F.
L
(THE HINDU MINORITY AND
GUARDIANSHIP ACT, 1956)
There are different stages of life a person has to come across during his lifetime
since birth. In the early part of his life, a person is unable to take care of his
person and property because of his minority. He cannot manage his own
affairs. He even cannot understand what is good and what is bad. So, he needs
the help of some other person to take care of him. For the welfare of those
minors, the lawgivers have made certain laws which can give some comfort
and support to the lives of the minors. The modem laws on minority and
guardianship is governed by the Hindu Minority and Guardianship Act, 1956.
The Ancient Hindu system had hardly a developed law on minority and
guardianship. Minor children lived in the joint family and were always under
the protection of the Karta. In the Joint Hindu Family, the Karta was obliged to
protect the minors and the women and maintain them, even after the death of
the father or the husband as the case may be. Outside the joint family minor
children used to study in Gurukul or the Guru Ashram, where the Guru was
protector. That is why Dhramshastras do not generally speak of protection of
person of the property of the minor and the texts available are few and scanty.
It was broadly recognized that king was a supreme guardian
Changes made by the Act
(1)The Act has improved the status of Mother as the Natural Guardian.
(2)Secondly , under the old Hindu law power of de-facto guardian to
intermeddle with the property of minor was allowed. But Section 11 of
Hindu Minority and Guardianship Act forbids the de-facto guardian from
dealing with or disposing of the proprieties of Hindu minor.
(3)Under old Hindu law father does not lose custody of his child merely
because of change of religion, but under section 6, proviso of the present
Act, no person shall be entitled to act as guardian if he or she has ceased
to be a Hindu or has renounced the world by becoming a sanyasi.
(4) Fourthly , the power of the natural guardian regarding alienation of the
immovable property of the minor cannot be exercised without the
previous permission of the court(section 8 {2}). Before the
commencement of this Act, the father used to exercise unlimited powers
with respect to minor person and property under them.
The Hindu Minority and Guardianship Act, 1956 does not codify the entire
law of guardianship applicable to Hindus, but amends and supplement the
provisions of the Guardians and Wards Act, 1890, in its application to Hindus
only. Section 2 of the Act clearly provides that the provisions of the Act shall
be in addition to the Guardianship and Wards Act of 1890. For the purpose of
the appointment of a guardian by the court one has to look into the provisions
of the Guardianship and Wards Act and the definition of a minor in the Indian
Majority Act. (Swaminathan v. A. Ammal, AIR 1964 Mad 11).
In respect of matters expressly dealt with in the Hindu Minority and
Guardianship Act, the provisions of the Act, abrogates all the rules of
guardianship hitherto applicable to the Hindus by virtue of any text or rule of
Hindu law or by custom or usage having the force of law and have overriding
effect. These provisions also supersede any other law, if inconsistent with
them.
Age of Majority- According to ,Aiyer, K. J., Judicial Dictionary- The
dictionary meaning of the term minor is a person who cannot manage his
own affairs.
According to section 4 of the Act, the minor is a person who has not
completed the age of eighteen years.
MEANING OF A GUARDIAN- In Wharton’s Law Lexicon, the term
guardian is defined as one appointed by the wisdom and policy of the law
to take care of a person and his affairs, who by reason of his imbecility and
want of understanding is incapable of acting for his own interest.
According to Section 4(b) of Hindu Minority and Guardianship Act, 1956,
a guardian means a person having the care of the person of a minor or of
his property or of both his person and property
Guardian means a person having the care of the person of a minor or his
property. There are following types of guardians-
(1) A natural guardian
(2) A guardian appointed by the will of the minor’s father or mother
(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.
Apart from the above mentioned categories there is one another type of
guardian that is known as de-facto guardian.
Guardian for the Minors undivided interest in Joint Family Property- It is
important to note that under the Act no guardian for minors undivided
interest in joint-family property is to be appointed. According to section 12
of this Act , the provisions of this Act do not apply in respect of minors
undivided Coparcenary property. But the powers of the High Court to
appoint a guardian in respect of such interest has not been restricted.
