Chapter 22

GUARDIANSHIP AND CUSTODY

UNDER HINDU LAW
TheDharmashastras did not deal with the law of guardianship of minors
The texts are few and scanty.
detail.
any
nuring the British regime, the law of guardianship was developed by the
t came to be established that the father is the natural guardian of the
courts

after his death, mother is the natural guardian of the children

children and afte
cdnane else can be the natural guardian of minor children. Testamentary
rdians were also introduced in Hindu law. It was also accepted that the
nTeme guardianship of the minor children vested in the State as parens
patriae and was
exerCised by the courts.
The Hindu law of guardianship of minor children has been codified and
reformed by the Hindu Minority and Guardianship Act, 1956.
The subject may be discussed under the following heads )
Guardianship of person of minors, (i) Guardianship ofthe property of minors,
and ii) De facto guardians, and (iv) Guardians by affinity.
I
GUARDIANSHIP OF THE PERSON

Minor Children
Under the Hindu Minority and Guardianship Act, 1956, S. 4(b), minor
means a person who has not completed the age of eighteen years. A minor is
considered to be a person who is physically and intellectually imperfect and
mmature and hence needs someone's protection. In the modern law of most

cOuntries, childhood is accorded protection in multifarious ways. Guardian

the
1s a person having the care of the person of the minor or of his property or
Or both person and property."" It may be emphasised that in the modern law,
and care of the child and to look
guardians exist.essentially for the protection that welfare of the child is of
after its welfare. This is expressed by saying
Welfare includes physical and moral
both
paramount consideration.

well-being. 1. Natural guardians, 2.

Guardians may be of the folowing types:
Testamentary guardians, and 3. Guardians appointed or declared by the
court.
There are two other types of guardians, existing under Hindu law, de
facto guardians, and guardians by affinity.

1. Hindu Minority and Guardianship Act, 1956, S. 4(b).

(289)
 FAMILY LAW
290

Natural Guardians
n Hindu law, only three persons are recognized as natuw.
al guardar
father, mother and husband.
Father"Father is the natural guardian of his minor
children, sons and daughters." Section 19 of the Guardianc ninor legitimat.
and Wards Aat
1890. lays down that a father cannot be deprived oof the natural
of his minor children unless
he has been found unfit. The
effect
provision has been considerably whittled down by judicial decisio
guardianshi
of thisp
Section 13 of the Hindu Minority and Guardianship Act which la andby
welfare of the minor is of paramount consideration and fatha
that
guardianship is subordinate to the
welfare of the The Aotgnt
child. The Act does
of
not
recognize the principle of joint guardians.
The position of adopted children is at par with natural born childro
dren.
An argument has been advanced before our courts : supp0se the fath
lather
is alive but he is a non-functioning natural guardian, can the mother:act
as

the natural guardian? This argument has prevailed before the Sun
Supreme
Court. Vaidyalingam, J., said that in the particular circunmstances of this easo
"the mother could be considered as the natural guardian of her mina
circumstances of the case were the father and
daughte." The particular
mother of a minor child had fallen out and the mother was living separately
The mother had been looking after the
from the father for over twenty years.
The child was all
affairs of her minor daughter and managing properties.
care.' Thus, it seems that where the father
along under her protection and is incapable of functioning as
fails to function or refuses to function or
exercise all powers and functions of a
guardian, the mother will be able to the court."
natural guardian without being appointed as guardian by
Mother.The mother is the natural guardian of the minor illegitimate
natural guardian of
children even if the father is alive. However, she is the
her minor legitimate children only if the father is dead or otherwise 1s
of acting as guardian. Proviso to clause (a) of Section 6, Hindu
incapable
Minority and Guardianship Act lays down that the custody of a minor Wno
has not completed the age of five years shall ordinarily be with the m0te
less
Thus, mother is entitled to the custody of the child below five years, ule
the welfare of the minor requires otherwise.
to
The mother's right of guardianship is not lost on her conversio
and
another religion so long as she is able to provide a congenial, com0rta
happy home.
The position of mother's guardianship of her adopted children s the
same as that of her natural born children.
In Gita Hariharan v. Reserve Bank of India and Vandana Snuin
Jayanta Bandhopadhaya,' the Supreme Court has held that undea
Circumstances, even when the father is alive, mother can act 23
suardian. The term 'after' used in Section 6(a) has been interp eted
absence of' instead 'after the
as

