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hindu-law:dharmashastra-guardianship

Guardianship under Hindu Law

The Dharmashastras did not deal with the law of guardianship. Guardians may be of the following types:

  1. Natural guardians,
  2. Testamentary guardians, and
  3. Guardians appointed or declared by the court.

There are two other types of guardians, existing under Hindu law,

  1. de facto guardians, and
  2. guardians by affinity.

Natural Guardian: During the British regime the law of guardianship was developed by the courts. It was also accepted that the supreme guardianship of the minor children vested in the state as Parens Patriae. Such power was exercised by the courts. Parens Patriae (Latin, Parent of the country) is a doctrine. Such doctrine grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf. It came to be established that the father is the natural guardian of the children and after his death, mother is the natural guardian. None else can be the natural guardian of minor children. Testamentary guardians were also introduced in Hindu law.

The Hindu law of guardianship of minor children has been codified and reformed by the Hindu Minority and Guardianship Act, 1956 (Here-in-after to be referred to as Act). The subject may be divided into the following heads:

  1. Guardianship of person of minors,
  2. Guardianship of the property of minors, and
  3. De facto guardians, and
  4. Guardians by affinity.

Guardianship of the person of minor children

Under the Section 4(a) of the Act, minor is defined to mean 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 immature. He needs someone's protection.

Under the Section 4(b) of the Act guardian is defined to mean a person having the care of the person of a minor or of his property or of both his person and property, and includes:

  1. a natural guardian,
  2. a guardian appointed by the will of the minor’s father or mother,
  3. a guardian appointed or declared by a court, and
  4. a person empowered to act as such by or under any enactment relating to any court of wards;

In the modern law guardians exist essentially for the protection and care of the child and to look after its welfare. This is expressed under Section 13 of the Act that welfare of the child is paramount consideration. Welfare includes both physical and moral well-being of the child.

Natural Guardians

In Hindu law only three persons are recognized as natural guardians: father, mother and husband. The same is accepted defining natural guardian under Section 4 (c) that “natural guardian” means any of the guardians mentioned in section 6. 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 his or her undivided interest in joint family property), are –

(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father;
(c) in the case of a married girl – the husband;

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—

(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)

Explanation.In this section, the expressions ‘father’ and ‘mother’ do not include a step-father and a step-mother.

Section 19 of the Guardians and Wards Act, 1890 lays down that a father cannot be deprived of the natural guardianship of his minor children unless he has been found unfit. This provision has been considerably whittled down by judicial decisions and by Section 13 of the Hindu Minority and Guardianship Act which lays down that welfare of the minor is of paramount consideration and father's right of guardianship is subordinate to the welfare of the child. The Act does not recognize the principle of joint guardians. The position of adopted children is at par with natural-born children by legal fiction as provided under Section 7 that the natural guardianship of adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.

Mother

The mother is the natural guardian of the minor illegitimate children even if the father is alive. However, she is the natural guardian of her minor legitimate children only if the father is dead or otherwise is incapable of acting as guardian.

Husband

In the case of a married girl, the natural guardian is the husband. Consideration for guardianship–The controlling consideration governing the custody of the children is the welfare of the children and not the right of the parents; Rosy Jacob v. Jacob Chakramakkal.1)

Father as a natural guardian

Father is the natural guardian of a minor. In the absence of father, mother is the natural guardian. The mother of the minor children was dead, but the father was not residing with the children, who were being looked after by the aunty. It was held that though father was not residing with his children, he is still alive, has not ceased to be a Hindu or renounced the world and has not been declared unfit. This does not authorise any other person to assume the role of natural guardian and alienate the minor’s property. Essakkayal Nadder v. Sreedharan Babu.2)

Mother as a natural guardian

(i) In the phrase “the father and after him, the mother” the word ‘after’ need not necessarily mean after the lifetime of father. In Githa Hariharan v. Reserve Bank of India3) it is held that in the context in which it appears in section 6(a) it means ‘in the absence of ‘, the word ‘absence’ therein referring to the father’s absence from the care of minor’s property or person for any reason whatsoever. If the father is wholly indifferent to the matters of the minor or if by virtue of mutual understanding between the parents, the mother is put exclusively in charge of the minor or if the father is physically unable to take care of minor for any reason whatsoever, the father can be considered to be absent and mother being a recognised natural guardian can act validly on behalf of the minor as the guardian. Such an interpretation will keep the statute within the constitutional limits. Otherwise the word ‘after’ if read to mean a disqualification of a mother to act as guardian during lifetime of father the same would violate one of basic principles of our constitution i.e. gender equality. In Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya, the Supreme Court has held that under certain circumstances, even when the father is alive mother can act as a natural guardian. The term 'after' used in Section 6(a) has been interpreted as 'in absence of' instead 'after the life-time'.

(ii) Where the mother and father had fallen out and were living separately and the minor daughter was under the care and protection of her mother, the mother could be considered as the natural guardian of the minor girl as held in Jajabhai v. Pathankhan, AIR 1971 SC 315: (1971) 2 SCR 1: (1970) 2 SCC 717.

Powers of natural guardian under the Act

Section 8 of the Act provides the powers of natural guardian. The natural guardian of a Hindu minor has following powers under Section 8 (1)

  1. to do all acts which are necessary for the benefit of the minor;
  2. to do all acts which are reasonable and proper for the benefit of the minor;
  3. to do all acts which are necessary for the realization, protection of the minor’s estate;
  4. to do all acts which are necessary for the or benefit of the minor's estate.

