Guardianship Under Hindu Law

Guardianship

A guardian is a person who is appointed to look after the other person or his property. He or she shall be responsible for the care and protection of the person for whom he/she is appointed as a guardian. The guardian takes all legal decisions on behalf of the person and the property of the ward. The minor need the care of another person who has not completed 18 years of age. Guardian could be appointed for those also who because of physical and mental deficiencies is unable to take care of himself or his property. A guardian takes decision on behalf of the minor for protecting the interests of the minor and his property.

Guardian is defined under section 4 (b) of The Hindu Minority and Guardianship Act, 1956.

Guardian means a person having the care of the person of a minor or of his property or of both his person and property, and includes-

(i) A natural guardian,

(ii) A guardian who is appointed by the will of the minor’s father or mother,

(iii) A minor appointed or declared by a court,

(iv) A person who is empowered to act as such by or under any enactment relating to any court of wards.

The Hindu Minority and Guardianship Act, 1956 exists in accordance with The guardianship and wards act, 1890 which is a secular law applicable to every religion but the 1956, act is applicable to Hindus only.

Difference between Custody and Guardianship

Custody is granted by the court as matrimonial relief to parent who seeks such custody, whereas guardianship exists by birth. It is not necessary that the custodian and guardianship rights of a child are vested in the same person. Father can have the guardianship rights and mother can have the custodian rights and vice-versa. Guardianship is the more comprehensive term that custody as the guardian has more rights than a person who has custodian rights. Custody can be of short time period as compared with guardian.

Natural guardian of Hindu minor acc. to sec. 6, 1956 act

In case of a boy or unmarried girl – the natural guardian is the father and after him or in the absence of father, the mother will be considered as natural guardian, but the custody is with the mother till they attain the age of 5 years.

In case of illegitimate boy or an illegitimate unmarried girl – the natural guardian is the mother and after her the father.

In case of married girl – the husband

In a case, the petitioner mother had alleged that her 17 years old daughter was kidnapped by the respondent, but it was stated by the respondent that marriage between him and daughter of the petitioner was solemnized. The fact that on date of marriage the bride was only 17 years old was admitted. As such, the defendant could be said to have violated provisions of sec. 5(iii) of Hindu Marriage Act, 1955. It was held by the court that as the contravention of age restriction did not lead to termination of marriage and the respondent had not obtained consent of parents of bride, hence, he was not and entitled to have custody of a minor girl till she attained majority. [Remani T.T vs. Narayanan kutty, 2004 Cri.L.J. 805 (Ker)]

Acc. to sec. 7, in case of adopted son – The natural guardian is the adoptive father and after him or in the absence of father, the mother is considered as the natural guardian.

Disqualifications of natural guardian if:

i. the father or mother has ceased to a Hindu; or

ii. he or she has renounced the world.

Step-parents are not entitled to guardianship, unless they are appointed by the court. Once a child goes in adoption, natural parents cease to be the natural guardians of the child only if so appointed by the adoptive parents or by the court.

The consideration governing the custody of children is the welfare of children not the rights of parents. [Rosy Jacob vs. Jacob Chakramakkal, AIR 1973 SC 2090]

Powers of Natural Guardian

Acc. to sec. 8, natural guardian can do all acts which are necessary or reasonable for the benefit of minor or minor’s estate but the guardian can’t bind the minor in any kind of agreement. But if the guardian binds the minor in any contract then it shall be voidable at the instance of minor.

Natural guardian can mortgage or charge, transfer by sale, gift, exchange, the immovable property of minor, with the permission of court. The Natural Guardian can also lease the minor’s property, maximum for the term of 5 years only and also up to the minor attains the age of 19 years. Also, court can give permission in case of necessity or for advantage to the minor.

Illustration – a minor 16 years old, his guardian wants to lease his property then he can lease for maximum of 3 years only, [16+2=18, 18+1=19]

A Sale transaction by a natural guardian even for the benefit of minor is voidable and not void ab initio, if it is done without the previous permission of the court. The minor can challenge this transaction only after attaining majority and not during his minority. [Naryan Laxman Gilankar vs. Uday Kumar Kashinath Kaushik, AIR 1994 Bom 152]

Testamentary Guardian and their powers acc. to sec. 9

Testamentary guardian – the guardian of the child who is appointed by the will of father or mother, as the case may be. A testamentary guardian has the right to act as minor’s guardian after the death of minor’s father or mother, as the case may be. The father of minor can appoint the testamentary guardian by will, in the absence of mother. But during the lifetime of mother and after the death pf the death of the father and he becomes disentitled to act as guardian then she will be the natural guardian of the child and she can appoint the guardian by will. A testamentary guardian has the same power as the natural guardian have. Also, after the marriage of minor girl, the right of guardian appointed by will shall cease to exist.

Acc. to sec. 10 a minor can be guardian of other minor but could not be the guardian of minor’s property.

Where a grandmother appoints the mother as a testamentary guardian for the property of minor, during the lifetime of the father, then the mother has no right to alienate the property of the minor as the grandmother has no power to appoint a testamentary guardian, such alienation is void ab initio. [Sundaramurthy vs. Shanmuganadar, AIR 1980 Mad 207]

De facto guardian

A de facto guardian means a self-appointed guardian. A de facto guardian is a person who takes continuous interest in the welfare of the minor’s person or in the management or administration of his property without any authority of law. [Modern Hindu Law, Dr. Paras Diwan]

Acc. to sec. 11, a de facto guardian has no power related to the minor’s property.

Acc. to sec. 12, no guardian shall be appointed for the minor for the undivided interest in joint family property, if the property was managed by the adult member of the family.

Acc. to sec. 13, while the appointment of the guardian by a court, the welfare of the minor is the paramount consideration.

The management of the joint family and its affairs can be taken up not only by a male adult member of the family but also by a female member of the family like the mother. [Dhanasekaran vs. Manoranjthammal, AIR 1992 Mad 214]