Introduction

The concept of Guardianship is introduced in the Hindu Minority and Guardianship Act 1956 along with the Guardians and Wards Act 1890. The main motive of this term Guardianship is to protect the person or property of minors and ensure their welfare. The Guardians and wards act 1890 is a secular law which simply means that it apply on entire Indians including the Muslim, Christians etc but The Hindu Minority and Guardianship Act 1956 is a Hindu Law and only applies on Hindus.

Simple Meaning of Guardian:- A guardian is a person who is legally responsible for the care of the person or property of a minor (below 18 years).

Who is a Guardian Section 4(b) of Hindu Minority and Guardianship Act 1956

Guardian means a person having the care of a person of a minor or of his property or of both his person and property,

A guardian is someone who is legally responsible for:

• Taking care of the minor (child), and/or
• Managing the property of the minor.

The guardian may look after:

• Only the person (health, education, upbringing),
• Only the property (money, land, assets), or
• Both.

Types of Guardians under Hindu Law

1. Natural Guardians (Section 6)
2. Testamentary Guardians (Section 9)
3. Guardians appointed by Court
4. De Facto Guardian

Natural Guardians Section 6 & 7 of Hindu Minority and Guardianship Act 1956

1. Legitimate Minor Child:-
   • Father is primary natural guardian
   • Then, Mother after Father
     • In case of child is below 5 year then the custody was gone to mother, but father will be considered as first guardian of child.
2. Illegitimate Child:-
   • Frist guardian is mother and second preference is father.
3. Minor Married Girl:-
   • In this case, her husband is considered as a first guardian and if her husband is also minor then, same father is first preference and then mother.
4. Section 7 (Adopted Child)
   • Same First preference is Father &
   • Second is Mother

Disqualification from Natural Guardian

There are only two Reason:-

1. If he has ceased to be Hindu (means change religion)
2. Or, If has completely and finally renounced the world and become a (Sanyas or yati) or a (vanaparstha).

Power of Natural Guardian Section 8 of Hindu Minority and Guardianship Act 1956

1. To do all acts which are necessary or response or reasonable and proper for the benefit of the minor, or for the benefit of minors estate(property) but cannot bind the minor under a contract
2. Guardian have only right to lease the property not for more than 5 years or for a term which extends more than a year of date minor attaining majority. Example:- Suppose minor is 16 years old:
   • He becomes major at 18 years
   • Guardian can lease:
     • Maximum 5 years, but,
     • Lease must not go beyond 19 years (18 + 1 year)
     • It is only a limit for lease (1 year after majority)
3. Guardians cannot transfer, mortgage, charge, sale, gift, exchange any immovable property in name if the minor without prior permission of court. The court will grants such permission only if there is a necessity or there is an evident advantage to the minor.
4. If the Guardian make a contract regarding the guardian or his immovable property which violates any if these condition then the contract shall be voidable at the instance of minor.

Testamentary Guardian Section 9 of Hindu Minority and Guardianship Act 1956

Testamentary Guardian are those guardian which are appointed by the will of minor’s father or mother, these guardian were came in effect after the death of parents who appoints him/her. And have right to exercise all the rights of natural guardians under the act.

1. Father’s Power:- The father, being the natural guardian, can appoint a guardian as a testamentary guardian.
   • Minor son
   • Unmarried minor daughter
   • The appointment becomes effective after the father’s death.
     • But, If the mother is alive, she becomes the natural guardian. The father’s appointed guardian will act only after the mother’s death (if she does not appoint someone else).
2. Mother’s Power:- The mother can appoint a testamentary guardian:
   • If the father is dead, OR
   • If the father was not entitled to act as guardian (e.g., disqualified)
     • The mother’s appointment takes effect after her death.
3. Married Minor Girl:-
   • A married minor girl’s husband is her natural guardian.
   • Therefore, parents cannot appoint a testamentary guardian for her (in normal circumstances).

Rights and Powers of Testamentary Guardian

• A testamentary guardian has the same rights as a natural guardian, These rights are subject to restrictions under Section 8 (regarding property).
• He/she can:
  • Take care of the person of the minor
  • Manage the property of the minor
  • But: Cannot sell, mortgage, or lease property without court permission beyond limits.

Disqualification / Limitations of Testamentary Guardian

A testamentary guardian:–

1. Must act for the welfare of the minor (this is the supreme consideration).
2. Can be removed by the court if:
   • Misuses power
   • Acts against minor’s interest
3. Can refuse to act or resign.

