Introduction

• Guardianship means “a bundle of rights and powers which a person gets in relation to the person and property of a minor child”.
• In the Hindu religion, there was no guardianship law as all the family members always stayed together. If the parents were not there, then the other members of the family would take care of the child.
• Therefore, to have a proper guardianship law in the country, the Hindu Minority and Guardianship Act, 1956 (hereafter, Act) was enacted.

Minor & Guardian Defined

• According to Section 4(a) of the Act, minor means a person who has not completed the age of 18 years.
• A guardian is a person who has the right and the authority to take care of the child and the properties of the child.
• According to Section 4(b) of the Act, a 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.
  • A person empowered to act as such by or under any enactment relating to any court of wards.

Types of Guardians

The types of guardians are described as follows:

• Natural Guardian
• Testamentary Guardian
• De Facto Guardian
• A Guardian appointed by the Court

Natural Guardian - Section 6

• Section 6 of the Act mentions the natural guardians to be:
  • The natural guardians 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—
    • (a) In the case of a boy or an unmarried girl - the 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.
    • (b) In the case of an illegitimate boy or an illegitimate unmarried girl - the mother, after her - the father.
    • (c) In the case of a married girl - the husband.
  • Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section:
    • (a) if he has ceased to be a Hindu, or
    • (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
    • Explanation - In this section, the expressions “father” and “mother” do not include a stepfather and a stepmother.

Powers of Natural Guardian - Section 8

• The guardian may act and do everything which is necessary for the benefit and in the interest of the minor.
• The guardian cannot mortgage, charge, gift, sell, or exchange the immovable property of the minor. He can do so only with the permission of the court.
• The guardian, if required, can lease any part of the property for a period of five years but not beyond that. If the lease is to be made exceeding five years, then the permission of the court is required.
• If the guardian does not follow the rule and disposes of the immovable property, then it shall be voidable at the option of minor or any other person claiming on behalf of the minor.
• No Court shall grant permission to the natural guardian to do any act which is not in the interest of the minor.
• The court shall allow the guardian to transfer or lease the property only when it finds necessary to do so in the interest or advantage of the minor.

Testamentary Guardians - Section 9

• The guardian who is appointed by will or a testament of a person is known as a testamentary guardian.
• The provisions regarding testamentary guardian are as follows:
  • (1) 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.
  • (2) 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.
  • (3) 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.
  • (4) 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.
  • (5) 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.
  • (6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.

De Facto Guardianship

• A de facto guardian means a self-appointed guardian.
  • He is a person who, by reason of fact, becomes the guardian of a child. After the death of natural guardians, any person who takes care of the child’s well-being and necessities becomes the de facto guardian.
• He is a person who takes continuous interest in the welfare of a minor’s person or in management or administration of minor’s property without any authority of law.
  • Alienation of property made by de facto guardian without court’s intervention is void.
• 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 right to take any debt according to section 11 of the Act.
• In the case of Amanat Hussain and Anr. v. Sahida Begum and Ors (2015), The Gauhati High Court ruled that property transfers conducted by de facto guardians are equivalent to those carried out by de jure guardians according to Hindu Law. If such transfers lack proper justification, they can be contested and are voidable.

Guardian Appointed or Declared by Court

• The courts are empowered to appoint guardians under the Guardians and Wards Act, 1890.
  • The Hindu Minority and Guardianship Act is supplementary to Guardians and Wards Act.
• The District Court may appoint any person as the guardian whenever it finds that it is necessary for the benefit of the child.
  • The District Court has the power to appoint or declare a guardian in respect of the person as well as for separate property of the minor or for both.
• While appointing guardian, the court shall take into consideration various factors like age of child, gender, personal law of child etc. But the main motive is the welfare of the children.
  • Under Section 13 of the Act, under the appointment of any person as guardian, the welfare of the child is the paramount consideration.
• In Mohini v. Virendra (2017), The SC has held that while appointing or declaring a person as the guardian of the minor, welfare of the minor shall be the paramount consideration.

Removal of a Guardian Court - Section 13

• Section 13 of the Hindu Minorities and Guardianship Act, 1956 states about the welfare of the child and hence gives a right to the court to terminate the guardianship of any person if the appointment is not made for the welfare of the child.
• Guardianship can be ended in a situation when either the guardian has witnessed some unforeseeable circumstance, or the court feels that the guardianship was not in the welfare of the child.

Grounds of Removal of a Guardian

• There are certain grounds that are necessary to be considered before the removal of the guardian which are stated below:
  • When he uses the property of a minor for his personal use.
  • When he renounces the world and becomes a Sanyasi.
  • When he ceases to be a Hindu.
  • The court can remove him if it finds that it is not in the best interest of the child.