Study Notes: Guardianship under Hindu Law

By Param Mansinghka 14 Minutes Read

INTRODUCTION

The Hindu Minority and Guardianship Act was established in 1956. The Hindu Minority and Guardianship Act of 1956 supposed to magnify the Guardians and Wards Act of 1890. The role of this act is to define guardianship relationships between adults and minors, as well as between people and their respective property. Three other important acts in Hindu personal law were, the Hindu Marriage Act (1955), the Hindu Succession Act (1956), and the Hindu Adoptions and Maintenance Act (1956). These Acts deals with the adoption and succession, maintenance, and marriage in Hindu religion. This Act applies to all Hindus as per the Hindu personal laws (all those persons who profess Hindu religion either by birth or by conversion to the Hindu faith)[1].

In this article I am going to discuss basic provision under the Hindu Minority and Guardianship Act, 1956 which states the normal rule related to minority and guardianship with the welfare of the child, including certain definitions, types of guardians and some of case laws.

GENERAL PROVISIONS UNDER THE ACT

The basic agenda of this act is to deal with the rights, duties and responsibilities of the adults in order to take care of the interests of the minors. This Act applies to all Hindus which clearly show that it excludes Muslims, Christians, Parsis and Jews. According to this act, 18 years is the age to attain majority. But, if an individual is under a guardian’s care, then the age to attain majority is 21 years.

The Hindu Minority and Guardianship Act  prohibits anyone from being considered the natural guardian of a minor if that person ceases to be a Hindu or has renounced Hinduism, for any purpose. And the step-father or step-mother cannot qualify to be a natural guardian[2].

Moreover, this act states that the welfare of the minor is most important thing to keep in mind during the guardianship of that minor, as Section 13 clearly shows that:-

1. In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
2. 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.

IMPORTANT DEFINITIONS  

Section 4 of Hindu Minority and Guardianship Act, 1956 states definitions of a minor, guardian and the types of guardians.

• MINOR: – Under the Hindu Minority and Guardianship Act, 1956, minor means a person who has not completed the age of eighteen years. A minor is considered to be a person who is physically and mentally immature and hence need someone’s protection.
• GUARDIAN: – A person who is legally responsible for the care of someone or his/her property who is unable to manage their own affairs, especially a child.

TYPES OF GUARDIANS

1. Natural Guardians: – The natural guardian has the responsibility of the minor’s person as well as the minor’s property.  The natural guardian is the father of the minor, and after him, the mother is the natural guardian. If a minor is below 5 years of age, he is supposed to be under the care of his mother, as it is believed that the child in such an early age is dependent on his mother and needs her more[3].(a) In the case of a boy or an unmarried girl: – The father, and after him, the mother would be the guardian but the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;(b) In case of an illegitimate boy or an illegitimate unmarried girl: – The mother, and after her, the father would be the guardian.

   (c) In the case of a married girl: – The husband would be the guardian but no person shall be entitled to act as the natural guardian of a minor under the provisions of this section if he has ceased to be a Hindu.

2. Testamentary Guardian: – Testamentary Guardian is the one appointed through a will. He or she has the right and responsibility to be the minor’s guardian after the death of the natural guardian of the minor-father or mother, depending on the situation. The testamentary guardian has the same rights as that of a natural guardian as per this Act[4].

3. Guardian appointed by the court: – Where the court is satisfied that it is for the Welfare of minor than an order should be made appointing a Guardian of his person or property or both, under the Guardians and Wards Act, 1890 appointing a guardian. In appointing or declaring a person as the Guardian of a minor Welfare of the minor shall be the first and foremost consideration.

4. De facto Guardian: – A de facto Guardian of a minor is neither a legal Guardian nor 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[5].

OTHER IMPORTANT PROVISIONS RELATED TO A GUARDIAN

(1) The natural guardian of a Hindu minor has power, 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; but the guardian can in no case bind the minor by a personal agreement.

(2) The natural guardian shall not, without the previous permission of the court: – (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or (b) 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.

(3) Any disposal of immovable property by a natural guardian, in violation of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.

(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an important advantage to the minor.

JUDICIAL DECISIONS

• Githa Hariharan & Anr. Vs Reserve Bank of India & Anr[6].Ms. Githa Hariharan (petitioner) was married to Dr. Mohan Ram (respondent) in 1982 and they had a son named Rishab. A divorce case is pending in the District Court of Delhi as the respondent had been living in a state of total apathy towards the affairs of the child. Still he claimed for custody of their minor son in the same proceeding. In 1984, she applied to the Reserve Bank of India (RBI) for 9% relief bonds to be held in the name of their minor son Rishab as his natural guardian. The RBI sent back the application to her advising her to either produce the application signed by the father of Rishab or produce a certificate of guardianship from a competent authority in her favour. In RBI’s opinion, Dr. Mohan was the natural guardian of Rishab on the basis of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA) which states that the father is the natural guardian of a Hindu minor child and the mother is the guardian “after” the father.The Supreme Court considered that the father was alive, and he was not taking any interest in the affairs of the child. In that case the mother made to be the natural guardian of her minor daughter. The SC had powers to reduce the custodial rights of the father in the welfare of the child. The Court further states that word “After” in Section 6(a) of the HMG Act need not necessarily mean ‘after the lifetime of the father’ but rather ‘in the absence of the father’ and ‘when the father was not taking any interest in the affairs of the child’. That’s why it doesn’t discriminate man against woman in the matter of guardianship rights.

• Smt Surinder Kaur Sandhu vs Harbax Singh Sandhu and anr[7].Appellant and Respondent No.1 were married in 1975 according to Sikh rites. Soon after the marriage, they left for England, where a boy named Pritpal Singh was born to them on October 24, 1976. Soon thereafter, their relationship gets disturbed with the result Respondent 1 was trying to negotiate with a hitman to have the appellant run over by a car. The Berkshire Police got information about that of in resulting in the Respondent’s conviction and sentence for a period of three years. The husband was released on probation on February 4, 1982.  The period of probation expired on December 24, 1982. On January 31, 1983, while the wife was away at work, Respondent No. 1 removed the boy from England and brought him to India.  The appellant filled petition in front of Judicial Magistrate first class. The Respondent No. 1 contested and took an objection that under section 6 of the Hindu MinorityAnd Guardianship Act, 1956 he was the natural guardian of the minor boy. But the court states that section (6) of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot replace the paramount consideration as to what is important to the welfare of the minor. The boy, from his own point of view, ought to be in the custody of the mother. That court directed the respondents to pay a sum of Rs. 3,000 (three thousand) to the appellant for her costs of this appeal.

[1] ^{Section (2), the Hindu Marriage Act, 1955.} 

[2] ^{Section (6), the Hindu Minority and Guardianship Act, 1956.}

[3] ^{Section (6), Hindu Minority and Guardianship Act, 1956.}

[4] ^{Section (9), Hindu Minority and Guardianship Act, 1956.}

[5] ^{Section (11), Hindu Minority and Guardianship Act, 1956.}

[6] ^{AIR 1999 SC 1149.}

[7]  ^{AIR 1984 SC 422.}

Param Mansinghka