Leading Cases
Background
Guardianship as conceived originally was, in most systems, an extension of paternal power. But in modern law, it essentially implies an idea of protection. The Hindu Minority and Guardianship Act, 1956 does not codify the entire law of guardianship applicable to Hindus, but amends and supplements 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 Guardians and wards Act of 1890. If there is a conflict on the same point the provisions of HMGA will apply in case of Hindus.
HMGA Section 4 Definitions
- “minor” means a person who has not completed the age of eighteen years
- “guardian” means a person having the care of the person and property, and includes:-
- a natural guardian
- Testamentary guardian
- A guardian appointed or declared by the court
HMGA Section 6 Natural guardians of a Hindu Minor
Every relation of the minor can not be natural guardian of the minor although the law does not restrict the list of guardians. In Hindu law, only three persons are recognized as natural guardians, Father, Mother and Husband.
Father
“Father is the natural guardian of his minor legitimate children, (sons and daughters)”. Section 19 of the Guardians and wards Act, 1890 lays down that a father can not be deprived of the natural guardianship of his minor children unless he has been found unfit. The effect of this provision has now been considerably whittled down by judicial decisions and by section 13 of Hindu Minority and Guardianship Act. Which lays down that welfare of the minor is of paramount consideration and father’s right of guardianship is subordinate to the welfare of the child. Before 1956, the father could prevent the mother from assuming the guardianship of her minor children even after his death by appointing a testamentary guardian. This can not be done now. The Act lays down that if the father appoints a testamentary guardian and the mother survives him, the appointment of testamentary guardian will be ineffective so long as the mother is alive. If the mother dies without appointing a testamentary guardian, the father’s appointee will become the guardian.
Where the father is alive but he is no-functioning natural guardian the mother can act as the natural guardian (Jijabai v. Pathan Khan).
(1999 Supreme Court) The Apex court adopting the rule of harmonious construction that the ward ‘after’ in section 6 (a) of Hindu Minority and Guardianship Act, need not necessarily mean ‘after the life time’ but in the absence of. It is further held that absence would mean absence of father from the care of minor’s person or property for whatever reason.
Mother
The mother is the natural guardian of the minor illegitimate children even if the father is alive. However, she is the natural guardian of her minor legitimate children only if the father is dead or otherwise is incapable of acting as guardian. Remarriage of the mother with a person of different faith can not disqualify her to be a guardian of her minor child, especially when the child was being looked after extremely well by the mother. Provisio to clause (a) of section (b), Hindu Minority and Guardianship Act lays down that the custody of a minor who has not completed the age of five shall ordinarily be with the mother. Thus, the mother is entitled to custody of the child below five years, unless the welfare of the minor requires otherwise. But this does not mean that she is not entitled to custody thereafter. Mothers right of guardianship is not lost on her conversion to another religion so long as she is able to provide a congenial, comfortable and happy home (Sheela v. Soli)
Setp-parents are not entitled to guardianship unless they are specially appointed by the court, once a child goes in adoption, natural parents ceases to be natural guardian of the child.
Husband
The Hindu Minority and Guardianship Act, 1956, also lay down that husband is the natural guardian of the person and property of the minor wife unless he has ceased to be a Hindu or he has completely and finally renounced the world by becoming a hermit or an ascetic. It is submitted that it is open to the courts not to give custody of a minor wife to husband if they are satisfied that if will not be for the welfare of the minor wife.
Natural Guardian of adopted son Section 7
This Section only deals with the guardianship of adopted son. By passing of the Hindu Adoptions and Maintenance Act, 1956, a Hindu can take in adoption either son or daughter according to his/her choice. On the principle of section 12 of the Hindu Adoption and Maintenance Act that with effect from the date of adoption, the adopted child shall be deemed to be the adopted child of his or her adoptive father or mother. It should be held that adoptive father or adoptive mother shall be the natural guardian of their adopted daughter also.
Powers of natural guardian section 8
This section deals with all the powers which a natural guardian may exercise in respect of the person and property of his ward. It also enumerates the powers, which such guardian may exercise subject to the sanction and control of the court.