lifetime'.
Mother can act as guardian of minor for in event where tthe
he minors

1. Jijabai v. Pathan, AIR 1971 SC 315 at

2. Narayan v. 319.
Sapurna, AlR 1968 Pat 318.
3. JT 1999 (1) SC 524
AIR 1999 SC 1149.
 GUARDIANSHIP AND CIUSTODY 291

for passport.
s e p a r a t e
for applying
lor.
entitled to guardiansh unless they are
are
re
not
Step-parents
ngrents

the court.
inted by
fically appointa

is the natural guardian of his

minor wife. The
husband it to the welfare of the
ilic interpreting t h i s provision have subjected
1 s b a n d . - 1 h e

not in the welfare of an

held that it is ordinarily
courts,i n been husband.2
as
custody of her
live in the
minor wile.

maturem i n o r wife
natural
n atural guardian
gui has the
guardian
person.-The
of person-The
of ildren:
minor chil
Rights respect of
hts in
following r i g h t s

to custody, of children,
Right the religion
(a) determine

b) Right to
education,
to and
(c) Right control
movement,
to
(d) Right
chastisement.

of the minor
in the interest
reasonable

(e) Right to on the guardians welfare of the

onferred
con. to the
rights is subject
are
These rights each ot these
therefore
children and maintain their minor
to
minorchildren. the obligation
have also
guardians
The natural of law that
established proposition
and custody, the
children. well
a c c e s s . - I t is a
Custody and including
access

relating to
children,
children." If the
child is of the age
the welfare of
matters
in all of the
c o n s i d e r a t i o n is
though in the welfare
paramount be consulted, child
should also rule is that a
his wishes the ordinary
of discretion, disregarded. Though it does
his wishes may be to the custody of the mother,
child, should be
committed
over to the
below the age of five would automatically be given
above that age may be
not meanthat a child
welfare cf the child above that age
in the would
custody of the father." Thus, though children of tender years
of the mother, not a hard and
Committed to the custody of the father. Again, it is
be ordinarily given in the custody over father"
not mother would always be preferred
is granted.
ast rule that for custody, touchstone on which custody
Neare of the child is the only
relations of the father"
mother is preferable over the the sole
ral love for child are
relevant but not
Debter financial conditions, mother had
living with father,
determi
glactors. In this case
child has been
school and
he was 3 years old. Child is
studying in a good
VantWhen custody will remain with
the
with father. It was held that
therday
ather?
nas
Sumedha Nagpal,
urter, the Supreme Court in Gaurav Nagpal v.
.Saien v.
Union of ndia, AIR 2017 J& K 12.
nugo v. Viraraghava, Purshotamn, ILR (1926)
LR (1901) 24 Mad 255; Navneet v.
BOm 268.
Purshotam, ILR (1926)
Bom 268. "gnava, ILR (1901) 24 Mad 255; Navneet v.
,K.Urmila,
4. AIR 1985 HP 100.
ar Jahagirdar v.
Nathu
v. Chethana Ramatirtha, AIR 2004 SC 1525.
Aruna, AlRR1987 AR 2017 SC
929
MPhilips Del 81; Vivek Singh v. Romani Singh.
Mausups v. Sunil Jacob, AIR 2017 SC 1522.
tausami Moitra
AIR
2009 SC 557.Ganguli v. Jayanti Ganguli, AIR 2008 SC 2262.
 FAMILY LAW G u a r d i a n sA p p

292 The courts

are also
but human angles releva
only legal appointguardian
and Waras Act,

observed that not consideration

1SSues, minor's
welfare being
also important.
the paramount
rr these cases
the court Minor's m andGuardianshi
ethical welfare is can
s t a n d in its way.
a n dW a r d sA c t .
and nothing
patriae jurisdiction be noted. U n d e r t h e

custody may
cases on
Some ontheDistrict
Jiteen Balla astheguardian
Deepti Bhandari i nappointing a

i n c l u d i n gt h e a s
Shaleen Kabra
The weltare o f
Rajan Chawla
or pass any
o r d ers
rs facilitating
1acilitating children's
children's welfare
.

