In the premature stage of one’s life, a child is incapable of taking care of himself or herself, they cannot be expected to take care of themselves as well as their property. A child cannot handle their matters and cannot understand what is right and wrong for them. So, therefore, Hindu law has codified the Hindu Minority and Guardianship Act, 1956. The act deals with minors, their guardian, and the provisions related to the same.
Section 4(a) of the act has defined a minor who has not completed the age of 18 years.
Section 4(b) of the act has defined a guardian, as a person who has completed the age of 18 years and can take proper care of a minor and his property.
Types of guardians
According to the Hindu minority and guardianship act 1956, there are three types of guardians
Guardian appointed by the court
1. NATURAL GUARDIAN
A natural guardian is a person having the care of a person of a minor or of his property or both, by virtue of his natural relationship with the minor.
According to section 6 of the act, the father is the natural guardian of the person and the separate property of his minor children, and next to him is the mother. The meaning of the words “Father” and “Mother” does not include a stepfather and a stepmother.
So, Hindu law recognizes three persons as natural guardians: Father, Mother, and Husband.
● FATHER- The father is the natural guardian of a boy and unmarried daughter, and after him, it’s the mother. But the custody of a child less than the age of 5 years will be with the mother.
Case- Michael Nadar v. Sreedharan Babu (1992), in this case, the father of the child was not residing with them, and this does not cease the father to be the Natural Guardian.
● MOTHER- For an illegitimate son or daughter, the mother is said to be the natural guardian and after her, it’s the father.
Case- Jijabai v. Pathan Khan (1971), where the mother and father had fallen out and were living separately and the minor daughter was under the care and protection of her mother (though the father was alive) the SC held that the mother should be considered as the natural guardian of the minor girl and not the father.
● HUSBAND- For a minor wife his husband is the natural guardian. However, according to Section 13 of the act, a court may revert the guardianship to the father or mother depending on the best interests of the minor.
Section 6 of the act also mentions that the father nor the mother shall not be considered to be the natural guardian of the child if,
a) he or she ceased to be Hindu, or
b) he or she has renounced the world and has become an ascetic or sanyasi.
Power Of Natural Guardian
Section 8 of the act, prescribes the powers of the natural guardian which are as follows:
The natural guardian of a Hindu minor has the power to do all work, which is compulsory and which is beneficial for the minor’s interest.
The natural guardian should bring prior permission from the Court, for the use of the gift transferred to him, mortgage, or any other valuable things of the minor.
For the lease of any part of the minor’s property for about exceeding 5 years or for a term of extending one year beyond the date on which the minor attains the majority. Prior permission from the Court is necessary for doing so.
Violation of any disposal of the immovable property by a natural guardian, will be voidable in the case of the minor or any other person claiming on the behalf of him.
The court shall allow the guardian to transfer or lease the property only when it finds it necessary to do so in the interest or advantage of the minor.
In Githa Hariharan v. Reserve Bank of India, the Apex Court adopting the rule of harmonious construction observed that the word 'after' in Section 6 (a) of the Hindu Minority and Guardianship Act, need not necessarily mean 'after the lifetime' but 'in the absence of. If the father is not in the charge of actual affairs of the minor, either because of his indifference or by mutual understanding between the parents, or because he is staying away from the place where the mother and the minor are living or because of some physical or mental incapacity, then in all such situations, the father, can be considered as "absent”, and the mother can act validly on behalf of the minor as the guardian.
2. TESTAMENTARY GUARDIAN
Section 9 of the act talks about the testamentary guardian and its powers. A testamentary guardian is a guardian who is appointed by will or a testament of a person. This is to ensure that the child will have supervision even after the death of the natural guardian. Under the act, both father and mother can choose a testamentary guardian.
There are some circumstances:
▪ If the father of the child is dead and the mother is still alive, she will be the natural guardian, not the testamentary guardian.
▪ If the mother chooses a testamentary guardian, her chosen guardian will become the testamentary guardian, and the father’s appointment will be void.
▪ If the mother does not want to choose any guardian, then the father’s appointee will become the guardian.
▪ The father of an illegitimate child is not a natural guardian of him/her. The mother is the natural guardian of an illegitimate child and she has the right to choose a testamentary guardian
▪ After the death of the father or mother, the person appointed as the guardian shall act as the natural guardian of children
▪ The right of the guardian appointed by the will shall cease after the marriage of a girl.
Case- Duraiswamy vs Balasubramanian, 1977, a testamentary guardian cannot sell or transfer any part of the immovable property of a minor without seeking permission from the court.
Powers Of a Testamentary Guardian
According to Section 9 (5), a Testamentary guardian is said to have the same powers as the natural guardian and can exercise all the powers that are vested with the Natural Guardian. The natural guardian's will and the rules outlined in the Act will serve as the only restriction on his use of power.
3. GUARDIAN APPOINTED BY THE COURT
In the absence of the first two kinds of guardians, the guardian appointed by the court comes into play. In this, the court appoints a guardian concerning the minor or minor’s property or both. The guardian appointed by the court is called a certificated guardian.
Section 13 states that the welfare of the minor should be a “paramount consideration” while appointing a minor. Hence, the welfare of the minor is taken into account as a paramount consideration while appointing a guardian.
Powers Of Certificated Guardian
The Guardians and Wards Act of 1890 regulates the authority of Certified Guardians. The powers of the guardian appointed by the court and the control imposed by the Act over such powers are the same as that of a natural or testamentary guardian.
DE FACTO GUARDIAN
A de facto guardian of a minor is neither a legal guardian, a testamentary guardian, nor a guardian appointed by the court, but he is a person, who himself takes over the management of the affairs of the minor as if he was a natural guardian. He does not intermeddle, nor does an isolated act of any person regarding a child's property make him a de facto guardian.
He may be any person like the elder brother or elder sister or uncle or aunt of the child or anybody who provides necessities to the minor child.
In the old Hindu law, there was no guardianship law as all the family members stayed together and if the parents were not there, then the other members of the family would take guardianship of the child. That is why there was a need for a proper guardianship law in our country and therefore, the parliament enacted the Hindu Minority and Guardianship Act in 1956. So, a guardian is very necessary for a minor for the welfare of him and to protect him physically or mentally and secure from any danger.
This article is written by Simran Kumar of Bharati Vidyapeeth New Law College.