Section 8 (1) of the Act lay down the general powers of natural guardian. A guardian may 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. However nothing in section 8 restricts the Karta’s power of alienating minor coparcener’s interest in the joint family property whoever he has power to do so. (Sakharam v. Shiv Deorao). Manik Chand v. Ram Chand. Supreme court clearly laid down that under this Act, the natural guardian has been empowered to do all such acts which are necessary for the welfare and benefit of the child. He can even bind the minor by a covenant if it is so necessary. Hurry Mohan v. Gandesh Chander . A transaction to be binding on the family must be one which not only confers a benefit upon the estate but is necessary for its good management.
Section 8 (2) of the Act lays down that no transaction by sale, gift, exchange or otherwise of any part of the immovable property of the minor and lease of 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 shall be effected by the natural guardian without the previous sanction of the court.
The restrictions on the powers of the natural or testamentary guardians provided by the Act are identical with those prescribed by section 29 of the Guardian and Wards Act, 1890 on the powers appointed by the court. Previous permission of the court under section 8 of the Act is not required for disposing of undivided interest of minor in joint family property (Sri Narayan Bal v. Sridhar Sutar). The Supreme Court held that a joint Hindu family by itself is a legal entity capable of acting through its karta and other adult members of the family property. Therefore in view of the express terms of sections 6 and 12 of this Act, Section 8 would not be applicable where joint Hindu family property is sold or otherwise disposed of by the Karta involving undivided interest of minor in the joint Hiundu Family property.
An alienation made with the permission of the court can not be impeached by the minor or any other person except in a case of fraud or underhand dealing.
Section 8 (3) lays down that any disposal of immovable property by a natural guardian which is not necessary, reasonable, proper or not for the benefit of the estate or which has not been sanctioned by the court or is effected by a lease for a period beyond the period prescribed by a clause (b) section 8 (2) without sanction is voidable (not void) at the option of the minor or person claiming under him by a suit filed by such minor or person claiming under him within 3 years from the date when a minor attains majority. Article 44 of Limitation Act.
Procedure and principles which will govern grant of permission by the court to a natural or his testamentary guardian to transfer the immovable property are prescribed by sub-sections (4), (5) and (6) of section 8 of this Act.
Testamentary guardians and their powers section 9
Under this Act, testamentary guardian can be appointed only by a will of the natural guardian entitled to act as a guardian for the minor. Needless to say that a will becomes effective only after the death of the testator. Earlier case law testamentary power in respect of appointment of guardian was considered to be nothing but a manifestation of paternal power and therefore father alone had this power. Mother has no such power under the Hindu Minority and Guardianship Act, 1956. testamentary power of appointing a guardian has now been conferred on both parents. Parents have power of
testamentary appointment of guardians in all ceases where they are competent to act as natural guardian.
Who May Appoint
The Act recognizes the right of the following persons to appoint guardian of person and separate property of a Hindu minor.
- Father (Natural and adoptive):- A Hindu father may by will appoint a guardian in respect of minor’s person or of separate property or both but not of undivided interest in the joint family property. The father can not supersede the mother to act as the natural guardian in case he predeceases her but if the mother dies without appointing any guardian the appointment made by father shall revive.
- Widowed mother (Natural and adoptive):-A Hindu widow who is entitled to act as the natural guardian of her legitimate children may by will appoint a guardian for any of them in respect of minor’s person or separate property or both. Any appointment made by her husband will be no effect on the face of the appointment made by the widow. The mother is the natural guardian of her illegitimate children and can appoint a person to act as guardian in the lifetime of her husband. So the death of her husband will make no difference in so far as the appointment of guardian for illegitimate children is concerned.
- Mother (Natural and adoptive):-A Hindu mother entitled to act as natural guardian of her minor legitimate children by reason of the fact that father has become Yati, Sanyasi or Vanprastha, may by will appoint a guardian for any of them in respect of minor’s person or separate property or both.Similarly a Hindu Mother entitled to act as natural guardian of her illegitimate children may by will appoint a guardian for any of them in respect of the minors person or minor’s separate property or both. In this case it not necessary that father must be incapable of acting as natural guardian because in the lifetime of mother of the illegitimate children, the father has no right to act as guardian and the mother can even appoint a guardian to the exclusion of the father.
