RESEARCH PAPER

FAMILY LAW – 1
LLB 1ST SEMESTER

A STUDY ON MINORITY AND

GUARDIANSHIP UNDER ( THE GUARDIAN
AND WARD ACT, 1890)

RESEARCH DONE UNDER THE GUIDENCE OF

PROF. RAMYA CHANDRASHEKAR
 DECLARATION BY STUDENT

I pradeep kumar j of student of LLB 1st semester at CMR UNIVERSITY

SCHOOL OF LEGAL STUDIES do herby declare that this research paper titled as
“a study on minority and guardianship under ( guardianship and wards act
,1890)”submitted for family law-1 course., it is an original work of mine and is
result of my own intellectual efforts.i have quoted titles of all original documents
and articles which has helped me in doing my research paper.

I have not submitted this research to any other college or university for the award
of any degree or diploma.

Date: 6-01-2022 PRADEEP J

Place: BANGLORE student signature

 TABLE OF CONTENT

1. ABSTRACT
2. INTRODUCTION
3. RESEARCH OBJECTIVE
4. RESEARCH METHODOLOGY
5. CONTENT ANALYSIS/LITERATURE
REVIEW
6. CONCLUSION
7. SUGGESTIONS
8. BIBLIOGRAPHY
1. ABSTRACT
So as per topic “ a study on minorities and guardianship” which is
done under the guardian and wards act,1890) so as in this research
is done minorities and guardianship where a detail study of this
concept like focusing on many elements and important aspects like
what are the amendments under this , evolution of guardianship
laws, any conflicting laws and custody of the minor all these are
studied and dealt in detail and also important case law is also
referred which helps my research and the reader for a brief and
better understanding.

2. INTRODUCTION

The hindu guardianship and minorities act were established to give

power or rights to the guardians and wards act of 1890 and provide
better rights and protection for children rather than act as a
replacement for the already exsisting law. This law was approved
for the purpose of defining rights, obligations, relations between
adults and minors. This law covers hindus, buddhists, sikhs and
jains.the guardian and wards act of 1890 aplies to everyone
regarless of caste,creed or community, whereas the hindu minority
and guardianship act are considered only hindu. This hindu
guardianship and minorities act was intended to improve the
guardians and wards act of 1890.

This law specifically serves to define the guardianship between

adults, minors and people of all ages and their assets. And the
important priority is the welfare of the child.section 13 of the act
tells the purpose of it –“ all measures taken by the guardian and
 any judgment rendered by the court must be for the welfare of the
child.”

3. RESEARCH OBJECTIVE
So my research objective in guadianship and minorities is that to
find or explore the rights and protection to children instead of
acting as a replacement of already prevalent act or law and also
custody of the minor, mother and father stand. So this is the main
aim and objective which this research is considered and done
acoordingly.

4. RESEARCH METHODODLOGY

RESEARCH TYPE :

1. So basically this research is purely done on qualitative method where this

qualitative method allows me to explore and do my research in more detail.
2. So this research is conducted or done with help of seconday sources.

SOURCES:

This research is based on secondary sources. Where this research is written

referring onlice articles ,websites and also from guardianship and minoritiesa
act,1956. Where it helped me to interpret and analyse the topic and preparing
research paper thoroughly.

Secondary sources help to develop opinion backed with legal sanctity.

RESEARCH METHOD:

So the tools and procedure used in this research are from secondary data and I
have taken help of some important cases related to my research for better
understanding and for interpreting it.

So by all these methods and sources it helps me to achieve my objective of this

research and all my related questions will be answered.

5. CONTENT ANALYSIS/LITERATURE
REVIEW
Meaning to section 4(a) of the act a minority of a particular person is
defined by the age of that person. Where in this act it is given as 18
years.both legitimate and illegimate minors wh have at atleast one parent
who with the described above are the jurisdiction of this law. Under this
law the age of the majority is 18, but if the person is under a guardian ,
the age of the majority increses to 21 years of age.