modify,
T h e D i s t 2

Courts can
r e s p e c to ft h e

Testamentary Guardians

the British period,

testamentary confer
powers were. The cha

When, during also c a m e i n t o existence. It

waoon guardianso f
guardians
testamentary a testaer
Hindus, the guardians. By appointing extends to the
testamentary
mardy
prerogative to appoint mother from her natural
could exclude the The gua
father
guardian, the Minority and Guardians
after his death. Under the Hindu
guardian has now been
P o w e r s

of the children of appointing

a
testamentary power
appoint a testamentary guardio
are controlle

Act, 1956, The father may acts which b

conferred on both parents." appointment will be ineffectiuo
survives him, his testamentary ultimate ar
but if mother If mother appoints testamentary
will be the natural guardian.
testamentary guardian and fathers
and the mother s O v e r e i g n a

her appointee will become the not appoint court) w h i c

guardian, ineffective. If mother does
will continue to be date of his
appointment
become the guardian.
father's appointee will
guardian of his minor
COurt,2

that a Hindu father cannot appoint a

It s e e m s a s their natural
even when he
is entitled to act
illegitimate children, him in respect of
confers testamentary power o n
guardian, as S. 9(1) Section 9(4) confers
children. In respect of illegitimate children, The
legitimate
such power on the mother
alone. minor's
testamentary
Hindu Minority and Guardianship Act,
Under Section 9, guardian
be appointed only by a will.
guardian can Nei
The guardian of a minor girl will c e a s e to
be the guardian of her persou minor's
beconeda
her marriage, and the guardianship cannot
revive even if she
on Courts
widow while a minor. accept the jurisdic
It is necessary for the testamentary guardian to testamentary undivid
A
1ardianship. Acceptance may be express or implied.
guardian may refuse to accept the appointment or may disclaim 1, Duehe
"the Natur
he accepts, he cannot refuse to act or resign except with the
permissi
Court Eenera
Powers of testamentary guardian.The testamentary guarar a necess
all the powers and rights and Tealiz
obligations of the natural guaralatonance
they are not limited by the will, though his obligation to provide maof the will
is not personal and exists
only to the extent that there are properi unre
minor. But it is his duty to look for his
support. har
Safe
1. Harshita Bhasin v. State of West
Bengal, AIR 2017 SC 1117.
2. The statutory recognition was given by the Hindu
Wills Act, 1870.
3. Section 9.
 GUARDIANSHIP AND CUSTODy 293

by the Court
Appointed
Guardians. point guardians unuer the uardian
Gardias empowered

also have inherent jurisdiction to

are

The High Courts

courts
e 1890. TI 1890.
Act, is exercised sparingly. The Hindu Minority
guardians but this power
Wards
appoint
and

Supplenentary to and not in derogation to Guardians

Act is
dianship
is conferred
and Wards A c t .
Act, 1890, the jurisdiction
Wards Ad
a n d

and
appoint o r declare any person
Guardians
the District Court may
Under The welfare of the child.
Court.
onsiders it n e c e s s a r y in the
on t h eD i s t r i c t
whenever it consideration various factors.
t a k e s into
guardi.
the c o u r t law of the child.
the guardian, the personal
inting a
wishes parents and
of the
sex, consideration.
age, paramount
cludingthe the children is of guardian in
a
of to appoint o r declar
The welfare Court has
the power
of the minor.
The District well a s
s e p a r a t e property
appoint
as jurisdiction to
the person inherent
respect of High
Courts have
minor children. This power
The
chartered the property of
as well a s
1ardians of the person
interest ofa coparcener.

gua undivided certificated guardian.

to the is known as
extends the court
appointed by of certificated guardians
The guardian
very few
guardians.-Powers
a
certificated
1890. There a r e
Powers of G u a r d i a n s and
Wards Act,
the of the court. In the
are
controlled by w i t h o u t the prior
pernmission
of the
he perform
can with the powers
acts which
co-extensive
are of the
his powers with the permission
ultimate analysis, those things (though from the
he may do all c e r t i t i c a t e d guardian
sovereign and to do. A
control of the
sovereign has power guidance and
court) which the supervision,
is under the
date of his appointmcat
COurt.
II
OF MINOR'S P R O P E R T Y
GUARDIANSHIP
of
of a child is also the guardian
The natural guardian of the person not the
natural guardian,
father or mother, is
minor's property. But
a

guardian of minor's undivided

interest in the joint fanmily property.
a guardian of
the
n o r the court can appoint
Neither the natural guardian most of the High
undivided interest in the joint property. However,
minor's inherent jurisdiction, or
and all the chartered High Courts have
ourts guardian of minor s
action under special enactments, to dppoint
a

undivided interest in the joint family property.

