Sex discrimination in marital status laws renders women and girls subordinate in
many aspects of family relations before, during and after marriage. Laws that
give preferential right of custody or guardianship over children to the father
over the mother discriminate against women and are based on a sex stereotype
that views men as superior to women.
These laws also limit a motherís ability to
make decisions about the upbringing of her own child. In addition, the husband
of a minor girl (though they were married unlawfully) may also be considered her
The Law: Section 6 of Indiaís Hindu Minority and Guardianship Act,
1956 provides that the natural guardian of a Hindu minor boy or unmarried girl
is the father, and only after him, the mother. It also provides that the
guardian of a married minor girl is her husband. Section 6. Natural Guardian:
The natural guardians of a Hindu, minor, in respect of the minorís person as
well as in respect of the minorís property (excluding his or her undivided
interest in joint family property), are:
Note: Article 14 of the Constitution of India:
- in the case of a boy or an unmarried girlóthe father, and after him, the
mother: provided that the custody of a minor who has not completed the age
of five years shall ordinarily be with the mother
- in the case of an illegitimate boy or an illegitimate unmarried girl Ė
the mother, and after her, the father;
- in the case of a married girl Ė the husband.
The State shall
not deny to any person equality before the law or the equal protection of the
laws within the territory of India. Article 15(1):
The State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.
Definitions of the Minor and the Guardian:
- According to Section 4(a), it is defined as a minor means who has not
completed the age of 18 years
- According to Section 4(b), it is also defined that a guardian means a
person who has completed the age of 18 and he is taking proper care of a
minor and his property and as well as his own.
Types of Guardian There
are 3 types of guardian who are in the following:
- Natural Guardian
- Testamentary Guardian
- A Guardian appointed by the Court Natural Guardian
According to Section 4(c) of the Act, the natural guardian assigns to the father
and mother of the minor. For a minor wife, his husband is the guardian. Section
6 of the Act gives 3 types of natural guardian in the following: FatherĖ A
father is the natural guardian of a boy or unmarried girl; the father is the
first guardian and the mother is the next guardian of the minor. It is given in
the Act that only up to 5 years the mother is the natural guardian of the child.
Case: Essakkayal nadder Vs. Sreedharan Babu
In this case, the mother of the
minor died and the father was also not living with the child, but the child was
alive. the child was not declared to be a Hindu or renounced the world and he
was also not declared unfit. These facts do not authorize that any other person
adopts the child and be the natural guardian and transfer the property. MotherĖ
The mother is the first guardian of a minor illegitimate child, even if the
father is existing.
Case- Jajabhai Vs. Pathakhan
, in this case, the mother and
father got separated for some reason and the minor daughter stayed under the
guardianship of the mother. Here, it will be determined that the mother is the
natural guardian of the minor girl. HusbandĖ For a minor wife his husband is the
natural guardian. Under Section 6, it is given that no person will be designated
to perform like the natural guardian of a minor under this portion, which is in
- If he/she ceased to be a Hindu.
- If he/she has completely renounced the world that they are becoming an
ascetic (sayansi) or hermit (vanaprastha).
In Section 6, the terms Father
do not include the
step-father and the step-mother.
Powers of a natural guardian As per Section 8,
the powers of the natural guardian to impose on the child are as follows:
- The natural guardian of a Hindu minor has the power to do all work,
which are compulsory and which are beneficial for the minorís interest.
Protection or benefits of the minorís condition
- The natural guardian should bring the prior permission from the Court,
for the use of the gift transferred to him, mortgage or any other valuable
things of the minor.
- For the lease of any part of minorís property for about exceeding 5
years or for a term of extending one year beyond the date on which the minor
attains the majority. The prior permission from the Court is very much
needed for doing so.
- Violation of any disposal of the immovable property by a natural
guardian, it will be voidable at the case of the minor or any other person
claiming on the behalf of him. 5.
- No Court shall grant permission to the natural guardian to do any act
which is not in the interest of the minor
The Guardians and Wards Act, 1890 shall apply
to the application for getting the permission of the Court if the application is
for getting the permission of the Court under Section 29 of that Act and in
- The natural guardian requires permission from the District Court or
under the Court which empowered by the Guardians and Wards Act, 1890.
- Should submit the application to the Court within the local limits of
whose jurisdiction, portion of the property of minor is placed.
- An appeal would be declined, when the Court rejects the permission to
the natural guardian to do any acts of property transfer and this remedy is
usually the result of this Court decision.
Testamentary Guardian Under Section 9, of the Hindu Minority and
Guardianship Act, 1956 testamentary guardian only authorized by a will. It is
compulsory for the testamentary guardian to receive the guardianship adoption
which may be expressed or implied. A testamentary guardian has the right to
decline the appointment, but once he /she receives the guardianship then he/she
cannot decline to perform or resign without the permission of the Court.
