In the Hindu Dharamshastras, not much has been said about the guardianship. This was due to the concept of joint families where a child without parents is taken care of by the head of the joint family. Thus no specific laws were required regarding the guardianship. In modern times the concept of guardianship has changed from the paternal power to the idea of protection and the Hindu Minority and Guardianship Act, 1956 codifies the laws regarding minority and guardianship with the welfare of the child at the core.
Under the Hindu Minority and Guardianship Act, 1956 a person who is a minor that is below the age of Eighteen years who is incapable of taking care of himself or of handling his affairs and thus requires help, support and protection. Then, under such a situation a guardian has been appointed for the care of his body and his property.
According to Section 4 of HMG Act, 1956 Guardian means a person having the care of a person of a minor or of his property or of both the person and his property. This includes:
- natural guardian
- guardian appointed by the will of a natural guardian (testamentary guardian)
- a guardian appointed or declared by court
- A person empowered to act as such by the order of Court of Wards.
This list of 4 types of guardians is not exhaustive. A person who is taking care of a minor without authority of law, can also be a guardian under the above definition and is called a de facto guardian. De facto guardians include self-appointed guardians and guardians by affinity, such as guardians for a minor widow. However, a person does not have right to sell or deal with minor’s property if he is merely a de-facto guardian as per section 11.
Who are the natural guardian:-
Under Section 4 (c) of the Hindu Minority and Guardianship Act, 1956 the expression natural guardian refers to the father and after him the mother of the Minor. The natural guardian of wife is her husband. Section 6 of Act provides that the natural guardian consists of the three types of person:-
Thus the natural guardian can only be father, mother and husband and according to it:-
In case of a boy or unmarried girl firstly the father and later mother is the guardian of a minor. Provided that upto age of five year mother is generally the natural guardian of a child. The guardian of illegitimate boy or illegitimate unmarried girl shall be firstly the mother and later the father. The guardian of married girl is her husband.
The guardianship can be terminated in the following situations:-
(i) When such guardian is no more Hindu.
(ii) When he has renounced the world.
In case of E.M. Nadar v. Shri Haran, 1992, it was held by the court that the father is guardian of minor even if living separately.
In case of Vijaylakshmi v. Police Inspector, 1991, it was held that when father converts to be non-Hindu then mother shall be natural guardian.
In case of Chandra v. Prem Nath, 1969, it was held that the guardian below the age of 5 years is mother.
But in several decision, it has been considered that if the father is unable and do not have sufficient fund then the natural guardian shall be mother as described by the court in the following cases:-
(i) R. Venkat Subaiya v. M. Kamalamma, 1992
(ii) Smt. Geeta Hariharan v. Reserve Bank of India, 1999.
The power of Natural Guardian
The power of Natural Guardian can be kept under two heading:-
- Right regarding the body of Minor
- Right regarding the property of Minor.
Keeping in the view of the importance of above lines the body of minor under Section 8 (i) that the natural guardian can perform all the function regarding care of the minor which are in his benefits.
The Power of Natural Guardian Property of Minor – Section 8 of HMGA 1956 describes the powers of a natural guardian as follows:
- A guardian can do any act, subject to provisions of this section, that are necessary or are reasonable and proper for the benefit of the minor or the benefit of the minor’s estate. But the guardian, in no case, shall bind the minor by a personal covenant.
- The guardian cannot, without prior permission from the court,
- Mortgage, charge, or transfer the immovable property of the minor by way of sale, gift, exchange, or otherwise.
- Lease the immovable property for a term more than 5 years or where the lease ends one year after the minor attains majority.
- Any sale of immovable property in violation of the above two points, is voidable at the insistence of the minor.
- The court shall not give permission for sale of immovable property unless it is necessary or clearly in the benefit of the minor.
These powers also include the following:-
- right in education
- right to determine religion
- right to custody
- right to control movement
- right to chastisement
In the case of Manik Chandra v. Ram Chandra AIR 1981 SC has held that the meaning of “necessity” and “advantage” of a minor are quite wide and the courts have the power to widen their scope as per the case facts before giving the permission. As per section 12, no guardian can be appointed for the undivided interest in the joint property of the minor. However, the court may appoint a guardian for the complete joint family if required.
Minor cannot the guardian of another minor: – As described in Section 10 of the Act that no minor cannot be guardian of another minor. In the case of Ibrahim v. Ibrahim, 1916, it was held the minor can be the guardian of his wife but cannot be guardian of her property.
Testamentary Guardian (Sec 9) – a person who becomes a guardian due to the will of a natural guardian is called a testamentary guardian. Section 9 defines a testamentary guardian and his powers.