atural Guardian's Power over Minor's Property
down thee
ection 8(1), Hindu Minority and Guardianship Act, lays
general which a r e
powers of natural A guardian may do all acts
guardians. minor or for the
realiafOr reasonable and proper for the benefit of the of the power
or benefit of minor's estate. The generality
Will evel. Protection
de fraudulent, collusive, colourable, specul ulative, unnecessary or
ionable transactions. These are fairly wide powers and constitute a
character of
th guardian's powers whereby the guardian
safely in welfare is empowered to act,
1. Seection of the minor, and the third parties can also deal safely
17,
See Babu Ram
Sections 27,
4, 29,
31, 32 and
v. Keshavachand,
33, Guardians
AIR 1978 P & H
and Wards Act.
124.
 FAMILY LAW

294
within the a m b i t of these powers
ers.

with the
guardian that natural dian cannot,
guardian.

Sub-section (2) provides

of the
mortgage or charge, or transfer without t Test
p e r m i s s i o n

a n y part
of
of immovable property, or
t o
le
s e out,
sale,
i pil
previous
otherwise,
years
Inve
o r for a m
exchange
or

for a t e r m
exceeding
which the minor
minor
exce
would attuing
such property date
date on
o n
of the
than o n e year
beyond
down
(4) lays
that
tDe court shall
not g r a n t
i n sub-section (9
pe 01ssion
to the
ority. 1

Sub-section
for thetoevident act mentioned
do any advantage of the minor. Sub-sectio i cas
down Cer
natural guardian
by natural guardian:in
that any
disposal of immovable
property

sub-section (2) idable

is voida at the instance of the contraventi
minor or Gua

7 ot
(1) or dure for obtaining the
proced
of
sub-section

person
claiming
under him.
The

the
Guardians and Wards Act, 1890. permission p

any
court is regulated by immovable propertv. the ta
of the of minor's
of alienation
though it
or benefit,
ne o o r d i

In respect be necessity'
c o n t i n u e s to
used in sub-section (4
guardian's pow r and ' e v i d e n t advantage of a u l

that expression necessity in the pre-1956 Hindu la

than their counterparts
is for the courts to consi
,
Section 8 a r e wider estate. Since it what
and benefit of
legal necessity p e r m i s s i o n in a given case it is
before accordin8 chak
w 1 d e r meaning. Section 85
mean
these expressions
courts are free to give them a far any
submitted that Wards Act aPplicable to application
for Guardians and exte

makes the provision under Section 8(2). to D

alienation of minor's
property made
without the permission
of the court is voidable
of property per
An alienation of the minor can also avoid an nec
of the minor." A transferee
at the option Where the guardian acquires COu
alienation made by the guardian.'
improper of the court is necessary
for the benefit of the minor, no permission
property
a r e not fettered by
Section 8, and he
In two areas the guardian's powers
Hindu law. These are:
as under the old
continues to have the s a m e powers
contracts. At
(a) alienation of movable property, and (b)
Act lays down that de
Section 8(1) of the Hindu Minority and Guardianship
a guardian cannot bind the minor by personal covenants. This means that the
estate pu minor's
guardian by his contract may impose financial liability
on
make une
he cannot make him liable beyond that. In no case the guardian
can
has powe
minor personally liable. It is a well established rule that guardian and
to enter into, on behalf of the
minor, marriage or betrothal contrac t
apprenticeship contract. Similarly, the guardian has the power to enter
amily arrangements on behalf of the minor. The guardian can also bind
minor's estate for debts taken by him for the supply of necessaries the
minor. It is submitted that the minor is also liable for debts
entered into by the contracts
guardian, for legal necessity or benefit of estae
Can a guárdian bind the minor by his contracts for the sale or atich
ase
ofimmovable property? The
power and a contract for the predominant
purchase of
view is that the guardla
immovable nroperty entered lu y
the guardian can also be dian has
obtained prior
permission specifically
of the court to
enforced. When the gua
1.
Sub-section (5) of the Act of alienate minor's properuy
2. 1956. a
Iruppakutty
3. Amrith Cherukutty, AIR 1972 Ker 71.
v.

