Hindu Law: Minority, Guardianship With Landmark Case Laws

The law of guardianship is based on the incapacity which the law attributes to minors to enter into legal relations or to exercise discretion. It is presumed that such persons are incapable of looking after themselves or of maintaining their property or entering into a contract. Thus, it is necessary to entrust the management of their affairs to proper guardians.

Guardianship Under Ancient Hindu Law

The ancient Hindu Law does not provide an instance of a highly developed system on minority and guardianship. The minors generally lived in a joint family and were always under the protection of the Karta. The Karta of the joint family was under a legal obligation to protect the minors and the women and to maintain them, even after the death of the father or the husband, as the case may be. When the minors were in Gurukula or in the Ashram of the Guru, the Guru was their protector. Thus, there was no need for the law of guardianship of the person. It was broadly recognised that the King was the supreme guardian of the minors and as such he was under an obligation to protect the person and property of the minors.

Guardianship and Wards Act, 1890

Applies to all Indian citizens irrespective of religion unless personal laws override. It provides a general law for the appointment of guardians, their rights and duties.

Under the Act, the primary responsibility was thrust upon the father to act as his guardian both with respect to his person as well as to his property. In the absence of the father the mother becomes the next natural guardian. In the absence of both father and mother, the court was required to appoint guardians from amongst the nearest blood relations firstly from the paternal side and in their absence from the maternal side. So far as the minor wife was concerned the husband himself whether a minor or a major was her natural guardian.

Father was empowered to appoint a testamentary guardian which in effect took away the right of the mother to act as the natural guardian of minors after the death of the Father.

Hindu Minority and Guardianship Act, 1956 (HMGA)

The Hindu Minority and Guardianship Act, 1956 is a key legislation enacted as part of the Hindu Code Bills to codify and reform Hindu personal law of Guardianship in India. It complements the Guardians and Wards Act, 1890 by specifically addressing issues related to guardianship and custody of Hindu minors.

Position of HMGA in Comparison to Previous Law of Guardianship

• 5 of the HMGA repeals all existing laws (enactments or customs of ancient texts), if they are inconsistent with the Act.
• With respect to Guardians and Wards Act, 1890, Section 2 of HMGA provides that the provisions of this Act are in addition to, and not in substitution or derogation of, the Guardians and Wards Act. This means that HMGA, 1956 is not a complete legislation, it is only a supplemental law. The laws as contained in the Guardianship and Wards Act, 1890 have to be relied on in all those cases where the Minority and Guardianship Act, 1956 is silent. If there is a conflict on the same point, the provisions of HMGA will apply in case of Hindus.

Minority under HMGA

Section 4 (a) of the Act defines the word "minor" as a person who has not completed the age of eighteen years.

Guardians Under The HMGA

A guardian means a person who owns the responsibility to take care of the person of another or of his property, or of both. Section 4(b) of the Hindu Minority and Guardianship Act defines the word "guardian" as follows:

"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-

1. a natural guardian;
2. a guardian appointed by the will of the minor's father or mother (Testamentary guardian);
3. a guardian appointed or declared by a court; and
4. a person empowered to act as such by or under any enactment relating to any court of wards.

Natural Guardianship

The Hindu Minority and Guardianship Act, 1956 (HMGA) lays down specific provisions regarding natural guardianship of Hindu minors under Section 6 and Section 7. A natural guardian is a person who is legally recognized to have the care of the person, or property, or both, of a minor child.

Persons Recognized as Natural Guardians Under Section 6, only three persons are recognized as natural guardians in Hindu law:

• Father
• Mother
• Husband (in the case of a married minor girl)

Classification Under Section 6

• In Case of a Boy or an Unmarried Girl - Primary Guardian is Father and Secondary Guardian is Mother (after the father).

Custody Exception : Custody of a child under the age of 5 years should ordinarily be with the mother.

