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Hindu Minority and Guardianship Act 1956

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Introduction:
The concept of minority and guardianship holds significant importance in Hindu law,
governing the rights and responsibilities of minors within the Hindu community. The
Hindu Minority and Guardianship Act, 1956, which came into force on August 25, 1956.

1. Definition of Minor (Section 4):

Section 4(a) of the Hindu Minority and Guardianship Act, 1956, defines a minor as a
person who has not attained the age of eighteen years.

2. Guardian

A guardian is defined under Section 4(b) of the Hindu Minority and Guardianship Act,
1956, as a person who is responsible for the property and well-being of a minor.

Guardianship of a Minor (Section 6):

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Section 6 of the Act deals with the natural guardianship of a Hindu minor. It provides
that 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 the minor’s undivided interest in joint
family property), are the father and, after him, the mother.
This section establishes the order of natural guardianship, prioritizing the father and
then the mother.
Father: Initially, the father is the natural guardian of a minor, whether a boy or an
unmarried girl. If the father is absent or unable to fulfill this role, the mother assumes
guardianship. However, if the father is alive and capable, he retains the primary right to
guardianship. This right extends until the child reaches the age of five, after which the
mother may assume guardianship if the father is unable to fulfill the role.
Mother: The mother becomes the natural guardian in cases involving illegitimate boys
or unmarried girls. Even if the father is alive, the mother has precedence in
guardianship for such children. This right persists regardless of the mother’s marital
status or religious affiliation. Additionally, in certain circumstances, such as when the
parents are estranged or living separately, the mother may act as the natural guardian,
as interpreted by the courts.
Husband: A husband is recognized as the guardian of his minor wife. This implies that
in cases where a girl is married before reaching the age of majority, her husband
assumes the role of her natural guardian.

Testamentary Guardians (Section 9):

Section 9 of the Act allows a Hindu father, by will, to appoint a testamentary guardian
for his minor children. This provision enables a Hindu father to nominate a guardian for
his minor children in case of his demise, ensuring continuity of care and protection.

1. Appointment by Will: According to Section 9 of the Hindu Minority and Guardianship

Act, testamentary guardians can only be appointed through a will. This provision
allows parents to designate a guardian for their minor children in the event of their
demise.
2. Ceasing of Guardianship: The guardianship of a minor girl appointed by testamentary
means ceases upon her marriage. This termination is absolute and does not revive
even if she becomes a widow while still a minor.
3. Acceptance of Guardianship: It is essential for a testamentary guardian to accept the
guardianship, which can be done explicitly or implicitly. Once accepted, the guardian
cannot refuse to act or resign without the court’s permission.
4. Testamentary Power of Both Parents: The Hindu Minority and Guardianship Act now
empowers both parents to appoint testamentary guardians. However, if one parent
survives and appoints a testamentary guardian, their appointment takes precedence
over the appointment made by the deceased parent.

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5. Effect on Illegitimate Children: There seems to be a limitation regarding the

testamentary appointment of guardians for illegitimate children. Section 9(1) grants
this power to the father for legitimate children, but there is no similar provision for
illegitimate children. However, Section 9(4) grants such power to the mother alone for
illegitimate children.

Guardians Appointed by the Court

Appointment by Court: If the court deems it necessary for the welfare of a minor, it
may appoint a guardian for the minor’s person or property or both under the
Guardians and Wards Act, 1890. The paramount consideration in such appointments is
the welfare of the minor.
Supplementary Nature of the Hindu Minority and Guardianship Act: The Hindu
Minority and Guardianship Act, 1956, is complementary to the Guardians and Wards
Act, 1890, rather than superseding it. This means that while the Hindu Minority and
Guardianship Act provides guidelines for guardianship within the Hindu community,
the Guardians and Wards Act governs the procedures and powers of guardians
appointed by the court.
Certificated Guardian: A guardian appointed by the court is referred to as a
certificated guardian. The powers of such a guardian are regulated by the Guardians
and Wards Act. Typically, a certificated guardian requires prior permission from the
court for most actions concerning the minor. However, the guardian’s powers, albeit
requiring court permission, are extensive and equivalent to those of a sovereign.
Supervision by the Court: Once appointed, a certificated guardian operates under the
supervision, guidance, and control of the court. This ensures that the welfare of the
minor remains a priority and that the guardian’s actions are in the best interest of the
minor.
Overall, the appointment of a guardian by the court ensures that minors receive proper
care and protection, with the court overseeing and regulating the actions of the
guardian to safeguard the minor’s interests.