4. Than
v.
Sornam, AIR 1977 Mad
Singh v.
Barelala, AIR 1974 427 (FB).
MP 24.
 GUARDIANSHIP AND CUSTODY

the contract can be speCitically enforced

o n con1tract
of sale,
entary Guardian's powers
indu Minority and Guardianship Act, 1956, lays
Hin
Section905) of the guardian to exercise all the rights
has the power
ttostamentary
estamen
restrictions, if any, laid down b
subject to the
the
d o w n
thi guardian,
tural
Act.
the
o r by
Certificated Guardian's Powers
will the
the court is regulated by
of a guardian by therein. Section
a r e also specified
tment
appoin 1890. His powers
The
Guardians a n d rds
Waard Act, obligations of the guardian
and ob
powersthe the g u a r d i a n
the rule that
general,
down, in by
Act lays the power
1s limited
as a man of
of the ambit of i n the
same
manner

The minor

property
of the is limit and subject
Within this
of prop with the o w n property. the
li deal deals with his the guardian has
the
down in the Act,
should
pruder
limitations
laid protection and benefit
ordinary
realization,
certain
specif f o r the
necessary
to
do all things
a1thority to has n o power to
minor's
property. The guardian
limitation.
o r to lease
of the down a major o r otherwise,
Section 29 lays exchange,
sale, gitt,
mortgage, for any term
transfer by five years o r
exceeding
the minor will
t e r m cease
charge or for a
the property o n which
a n v part
of beyond the
date
court will
accord
than o n e year of the court. The
alienation is for
more
extending permission
the prior proposed
finds that the
without
minor,
to be a alienation only if it
minor. Under Section 32,
the
Dermission for the
an
advantage of from
the evident power of
the guardian
or for the
necessity restrict o r
extend
under this section,
to define, e x e r c i s e itS power
court has power o r may
not within the
The court may exercise his powers
time to time. is bound to court.
the guardian directions given by
the
but if it does, a c c o r d a n c e with the
and in powers of
limitation laid down the court has general
the guardian,
appointment of
At the time of powers.
the limit of guardian's
defining and fixing himself request the court to fix and
Under Section 33,
the guardian may may on
Under this section, the guardian
define the scope of his powers. of the court in respect
instructions or opinion
specitic matters seek directions,
administration of the minor's properties.
of the management and
LIABILITIES O F GUARDIANS
of all
fiduciary, the guardians
The legal position of all guardians being No guardian is entitled to
are liable personally for breach of trust.
pe or made under
the provisionls
nuneration unless permitted under the will,
of the
Guardians and Wards Act.
Th uardian's legal position being fiduciary, he cannot take possessionn
f min no matter how long
he may be in
i or's property adversely to the minor,
he will
The down and reauires from a guardian that
mSsession. law lavs
minor. Prudent
the properties, business and affairs of the
mana uaently
aa nent does not mean that he is bound to contest every possible claim
against the minor or to litigate on behalf of the minor, irrespective of the
Chance of succe advantages a r e received
out of the
minor's esta
tat
whatever pecuniary
guardian is bound to hold them for the
minor's benefit.
e,the
1. Chater
oreet Singh, AIR 1983 P & H 406.
 FAMILY LAw
296
This wll include not merely the actual profits reccived u
ut of the
which would have been
nnor's property but als0 all those profits

fterrecivn
for the gross and wilful neglect. However, if the minar
atta
for his acts or
nowledge
majority, discharges the guardian alter full knowledge
o m i s s i o n s comes to an end.
of
facts, guard
lhability
The guardian's fiduciary position also makes the guardio
dvan
render all accounts. However, once the minor, on attaining ole to
a settlement of accounts with the guardian, he can get them
them ro reach majority,
re-opened
Teaches
establishes fraud on the part of the guardian. only it
he
RIGHTS OF GUARDIAN
The guardian is entitled to represent the minor in all litigot.