• In Case of an Illegitimate Child - Primary Guardian is Mother and Secondary Guardian is Putative father (after the mother).
• In Case of a Married Minor Girl - Natural Guardian is Husband (though this is now mostly obsolete and criticized in light of evolving child marriage laws)

Guardianship of Adopted Children

According to Section 7, upon adoption, the natural guardianship of a minor passes from the biological parents to the adoptive parents. Adoptive father becomes the natural guardian, and after him, the adoptive mother.

No Recognition of Step-Parents or Joint Guardians

Step-parents are not recognized as natural guardians unless appointed by a court. The Act does not recognize joint guardianship; only one person can act as the natural guardian at a time.

Whether Mother can act as a natural guardian during lifetime of the Father

Traditionally, the word “after” under Section 6 was interpreted to mean after the lifetime of the father. However, this was reconsidered by courts:

In Narayan v. Sapurna (1968) , the SC held that if the father refuses, fails, or is incapable of acting as guardian, the mother can assume guardianship without court appointment.

In Jijabai v. Pathan Khan (1970), the Court held that when the father was alive but not concerned with the child’s welfare for over 20 years, the mother was held to be the natural guardian.

In Githa Hariharan v. Reserve Bank of India (1999), the Supreme Court interpreted "after" as "in the absence of", not necessarily "after the death" of the father. Absence includes physical, mental, or intentional distancing from the child's care. Where a father fails to discharge the responsibility of a guardian or is guilty of negligence or becomes disabled, the mother acquires every right of guardianship irrespective of any such declaration by the court

In Vandana Shiva v. Jayanta Bandhopadhyaya (1999), the SC reiterated the principle that mother can act as a natural guardian even when the father is alive but absent in practical terms.

Disability to Act as Natural Guardian

A person loses the right to act as a natural guardian if:

• They cease to be a Hindu, or
• They have completely and finally renounced the world (e.g., by becoming a sanyasi or ascetic)

Exception – In Sheela v. Soli (1981), the court held that a mother does not lose her right to guardianship solely due to religious conversion, as long as she can provide a stable and caring environment.

Paramount Consideration – Welfare of the Minor

Under Section 13 of HMGA, the welfare of the minor is the paramount consideration in deciding guardianship. Even natural guardians can be superseded if not acting in the best interest of the child. Section 13(2) provides that “no person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor”.

Rights of Natural Guardian

The natural guardian has the following rights in respect of minor children :

• Right to custody,
• Right to determine the religion of children,
• Right to control education
• Right to control movement, and
• Right to reasonable chastisement.

(These rights are conferred on the guardians in the interest of the minor children and therefore exercise of each of these rights is subject to the welfare of the children)

Powers of the Natural Guardian

Section 8 of the Act deals with the powers of a natural guardian with respect to a minor's person or property. The section enumerates two categories of powers which a natural guardian may exercise : one, where power may be exercised without permission of the court and the other relates to such powers which such guardian may exercise subject to the sanction and control of the court.

Powers which may be exercised without sanction of the court

• The natural guardian of a Hindu minor has power to do all acts which are necessary and reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate.

However, the guardian can in no case bind the minor by a personal covenant. He cannot contract in the name of the minor so as to impose on the latter any personal liability.

Powers which may be exercised with sanction of the court

• Natural guardian cannot mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor without the previous permission of the court.
• Natural guardian cannot lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority without the previous permission of the court.

(Any disposal of immovable property by a natural guardian, in contravention of above conditions is voidable at the instance of the minor or any person claiming under him).

Testamentary Guardianship

Prior to HMGA, a Hindu father could nominate a guardian of his children, so as to exclude even the mother from guardianship. Even in cases where the father was dead, the mother did not have the power to appoint a testamentary guardian i.e. a guardian appointed under a will.

Sec. 9 of HMGA confers testamentary power of appointing a guardian on both parents. The father may appoint a testamentary guardian but if the mother survives him, his testamentary appointment will be ineffective, as the mother will become the natural guardian. Then, the mother could appoint a testamentary guardian of her choice; if she does not appoint, the father's appointee will become the guardian after the death of the mother. If mother while acting as natural guardian appoints a testamentary guardian, father's appointee will not become the guardian.

