In the premature stage of one’s life, a child is incapable of taking care of
himself,his/her own body and his/her property because of his minority. A child
can not handle his/her own matters. A child is even unable to understand what is
right and what is wrong. So, he requires the help of some other person to take
care of himself. For the advantage of the minors, the lawmakers have made
specific laws which allow some relaxation and support to the lives of the
The modern laws on minority and guardianship are regulated by the Hindu Minority
and Guardianship Act, 1956. The father is the natural guardian of the child and
after his death, the mother will take the responsibility of the guardianship of
Definition of the minor and the guardian
In this Act,
· “minor” means a person who has not completed the age of eighteen years;
· “guardian” means a person having the care of the person of a minor or of
his property or of both his person and property, and includes:
- A natural guardian
- A guardian appointed by the will of the minor’s father or mother,
- A guardian appointed or declared by a court, and
- A person empowered to act as such by or under any enactment relating to
any court of wards;
“natural guardian” means any of the guardians mentioned in section 6.
Types of guardian
There are 3 types of guardian who are in the following:
- Natural Guardian
- Testamentary Guardian
- A Guardian appointed by the Court
A natural guardian, in legal terms, is a child’s biological or adopted mother or
father. In a divorce, either or both parents may be granted legal custody with
guardian rights. A natural guardian is empowered to make a wide range of
decisions for a minor child, including medical and financial matters that
legally require a parent or guardian’s consent.
Advantages and Disadvantages of Natural Guardians
The main advantage of recognizing natural guardians is that virtually all
children immediately have someone responsible for their care. No legal
intervention or related expenses are necessary. Furthermore, the concept of a
natural guardian is itself natural. The vast majority of parents have a natural
interest in caring for their children.
The main disadvantage of natural guardians is that seemingly unfit parents often
retain guardianship until they do something terribly wrong. Unfit natural
guardians are more of a liability than an asset for children. Critics of
automatic natural guardianship complain that you need a license to drive a car,
but anyone is allowed to have kids.
A Testamentary Guardian is one who is appointed by a will of the natural
guardians of the minor. The testamentary guardian becomes entitled to act as the
guardian of the minor after the death of the natural guardian. He can exercise
all the rights and powers of a natural guardian to such extent and subject to
such restrictions as are specified in the Act and in the will. It is necessary
for the testamentary guardian to accept ‘the guardianship. Acceptance may be
express or implied. A testamentary guardian may refuse to accept the appointment
or may disclaim it, but once he accepts, he cannot refuse to act or resign
except with the permission of the court.
Testamentary guardians and their powers (Section 9 of the Hindu Minority and
Guardianship Act 1956
- A Hindu father entitled to act as the natural guardian of his minor
legitimate children may, by will appoint a guardian for any of them in
respect of the minor’s person or in respect of the minor’s property (other
than the undivided interest referred to in section 12) or in respect of both
- An appointment made under sub-section (1) shall have not effect if the
father predeceases the mother, but shall revive if the mother dies without
appointing, by will, any person as guardian.
- A Hindu widow entitled to act as the natural guardian of her minor
legitimate children, and a Hindu mother entitled to act as the natural
guardian of her minor legitimate children by reason of the fact that the
father has become disentitled to act as such, may, by will, appoint a
guardian for any of them in respect of the minor’s person or in respect of
the minor’s property (other than the undivided interest referred to in
section 12) or in respect of both.
- A Hindu mother entitled to act as the natural guardian of her minor
illegitimate children may; by will appoint a guardian for any of them in
respect of the minor’s person or in respect of the minor’s property or in
respect of both.
- The guardian so appointed by will has the right to act as the minor’s
guardian after the death of the minor’s father or mother, as the case may
be, and to exercise all the rights of a natural guardian under this Act to
such extent and subject to such restrictions, if any, as are specified in
this Act and in the will.
- The right of the guardian so appointed by will shall, where the minor is
a girl, cease on her marriage.
A Guardian Appointed By The court
Guardian is a person who formally appointed to look after a child's
interest on the death of child's parents. The guardian occupies a fiduciary
position and is bound, for instance, to manage the property of the minor with
the same here and prudence with which he would manage
own property. Appointment can be made either by the Courts during family
proceedings, if it is considered necessary for the child's welfare, or privately
by any parent with parental responsibility.
If the court is satisfied that it is for the Welfare of minor that an order
should be made appointing a Guardian of his person or property or both, the
court may make an order under the Guardians and Wards Act, 1890 appointing a
guardian. In appointing or declaring a person as the Guardian of a minor Welfare
of the minor shall be the Paramount consideration.
Additional grounds where a guardian is appointed
- Guardianship of Minor’s property(De Facto guardian)
A minor, who is under the tender age may achieve some property which is
given by inheritance, gift etc. because of child underage, he/she can not
take proper care of the property.
- Guardianship of a minor widow (guardianship by affinity)
Earlier days of the Smritis child marriage was very common. After the
marriage happened of a minor girl with the husband, then the husband became
the guardian of the girl. In any situation, if the husband died then the
minor widow should not feel unsafe.
Adoption of a child by any guardian is creating a relationship of the child and
the guardian, it creates the subject matter of personal law and for a minor, it
is mandatory to protect his property and for that reason, there is a guardian
who will take care of him and his property. Special thanks to the lawmakers who
invented these types of laws for protecting the minor and his property and for
the unmarried girl and widow. In this way, no one can steal the property of
anyone who is a minor.
Therefore, the guardian is very necessary for a minor to protect himself
physically or mentally and secure from any danger.