Position of Karta as Guardian- The Karta in a joint Hindu family is the
manager of all property belonging to the family. The coparcenary interest of a
minor is not his individual property. So long as there is Karta alive, no
guardian can be appointed of a minors interest in the joint-family property. If
the minor is a member of joint family governed by Mitakshara Law, the father
as Karta (manager) is entitled to the management of the whole coparcenary
property including minors interests. After the fathers death the management of
the property, including the minors interest therein, passes to the elder son as
karta. The mother is not entitled to the custody of the undivided interest of her
minor son in the joint property, if any. If all the sons are minors, the court may
appoint a guardian of the whole joint property until one of them attains
majority. The result is that no guardian can be appointed of the property of
minor member of an undivided Mitakshara family, as until partition the minor
has no separate property to be managed by the guardian-
Kinds of guardianship- (1) natural guardians
(2) Guardian appointed by the will of mother and
father
(3) a guardian appointed or declared by court
(4)- guardians appointed under guardians and wards
Act
(5) de-facto guardian
(6) ad-hoc guardian.
NATURAL GUARDIAN
The natural guardian is one who becomes so by reason of the natural
relationship with the minor. According to section 6 of the Act.
Section6- The natural guardians of a Hindu minor, in respect of the minor's
person as well as in respect of the minor's property (excluding his or her
undivided interest in joint family property), are—
(a) in the case of a boy or an unmarried girl-the father, and after him, the
mother, provided that the custody of a minor who has not completed the
age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the
mother, and after her, the father;
(c) in the case of a married girl-the Husband: Provided that no person shall
be entitled to act as the natural guardian of a minor under the provisions
of this section—(a) if he has ceased to be a Hindu, or(b) if he has
completely and finally renounced the world becoming a
hermit(vanaprastha) or an ascetic (yati or sanyasi).
Explanation: In this section the expression "father" and "mother" do not
include step-father and a step-mother.
Rosy Jacob v. Jacob Chakramakkal, AIR 1973 SC 2090- The controlling
consideration governing the custody of the children is the welfare of the children
and not the right of the parents.
Essakkayal Nadder v. Sreedharan Babu, AIR 1992 Ker 200- Father is the
natural guardian of a minor. In the absence of father, mother is the natural
guardian. The mother of the minor children was dead, but the father was not
residing with the children, who were being looked after by the aunty. It was held
that though father was not residing with his children, he is still alive, has not
ceased to be a Hindu or renounced the world and has not been declared unfit.
This does not authorise any other person to assume the role of natural guardian
and alienate the minor’s property
Mother as a natural guardian
Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149- In the
phrase “the father and after him, the mother” the word ‘after’ need not
necessarily mean after the lifetime of father. In the context in which it
appears in section 6(a) it means ‘in the absence of ‘, the word ‘absence’
therein referring to the father’s absence from the care of minor’s property
or person for any reason whatsoever. If the father is wholly indifferent to
the matters of the minor or if by virtue of mutual understanding between
the parents, the mother is put exclusively in charge of the minor or if the
father is physically unable to take care of minor for any reason whatsoever,
the father can be considered to be absent and mother being a recognised
natural guardian can act validly on behalf of the minor as the guardian.
Such an interpretation will keep the statute within the constitutional limits
otherwise the word ‘after’ if read to mean a disqualification of a mother to
act as guardian during lifetime of father the same would violate one of
basic principles of our constitution i.e. gender equality;
Jajabhai v. Pathankhan, AIR 1971 SC- 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, the mother could be considered as the natural guardian of
the minor girl.
In Mausmi Moitra Ganguli v. Jayanti Ganguli(AIR 2008 SC 2262
), the apex court referring to Rosy Jacob case , observed that children are not mere
chattels, nor are they mere play things for their parents. Absolute rights of parents
over the destines and the lives of their children has, in the modern times changed
social conditions, yielded to the considerations of their welfare as human being so
that they may grow in normal balanced manner to be useful member of the society.
Step Father and Step Mother- The words father and mother under section 6 of
the Act do not include step-father and step mother and therefore step-father and
step mother are not the natural guardians of the minor child.
Illegitimate boy and girl- According to section 6 of the present Act, in the case
of an illegitimate boy or an illegitimate unmarried girl the mother would act as
an natural guardian. In the absence of mother father would be the next guardian.
Married Girl- In the case of married girl , husband would be the guardian,
unless he has ceased to be a Hindu or has completely and finally renounced the
world.
In the case of Vijay Lakshmi v. Inspector of Police,- Madras High Court held
that where father converted to Islam and married to a Muslim girl, he ceases to
be the natural guardian as a matter of legal right. It would not be in the interest
of the child that such convert should be allowed to continue as natural guardian
and exercise the powers as such. Under the proviso to section 6 , no person shall
be entitled to act as a natural guardian of a minor under the provisions of this
section if he has ceased to be Hindu. According to A.M Bhattachatjee , the
scholar of family law, this provision has classified the natural guardians into
two-
1- those continuing to be Hindu and
2- those who has ceased to be Hindu
According to him is therefore violative of Article 15(1) of the Constitution.