In respect to minor illegitimate children, the mother has the power to appoint a testamentary guardian. The father of such children does not have this right until the mother's death.

The right of guardian so appointed by Will shall, where the minor is a girl, cease on her marriage and the guardianship cannot revive even if she becomes a widow while a minor.

Powers of Testamentary Guardian

The testamentary guardian becomes entitled to act as the guardian of the minor after the death of the natural guardian. He can exercise all the rights and powers of a natural guardian to such extent and subject to such restrictions as are specified in the Act and in the Will.

Removal of a Testamentary Guardian

Section 39 of the Guardian and Wards Act lays down certain grounds on which a testamentary guardian could be removed. It may be noted here that the above section has not been abrogated by the present Act of 1956 hence it stands a good law even today. Thus, a testamentary guardian could be removed on the following grounds as mentioned in Section 39 in the Guardian and Wards Act :-

1. Abuse of his trust.
2. Continuous failure to perform the duties.
3. Incapacity to perform the duty.
4. Ill Treatment or neglect to take proper care of his ward.
5. Continuous disregard to any of the provisions of the Act.
6. Conviction in case of an offence relating to lapses in the character.
7. Keeping an adverse interest.
8. Ceasing to reside within the local limits of the jurisdiction of the court, and
9. Insolvency or bankruptcy.

 In addition to the above, the Hindu Minority and Guardianship Act, 1956 mentions the following grounds:

• If he ceases to be Hindu, or
• has completely and finally renounced the world by becoming a hermit or an ascetic.

Guardians Declared or Appointed by Court

Where the court is satisfied that it is for the welfare of a minor that a guardian should be appointed with respect to his person or property or both, it may pass an order to that effect under the Guardian and Wards Act, 1890. Section 13 of the HMGA specifically provides that while appointing or declaring a person as the guardian of a minor by the court, his welfare shall be the paramount consideration.

The appointment of guardians by court is still regulated by the Guardians and Wards Act, 1890. Under the Act, the jurisdiction is conferred on the District Court. The District Court-may appoint or declare any person as theguardian whenever it considers it necessary in the welfare of the child." In appointing a guardian, the Court takes into consideration various factors, including the age, sex, wishes of the child, the wishes of the parents etc.

Person Empowered to Act as Guardian Under Other Enactments

Code of Civil Procedure - Order 32 provides for appointment of guardian ad litem to defend the suit on behalf of the minor.

Court of Wards Act - where the management of an estate belonging to a minor is vested, for the time being, in a court of wards, a guardian of the minor may be appointed under the Court of Wards Act.

De facto Guardian

A de facto guardian is a person who takes continuous interest in the welfare of the minor's person or in the management and administration of his property without any authority of law when a minor child has no legal guardian. It includes relatives or friends who are interested in the minor's welfare out of their love or affection for him.

Position of De Facto Guardian Prior to HMGA

In Hanuman Prasad Pandey's Case (1856), the Privy Council held that a de facto guardian has the same power as a natural guardian as far as alienating the minor's property is concerned.

Position of De facto guardian under HMGA

Section 11 of the HMGA has done away with the authority of any person to deal with or dispose of a minor's property, on the ground that he is the de facto guardian of a minor. Thus after the enforcement of the HMGA, a de facto guardian cannot deal with the property of a minor.

Whether a minor can act as Guardian?

Section 10 of the HMGA provides that a minor is incompetent to act as the guardian of the property of any Hindu minor. However this incapacity is only with respect to property and not the person of the minor.

Whether a Guardian Can Be Appointed for Minors Undivided Interest in Joint Family Property

The property of the minor, with respect to which the right to guardianship is exercisable, should be his separate property or the property over which the minor has got absolute control. There can't be a guardian with respect to the undivided share of a minor in a joint Hindu family. This has been confirmed under Section 12 of the HMGA.

However, the High court is empowered to appoint guardians in respect of such interest.

 

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