The Hindu Minority and Guardianship Act made the law of guardianship applicable for Hindus. This act is supplemental to the ‘Guardian and wards act, 1890’ and regulate the law regarding guardianship for Hindus.
This act generally focuses on the law of natural guardianship and prescribes who will be natural guardian and what will be their rights.
Difference between ‘The Guardian and Wards Act 1890’ and ‘The Hindu Minority and Guardianship Act, 1950’
The difference between ‘Guardian and wards act’ and ‘the Hindu minority and guardianship act’ may be stated as follows-
- ‘1890’ act is supplemental act of ‘1950’ act, it means that it does not override or derogate the provisions of 1950 act but add the provisions in it.
- The previous act provide the laws of the guardianship appointed or declared by the court, but the later act, prescribe the laws of natural and testamentary guardianship.
- The previous act is secular act and applicable to all communities and religion but later act applicable only for Hindus.
The Hindu Minority and Guardianship Act, 1956
Application of the act
This act is applicable to only Hindus. The definition of Hindu in this act, is same as the definition of Hindu in Hindu marriage act.
According to section 3 of the act followings categories come under the definition of Hindus-
(a) any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion.
Hindu by birth
The act further explained that the following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be: ―
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
(bb) any child, legitimate or illegitimate, who has been abandoned both by his father and mother or whose parentage is not known and who in either case is brought up as a Hindu, Buddhist, Jaina or Sikh; and
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
Natural Guardian of a Hindu (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.
Natural guardianship of adopted son (Section 7)
The natural guardianship of an adopted son who is a minor pass, on adoption, to the adoptive father and after him to the adoptive mother.
Power of Natural Guardian (Section 8)
The natural guardian of a Hindu Minor has power to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.
Court’s power in respect of natural guardianship
The natural guardian shall deal with the following property matters of the minor, only after 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; o
(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.
The court shall grant permission to the natural guardian to do any above mentioned act relating to property only in case of necessity or for an evident advantage to the minor.
If a natural guardian does any act relating to property in contravention of the above mentioned rules, the transactions are voidable at the option of the minor.
Who may be a testamentary guardian (Section 9)
Power of father to appoint testamentary guardian
A Hindu father, who is natural guardian of his minor child, may appoint a testamentary guardian for his child in respect of the person or property of the child or both.
But if mother lives after the death of father, mother will be the natural guardian and the will of the Hindu father will not have any effect. But if a mother also dies without appointing any person as a guardian, the will of Hindu father will revive and the person appointed by the father in the will, shall be the testamentary guardian of the child.
Power of mother to appoint testamentary guardian in case of legitimate child
In following cases, a Hindu mother may appoint a testamentary guardian for the person or property of her legitimate minor children-
- In case of Hindu widow, whose husband has died
- In case of Hindu mother, whose husband has become disentitled to act as natural guardian due to any reason.
Power of Hindu mother to appoint testamentary guardian in caser of illegitimate children
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.
Powers of natural Guardian
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, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.
The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.
Welfare of the Guardian is paramount consideration (Section 13)
This section may be called the heart of all guardianship law. The whole guardianship law is guided by this section. This section provides that,
In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
The court shall not appoint any person by virtues of the provisions of this act or any other law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.
Some other incapacities to be a guardian
- A minor shall be incompetent to act as guardian of the property of any minor. (Section 10)
- No person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor. (Section 11)
- Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest. (section 12)