Effect of remarriage by Widow- A Hindu widow does note, by her
remarriage, lose her preferential rights to guardianship over her minor
children by the deceased husband whether such marriage is permitted by
custom or not. The right conferred on the mother to be natural guardian of
her children after the father of absolute.
In the case of Bhagwati Bai v Yadav Krishna, AIR 1969- it was held that
the writ of Habeas Corpus also extends to influence to resort the custody of
a minor child to his guardian when wrongfully deprived of it.
In Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148 the High Court
observed that it is true that the father is a natural guardian of a minor child and
therefore has a preferential right to claim the custody of his son, but in matters
concerning the custody of a minor child, the paramount consideration is the
welfare of the minor and not the legal right of a particular party. Section 6of
the 1956 Act cannot supersede the dominant consideration as to what is
conducive to the welfare of the minor child. It was also observed that keeping
in mind the welfare of the child as the sole consideration, it would be proper to
find out the wishes of the child as to with whom he or she wants to live.
Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 on what the parties
say, it has to exercise a jurisdiction which is aimed at the welfare of the minor.
As observed recently in Mausami Moitra Ganguli case (2008) 7 SCC 673, the
court has to give due weightage to the child’s ordinary contentment, health,
education, intellectual development and favourable surroundings but over and
above physical comforts, the moral and ethical values have also to be noted.
They are equal if not more important than the others.
Tejaswini Gaud vs Shekhar Jagdish Prasad Tewari on 6 March, 2019-
pronounced that in determining the question as to who should be given
custody of a minor child, the paramount consideration is the `welfare of the
child’ and not rights of the parents under a statute.
Recently the Supreme Court has issued notice to the Centre seeking its
response to a public interest litigation challenging Section 6 of the Hindu
Minority and Guardianship Act. The law has been challenged as being
violative of the principle of ‘Equality’ enshrined under Article 14 of the
Constitution as it discriminates against women in the matters of natural
guardianship.(14 November 2019)
Section7. Natural guardianship of adopted son.—The natural guardianship
of an adopted son who is a minor passes, on adoption, to the adoptive father
and after him to the adoptive mother.
8. Powers of natural guardian.—(1) The natural guardian of a Hindu minor
has power, subject to the provisions of this section, to do all acts which are
necessary or reasonable and proper for the benefit of the minor or for the
realisation, protection or benefit of the minor’s estate; but the guardian can in
no case bind the minor by a personal covenant.
(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 contravention
of sub-section (1) or sub-section (2), is voidable at the instance of the minor or
by 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 the case of necessity or for an evident
advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect
of an application for obtaining permission of the court under sub-section (2) in all
respects as if it were an application for obtaining the permission of the court under
section 29 of that Act, and in particular—(a) proceedings in connection with the
application shall be deemed to be proceedings under that Act within the meaning
of section 4A thereof;
(b) the court shall observe the procedure and have the powers specified in sub-
sections (2), (3) and (4) of section 31 of that Act; and
(c) an appeal shall lie from an order of the court refusing permission to the natural
guardian to do any of the acts mentioned in sub-section (2) of this section to the
court to which appeals ordinarily lie from the decisions of that court.
(6) In this section “court” means the city civil court or a district court or a court
empowered under section 4A of the Guardian and Wards Act, 1890 (8 of 1890),
within the local limits of whose jurisdiction the immovable property in respect of
which the application is made is situate, and where the immovable property is
situate within the jurisdiction of more than one such court, means the court within
the local limits of whose jurisdiction any portion of the property is situate
Bishun Deo v. Seogeni Rai- -it has been held by the Supreme Court has held
that it is not necessary for the next friend or guardian of a minor to obtain the
sanction of the court under order 32, rule 7 of CPC, only benefit of the minor
has to be taken into consideration
Acknowledgement of the Dept by the Guardian- The natural guardian of the
minor as well as guardian appointed by the court can acknowledge the dept of
the minor and can here by extend the limitation period.
Family Arrangements- The natural guardian has the power to enter into
family settlement ob behalf of the minor provided it is in the nature of a bona
fide compromise of doubtful claims.
It has been held in the case of Balaji v Nanda- The natural guardian has
power to refer to arbitration disputes provided such a course is for the benefit
of family
Janaradhan Pillai v B.A Radhamma- it was held in this case by the Court
that Minors property effected by the guardian without taking the required
permission under section 8(2) will be held to be invalid.