The article is written by Kanika Goel. This article is an attempt to reflect the important provisions of the Hindu Minority and Guardianship Act, 1956, in an exhaustive manner. This article will help the readers to understand the nuances of the laws relating to the minority and guardianship of a minor, along with the important case laws relating to it.
The Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the “Act”) codifies the laws regarding minority and guardianship, taking into consideration the well-being of the child. The Act was enacted on 25th August, 1956 with the intention of codifying the laws that relate to the issues of minority and guardianship among Hindus. The Act aims to ensure the welfare of a minor in the first place.
According to the codification of the Act, the father is considered to be the natural guardian of the child, and after his death, the mother will assume responsibility for the guardianship of the child. Keeping in mind the guardianship of the child, the lawmakers have precisely and clearly dealt with all the important aspects relating to the laws of minority and guardianship under this Act. Primarily, the law relating to the subject of minority and guardianship was only dealt under the Guardians and Wards Act, 1890, but the present Act was enacted to give a reinforced perspective to the former legislation.
The Hindu Minority and Guardianship Act, 1956, consists of a total of 13 Sections, which not only deal with the concepts of minority and guardianship but also include provisions associated with the powers of the guardians, types of guardians, and the capacity of a person to act as a guardian of a child. Let us understand every important provision of the Act in detail and in a comprehensive manner.
As stated before, the Hindu Minority and Guardianship Act, 1956, was enacted on 25th August, 1956. Before 2019, the Act was applicable to the entire territory of India, except for the state of Jammu and Kashmir. However, after the enforcement of the Jammu and Kashmir (Reorganisation) Act, 2019, the Act became applicable to the whole of India, including the Union Territory of Jammu and Kashmir. Apart from this, the present Act is also applicable to Hindus who are outside the territories of the country but are domiciled in the territories which the present Act extends to.
Section 3 of the Hindu Minority and Guardianship Act, 1956, deals with the application of the Act. The clause-wise description of the application is mentioned below.
As per Section 3(1), the Act is applicable to the following classes of people:
- Any person who is a Hindu, which also includes Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana, or Arya Samaj;
- Any individual being a Buddhist, Sikh, or Jain by religion;
- Any other person not being a Muslim, Parsi, Jew, or Christian but domiciled in the territories where the present Act extends. Provided that the Hindu law does not govern such a person;
As per Section 3(2), the present Act stands inapplicable to the Scheduled Tribes that are governed by clause (25) of Article 366 of the Indian Constitution.
As per Section 3(3), the applicability of the Act is understood by construing the meaning of the word “Hindu” in such a way that it also includes a person who, though not a Hindu, is subjected to the provisions of this Act.
Section 4 of the Hindu Minority and Guardianship Act deals with definitions of certain terms that are referred to in the entire Act. The most important of them are the definitions for the terms “minor” and “guardian”. The explanations for these definitional clauses are given below:
Minor
According to Section 4(a) of the Act, a minor is considered to be an individual who is under the age of eighteen years. Under the Indian Majority Act, 1875, a person attains majority upon completing the age of 18 years, but prior to this, a guardian is appointed by the court for that minor until he attains the age of 21 years.
Guardian
Section 4(b) of the Act suggests that the guardian is a major (has attained the age of 18 years) and is given the responsibility of the minor’s person or property. A person who is a minor is incapable of taking care of himself or of handling his affairs on his own, which leads to the requirement of the appointment of a guardian who has the duty to help, support, and protect the interests of the minor.
As per the definition of the term “guardian”, it is seen to be intrinsically bifurcated into two parts, the former being for the guardianship of a minor’s person, which includes all the matters related to food, care, education, etc., and the latter being the guardianship of the minor’s property. As the minor is incapable of taking care of his own assets, such responsibility vests in the guardian.
The term “guardian” under the purview of Section 4(b) includes certain categories within and they are enumerated as follows:
- Natural guardian;
- When the minor’s mother or father appoints a guardian through will, or what we call as a testamentary guardian;
- When the court appoints a guardian;
- The person who has the power to act as a guardian as per the Court of Wards.
Natural guardian
A natural guardian has also been defined under this Act through the provision of Section 4(c). Though the provision does not explicitly tell who a natural guardian is, but, it is an inclusive definition which states that a natural guardian means any of those guardians who are enumerated under Section 6 of the Act.
In order to understand the concept of guardianship, it is important to deal with the detailed explanations of the types of guardians, which are enumerated as follows:
Natural guardian
As already mentioned before, a natural guardian under Section 4(c) includes any of those guardians who are enumerated under Section 6 of the Act. The short title of the Section, “Natural guardians of a Hindu minor” itself explains that it mentions about the class of people who are appointed as the guardians for a Hindu minor. Let us learn about the people who can act as the natural guardian of a minor’s person as well as his property, apart from the undivided interest in the property of the joint family.
