UARD Chapter 22 GUARDIANSHIP AND Cus UNDER HINDU LAW” phe Dharmashastras did not deal with a ve Senate ee ang the British regime, the law of guardianship w: ri ve ia be established that the father is Uhe natural guardian of the ‘and after his death, mother is the natural guardian of the children ‘none else can be. the natural guardian of minor children. Testamentary were also introduced in Hindu law. It was also accepted that the ip of the minor children vested in the State as parens jae and was exercised by the courts. ‘The Hindu law of guardianship of minor children has been codified and d by the Hindu Minority and Guardianship Act, 1956. subject may be discussed under the following heads : (@ coardianship of person of minors, (ii) Guardianship of the property of minors, nt fii) De facto guardians, and (iv) Guardians by affinity. - GUARDIANSHIP OF THE PERSON the Hindu Minority and Guardianship Act, 1956, S. 4(b), minor on who bas not completed the age of eighteen years. A minor is “be a person who is physically and intellectually imperfect and Phenee needs someone's protection. In the modern Taw of most ‘childhood is accorded protection in multifarious ways. Guardian oe tare of the person of the minor or of his property °r or may be emphasised that in the modern av; e and care of the child ee) a Joo his is essed by saying that welfare of the is oration,» Welfare Yi elades both physical and mo se ea lowing types : 1. Natural guardians, 2. Be cies ‘appointed, or declared bY the existing under Hindu law, deFAMILY LAW. Natural Guardians Tn Hindu law, only three persons are recognized a8 7 father, mother and husband. ; Father.—'Father is the natural guardian of his ‘minor legitimate children, sons and daughters.” Sectien 19 of the Guardians ‘and Wards Act, 1890, lays down that a father cannot ‘be deprived of the, natural guardianship Jee, aminor children unless he has bees fonndcuafit (The effect of this provision has beon considerably whittled yy judicial decisions and by Bistion 19 of the Hindu Minority and ‘Guardianship Act which lays down that Seifare of the minor is of paramount, Srynsideration and father’s right of js subordinate to the welfare ‘of the child. The Act does not recognize the principle of joint guardians. ‘The position of adopted children is at PaF with natural born children, ‘An argument has been advanced before our wrts : suppose the father is alive but he is a non-functioning natural guardian, can the mother act as. the natural guardian? This argument has ‘prevailed before the Supreme Court. Vaidyalingam, J., said that in the particular circumstances of this case, Soars thor could be considered as the natural guardian of her minor Guugiter’ The particular cireumstances of the ease WOT | the father and ‘mother of a minor child had fallen out and ‘the mother was living separately from the father for over twenty years. The ‘mother had been looking after the affairs of her minor daughter and managing properties. ‘The child was all ‘under her protection and care.’ Thus, it seems that where the father fails to function or refuses to function or is incapable of functioning & Fan, the mother will be able to exercise all powers and functions of¢ natural: ee being appointed as guardian by the court “Mother—The mother is the natural guardian sr illegitimate ‘children even if the father is alive. However, she BA ehtoral pada her oe Sogitimate children only if the father is dead or others - “incapable of acting as guardian. Proviso to clause (a) of Se pay ‘and Guardianship Act lays down that the custody of & ee the age af five years shall ordinarily be with th “aie: et erate entitled to the nena of the child below five year® reer ‘minor requires otherwise Mn ae of guardianship is mot lost on her ‘conversion # religion as she is able to provide a congenial, ‘comfortable tural guardians sition of mother's guardianshi ied Pothey nat < onan of her adopted children fariharay nv. Reserve Bank of India and Vondant er haya the Supreme Court has held that wu" ‘hen the father is alive, mother can ec ony ned in Section 6(a) has been inte“? j , ve 88 guardian of minor for in event where the ee S15 at 319. Pat 318, 1999 SC 1149,GUARDIANSHIP an custopy arents are separate for applyin a ‘ng for passport,! Step-parents are not entitled eee cifically appointed by the court, to guardianship, unless the Husband.