The age old concept of guardianship
mentioned in Shastras and the
Quran forms is an essential practice for the development of a child. The main
objective behind this concept is to protect the welfare of a child. Guardianship
is governed by various legislations such as the Guardianship and Wards Act,
1890, the Hindu Minority and Guardianship Act, 1956 and various other personal
laws. The current essay deals with the concept of guardianship that has been
recognized under the Hindu Minority and Guardianship Act, 1956.
The concept of guardianship in the traditional regime has been associated with
the concept of patriarchy whereby the father was regarded as the sole guardian
of the person and property of the child. Mother did not enjoy any independent
legal status back then, and had no authority over the child.
The Courts started to develop the concept of the guardianship during the British
era by drawing authority from Macnaghten and M/s Strange and formulated a list
of guardians consisting of father, mother, elder brother, other paternal
relations and maternal relations. However, in the case of Purushottam v.
Brundavan, the concept of 'natural guardian' was explained stating that father
is the natural guardian of the children and after the death of the father,the
mother will be the natural guardian of the children and no one else could be the
natural guardian of the child.
Hindu Minority and Guardianship Act, 1956 (HMGA)
The HMGA provides that father is the natural guardian of a minor and in case of
death of the father, mother is the natural guardian.
Section 4(a) of the HMGA defines a minor as 'anyone who has not completed the
age of 18 years'.
Section 4(b) of the HMGA defines a guardian as 'a person having the care of the
person of a minor or of his property or of both his person and property, and
- 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'.
Types of Guardians:
The various types of guardians recognized under the Hindu Minority and
Guardianship Act, 1956 have been categorized below:
Natural Guardian:Section 6 of the HMGA provides that 'the natural guardian of a Hindu minor, in
respect of the minor's person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family property), are:
- In the case of a boy or an unmarried girl - the father, and after him, the
mother. It is to be noted that the custody of a minor who has not completed the
age of five years shall ordinarily be with the mother;
- In case of an illegitimate boy or an illegitimate unmarried girl - the mother,
and after her, the father;
- In the case of a married girl - the husband
Section 6, HMGA, further provides that no person shall be entitled to act as the
natural guardian of a minor under the provisions of this section:
Explanation of section 6, HMGA, further provides that the expression father
and mother do not include a step-father and a step-mother.
- If he has ceased to be a Hindu, or
- If he has completely and finally renounced the world by becoming a hermit (vanaprastha)
or an ascetic (yati or sanyasi).
Natural Guardian of an Adopted SonSection 7 of the HMGA provides that 'the natural guardianship of an adopted son
who is a minor passes, on adoption, to the adoptive father and after him to the
Powers of a Natural Guardian Section 8 of the HMGA lays down the powers of a natural guardian.
Section 8 (1) provides that the natural guardian of a Hindu minor has power to
do all acts which are necessary or reasonable and proper for the benefit of the
minor or for the realisation, protection or benefit of the minor's estate. Also,
the guardian cannot bind the minor by a personal covenant in any case.
Section 8 (2) provides that the natural guardian shall not, without the previous
permission of the court:
- mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part
of the immovable property of the minor; or
- lease any part of such property for a term exceeding five years or for a term
extending more than one year beyond the date on which the minor will attain
Section 8 (3) specifies that any disposal of immovable property by a natural
guardian, in contravention of sub-section (1) or sub-section (2), is voidable at
the instance of the minor or by any person claiming under him.
Section 8 (4) provides that no court shall grant permission to the natural
guardian to do any of the acts mentioned in sub-section (2) except in the case
of necessity or for an evident advantage to the minor.
Section 8 (5) provides that the Guardians and Wards Act, 1890, shall apply to
and in respect of an application for obtaining permission of the court under
sub-section (2) in all respects as if it were an application for obtaining the
permission of the court under section 29 of that Act.
Testamentary Guardian Section 9 of the HMGA describes 'testamentary guardians' and their
Section 9 (1) provides that a Hindu Father who is the natural
guardian of his minor legitimate children, may appoint a guardian for any of
them by 'will' in respect of the minor's person or in respect of the minor's
property (other than the undivided interest referred in section 12) or in
respect of both.
Section 9 (2) provides that an appointment made under sub-section (1)
shall have no effect if the father predeceases the mother, but shall revive
if the mother dies without appointing by will, any person as guardian.
Section 9 (3) provides that 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.
Section 9 (4) provides that a Hindu mother entitled to act as the
natural guardian of her 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 or in respect of both.
Section 9 (5) provides that 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.
Section 9 (6) provides that the right of the guardian so appointed by
will shall, where the minor is a girl, cease on her marriage.
Guardian Appointed by the Court Section 13 of the HMGA clearly specifies that 'welfare' of the minor is of
Section 13 (1) provides that in the appointment or declaration of any person as
guardian of a Hindu minor by a court, the welfare of the minor shall be the
Section 13 (2) provides that no person shall be entitled to the guardianship by
virtue of the provisions of this Act or of any law relating to guardianship in
marriage among Hindus, if the court is of opinion that his or her guardianship
will not be for the welfare of the minor.