Guardianship is a relationship between the person and the child/ward who is
unsound mind or has been born with incapacities. There was no specific laws
regarding the guardianship during the Hindu Dharamshastras due to the concept of
joint families where a child without parents is taken care by the head of the
Therefore no specific laws were required. During the British
regime the law of guardianship was developed by the courts. It established that
the father is the natural guardian of children and after his death mother is the
natural guardian of the children and no one else can be the natural guardian of
minor children. But that concept of guardianship has changed, in modern times
the Hindu Minority and Guardianship Act,1956 codifies the laws regarding
minority and guardianship with welfare of the child.
Meaning or Guardian
Guardian is a person who takes care of the child until he is capable of making
the decisions on his own. In the Hindu Minority and Guardianship Act 1956, a
guardian is a person who takes care of the person of minor or of his property or
both his person and property. And there are different types of guardians such
- Natural Guardian
- Guardian appointed by the will of the minor’s father or mother or
appointed or declared by the court.
Natural Guardian under Hindu Law
Under section 6 of the Hindu Minority and Guardianship Act, 1956, the natural
guardianship of legitimate child vests in the father. A mother can be natural
guardian of her illegitimate children only after the father. Which means she is
the natural guardian only after if the father is dead or otherwise is incapable
of acting as Guardian.
But section 6 of Hindu minority Guardianship Act lays
down that the custody of a minor who has not completed the age of five years
shall be with the mother. So mother is entitled to the custody of the child
below five years unless the welfare of the minor requires otherwise.
can become the guardian of minor except father or mother, because the
guardianship of the minor is not about the legal right of the minor, but the
welfare of the child is taken into consideration. Therefore it is stated that
section 6 of Hindu Minority and Guardianship Act should be always be read with
section 13 of the same. Cause section 13 is where welfare of the minor is
Section 6 Clause (c) states that if a girl is married then the husband becomes
the naturals guardian. If the minor girl is married then also the husband is
the natural guardian.
In the explanation of Section 6 it is stated that the father and mother does not
include step-father and step-mother. Section 7 of the Hindu Minority and
Guardianship act states that the natural guardian of the adopted child is the
adoptive father and adoptive mother.
The powers of Natural Guardian
The powers are lay down in Section 8 of Hindu Minority and Guardianship Act,
- Guardian can perform all function regarding care of the minor which are
in his benefits.
- Guardian can do any act, subject to the provisions of section 8, 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 the
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 in the benefit of the minor.
Rights of Natural Guardians
The natural guardians have the following rights in respect of minor children:
- Right to custody
- Right to determine the religion of children
- Right to education
- Right to control movement
- Right to reasonable chastisement
Each of these rights are subject to the welfare of the minor children.
Gender Discrimination In Minority And Guardianship Act, 1956
In early times, women were considered as secondary in the family arrangements
without any say in the important issues.As I mentioned above mother can be
natural guardian only after the father. That “after” made a lot of
misunderstandings. Because both the parents being equal partners in parenthood,
so they need to have an equal say in the matters of their child’s welfare.
Therefore section 6 violates Article 14 as it is confers natural guardianship on
the child’s father over mother. So the concept of guardianship needs to be made
gender neutral by giving the mother a preferential right to custody. In Indian
society, men have a dominant position within the households due to which they
have access to and control over all the resources. Law entitles women to
custody, but when it comes to authority such as guardianship, men take
precedence, this has to change.
In two landmark cases Gita Hariharan v. Reserve Bank of India and Vandana
Shiva v. Jayanta Bhandhopadhaya, the supreme court held that the mother can
act as a natural guardian of the minor during certain circumstances even if the
father is alive. The term ‘after’ used in section6(a) has been interpreted as
‘in absence of’ instead ‘after the life-time’.
In Hindu religion, there was no guardianship law as all the family members
stayed together. So if the parents are not there, then the other members of the
family would take the guardianship of the child. That’s why there was a need for
a proper guardianship law in our country. Then the parliament enacted the Hindu
Minority and Guardianship Act in 1956. As all the enactments this Acts was not
perfect either, there were some gender discrimination problems in the acts.
As we are living in 21st century, there should not be any gender discrimination,
and everybody should be treated equally in every law. Mothers have an undeniable
and consequential role in the child’s upbringing. She cannot be treated as
secondary to anyone, not even the child’s father.
And in a matter where the future of the child is of concern, the importance must
be of the best interest of the child. Priority must not be given to the various
religious or personal laws but a secular law and uniform law is the need of the
hour, since adoption is legal affiliation of a child, it forms the subject of
- Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228
- AIR 1999 SC 1149