—The husband is the ipa I sp eipor wife. It has been held that it i famature minor wife to live in the custody ot her Inosbana Rights of guardian of person-the neberal guard ig rights in respect of minor children ; 7S! #uardian has the (a) Right to custody, (b) Right to determine th. ligic 4 sation. arate oe (@ Right to control movement, and (e) Right to reasonable chastisement. ‘These rights are conferred on the guardians in the interest of the mi 1 in the interest of the minor on ‘and therefore each of these rights is subject to the welfare of the ‘The natural guardians have also the obligation to maintain their mi 1 ig aint their minor a Custody and access.—It is a well ‘established proposition of law that in all matters relating to children, including access and custody, the paramount consideration is the welfare of children.’ If the child is of the age Trdiseretion, his wishes should also be consulted, though in the welfare of the thild, his wishes may be disregarded. Though the ordinary rule is that a child telow the age of five should be committed to the custody of the mother, it doos ‘not mean that a child above that age ‘would automatically be given over to the teateds afte father* Thus, in the welfare ofthe child above that age may fe asta of tae fatner jody of the mother, though children of tender years woul tot be ordinarily given in the custody of the father. Again, it is Hot 8 hard and fast rule that for custody, mother would always be, preferred over father: Welfare of the child is the only touchstone on which custody is granted. iti i 1 the sole Betlor aancial conditions, love for child are relevart ‘but not determining fectors, In unis case child has been living with father, mother had Iegamining factors In thie ro old. Chil a studying in 6.699%, school and ea ictay with tether Teva held that custody will remain a F smedna Nagpal’ bas Further, the Supreme Court in Gaurav Nagpal v. Su Further the Supe de 'y. Union of fia, AIR 2017 J & K 12 naane ee Uren of Te Gan) 24 Ma 2; Noe ST “ eee TLR (1926) Arumugo v. Viraraghava, q Bom 268. iy Nounect x. Purshotams c 00. 40, mn 085 HP 100. % Inkar v, Urmila, AIR 1 ‘Ramatirtha, 6 1LR (1901) 24 Mad 258) Kumar Jahagirdar v. Chel Nathu Aruna, "AIR. 1987 Dé indu Philips v. Sunil Jacob, gees aeyayonti Canali, ATR 2009 SC 557. a -Po ‘FAMILY LAW east human angles a alo lev shat oot only nl Pmt eosHeraion Minors oe i ai eg ce ros ea ering can sand 5 WA x oe canes on custody may be noted Siteen Balla Deepti Bhandari ating children's welfare ‘Testamentary Guardians hen, during the British period, testamentary powers were confereéa Hindus, the testamentary guardians also came into existence. It was fat ‘ive to appoint testamentary guardians. By appointing a testamentay gate 0 appoint ld exclude the mother from her natural guardian Somriidven after his death. Under the Hinds Minority and Guardian or the eos, testamentary power of appointing a guardian has now be! a etrarred on both parents? The father may appoint a testamentary guetin Paar a ver surges him, his testamentary appointment will be ineeciv but iat fier willbe the natural guardian. If mother appoints testametsy aoa dian, her appointee will become the testamentary guardian and fab Gessintient will continue to be ineffective, If mother does not srt father’s appointee will become the guardian. Tt scons that a Hindo father cannot appoint a guardian of his mist! ‘illegitimate children, even when he is ‘entitled to act as their natu! guardian, as S, 9(1) confers testamentary power on him in respec &| legitimate children. In respect of illegitimate ‘children, Section 9(4) cafe such gower on the mother alone. «Onder Section 9, Hindu Minority and Guardianship Act, testament) ia cas be apps oly by. il 2 ‘guardian of a minor girl will cease to be the guardian of het Fe os eaaes the guardianship cannot revive even if sbe be \ Tt is necessary for the testamer " ee ditt for sntary guardian to a¢c®P! tuerdinship“Acsptance may be expross er implies. A tte, Guardian may refuse to accept the appoi it, bot Ieper ws caeatt cee appointment or may disclaim i. Py ‘court. ie to act or resign except with the permis Powers of i aie owere of testamentary guardian—‘The yestamenter us ted ao eae obligations of the naturel Sua _is:not personal and | though his obligation to provide A! ‘exists only to the extent that there are prove Coes 7 Rite sent test Bengol ATR 2017 so 117 ven by Qe Hindu ‘Wills Act, 2872GUARDIANSHIP ANo cusrooy \ j 5 AY guardians Appointed by the Co " courts aro empowered to apreins guard \ gd Wards Act, 1890. The High Courts leo have ahs, the Guardians ent guardians but this power is inherent jurisdiction to wnt prs i tEatantp As eure ed en ety Fy an Under the Guardians and Wards Act, so the District Court. The District Court Sine guniin whenever conser gi\ppointing & guardian, the court takes into consideration nec ting the age, sex, wishes of the parents ap ee a gevelare ofthe children is of paramount consilerstiog oe neal ‘The District Court has the power to appoint or declare guard epet of the person aa well as separate property of the miner, mat The chartered High Courts have inherent. jurisdiction to. appoint nardians of the person as well as the property of minor children. This power tends to the undivided interest of a coparcener. ‘The guardian appointed by the court is known as certificated guardian. Powers of certificated guardians.