NOTE:- Father of an illegitimate child has no power to appoint a testamentary guardian of the child.
Power of testamentary guardian
The testamentary guardian has the right to act as the minor’s guardian after the death of the natural guardian and to exercise all the rights and powers of a natural guardian to such extent and subject to such restrictions as are specified in the Act section 8 of the Act and in the will.
Guardian appointed by the court :- In appointing a guardian the court takes into consideration various factors including age, sex wishes of deceased parents, character and capacity of the guardian, previous and existing relations of the minor with proposal guardian, personal law of the child, the child’s preference if the minor is of sufficient maturity etc.
Sec 13 of HMGA also lays down that when the court appoints any person as guardian. The welfare of the minor will be the paramount consideration. The term “ welfare” includes not only the physical and material well being of the minor but also every matter connected with moral and religious welfare education and upbringing of the minor.
The HMGA also provides that if the court is of the opinion that a particular person’s guardianship will not be for minor’s benefit such a person shall not be entitled to be the guardian even if he or she is otherwise entitled to do so under the provisions of the Act or any law relating to guardianship in marriage among Hindus.
De Facto Guardian not to deal with minor’s property
After the commencement of this Act, no person shall be entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his or her being a de facto guardian of minor.
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 take over the management of the affairs of the minor as if he was a natural guardian. After the enforcement of this Act, a de facto guardian can not deal with the property of a minor. Such property includes separate property of minor as well as his undivided interest in joint family. Section 6 and section 9 of this Act deal with natural guardian and testamentary guardian and their powers where guardian can deal with the separate property of the minor if he is appointed as guardian of such property under section 11 effect of de facto guardian as such is not recognised under this Act. Any alienation made after the commencement of Act would be void ab intitio where before the commencement of this Act it was voidable and not void.
The doctrine of de facto guardianship enunciated in case of Hanuman Prasad v. Mst Babooee, had its origin in the practical equity of the Hindu jurists who felt necessary protecting the transactions
entered in to for the minor’s benefit or necessity when the character of the people changed and high ideals of generosity and philantherophy gave place to selfishness and dishonesty, the institution of de facto guardianship underwent a corresponding deterioration and became an easy instrument of unscrupulous profits of friends and relations at the cost of the minor. Hence it was thought desirable to abolish the de facto guardianship altogether so that no further encouragement might be given to such dishonest relations of the minors to profit at another’s cost.
Guardian not to be appointed for minor’s undivided interest in joint family property, section 12
Where a minor has an undivided interest in the joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest provided that nothing in this section shall be deemed to affect the jurisdiction of a high court to appoint a guardian in respect of such interest.
Incapacity of minor to act as guardian of property section 10
A minor shall be incompetent to act as guardian of the property of the minor. But this does not apply to joint family property. In a joint family property even a minor may be a karta and there is no prohibition in Hindu Law against it. There is nothing in section 10 of the Act to prevent a minor from acting as a guardian of the person of minor child or minor wife.
Removal of Guardian:-
Disabilities to be a guardian
- Disabilities arising from apostasy
- Disabilities arising from civil death
- Disabilities due to minority (section 11)
- His guardianship will not be for the welfare of the minor
Section – 13 Welfare of minor to be paramount consideration-
- 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.
- No person shall be entitled to the guardian 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.
Mohan Kumar Rayana v. Komal Mohan Rayana 2010 SC it was held by the Supreme Court that under section 6 & 13 of the Hindu Minority and Guardianship Act, 1956 the paramount consideration of the Court in determining the question as to who should be given the custody of a Minor child is the ‘welfare of the child’ and not rights of the parents under the statute for the time being in force. The Court has to give due weightage to the child ordinary contentment, health, education, intellectual development and favorable surroundings and the moral and ethical values should also be considered.