- In the case of a legitimate minor son or a legitimate minor unmarried daughter, the father is the natural guardian, and after him, the mother assumes the role. The mother does not step into the role of a natural guardian unless the father dies or becomes incapable of acting as a guardian. However, the custody of a child below the age of 5 years shall be naturally with the mother.
- The mother is considered to be the natural guardian of her minor illegitimate son or the minor illegitimate unmarried girl. In such cases, the father shall only take custody of the minor after the death of the mother.
- In the case of a married minor girl, the husband is considered to be the natural guardian.
The proviso to Section 6 states the conditions under which a person shall not be treated as the natural guardian of a minor. The conditions are as follows:
- If a person ceases to be a Hindu, he loses the entitlement to act as the natural guardian of a minor, and
- Complete renunciation of the world by becoming a vanprastha or a sanyasi results in the disentitlement of a person for being the natural guardian.
Section 7 enumerates that, from the moment the minor is adopted by an individual, that person becomes the adoptive father of the minor. Resultantly, the adoptive father assumes all the powers of a natural guardian, and after him, it is the adoptive mother. Additionally, it is pertinent to note that in cases where both the adoptive parents and the biological parents are alive, the appointment of the guardian shifts under the provisions of the Guardians and Wards Act, 1890.
In the case of Roxann Sharma vs. Arun Sharma (2015), the Supreme Court held that when there happens to be a legal battle for the custody of a child who is below the age of 5 years between the legally separated parents, the custody shall remain with the mother itself. In such cases where the child does not complete the age of 5, the suitability of the father as the custodian of the child is not relevant, and the mother is considered the best suited parent to provide love and care to the child.
In the landmark case of Githa Hariharan vs. Reserve Bank of India (1999), the Supreme Court dealt with the question of a mother being the natural guardian of her child despite the father being alive. In this case, the petitioner challenged the validity of Section 6 of the Hindu Minority and Guardianship Act, 1956, on the ground of being violative of her rights enshrined under the Indian Constitution. The Court pronounced the verdict in the favour of the petitioner by giving a wider interpretation to the provision of Section 6, stating that the word “after” mentioned in the Section does not only mean the death of the father but also any sort of inability to provide care and protection to the child.
Powers of a natural guardian
Section 8 of the Act is a very important provision in the process of perusing the whole Act. It entails the powers that a natural guardian is required to have to ensure the well-being of the minor. The powers of a natural guardian are listed as follows:
- On a bare perusal of Section 8(1), it is pertinent to know that a natural guardian of a Hindu minor has the power to do all the acts that are essential, appropriate, and reasonable to ensure that the minor benefits along with its estate. However, the provisions put a restriction on the guardian to not bind the minor by any sort of legal promise.
- Furthermore, the Act also puts another restriction on the guardian with respect to any kind of transfer of an immovable property of the minor without the court’s permission. According to Section 8(2), no natural guardian can mortgage, transfer by sale, gift, exchange, or create any charge on the minor’s property without the court’s permission. A natural guardian is also barred from letting out any part of the minor’s property for more than 5 years.
- However, as per Section 8(3), if such disposal of property takes place without the court’s permission, in violation of Sections 8(1) and 8(2), it will be voidable at the option of the minor and not completely null and void.
- Sub-section (4) talks about the sanction of the court and states that the power vested in the court to sanction any sort of transfer of property mentioned under Section 8(2) shall only be exercised on getting satisfied that there is a matter of necessity or for the evident advantage of the minor.
- Section 8(5) is a reflection of the resonance between the present Act and the Guardians and Wards Act, 1890. It mentions that any application related to the present provision shall be conducted as per the laws mentioned under the Guardians and Wards Act, 1890.
- The “court” as mentioned under this provision means either a City Civil Court, a District Court, or a court under the provisions of the Guardians and Wards Act, 1890. (Section 8(6)).
Testamentary Guardian
Testamentary guardians are often referred to as guardians appointed by a will of the minor’s natural guardians under Section 9 of the Hindu Minority and Guardianship Act, 1956. The Act grants both the minor’s mother and father the authority to designate a testamentary guardian. Let us now have a clear understanding of the provision in detail:
According to Sub-section (1) of Section 9, the father of a minor legitimate child, whether a boy or a girl, being the natural guardian, may appoint any person as the testamentary guardian of that child after the death of the father. Such appointment of a guardian may be done with respect to the minor’s person, its property, or both.
As per Sub-section (2), if the father of a minor dies prior to the death of the mother, the appointment of the guardian made under Sub-section (1) shall have no effect, and resultantly, the mother will be considered as the next guardian of the minor. However, if the mother dies without appointing any guardian by will, the appointment made by the father will subsist, and the person appointed by the father will become the testamentary guardian of the minor.