According to the Hindu Minority and Guardianship Act, 1956 testamentary power of
choosing a guardian has been provided on both, father and mother. If the father
chooses a testamentary guardian but the mother rejects him, then the chosen
guardian of the father will be inefficient and the mother will be the natural
guardian thereafter. If the mother chooses a testamentary guardian, her chosen
guardian will become the testamentary guardian and fatherís appointment will be
void. If the mother does not want to choose any guardian then fatherís appointee
will become the guardian.
It appears that a Hindu father cannot choose a
guardian of his minor illegitimate children even when he is allowed to perform
as their natural guardian. A Guardian appointed by the Court In the earlier days
of Smritis, the overall jurisdiction for the children was sanctioned over the
king. The king had the power to choose a closet relation of the minor as
guardian. Only priority was given to the relatives on the paternal side over the
maternal side. Only for the security of the child, this type of laws was
formulated by the ancient lawgivers.
Now, this type of powers are applied by the
Courts under the Guardians and Wards Act, 1890. The guardian who is appointed by
the Courts, he/she will be known as a certified guardian. Under Section 13 of
the Hindu Marriage and Guardianship Act, 1956, while the appointment of any
person as guardian is going on by a Court, the advantage of the minor shall be
the primary consideration. Therefore, in both the ancient and modern times the
king or the Court has been given the responsibilities to appoint a guardian for
the defense of a minor.
Additional grounds where a guardian is appointed
Guardianship of Minorís 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. The Smritis gave the opinion that the king has to guard the property of the minor.In this statement, Manu says that the king should protect the inheritance
accepted by a child till his study is completed or till he attains majority.
Vasistha states that the king should guard the property of a person who is unfit
to transact any business but in a minorís case when he attains majority, the
property will be handed over to him. In modern law, the natural guardian will
take care of the minor. This statement is also used in the testamentary and
certified guardian and in some cases the guardian will protect only those
property for which they were appointed, but not for the excluded property of the
minor and the guardian has no rights to claim for protecting that property.
Therefore, both the ancient and modern lawmakers are interested in the security
of the person and his property. Nowadays there are many laws that are
incorporated for the changing need of the society. According to Section 11, De
Facto guardian is not allowed to dispose or deal with the property of the minor
and it is given that the guardian does not have the rights to take any debt.
Case: Smt. Beti Bai Vs. Jagdish Singh and Ors
, in this case Aparbal Singh was
the father of plaintiff, who is no more. Aparbal Singh had 2 wives because,
during his lifetime his first wife died due to some problem, then his second
wife came to his life who was the respondent. And the child of the second wife
also died due to some reason. At last after the Aparbal Singh died, the second
wife captured all the property then the son of the first wife filed a complaint.
It was held that, according to Section 4, Section 6, Section 8, Section 11 of
the Hindu Minority and Guardianship Act, 1956, the answer was in the favour of
the plaintiff and plaintiff enjoyed the property. The Court also held that, as
the respondent was also had a relation with that person, therefore, she has the
right to get one third of the property, when she will ask for the partition
before the competent authority.
Hindu law tried to find a result from two
difficult conditions: one, when a Hindu child has no legal guardian, there would
be no person, who would manage his property under law and therefore, without a
guardian the child would not receive any advantages for his property and second,
a person having no designation could not be a allowed to interfere with the
childís property as to cause loss to him.
The Hindu law got a result of this
difficult condition by an according to legal status to De Facto guardians.
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.
According to Narada, when a minor girl becomes a widow then the husbandís
relatives have the duty to protect and maintain her if in husbandís family no
one is there, then the father of the widow takes the responsibilities of the
widow to protect her. Before 1956, there was a guardian called guardianship by
affinity. It was the guardian of a minor widow which was given by the
Guardianship and Wards Act, 1850. No provision is given under the Hindu Minority
and Guardianship Act, 1956 for the guardianship of a minor widow.
Case: In Paras
Ram Vs. State
, it was held that the father-in-law of a minor widow vigorously
took away the widow from her motherís control and married her to an improper
person without the widowís consent. The Court held that the father-in-law guilty
of displacing the girl without her consent. The Allahabad High Court held that
he was not guilty because he was lawfully a guardian of the widow.
has arisen in the Court, whether the nearest blood relatives of the husband
undoubtedly becomes a guardian of the minor widow on the death of her spouse or
whether he is simply as a choice get into the guardianship and therefore, he can
not perform as guardian but he is appointed as such? Paras Ram seems to
subscribe to the previous view.
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
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.
Written By Chris Livin