GUARDIANSHIP UNDER HINDU

LAW
Guardianship of a person
Minor children
Under the Hindu minority and guardianship act 1956 section 4B minor means a person
who has not completed the age of 18 years, person intellectually and physically imperfect
and immature, needs someone's protection.
Guardian is a person having the care of the person of the minor or of his property or both.
Guardian exists essentially for protection and care of the child and to look after its
welfare. Guardians may be of the following types:
· natural
· testamentary
·Guardians appointed by court
There are two types of guardians under Hindu law
· de facto
· guardians by a nity
Natural guardians
In Hindu law, only three types of persons recognised as natural guardians
• father
• mother
• husband

Father:
• He is the natural guardian of his minor legitimate children, sons and daughters. Section
19 of the guardians and wards wards act, 1890, please down that your father cannot be
deprived of the natural guardianship of his minor children unless he has been found
un t.
• Section 13 of Hindu minority and and guardianship act lays down that welfare of the
minor is of paramount consideration and fathers right of guardianship is subordinate to
the welfare of the child.
• An argument has been advance before a court, suppose the father is alive but is non-
functioning natural guardian, can the mother act as a natural guardian?
• This argument was prevailed before the Supreme Court, it was decided that in this
particular circumstance the mother would be considered as a natural guardian of the
minor child. The facts of this case are as follows, mother and father had fallen out and
me and with had been living separately for over 20 years, mother has been looking after
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 the a airs of the minor daughter and of her properties. Child was all under her
protection and care.

Mother:
• Mother is the natural guardian of the minor illegitimate children even if your father is
alive. Mother is the natural guardian of the minor legitimate children if the father is dead
or un t.
• Proviso to clause a of section 6, Hindu minority and guardianship act, lays down that
the custody of a minor who has not completed the age of ve years shall ordinarily be
with the mother unless the welfare of the minor requires otherwise.
• Mothers right of guardianship is not lost on her conversion to another religion as long as
she is able to provide for children. Position is same for adopted child.
• Case law- Gita Harisharan v. RBI and Vandana Shiva v. Jayanta
• The Supreme Court held that under certain circumstances, even when the father is alive
mother can act as a natural guardian.
• Step parents are only entitled to guardianship if appointed by court.

Husband:
Natural guardian of his minor wife. The courts have held that it is not ordinarily in the
welfare of the minor wife to live in the custody of a husband.
Rights of guardians of person of a natural guardian
• right to custody
• right to determine religion of children
• write to education
• right to control movement
• right to reasonable chastity
Custody:
Gaurav Nagpal v. Sumedha Nagpal
• Child lives his father,
• mother left him at three years of age,
• child studying in good school and wants to stay with father,
• SC held that custody should be given to father. Further, it was observed that not only legal
angles but human angles are also relevant in deciding issues, minus welfare being the
paramount importance
Testamentary Guardians:
• During British period, where testamentary powers were conferred in on Hindus the testamentary
guardian also came into existence, it was father's prerogative to appoint testamentary
guardians. The father could exclude the mother.
• Under Hindu minority and guardianship act 1956 testamentary powers of appointing a guardian
has now been conferred on both parents.
• The father may appoint a testamentary guardian, but if mother survives him, his appointment
will be ine ective and a mother will be natural guardian.
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 • If mother point steps testamentary guardian, her a pointy will become testamentary guardian
and father's appointee will continue to be ine ective, if mother does not appoint then father
appointee is e ective
• Hindu father cannot appoint a guardian of his minor illegitimate children, even if he is entitled to
act as a natural guardian, a section 9 clause 1 confers testamentary powers your name in
respect of legitimate children.
• In respect of illegitimate children, section 9 clause 4 confers such power on the mother alone.
• Under section 9 Hindu minority and guardianship act testamentary guardian can only be
appointed by a will.
• Necessary for the testamentary guardian to accept the guardianship, acceptance may be
expressed by or implied. He may refuse, but once excepted, he cannot refuse to act except with
the permission of the court.
Powers of TG:
• Has all the powers of a natural guardian unless they are not limited by a will.
Guardian is appointed by court:
• Courts are in power to appoint guardians under the guardians and wards act 1890.
• High courts also have inherent jurisdiction to appoint guardians but this power is exercised
sparingly.
• Under the guardians and wards act 1890 to the restriction is conferred on the district court. The
district court may appoint or declare any person as a guardian whenever it considers it
necessary in the welfare of the child.
• While appointing, the court takes in various factors like age, sex, wishes of the parents and the
personal of the child, welfare of child is of paramount importance.
• A certi ed guardian from the date of his appointment is under the supervision of the court.

Guardianship of minor’s property

1. Natural guardian
• Clause 1 of Hindu minority and guardianship act please down that a natural guardian
may do all acts which are necessary and proper for the bene t of the minor or for the
realisation, protection or bene t of minor’s estate.
• Reality of the power will exclude fraudulent, collusive, colourable, speculative,
unnecessary or unreasonable transactions.
• These are powers through which the guardian is empowered to act, safely in the welfare
of the minor.
• Section 8 clause 2 provides that natural guardian cannot without the permission of the
court mortgage or charge or transfer by sale, gift or exchange or otherwise, any part of
immovable property or lease out any part of such property for a term exceeding ve
years or for a term exceeding one year beyond the date on which the minor would
attain majority.
• Section 8 clause 4 please down that the court shall not allow the natural guardian to do
any act mentioned in section 8 clause 2 except in case of necessity or evident
advantage of the minor.
• Section 8 clause 3 lays down that any disposal of immovable property by natural
guardian in contravention of section 8 clause 1 and two is voidable at the instance of
the minor or any person claiming under him.
• In respect of alienation of minors immovable property, the touchstone of his National
Guard of National Guard in power continues to be necessity or bene t of the immovable
property for the minor.
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• Since it is for the courts to consider what these expressions mean before according
permission in a given case, it is submitted that the courts are free to give them a wider
meaning.
• Section 8 clause 5 makes the provisions for guardians and wards act applicable for
application for alienation of minors property made under section 8 clause 2.
• Areas the guardians powers are not tted in section 8, any continues to have the same
powers under the old Hindu law:
a) alienation of movable property
b) Contracts
• Section 8 clause 1 of the Hindu minority and guardianship act lays down that the
guarded by his contract may impose nancial liability on minor’s estate but he cannot
make him liable beyond that.
• It is a well-established rule that guardian has power to enter into, on behalf of the minor,
marriage contracts and apprenticeship contract. Similarly, the guardian has the power
to enter into family arrangements on behalf of the minor.
• Can also bind the minor’s estate for debts and taken by him for the supply of the
necessities to the minor.
• Can you guardian bind the minor by his contracts for the sale or purchase of immovable
property?
• When the guardian has obtain prior permission of the court to alienate miners property
and enter into a contract of sale, the contract can be speci cally enforced.
2. Testamentary guardian:
Section 9 clause 5 of the Hindu minority and guardianship act lays down that the
testamentary guardian has the same powers as that of the natural guardian, subject to
the restrictions if any laid down by the will or by the act.
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