Guardianship of a minor widow (guardianship by affinity)

According to Narada, when a minor girl becomes a widow, the husband’s relatives have
the duty to protect and maintain her. If in the husband’s family no one is there, then the
father of the widow takes on the responsibilities of the widow to protect her. Before 1956,
there was a guardian called guardianship by affinity. It was the guardian of a minor
widow, which was given by the Guardianship and Wards Act, 1850. No provision is given
under the Hindu Minority and Guardianship Act, 1956, for the guardianship of a minor
widow.

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1. Guardian by Affinity: In pre-1956 Hindu law, there existed a guardian known as the
guardian by affinity, who was responsible for the welfare of a minor widow. This
guardian was typically a relative of the deceased husband within the degree of
sapinda.
2. Preference of Guardian: According to Mayne, the husband’s relatives within the
degree of sapinda were preferred as guardians of a minor widow over her own father
and his relatives.
3. Legal Interpretations: Legal interpretations varied regarding the rightful guardian of a
minor widow. The Allahabad High Court, in the case of Paras Nath v. State (1960), held
that the father-in-law was the rightful guardian of a minor widow. However, other
courts, such as the Nagpur High Court and the Madras High Court, did not adopt this
view. They emphasized that the welfare of the child should be the primary
consideration in appointing a guardian, rather than merely following traditional
preferences.
4. Paramount Consideration in Modern Law: Under Section 13 of the Hindu Minority
and Guardianship Act, the welfare of the child is explicitly stated as the paramount
consideration in appointing any person as a guardian. While traditional preferences
may be considered, they are secondary to the child’s welfare.

De Facto Guardian

1. De Facto Guardian Definition: A de facto guardian is a person who, although not

legally recognized as a guardian, assumes the management of a Hindu minor’s
property as if they were a guardian. They do not have legal authority to act as a
guardian but have taken on the responsibilities of managing the minor’s property.
2. Legal Prohibition: Section 11 of the Hindu Minority and Guardianship Act explicitly
prohibits a de facto guardian from disposing of or dealing with the property of a Hindu
minor based solely on their status as a de facto guardian. This means that their actions
regarding the minor’s property are not legally valid solely on the grounds of their de
facto guardianship.
3. Historical Recognition: The concept of de facto guardianship has roots in Hindu law
dating back to at least 1856. The Privy Council, in the case of Hanuman Prasad Singh v.
Bhaguati Prasad Singh, recognized the rights of bona fide incumbrancers who had
entered into arrangements with de facto guardians for the benefit of the estate.
4. Controversy and Limitations: While de facto guardians may take on responsibilities
for managing a minor’s property, they do not possess the legal authority to assume
debts, gift the minor’s property, or make references to arbitration. Their status and
actions are subject to legal scrutiny and limitations as outlined in the Hindu Minority
and Guardianship Act.

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de facto guardians may play a role in managing a minor’s property, their actions are not
legally binding solely based on their de facto status. Section 11 of the Hindu Minority and
Guardianship Act prohibits them from disposing of or dealing with the minor’s property
without proper legal authority.

Powers of the Guardian:

The powers and limitations of a natural guardian under Section 8 of the Hindu Minority
and Guardianship Act, 1956.

1. Compulsory and Beneficial Acts: A natural guardian of a Hindu minor has the
authority to perform acts that are compulsory or beneficial for the minor’s interests,
including the protection and advancement of the minor’s condition.
2. Permission for Certain Actions: Prior permission from the court is required for the
natural guardian to utilize gifts, mortgage property, or engage in other significant
transactions involving the minor’s property.
3. Leasing of Property: Permission from the court is necessary for leasing any part of the
minor’s property for periods exceeding five years or extending beyond the minor’s
attainment of majority by one year.
4. Validity of Disposal: Any disposal of immovable property by a natural guardian is
subject to being voidable at the minor’s or their representative’s discretion if it is
determined not to be in the minor’s best interest.
5. Court’s Oversight: The court is tasked with ensuring that the actions of the natural
guardian are in the best interest of the minor. Permission from the court is required for
actions that could potentially harm the minor’s interests.
6. Application Procedure: Applications for permission from the court are governed by
the Guardians and Wards Act, 1890. The natural guardian must apply to the
appropriate court within whose jurisdiction the minor’s property is located.
7. Appeals: If permission for certain acts is denied by the court, the natural guardian has
the option to appeal the decision, although the court’s decision is typically final unless
appealed successfully.