is his instructions that notices

on
are issued, actions are comma andit
he files the suit as the next friend afs
of minor
applications are filed. Usually,
if a suit is filed against the minor, usually it is he who is appointed and
the court is not bound to do so. Just aselohe
guardian ad litem, though where,
his gross negligence.
here also guardian is liable for
The guardian may refer a matter of arbitration. He mau
compromise claims or disputes if it is advantageous to the minor, such as tto
A guardian may also compromise a suit
save a minor of avoidable expenses.
it should be in the minor's interest and it
but, to be binding on the minor, court. A Compromise has been held to he
the
must also be approved by
to the minor if it secures some demonstrable
advantageous o r beneficial mischief. A compromise
or averts s o m e obvious
advantage to the minor
or in collusion with the adverse
entered into by the guardian fraudulently
instance of the minor.
party is voidable at the
indemnified out of the minor's property
The guardian has the right to be
behalf of the minor. Similarly, when
for any expenses, he incurs properly on
of the minor, he is entitled to
a guardian is used a s a representative
the minor's estate. A
reimbursement of all expenses of litigation out of
entitled to reimbursemen
guardian who advances money to the minor is also
out of the minor's property. The guardian may sue the minor arter e
incurrea or
termination of guardianship for the recovery of expenses that he
advances that he made.
The guardian of the minor's property has the right to the exciu sive
possession of the minor's property.

REMOVAL OF GUARDIANS if
The court has power to remove any guardian from the guardians minor.
1t comes to the conclusion that to do so will be in the interest of tne
that
Section 6,
no person
Hindu Minority and Guardianship Act, specifically lays dowu
shall. be entitled to act as the natural guardian of the minor
(1) If the guardian has ceased to be
Hindu, or a
orld
C2) f the guardian has eompletely and finally renounced the wor
The Hindu Minority and
or mother cannot
Guardianship
Act does not say that1 Nor
appoint by will a non-Hindu as guardian of the
child

is there anything in the C o u r t

Guardians and Wards Act, 1890 to

from appointing a non-Hindu as a guardian of a Hindu preve hough th
according to Section 17, the court is minot tion the

required to take into considera

 GUARDIANSHIP AND CUSTODY
297

the :
minor. It is, thus, submitted that unless it is evidently to
law o f
1al
sndvantage
ol the minor, such as
when
the
the
guardian
of the
interferes with the
P it 1s not obligatory on e part co
tn'sreligio
stnamentary
, guardian of a Hindu minor, nor is it bound not to
non-Hindu
- tes
of the minor, though the court may nat
appoint a an-Hindu guardian
non-F

du as a guardian of the minor's person. There

non-Hindu
a
appoint
in appointing non-iindu
a as
a guardian of the minor's
any hitch
ordinaril

cannot
courts
have ime and again
said that the 'principal matter to be
infant.'
is the welfare of the
The
property. ases
these ca s
in
idered
III
GUARDIANSHIP BY AFFINITYY

there existed a guardian called guardian by

r e - 1 9 5 6 Hindu
law, minor widow. Mayne
of a
affinity is the guardian
by aff
The
guardian
ations, if there
relati
any, within the degree of
exists
finity.
in preference to her father and
alfin husband's
"the
that
guardians of a minor widow
have also been to the
said

are
the same

apinda, pronouncements
olations.
"2
The judicial
his
its logical end by the High
effect." taken to
by affinity w a s of a minor widow
The guardianshipState." In case, the
father-in-law

Paras Ram v.
this house and married her for
Court in widow from her mother's
the before the
forcibly took away her wishes. The question
unsuitable person against the girl forcibly.
money to a n the f a t h e r - i n - l a w
w a s guilty of removing
whether the lawful
court was he w a s not, since he
was

High Court held that

The Allahabad
the widow.
guardian of o u r courts,
whether the n e a r e s t sapinda
of
has c o m e before
A question widow o n the
automatically becomes a
guardian of the minor
the husband entitled to
husband o r whether
he is merely preferentially
death of her
therefore he cannot act
as a guardian unless he is
guardianship and and the
subscribe to the former view,
such? Paras Ram s e e m s to
appointed as
Courts to the latter view. Under
Section 13,
Madras and the Nagpur High
in the appointment of any person as a
Hindu Minority and Guardianship Act,
consideration. The fact that
guardian, the welfare of the child is of paramount to be appointed as
under Hindu law, father-in-law has preferential right
guardian is a matter of secondary consideration.
only
The Act of 2006 and 7. Sivakumar v. Inspector of Police,° have brought aa

huge change.
In our submission, it would be a better law if the guardianship of the
minor wife, both of her person and property, continues to vest in the parents.
We do not have much of textual guidance or case law on the powers or
ardians
Those of the
by affinity. Probably his powers may be taken to be at par with
natural guardian.
Bhag
ind Law.Murlidhar, AIR 1943 Pc 106; Gangabai v. Bherumal, AlR 1976 Raj 153.
2. Hindu
3. Chinna and Usage, (11th
V. Vinayaghathammal,
ed.) 288.
AIR 1929 Mad 110 at 112; Ashwani Kumar v.
4. Pulkumari,
AIR 77 CWN
349.
1960
5.
AIR 2012 All 479.
Mad. 62.
 298
FAMILY LAW

