13th Jul 2021
Author: Sonal Khattri, Passed out from Bundelkhand University, Jhansi
In the early days of life, a child is not intelligent enough to take important decisions of his life. Neither does he know how he will take care of himself, nor does he know what is right and wrong for them. That is why he is given the help of a sensible person so that he can take decisions related to the betterment of that child.
On this subject, an act named as Hindu Minority and Guardianships Act, 1956 came into force for the advantage of the children whom we call minors.
Mohiri Bibi vs. Dharmodas Gosh
Any contract entered into by the minor is void ab initio.
WHO ARE MINOR AND GUARDIAN?
SECTION 4 (a) of the act defines the term “minor” as a person who has not completed the age of eighteen years.
SECTION 4 (b) of the act says “guardian” means a person having the care of the person of a minor or his property or of both his person and his property.
TYPES OF GUARDIANS
- Guardianship of persons of minors
- Guardianship of the property of minors
- De facto Guardians
- Guardians by affinity
GUARDIANSHIP OF THE PERSON OF MINOR
Guardians may be of the following kinds:
- Natural Guardian
- Testamentary Guardian
- Guardian appointed by the court
NATURAL GUARDIANS: In Hindu law, only three persons are recognized as natural guardians, father, mother and husband.
SECTION 6 defines natural guardians of a Hindu Minor as: –
- In the case of a boy or an unmarried girl – the father will be the natural guardian and after him the mother.
In 1989, the Law Commission intended to remove “discrimination against women in matters relating to guardianship and custody of minor children”.
Bhagwatibai vs. Yadav Krishna
Where a natural guardian has been wrongfully deprived of the custody of his or her child, the same could be restored through the writ of habeas corpus.
- For an illegitimate boy or an illegitimate unmarried girl: the mother will be the natural guardian and after her, the father will be the natural guardian.
Jijabai vs. Pathan Khan
It was held by the Supreme Court that where a mother and father were living separately and mother managing the affairs of her daughter, who was under her care and protection, will be regarded as her natural guardian. In such cases, the father would not be considered alive. The mother alone would be entitled to exercise the right of natural guardian concerning her person and property and she could bind the minor’s property by lease.
- In the case of a married girl: the husband will be the natural guardian.
It is open to the Courts not to give custody of a minor wife to a husband if they are satisfied that it will not be for the welfare of the minor wife. This is the import of section 13 of the act which lays down that welfare of the minor is of paramount consideration.
TESTAMENTARY GUARDIANS: Under section 9 of the Hindu Minority and Guardianship Act, 1956, both the parents can appoint the testamentary guardian.
- A guardian can be appointed for the minor’s person or property or for both the purposes by the father who is entitled to act as the natural guardian.
- Where the father has become disentitled to act as natural Guardian, the mother for her legitimate minor child, may by will, appoint a guardian for the minor’s person or in respect of the minor’s property (other than undivided interest) or in respect of both.
- A Hindu mother entitled to act as the natural guardian of an illegitimate children may by will, appoint a guardian for the minor’s person or minor’s property or for both.
TESTAMENTARY GUARDIAN’S POWERS:
Section 9(5) of the Hindu Minority and Guardianship Act, 1956, the testamentary guardian has the power to exercise all the rights of the natural guardian, subject to restrictions, if any, laid down by the will or by the act.
GUARDIANS APPOINTED BY THE COURT: The guardian appointed by the court is known as the certified guardian. The appointment of guardians of Hindu children is regulated by the Guardians and Wards Act, 1890. Under the Act, the jurisdiction is conferred on the District Court.
The District Court has the power to appoint or declare a guardian in respect of person as well as separate property of the minor.
GUARDIANSHIP OF MINOR’S PROPERTY
In the normal circumstances, the natural guardian of the person of a child is also the guardian of the minor’s property. But a natural guardian, father or mother, is not the natural guardian of a minor’s undivided interest in the joint family property. The same applies to testamentary guardian and certified guardian who owe their appointment, in the former case to the natural guardian, and in the latter to the court.