According to Sub-section (3) of Section 9, apart from a Hindu mother, a Hindu widow mother who is a natural guardian of a minor is also entitled to appoint a person to act as a guardian by will for the minor’s person or property, or in respect of both. However, such an appointment can only be made by the Hindu mother in the case when the father becomes disentitled or ineligible to act as the natural guardian of the minor legitimate child.
It is pertinent to note that for an illegitimate minor child, the power of appointing a guardian by will lies only with the mother of that child, as mentioned under Sub-section (4) of Section 9.
Rights and powers of a testamentary guardian
As per Sub-section (5) of Section 9, a testamentary guardian assumes all the powers of a natural guardian, subject to the limitations contained in the will, if any. Such a guardian, after the death of both the father and the mother of the child, gains the right to act as the guardian of that minor child. However, such a person, being the testamentary guardian, is not personally liable for the expenses incurred for the well-being of the minor. In a case where the appointment of the guardian is done for a minor girl child, such a right ceases when the girl gets married.
A guardian appointed by the court
The provisions of the Guardians and Wards Act, 1890, are proof of the fact that even the courts have the power to appoint a guardian for a minor in order to ensure the welfare of that minor person and its property. As per Section 7 of the Guardians and Wards Act, 1890, the court, while ensuring the welfare of a minor, has the power to make orders with respect to the guardianship of its person, property, or both.
Welfare of the minor
Though the appointment of a guardian by the court is not explicitly mentioned under the Hindu Minority and Guardianship Act, 1956, the concept of such type of guardian resonates with the objective of Section 13 of the Act, which clearly states that the welfare of the minor has to be of paramount consideration to the court while deciding upon the issue of the declaration of any guardian. The court has to take into account all the relevant facts on record while deciding the question of guardianship for a minor.
In Vasudha Sehti vs. Kiran V. Bhaskar (2022), the Apex Court clearly mentioned that when the custody of a minor child is in question, the rights of the parents become irrelevant in such cases. Such issues are to be decided on the basis of the welfare of the child and not the personal rights of the parents.
In another case, Vivek Singh vs. Romani Singh (2017), it was observed by the Supreme Court that the separation of parents results in adverse psychological effects for the minor. The court used the term “Parental Alienation Syndrome” for such cases where the minor suffers from destructive effects because of his parent’s separation.
Even in Nil Ratan Kundu vs. Abhijit Kundu (2008), the Apex Court reiterated that Section 13 holds extreme importance in matters where the welfare of the child is in question. It should be ensured that a child is brought up within normal and balanced circumstances, which aids his well-being.
As per Sub-section (2) of Section 13, the court even has the power to disentitle a guardian, depending upon the circumstances, and to appoint a new guardian who would act as per the best interests of the minor.
De-facto guardian
Though not explicitly mentioned in the Act, a de-facto guardian is a term used to denote a person who assumes the powers and responsibilities of a guardian without being legally appointed as one. Such a person does not have the legal status of guardian but acts as a caregiver to the minor.
However, it is important to mention that a de-facto guardian can only act as the guardian of a minor’s person, but not his property. This has been enumerated under Section 11 of the Act, which states that a de-facto guardian is not authorised to dispose of or deal with the property of the minor.
Section 10: As per Section 10 of the Act, a minor is incompetent to act as a guardian of the property of any other minor person. It also reflects that a minor may act as a guardian for another minor’s person but not for his property.
Section 12: According to Section 12 of the Act, no court except the High Court shall appoint a guardian to the care of a joint family property in which the minor possesses an undivided interest and is under the management of a senior member of the family.
Being a guardian, whether a natural guardian, a testamentary guardian, or even a guardian appointed by the court, is not just a legal title but a constant role to be played in ensuring the well-being and care of the minor. The minor’s welfare is considered to be the primary concern of the authorities when the concept of guardianship comes into question. The reason behind the consideration of the minor’s welfare is that a child below the age of 18 is considered to be unable to look after himself or his property on his own. This is when the concept of guardianship comes into play. Talking about the Hindu personal laws, the matters of minority and guardianship are dealt under the present Act, by virtue of which certain categories of guardians assume the role and responsibilities of taking care of the minor’s person as well as his property. In order to ensure the welfare of the minor, the court even has the power to disentitle a guardian and appoint another person as the guardian for the sake of the best interests of the minor.
What is the relationship between the provisions of the present Act and the Guardians and the Wards Act, 1890?
According to Section 2 of the Hindu Minority and Guardianship Act, 1956, the provisions of this Act must be in addition to those of the Guardians and the Wards Act, 1890, and not in opposition to the same.
Is a minor competent to be a guardian for another minor?
No, as per Section 10 of the Act, a minor is not entitled to be considered as the guardian for another minor’s person as well as his property.
Who is considered to be the guardian of a married girl?
As per Section 6(c) of the Act, for a married girl, her husband is considered as her lawful guardian.
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