Guardianship is when a person is appointed under the guardianship act

which the the appointed person will make decisions on behalf of the
another person who is incapable to take decision. And according to
section 4(b) of the minority and guardianship 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,which includes
(i) A natural guardian
(ii) A guardian appointed by the will of the minors father
or mother.
(iii) A guardian appointed or declared by a court
(iv) A person empowered to act as such by or under any
anactment relating to any court of wards.
AMENDMENTS: the following are amendments to the hindu guardianship and
minorities act:

• In section 6 (a) of the act which tells us about unmarried boy or girl, the
natural guardian of the hindu is the father then after him it is mother. But
even mother can become primary guardian of the minor during the life time
of the father only in some exceptional situations.
• The law commission suggests that the superiority of one parent over the
other parent should be eliminated and should be treatedequally as natural
guardian of the minor. Here only the welfare of the minor should be the
prime aspect.
• In changes to the section 7 of the act which tells us that natural guardianship
of the adoptive minor passes to the adoptive father and then to the mother.
But in this act it tells only about the adoptive son but not aboubt adoptive
daughter.
• Later when the guardianship and minority act came into exsistence, at that
time the law did not consider the adoption of the daughter. Then it was
enacted before the hindu adoption and maintenance act of 1956, where it
corrected the legal status of adopting a daughter by law. So now by law it is
included and says that both son and daughter in scope of natural
guardianship.

ANALYSIS OF HINDU GUADIANSHIP & MINORITIES ACT

1956 AND GUARDIANSHIP AND WARDS ACT 1890

The GWA 1890is a very secular act where the GWA is applicable to all
citizens of india but whereas the HGMA 1956 is applied only to hindus and
subsets of hindus such as jains, sikhs,buddists, arya samayj etc

Whereas other religious communities like muslims parsis and christians do

not fall under this law.this law is added to the GWA1860 and GWA1860
covers the procedure on how to petition courts for the appiontment of a
guardian.
CUSTODY
In the section 6 of hindu guadianship and minorities law should be amended
Because if one law has been eliminated, then the other should also agree to
implement it. The issue related to custody of the minor and staus of the
mother and father id highlighted here. It is proposed that to grant the same
guardianship rights to the father and mother and the commission also has
suggested joint custody of the child. Where well being of the minor is not
compramised.

MOTHERS AND FATHERS STAND.

The commision has recommended another provision under HGMA section 6
which tells us about the natural guardianship of a minor and his property.
Where to this the first natural guardian is the father and only after him the
mother is a natural guardian of the minor.

Where it means while father is still alive the mother cannot claim for natural
guardianship status. Where the issue was raised about the rights of the
mother, where law commission recommended the modification of section 6
where it says that father and mother can have same rights as a natural
guardian.this issue came into light in 1999 in the case of gita hariharan to
challenge that only the father can be the first natural guardian and only after
him, the mother is considred as a natural guadian.

The supreme court interpreted the word “after” in section 6 of the act which
means after the death of the father.but in the case of absence for a period or
unfit due to illness. Where in these exceptional cases the mother is
considered as a natural guardian. Which this was seen in the case of gita
hariharan where the principle of euity was challenged.
 6.CONCLUSION
The hindu guardianship and minorities act 1956 which tells us that the father
would be the natural guardian of the child and only after him the mother
would be the natural guardian. But in the case of the married minor,the
husband would be considered as her guardian. The main priority of the act is
the welfare of the minor. According to the section 7 of the HGMA, the
natural guardianship of the adopted minor goes to the adoptive father and
othen it goes to the adoptive mother.

7. SUGGESTIONS
❖ On going through this research on guardianship and minorities I
would like suggest that it is convenient to update our laws regarding
guardianship,custody and adoption.
❖ I would suggest that natural guardianship should be made equal to
both father and mother rather than guardianship claims only after the
death of the father. So where mother also should get natural
guardianship.
❖ So these days womens are being empowered and the society is
getting advanced and improving,the laws need an amendment to cope
with the future generation has no partial basis of mother and father.
8.BIBLIOGRAPHY
ONLINE SOURCES:

➢ www.ipleaders.com
➢ www.indiankannon.com
➢ www.youtube.com

ACTS REFERRED:

➢ Guardianship and minorities act,1956

➢ Guardians and wards act,1860

THANK YOU