POWERS OF NATURAL GUARDIANS’s OVER MINOR’S PROPERTY:
- To do all acts which are necessary or reasonable and proper for the benefit of the minor, or for the realization, protection or benefit of the minor’s estate.
- With the previous permission of the court, can mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor.
- With the previous permission of the court, any part of such property can be given in lease for a term exceeding five years or for a term of more than one year after the attainment of the majority by the minor.
- Any disposal of immovable property by a natural guardian, in contravention of the provisions of sub-section of (1) and (2) of section 8 is voidable at the instance of the minors.
GUARDIANSHIP BY AFFINITY
It is also known as guardianship of a minor widow. On marriage a woman passes completely into the family of the husband; she gets her husband’s gotra and name.
Mayne concludes that “the husband’s relations if any, within the degrees of sapinda, are the guardians of a minor widow, in preference to her father and his relations.
Ram Chandra vs. Sayarbai
A dispute relating to property arose between the minor widowed daughter-in-law and her father-in-la.. In these circumstances, keeping the welfare of the child in view the court held that the cousin brother of the deceased husband shall be considered the real guardian of his minor widowed wife, although the court ruled that in such cases merely a dispute between the widow daughter-in-law and her father-in-law over the property does not end the preferential right of guardianship of the father-in-law. In this case the, ill treatment by the father-in-law and mother-in-law towards her was a worthwhile consideration.
DE FACTO GUARDIAN
A de facto guardian means a self-appointed guardian. A de facto guardian is a person who takes a continuous interest in the welfare of the minor’s person or of his property.
De facto guardian does not have the right to assume debt, or gift a minor’s property, or make reference to arbitration.
RIGHTS OF A GUARDIAN
A guardian has a right to:
- Represent the minor in litigations.
- Get compensation for legal expenses for the minor’s property.
- To recover necessary expenses on attaining majority, a minor can be sued by the guardian
- Refer matters to arbitration in the best interest of the minor.
LIABILITIES OF A GUARDIAN
The legal position of a guardian is fiduciary, he is personally liable for breach of trust.
- He is not entitled to any compensation unless explicitly specified in the will.
- A guardian cannot take undue advantage.
- Minor’s property possession adversely.
REMOVAL OF GUARDIANS
Section 39 of the Guardian and Wards Act lays down certain grounds on which a testamentary guardian could be removed and following are the grounds:
- Breach of trust.
- Failure to perform the duties.
- Incapable to perform the duty.
- Continuous disregard to any of the provisions of the act.
- Ceasing to reside within the local limits of the jurisdiction of the court, and
- Insolvency or Bankruptcy
In addition to the Guardian and Wards Act, the court has power to remove any guardian from the guardianship, if it comes to the conclusion that to do so will be in the interest of the minor. Section 6 of the Hindu Minority and Guardianship Act, 1956, specifically lays down that no person shall be entitled to act as the natural guardian of a minor:
- If the guardian has ceased to be a Hindu, or
- Renunciation of the world by the guardian.
This act has certain patriarchal notions and with the change in the society amendments should be made in this regard also. At the same time, many judgements of the Supreme Court and also various High Courts have gave wider interpretation of the provisions of the act.
Under Hindu Minority and Guardianship Act, 1956, the interest of the minor is the paramount law and no act can be done which is in violence of the good faith of the minor
- Hindu Minority and Guardianship Act, 1956
- Guardians and Wards Act, 1890
- Modern Hindu Law by Dr. U.P.D. Kesari
- The Law Commission of India – Report No. 133 on “discrimination against women in matters relating to guardianship and custody of minor children”.
 30 Cal 532 (PC)
 Hindu Minority and Guardianship Act, 1956
 Hindu Minority and Guardianship Act, 1956
 The Law Commission of India – Report No. 133 on “discrimination against women in matters relating to guardianship and custody of minor children”.
 AIR 1969 MP 23.
 AIR 1971 SC 315.
 AIR 1966 Mad 173.
*The views in this article are author’s point of view. BSK Legal may or may not subscribe to the views of the author. This article is not intended to substitute legal advice. Any portion or part of this article can be reproduced, copied or used, in whole or in part, after giving due credit to the publisher. The Copyright of the article is with the author.