Guardianship under Hindu law
Guardians may be of the following types:
- Natural guardians,
- Testamentary guardians, and
- Guardians appointed or declared by the court.
There are two other types of guardians, existing under Hindu law, de facto guardians, and
guardians by affinity.
Section 6 of the HMG Act, 1956 defines the natural guardian of a Hindu minor, in case of the person and the property – as being
- In the case of a boy or unmarried girl- the father and after that the mother, provided that the custody of a minor who has not yet reached the age of five shall be with his mother
- In the case of an illegitimate boy or an illegitimate unmarried girl, the mother and after her, the father.
- In the case of an unmarried girl- the husband.
- The property of the minor in such cases excludes that which is his undivided share in joint family property. When the minor holds separate property, such property cannot be dealt with by the guardian without the permission of the court.
- The law gives sanction to the Hindu principle of the father being the natural guardian of the person and property of the minor and the mother after him. The custody of a child in its tender years would remain with its mother, unless there are grave and weighty considerations towards the contrary. The act does not stipulate the jurisdiction of the court in such cases, but as it is in addition to the Guardianship and Wards Act, it is assumed that the court that will have jurisdiction is where the minor ordinarily resides. In some cases of children below the age of five, it has been held that the court which has jurisdiction is that of the residence of the mother, while other courts have dissented from this decision.
- With regards to custody of a child, there is no general principle that a mother is preferred over the father but is to be seen with regards to all the relevant factors in the particular circumstances. The custody rights are interlocutory in nature and can be moulded in accordance with the necessities of the situation.
- The rule does not mean that the moment the child turns five, the custody is handed over to the father with regards to the preferential rights of the child, but the decision is one which would require to be taken with emphasis on the welfare of the child, which should be given due importance.
- Section 7 of the Act says that the natural guardianship of an adopted child, when adopted passes to the adoptive father, and after him, the adoptive mother.
- Section 8 of the Act deals with the powers of a natural guardian. According to the section, the natural guardian would have the power to perform all those acts necessary for the benefit of the minor, but in no case can he bind the minor by personal covenant.
- The guardian also cannot, without the prior permission of the court
- Mortgage, transfer or sell any part of the immovable property of a minor
- Lease any part of such property
- Any action of the guardian in contravention of the above sub sections is voidable at the instance of the minor or another person claiming it under him.
- No court shall grant the guardian with the permission to do any of the acts under the second sub section, except in case of necessity or where it is for the evident benefit of the minor.
- Section 9 deals with the testamentary guardians who are appointed by the father for the up keeping of the rights of the minor children, which is invalid if the father predeceases the mother but is revved if the mother dies without leaving one. The rights of the testamentary guardian over a minor girl ends when the girl is married with respect to her person, but he is still the guardian of her property. The guardian who is so appointed has the right to act as the natural guardian of the child after the death of the father. The father can appoint a guardian for such cases where he is not disentitled to do so.
- Guardian can only be appointed for minor’s separate property and not for the undivided interest of a minor in coparcenary property governed by Mitakshara law. However, court may appoint a managing member of the family for the benefit of the minor
- A minor shall be deemed as incompetent to act as the guardian of the property of a minor.
- A de facto guardian is a self-appointed guardian who takes an interest in the well-being of the minor without any authority of the law.