Section 8 (1) of the Act provides that the natural guardian can in no case bind the minor by a personal covenant.

The natural guardian has the following rights in respect of minor children:
(a) Right to custody,
(b) Right to determine the religion of children,
(c) Right to education, (d) Right to control movement, and
(e) Right to reasonable chastisement.

These rights are conferred on the guardians in the interest of the minor children and therefore of each- of these rights is subject to the welfare of the minor children. The natural guardians have also the obligation to maintain their minor children.

Section 8 (2) mandates that the natural guardian shall not, without the previous permission of the court,-
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

Section 8 (3) of the Act makes any disposal of immovable property by a natural guardian, in contravention of subsection (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.

The “Court” which can permission under Section 8 (2) of the Act means: (i) the city civil court or
(ii) a district court or
(ii) a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890),.

Such an application can be filed in any of the above courts within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, the court within the local limits of whose jurisdiction any portion of the property is situate. Section 8 (5) of the Act provides that the Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) of Section 8 for granting permission in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act. The proceedings in connection with the application shall be deemed to be proceedings under the Guardians and Wards Act, 1890 within the meaning of section 4A thereof. Section 8 (5) (b) provides that such court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of the Guardians and Wards Act, 1890. Section 8 (4) of the Act fixes a duty providing that no court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. Section 8(5)(c) provides that an appeal lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.

Rights of Testamentary Guardians

Testamentary guardian is a person named in a will to act as a guardian. When, during the British period, testamentary powers were conferred on Hindus. The testamentary guardians came into existence. It was father's prerogative to appoint testamentary guardians. By appointing a testamentary guardian the father could exclude the mother from her natural guardianship of the children after his death. Under the Act, 1956, testamentary power of appointing a guardian has now been conferred on both parents.' Section 9 provides Testamentary guardians and their powers. The rules of appointment of testamentary guardians are as follows

  1. A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both.
  2. An appointment made under sub-section (1) shall have not effect if the father predeceases the mother. Such will shall revive if the mother dies without appointing, by will, any person as guardian.
  3. A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both.
  4. A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property or in respect of both.
  5. The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.

Powers of testamentary guardian

  1. The guardian so appointed by will has the right to act as the minor's guardian after the death of the minor's father or mother, as the case may be.
  2. Such testamentary guardian shall exercise all the rights of a natural guardian under the Act.
  3. The restrictions are to such subject to such extent and subject to such restrictions as are specified in the Act and in the will.

A Hindu father cannot appoint a guardian of his minor illegitimate children even when he is entitled to act as their natural guardian as Sec. 9(1) confers testamentary power on him in respect of legitimate children. In respect of illegitimate children, Section 9(4) confers such power on the mother alone. Under Section 9, Hindu Minority and Guardianship Act, testamentary guardian can be appointed only by a will. It is necessary for the testamentary guardian to accept 'the guardianship. Acceptance may be express or implied. A testamentary guardian may refuse to accept the appointment or may disclaim it, but once he accepts, he cannot refuse to act or resign except with the permission of the court.

Guardians Appointed by the Court

The courts are empowered to appoint guardians under the Guardians and Wards Act, 1890. The High Courts also have inherent jurisdiction to appoint guardians but this power is exercised sparingly. The Hindu Minority and Guardianship Act is supplementary to and not in derogation to Guardians and Wards Act. Under the Guardians and Wards Act, 1890, the jurisdiction is conferred on the District Court: The District Court may appoint or declare any person as the guardian whenever it considers it necessary in the welfare of the child.' In appointing ,,a guardian, the court takes into consideration various factors, including the age, sex, wishes of the parents and the personal law of the child. The welfare of the children is of paramount consideration.

The District Court has the power to appoint or declare a guardian in respect of the person as well as separate property of the minor. The chartered High Courts have inherent jurisdiction to appoint guardians of the- person as well as the property of minor children. This power extends to the undivided interest of a coparcener.

The guardian appointed by the court is known as certificated guardian. Powers of Certificated guardians: Powers of certificated guardians are controlled by the Guardians and Wards Act, 1890. There are a very few acts which he can perform without the prior permission of the court. In the ultimate analysis his powers are co-extensive with the powers of the sovereign and he may do all those things (though with the permission of the court) which the sovereign has power to do. A certificated guardian from the date of his appointment is under the supervision, guidance and control of the court.

Guardianship by affinity

In pre-1956 Hindu law there existed a guardian called guardian by affinity. The guardian by affinity is the guardian of a minor widow. Mayne said that “the husband's relation, if there exists any, within the degree of sapinda, are the guardians of a minor widow in preference to her father and his relations.”' The judicial pronouncements have also been to the same effect. The guardianship by affinity was taken to its logical end.

About the Author

© C.R Nanda Academy is an initiative by Adv. Chittaranjan Nanda to spread legal awareness among Indian Citizens.

1)
AIR 1973 SC 2090: (1973) 3 SCR 918: (1973) 1 SCC 840
2)
AIR 1992 Ker 200
3)
AIR 1999 SC 1149


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Created on 2021/03/08 16:44 by LawPage • Last modified on 2021/04/09 22:12 (external edit)