Examples:- 1 ( Father Appoints a Guardian in his will

Let Suppose,

1. Shiv has a 10 year-old son. who’s name is Rohan
2. Shive writes in his will appointing his brother Shyam as a guardian of Rohan, after his death
3. But, Shiv’s Wife or Rohan Mother is alive then she becomes the natural guardian of Rohan.
4. So, Shyam will act as testamentary guardian only after the Rohan’s Mother death.

Example:- 2 (Mother Appoints Guardian in his will)

Let Suppose,

1. Sita’s husband dies. She has a 12-year-old daughter.
2. Sita makes a will appointing her sister as guardian.
3. After Sita’s death, the sister becomes the testamentary guardian.

Example:- 3 (When both parents appoint different guardians)

Let Suppose,

• Father appoints A as guardian in his will.
• After father’s death, mother appoints B in her will.
• After the mother’s death, B (mother’s choice) will be the guardian (mother’s appointment prevails/appoint).

Guardian Appointed by Court

Courts can appoint a guardian under the Guardians and Wards Act, 1890. The Hindu Minority and Guardianship Act, 1956 only adds to (supports) this law.

• A District Court can appoint any person as guardian if it thinks it is necessary for the child’s benefit.

A guardian appointed by the court is a person officially chosen by the court to take care of: the person of a minor, the property of the minor, or both person and property.

When Court Appoints a Guardian

The court may appoint a guardian in situations like:

• Death of both parents
• Parents are incapable or disqualified
• Dispute between relatives over guardianship
• Minor has property needing protection
• Existing guardian is misusing powers

Paramount Consideration – Welfare of Minor is supreme

The court considers:

• Age and sex of the minor
• Religion
• Character and capacity of guardian
• Wishes of deceased parents
• Minor’s own preference (if mature enough)

De Facto Guardian

• A de facto guardian means a self-appointed guardian (not legally appointed).
• It is a person who starts taking care of a child in reality (in fact), even though the law has not given him that power.
• After the death of natural guardians (parents), if someone looks after the child’s needs and welfare, he becomes a de facto guardian.
• Such a person:
  • Takes care of the child, or
  • Manages the child’s property,
  • But has no legal authority.

Important Rule (Very Important for Exams)

• A de facto guardian cannot sell, transfer, or deal with the minor’s property.
• Any such transaction is void (invalid in law).
• According to Section 11 of the Hindu Minority and Guardianship Act, 1956:
  • A de facto guardian has no right over the minor’s property.
  • He cannot take loans or create debts on behalf of the minor.

Conditon of Section 10 of the Hindu Minority and Guardianship Act 1956

Section 10 tells us about condition for a valid adoption. A person can be adopted only if all these conditions are satisfied:

1. Must be a Hindu:- The person to be adopted must be a Hindu.
2. Must Not Already Be Adopted:- A child cannot be adopted again if he/she is already adopted earlier
3. Must Be Unmarried:- The person must be unmarried.
   • Exception:- If there is a custom or usage allowing adoption of married persons, then it is valid.
4. Must Be Below 15 Years of Age:- The child must be below 15 years.
   • Exception:- If there is a custom or usage that allows adoption above 15 years, then it is valid.
5. Note:- A minor can be guardian of another minor but cannot be guardian for another minor property
   • Example:- In case:- Minor Girl became a mother.

Section 13 of the Minority and Guardianship Act, 1956:

Removal of a Guardian Court – Section 13

• Section 13 of the Hindu Minorities and Guardianship Act, 1956 states about the welfare of the child and hence gives a right to the court to terminate the guardianship of any person if the appointment is not made for the welfare of the child.
• Guardianship can be ended in a situation when either the guardian has witnessed some unforeseeable circumstance, or the court feels that the guardianship was not in the welfare of the child.

Grounds of Removal of a Guardian

There are certain grounds that are necessary to be considered before the removal of the guardian which are stated below:

• When he uses the property of a minor for his personal use.
• When he renounces the world and becomes a Sanyasi.
• When he ceases to be a Hindu.
• The court can remove him if it finds that it is not in the best interest of the child.

Conclusion

The law of guardianship under Hindu law ensures that minors are protected both personally and financially. While guardians are given powers, these are strictly controlled and limited, and the welfare of the minor remains the guiding principle.