This summary outlines the powers granted to a natural guardian under the Hindu Minority
and Guardianship Act, 1956, as well as the procedures and limitations imposed to ensure
the protection of the minor’s interests.

Rights of the Natural Guardian:

The rights of natural guardians, typically parents, regarding minor children can vary based
on legal and cultural contexts. However, here are some common rights that natural
guardians may have:

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1. Right to Custody: Natural guardians generally have the right to custody of their minor
children, which includes the responsibility to provide for their care, upbringing, and
protection.
2. Right to Determine Religion: Natural guardians may have the right to determine the
religious upbringing of their minor children. This includes decisions regarding religious
practices, education, and participation in religious activities.
3. Right to Education: Natural guardians have the right to ensure that their minor
children receive an education. This includes the authority to make decisions regarding
the child’s schooling, educational opportunities, and academic pursuits.
4. Right to Control Movement: Natural guardians may have the authority to control the
movement of their minor children. This can include decisions about where the child
lives, travels, and spends time outside of the home.
5. Right to Reasonable Chastisement: In some jurisdictions, natural guardians may have
the right to administer reasonable chastisement or discipline to their minor children.
However, the extent of this right can vary and may be subject to legal restrictions or
limitations.

Welfare of the Minor (Section 13):

Section 13 emphasizes that in appointing or declaring a guardian of a minor, the

welfare of the minor shall be the paramount consideration.
This section underscores the principle that the best interests of the minor should guide
decisions related to guardianship.

1. Case Laws:
a. Githa Hariharan v. Reserve Bank of India (1999):

In this landmark case, the Supreme Court held that the mother can act as the
natural guardian of her minor children, exercising the same rights and
responsibilities as the father.
This decision marked a significant departure from traditional Hindu law,
recognizing the mother’s equal status as a natural guardian.

b. Jijabai Babasaheb Patil v. Additional District Judge (2003):

The Bombay High Court ruled that in cases where the father is absent or
incapable of acting as the natural guardian, the mother can be appointed as the
guardian of the minor’s property under Section 8 of the Hindu Minority and
Guardianship Act, 1956.
This judgment reaffirmed the principle of prioritizing the welfare of the minor
while determining guardianship.

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c. Essakkayal nadder Vs. Sreedharan Babu AIR1992KER200 In this case, the mother of
the minor died, and the father was also not living with the child, but the child was alive.
The child was not declared to be a Hindu or to have renounced the world, and he was also
not declared unfit. These facts do not authorize that any other person adopt the child, be
the natural guardian, and transfer the property.

d. Smt. Beti Bai Vs. Jagdish Singh and Ors, in this case, Civil appeal No.20A/2001 Aparbal
Singh was the father of plaintiff, who is no more. Aparbal Singh had 2 wives because,
during his lifetime his first wife died due to some problem, then his second wife came to
his life who was the respondent. And the child of the second wife also died due to some
reason. At last after the Aparbal Singh died, the second wife captured all the property then
the son of the first wife filed a complaint.

Conclusion:

Indeed, the institution of guardianship plays a crucial role in ensuring the welfare and
protection of minors, as well as managing their property and affairs. Guardianship laws
are designed to safeguard the rights and interests of minors who are not yet capable of
making decisions for themselves. By appointing a guardian, whether natural or court-
appointed, the law aims to provide a responsible individual who can act in the best
interests of the minor, both personally and financially.

The relationship between a guardian and a minor involves not only physical and mental
protection but also the management and preservation of the minor’s property. This is
particularly important to prevent any exploitation or misuse of the minor’s assets.
Guardianship laws outline the duties and responsibilities of guardians, ensuring that they
act in the minor’s best interests and do not abuse their authority.

Additionally, laws regarding the adoption of children further reinforce the protective
measures in place for minors. Adoption provides a legal framework for establishing a
permanent parent-child relationship, ensuring that the child receives care, support, and
stability within a family environment. Overall, the existence of guardianship laws and
adoption regulations underscores society’s commitment to safeguarding the rights and
well-being of minors, providing them with the necessary protection and support until they
reach adulthood.

 February 27, 2024 by Law Notes in B.A LLB, Hindu Law, LLB, LLM
 Hindu Minority and Guardianship Act 1956, Hindu testamentary guardian, kinds of Hindu
gurdianship act, powers of Hindu guardian, rights of natural guardian

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