A de
DE FACTO GUARDIAN
facto
wellare of the guardian is a person who akes a

property without any authority of management continuou

minor's person orin the

n
recognized
a case
the principle that if
and a
law.is iindu jurisprudensrati interest in th
liability incurred by one onnce hasratuallon flis
where it is justified, then the person,
incurred or, at least, his on
hose behalfehalf of an along
who,
property, 1s
liable,
authorization was made for incurring tne notwithstanding the liab abi
The term 'de facto liability.
but his guardian' as such 1s not
existence has never been denied in Hindu mentioned in a r
J. said that law. In Srire.
Hindu law tried to find a solution out
one, when a Hindu child has no
legal guardian,
of two difi
there
Kantexts,
cult situations
manage his estate in law and thus would be
would handle and
child would not receive
any income for his without a One wha
property and Secondllan, the
having no title could not be permitted to intermeddle
so as to cause
loss to him. The Hindu law found a with the
according legal status to de facto guardians. solution to this estate
A mere intermeddler is not a de problem
by
facto guardian. An
act of a person in
regard to the child's property does not: isolated. fugitive
guardian. To make a person a de facto guardian, some make him a de facd
conduct is necessary on his part. In other continuous c urse o
person who is not a legal guardian, who has no
words, a de
facto guardian is ofa
but nonetheless he himself has authority in law to act as s
assumed, the
management of the property Such
the child as though he were a
where past acts result in guardian. De facto guardianship
is a concent
of

which has been doone.

present status. The term
literally means from that
The de facto guardian was
Privy Council in Hanuman Pd.2recognised
in Hindu law as
said that 'under Hindu
early as 1856. The
bona fide
incumbrancer, who has taken a de facto guardianlaw, the right of a
created honestly, for the
of saving the
a
charge of land,
estate, is not affected bypurpose estate,
the want of union of the de
or for the benefit of the
title. facto with the de jure
Powers of de facto
Guardian
Hanuman Pd is the
facto authority on the guardian's power of alienation.
as well as de jure guardian has
(a) legal power to alienate minor's
A
necessity, and (6) benefit of estate. properiy
In 1949, the entire question was
the
judges were unanimous examined by the Federal Court an all
on this
power to alienate minor's proposition that a de facto guarala
differences between the property for the aforesaid two The
seems to be of
powers alienation of de purpoe
only this that facto
to and de jure guar
guardian is void, while it is an improper alienation made by e facto
Ade facto voidable if made by a de
guardian of jure guarala
by a simple
contract or debtminor's property has powers to estate
state

1. Ethilulu
or to
borrow money on the Dlna OL negotiabie
v. Pathakal, AIR security egotiable
100 1950 Mad
390; Kusubai v.
2. (1856) 6 1918 Nag
3.
Jagdev
MIA 393. Chandrabnug
a, AIR
v.
Radha, AIR 1994
Guj 124.
 .MILY LAW
2 GUARDIAN GUARDIANSHIP AND CUsTODY
299
awho akes
e a
nsfrumment, provided t h a t
that the contract, debt or loanis for legal necessi

management continuc
aw. Hindu and uous inte
admir
'4 Cstate and provided further that the guardian has not
Lnder the contract, debt or negotiable instrument. In no

person, jwhose
incurreduby. adminishastrato
risprudence
trnelit
c h d e d
h i si a b i l i t y

y is p e r s o n a l l y
liable,

de fucto guardiar has no power to acknowledge

minor

one on the
ettled that ttled law that de facto guardian has
on It is also settled
iable, notwithstandin behalf 1 1s n o w

minor.

tne liability.
behalf the of : debt
al
onb e h a l l r
of thereference
po to arbitration or to make a gift of minor's

ing the fact blity er to make

tthat
h facto guardian by the Hindu
0 power

ch is not perty been assigned to de

Hindumentioned
guardian, de facto or de jure
now
The
d in in any role
has
1956-62.
Acts, 19
a b a n d o n e d child, can give such
law. In
n e w

of tha
M a i n t e n a n c e

A minor
and undling o r
Sriramulu! Knnd
s

olution out of two tions minor

fou
permission of the
court.