—Powers of certificated guardians gecontolled by the Guardians und Wards Act, 1890, Thore are a very fow acts which he can perform without the prior permission of the court. In the ultimate analysis, his powers are co-extensive with the powers of the tovereign and he may do all those things (though with the permission of the court) which the sovereign has power to do, A certificated guardian from the date of his appointment is under the supervision, guidance and control of the court? 1890, the jurisdiction is conferred may appoint or declare any person necessary in the welfare of the child! i GUARDIANSHIP OF MINOR’S PROPERTY “The natural guardian of the person of a child ia also the guardian of je Minos property. But a natural guardian, father or mother, is not the Pi fuardian of minor's undivided interest in the joint family ane df _. Neither the natural guardian nor the court:can appoint a guardian of the wie Bio's undivided intrest in the joint property: Homeven most of the High yol™ Courts and all the chartered High Courts have inherent jurisdiction, or (A, Mitlictio under special enactments, to appoint = guardian of minor's ” interest in the joint family property. 1 187 Natural Guardian's Power over Minor’s Property ie dt o Section 8(1), Hindu Minority and Guardianship Act, lays down the ‘feneral eee natural guardians. A guardian may do all acts which 9° Or reaconable and proper for the benefit of the minor or for : i "¢ enerality of the power Tslzation, protection or benefit of minor’ estate, The ener oS, Y Uteasonable transactions. These are fairly wide powers ‘and constitute © Garscter of guardian’ inereby the guardian is empowered ly fa a Cuarlan’s power gp, and the third partis can also dea sf” "Sela See ob 78 P&H & T Secion Ti, Seo Babu Ram v. Keshavachands AIR 1978 0 * Sections 27, 29, $1, 92 and 89, Guardians vspawicy LAW ambit of these at A the arnt natural guardian cannoh wit of es i ‘mortgage or charge, Or fama by sale . te cour mmovable property ot las et any, ie a Png ive pears fF 8 erm eee gfe dat on which-the mings Wee attain mg than one ye a down that the court shall not grant permission jp Subsection (4) 1° 1 pny act mentioned in sub-secsen (2) except in axng natural guardieh © evident advantage of the mindy Sub-section (3) lays dom necessity or for the evident Fr property by natural guardian in contrat that any dio%t or sub-section (2) is voidable at The instance of the minare of en climing under him. The procedure oe obtaining the pernisia ore court is regulated by the Guardians ‘and Wards Act, 1890.’ Tn respect of alienation of minor's immovable property, the touchstone goarknsi powér continues to bo necessity or benefit, though it woul! as guano Pion necessity and ‘evident advantage’ used in sub-section) saatson'a are wider than their counterparts in the pre-1956 Hindu lav, Tegal necesity and benefit of estate, Since itis for the courts to consider vit srmission in a given case, itis ardian within the these expressions mean before according pet Submitted that courts are free to give them a wider meanting. Section 85 ‘makes the provision for Guardians and Wards Act applicable to application ir alienation of minor's property made under Section 8(2)- ‘An alienation of property without the permission of the court is voit fat the option of the minor.’ A transferee of the minor can also avoid © improper alienation made by the guardian.’ Where the guardian acquis) property for the benefit of the minor, no permission of the court is necess% consi, t¥0 ress the guardian's powers are not fettered by Section, and hapa: hhave the same powers as under the old Hindu law. These ** Se eC ee a ‘a guard of the Hindu Minority and Guardianship Act lays down. ee aa erect Dy uanteal rennin that te uardian by his contract may impose financial Hiability on minors estate he cannot make him liable beyond that. Inno case the guardian can Tuinor personally liable Tt is a well established rule that guardian thas Powe, to enter into, on behalf of the minor, marriage or betrothal contrat: fy apprenticeship contrac, Similarly, the guardian has the power to en inte ‘aimiy arrangements on behalf of the minor. The guardian con else bind minor's estate for debts taken by him for the supply of nocesseris ‘hiner. It is submitted that the minor is also liable for contracts of ooh8 into by the guardian, for logal necessity or benefit of estate a th 4 gutian bind th minor by his contract for tho alo PUSS power arable property? The prédomiinant view is that the guardian bas ower and a contract for the purchase of immovable property enter She, Guardian can also be specifically enforced. When the guard sined prior permission of the court in alienate miner's property BY of tha Act of 1956. 2% Irapramty Cherant, ATR 3972 Kee 7. 8 Amrith ». Sornam, AIR 1 AIR 1977 Mad 427 FB). + & Than Singh's. Barelale, AIR 3974 MP 24. s serenasea 0 488 3 Aare e pe re BP eon tn ant hea taGUARDIANSHIP AND custopy jpto a contract of sale, the contract can be specifica tamentary Guardian’s powers ee tion 9(5) of ix 1 Bee aacamastary aaa, tit Garda “bore natural guardian, ty guardian has the power to exer marie of , Subject to the restrictions, if any lead age en wwill or by the Act. ions, if any, laid down by the Certificated Guardian's Powers tke appointment of a guardian “Goardians and Wards Act, 1890, His ae the coart ig, regulated by. the Grate Actlays down, in genera, the powers «als specified therein, Seton arty, The ambit ofthe power is limited by the fale that the Guardion i ita the property of fhe nor inthe tae manner coe an of Be de aaa Gi a ay diaper Wickes le myocar Beran specie linitations laid down inthe A. je pata are jority to do all thi sary for ion, : er a Ba ee necessary for the realization, protection and benefit Section 29 lays down a major limitation. The guardian hs no ge or transfer by sale, gift, mortgage, exchange, or otherwise, eeasis vevat of the property for a term exceeding five years oF for any term finding more than one year beyond the date on which the minor will cease ing mOr« thou’ the prior permission ofthe court. The court will accord for an alienation only if it finds that the proposed alienation is for iar for the evident advantage of the minor. Under Section 92, the thas power to define, restrict or extend the power of the guardian from ‘ntite, The court may oF may not exercise its power under this sectioo, Maieog, the guardian is bound to exercise his powers within the ,tion laid down and in ‘aceordance with the directions given by the court. dime of appointment of the guardian, the court has general powers of ‘and fixing the limit of guardian's powers. te oy tho guardian may bimelf request the court to fix and 9 55 the Bae der, this secon, the guardian may on ‘structions or opinion of the court in respe Co a rcinitration of the minor's propertis- LIABILITIES OF GUARDIANS all guardians being fiduciary, the guardiant of all ally for breach of trust. No guardian is entitled to ar, lable personaly, 2 Corte wil, f mae under the PTS dians and Wards Act. F ardian’s legal positi being fiduciary, he cannot take possche't) , sin eon no mate bow 2 yf the eguirn from a guardian Eisiness and affairs of the mines ie bound to contest every PON of the minor, iramiey LAW 28 tual profits received out of wil include not morely the ; say's property but aleo all those profits which would have been req te pele tale le However, if the minor, ater a'Mly | 90% i ae Tro Oe relist for the gross and tor oe sralachargos the guardian, S101 full Knowledge of facts, ga major, ais or omassions comes fo an end Her rdian' fiduciary pesition also makes the guard ‘However, once the minor, on attaining mj lt a) eeerily ‘ap inthe any srt iM ndu ft render all accounts rent tnt of accounts with the guardian, he can get them re-openg Teach Ae cetablishes fraud on the part of the guardian, Te-opened oni oe ‘The | womaered ™ RIGHTS OF GUARDIAN ‘the guardian is entitled to represent the minor in all litigat ae aa et crud decoad aid eee applatins ae filed. Usual he files the suit as the next friend of et i ut led against the mins, usually tig he wh i beatin goss a en tag the cur int bound todo cd gees cones ‘al gurl fr i gros negligence user omits, fulian may refer a matter of arbitrat promise claims or disputes if it aiid save a minor of avoidable nia Sosa ey Ar neo wt alo he approved by the court, A eoapromee tars promise a suit, interest and it ly lays down that of the minor :