarding the minor’s person and property.

Section 11 – Key Provision on De Facto Guardians

Section 11 of the Act expressly restricts the powers of de facto guardians regarding a minor’s property. The section states:

“After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.”

This means that a de facto guardian does not have the authority to sell, mortgage, gift, or otherwise transact with the minor’s property solely because they are caring for the child.

What Does This Mean in Practice?

• A de facto guardian can look after the minor’s personal needs such as food, education, health, and shelter.
• However, they cannot deal with the minor’s property or estate without court approval.
• Any property transactions done by a de facto guardian without legal sanction are void and unenforceable.

Difference Between De Jure and De Facto Guardians

Understanding the distinction between a de jure (legal) guardian and a de facto guardian is essential.

The de jure guardian holds full legal responsibility for the minor’s welfare and property, whereas the de facto guardian’s role is limited strictly to the child’s care.

Role and Responsibilities of a De Facto Guardian

A de facto guardian is primarily responsible for the day-to-day care of the minor. This includes:

• Providing shelter, food, and clothing
• Ensuring medical care and attention
• Facilitating education and personal development
• Protecting the minor’s general welfare and interests

This role is critical, especially in cases where natural guardians are absent, such as in death, incapacity, or abandonment.

Restrictions on De Facto Guardians

While they may act as caregivers, de facto guardians:

• Cannot dispose of or manage the minor’s property or estate.
• Cannot raise loans or debts on behalf of the minor.
• Must avoid any transaction that might affect the minor’s property rights.

Landmark Cases on De Facto Guardianship

Several courts in India have elucidated the status and limitations of de facto guardians.

Amanat Hussain & Anr. v. Sahida Begum & Ors. (2015, Gauhati High Court)

• The court held that property transfers carried out by de facto guardians may rank “in effect” with those by de jure guardians but are voidable if lacking proper justification or court sanction.
• It reaffirmed the necessity of court approval to validate property transactions concerning minors.

Kerala High Court’s Position

• The Kerala High Court ruled that when a de facto guardian unlawfully disposes of a minor’s property:
  • The minor is not obligated to restore benefits received by an innocent third party.
  • The purchaser can seek redress directly against the de facto guardian who dealt with the property without authority.

These judgements highlight the personal liability of de facto guardians for unauthorised transactions, while also protecting bona fide purchasers to an extent.

De Facto Guardianship and Property: A Closer Look

The law draws a strict boundary between the care of the minor’s person and the management of the minor’s property.

Why Is This Distinction Important?

• To protect minors from exploitation, since they cannot legally bind themselves in property matters.
• To ensure proper judicial oversight before any alienation or encumbrance of the minor’s estate.
• To preserve the minor’s future interests in the property.

Consequences of Property Deals by De Facto Guardians

• Any property sale, mortgage, lease or gift without court permission is void.
• The de facto guardian can be held personally liable for such unauthorised dealings.
• The minor or their legal guardian can challenge and set aside such transactions.

Court Sanction Under Section 13 of the Act

To lawfully manage or dispose of a minor’s property, court permission is mandatory, even for de jure guardians.

Procedure for Court Approval

• The guardian files an application before the district or family court.
• Notice is served to the minor (through guardian ad litem), next of kin, and other interested parties.
• The court assesses whether the transaction is for the best interests of the minor.
• If satisfied, the court grants permission, possibly subject to safeguards.

De facto guardians, while not legally recognised for estate management, may, in practice, seek court approval through a legal representative to regularise dealings if required.

Conclusion

A de facto guardian is a person who takes charge of a minor’s personal welfare without formal appointment. While such guardianship is critical for the protection and upbringing of children in the absence of natural guardians, the law under Section 11 of the Hindu Minority and Guardianship Act, 1956 strictly limits the powers of de facto guardians with respect to the minor’s property.

Any property transaction undertaken by a de facto guardian without court sanction is void and may expose the guardian to personal liability. Courts have consistently held that de facto guardianship applies only to the care of the child’s person and not to the administration or alienation of property.