difficult situati t h the prior

orphan,

guardian, there would

mino w i th
and Guardianship Act,
1956, p u r p o r t s
and thus without be no onestionswho
ofa a d o p t i o n

in Hindu Minority
law a
hild
c h i l

11 of the n . The
section runs as
under:

shall be entitled to
guardian the
guardian.

his property and a

Sec thet h e de facto
of this Act,
n o person
minor merely on the
o
intermeddle secondly,
with the child's pers
a to
abolish
After commencement

d e a l with,
the property of a Hindu
the minor.
guardian of
found a solution to this eet.ate dispose
of, o r
her being the de facto
abolishes a de facto

ans. problem by Oround of

his o r
w h e t h e r this
c o n t r o v e r s y
section totally

de
to guardian. An isolated or fugitive Thereis
a

Guardianship Act, merely says that a

and deal with minor's

perty does not make him a de fucto guardian.

tion11,
Hindu
to dispose of
rity
Minorit
'entitled' to dispose
or
otherwise

uardian, some continuous course of not w a s not

entitled
uardian is the de facto guardian
purpose,
it w a s
er words, a de facto guardian is a facto
gua
fore 1956,
property. Bven befor it of for justified null
he disposed guardian is
though if a de facto
as no authority in law to act as such 's operty, that a n
by alienation

the of of minor does not say

the management of isproperty Section 11
valid. an
a l i e n a t i o n by
a
guardianship concept whether
De facto m e a n s from that
and void.
among
our High
Courts

term literally There is a

controversy
he void o r
voidable.'
guardian's power
guardian is r e s t r i c t s de facto
fucto best father
1856. The ade Section 11 at said if the
early a s submitted that Pathan Khan,
Hindu law as
It is Court in Jijabi
v. of
law, the right ofa
n management
The Supreme n o t h e r has
been in the
under
Hindu
of alienation. minor by
a charge of land, guardian
and the to bind the
guardian refuses to act a s a she has power the property.
facto for the
benefit ofthe for several years,
of management
of
de jue minor's property
land in the
or course circumstances,
estate, with the
he lease of minor's observed that
in such
ade facto granting Vaidialingam, J.,
she is not
a
of the o u r law
lhe learned judge, natural guardian. In or has
considered as the father is alive
could be a s the
uOTher
father, and s o long the mother's
with the guardianship,
o f a l i e n a t i o n .
Ade nate
guardian
court from
the
Court has
thus
tor
by a competent The Supreme this
power
property
n: emoved guardian. writer,
ardian's
of a de facto of the present
eTecogmized theDede that
m i n o r ' s

a l i e n a t e

a guardian. In
he
submission

High Court said that

O Court and facto notice to The
Allahabad demand

F e d e r a l

eeand healthy development. to give minor.

the guardia Bren
even if the father is alive, the mother is
mpetent
the suit of the
edby de
facto E to file R. 1.,
under the Rent Control Act and I s also c o m p ethe of Order 32,
p u r p o s e s .
tent
that a
dian

two provision
ona f o r e s a i d gua
and de jure d e
the
Juo
TriCPC.vedi, J.,
drew support for this view
from

c a n file a
suit on
behalf of
the m
uardian, the position
facto
by which a "next friend" friend" guardian, the
de
o r a de facto
T
nation
m a d e

guardian."

estu
te
Lardshipsaid that
more orr Jesc
mother,: as "next
suit for specific
p erformance

less the same. Mother car also file

iable
jure
m i n o r ' s
a

y ade
b i n d

to
of
nego
Sridharan,
AlR
L
Spowers
secur
S ia
ty, AIR 1918.
N a g

.D nanshallheran v. Ma AR 1992 Mad

214:
Nardar v.

o
the

n Chandrabhaga
i v. 2.
Ker anoramaji,
200; Taleri v. Malhyalap. AlR 1972 Mys 31.
AIR 1971 SC
315.
300 FAMILY LAW

or agreement for purchase of land on behalt of the minor child.!.

nas pover to pass orders under Section 41(8), Guardians
dians and court
Wardslalsy
and a
against a de facto guardian."

Custody of the child

See Chapter 18 under the title 'Age and Sex of the Child

1. Ratan v. . Bisan, AIR 1978

2. Mukesh v. Bom 190.
Deonarayan, AIR 1987
MP 85,