- For a legitimate boy or a girl, the father, who is a natural guardian, may appoint any person to act as the guardian of the child after the death of the father. However, if the mother is alive, she will automatically become the natural guardian and after her death, if she has not named any guardian, the person appointed by the father will become the guardian.
- A widow mother who is a natural guardian, or a mother who is a natural guardian because the father is not eligible to be a natural guardian, is entitled to appoint a person to act as a guardian after her death.
- For an illegitimate child, the power of appointing a testamentary guardian lies only with the mother.
A testamentary guardian assumes all powers of a natural guardian subject to limitations described in this act and to the limitations contained in the will. A testamentary guardian is not liable personally for the expenses and he can ask the guardian of the property of the minor to meet the expenses through the property. The rights of the guardian appointed by will cease upon the marriage of the girl.
Guardianship by Affinity
In Paras Nath v. State, Allahabad HC 1960, held that the father-in-law is the rightful guardian of a minor widow. However, this view has not been adopted by Nagpur HC. Madras HC also did not hold this view and held that the welfare of the child is to be considered first before anything else.
De Facto Guardian
Section 11 says that a de facto guardian is not entitled to dispose or deal with the property of the minor merely on the ground of his being the de facto guardian. There is controversy regarding the status of a de facto guardian. Some HC consider that alienation by de facto guardian is void while alienation by de jure guardian is voidable (Ashwini Kr v. Fulkumari, Cal HC 1983), while some HC have held that both are voidable (Sriramulu’ case 1949). It is now well settled that de facto guardian does not have the right to assume debt, or to gift a minor’s property, or to make reference to arbitration.
Custody of a minor
Custody of a minor is also subordinate to section 13, which declares the welfare of the child to be of paramount interest. Regarding a child, who is at the age of discretion, his wishes are also to be considered, though his wishes may be disregarded in his best interest.
That a mother is preferred to father for custody is not right. Better economic condition of the father than maternal grandfather is considered to be in favour of the father. In Kumar v. Chethana AIR 2004, SC has held that mother’s remarriage is not a sufficient cause in itself to lose custody of a minor. It was further held that convenience of the parents is irrelevant.
To ensure the welfare of the child, the custody may even be given to the third person as was given to the mother and grandfather by SC in case of Poonam v. Krishanlal AIR 1989.
In the case of Re Madhab Chandra Saha 1997, a father was never active in the interest a minor and after a long time demanded the guardianship. His claim was rejected.
In the case of Chakki v. Ayyapan 1989, a mother who says she will keep living with friends and may beget children from others, was not considered appropriate for custody in the minor’s interest.
Power over minor’s property
In general, a guardian may do all acts that are in the interest of the minor. A third party may deal safely with the guardian in this respect. However, this excludes fraudulent, speculative, and unnecessary deals. Before this act, a natural and testamentary guardian had the power to alienate the minor’s property if it is necessary as determined by SC in Hanuman Prasad v. Babooee Mukharjee 1856. However, this rule has been restricted through sec 8, which mandates courts permission before alienating the minor’s interest in the minor’s property. Also, a guardian does not have any right over the joint family interest of a minor.
In the case of Vishambhar v. Laxminarayana, 2001, SC has held that a sale of minor’s immovable property without courts permission is voidable and not void ab-initio. It further held that Sec 60 of Limitations Act would be applicable when the minor repudiates the transaction.
In case, a minor repudiates an improper alienation made by the guardian, he is liable to return the consideration.
Liabilities of a guardian
since the legal position of a guardian is fiduciary, he is personally liable for breach of trust.
- He is not entitled to any compensation unless explicitly specified in a will.
- A guardian cannot take possession of minor’s properties adversely.
- Must manage the affairs prudently.
- Liable to render all accounts.
If the minor, after attaining majority, discharges the guardian or reaches a settlement of account, the guardian’s liability comes to an end.
Rights of a guardian:
A guardian has a right to:-
- Represent the minor in litigations.
- Get compensation for legal expenses from minor’s property.
- Sue the minor after he attains majority to recover expenses.
- Refer matters to arbitration if it is in the best interest of the minor.
- Have exclusive possession of minor’s property.
Removal of a guardian
Court has the power to remove any guardian in accordance to section 13.
- Ceases to be a Hindu.
- Becomes hermit or ascetic.
- Court can remove if it finds that it is not in the best interest of the child.
Welfare of the minor is of paramount importance (Sec 13)
- While appointing or declaring a guardian for a minor, the count shall take into account the welfare of the minor.
- No person shall have the right to guardianship by virtue of the provisions of this act or any law relating to the guardianship in marriage if the court believes that it is not in the interest of the minor.
Thus, under this doctrine, any guardian may be removed depending on the circumstances on per case basis and the court may appoint a guardian as per the best interests of the minor.