FAMILY LAW

Hindu Minority and Guardianship Law

Topic Overview

1. Law relating to Hindu Minority and Guardianship

1. Law relating to Hindu Minority and Guardianship

  • The Hindu Minority and Guardianship Act, 1956 is one of the important laws enacted to codify the principles relating to the minority and guardianship of Hindu children.
  • It supplements the Guardians and Wards Act, 1890 and lays down the rules regarding who can be the natural guardian of a Hindu minor, the powers and duties of a guardian, and the protection of the minor's person and property.
  • The main objective of the Act is to safeguard the welfare, rights, and interests of Hindu minors, as the welfare of the child is the paramount consideration in all matters relating to guardianship.

Provision of Hindu Minority Guardianship Act:

  • Section 4 -Definition
    a) Minor – Person who has not completed 18 years of age
    b) Guardian – A person having the care of person Minor or his property or both. Guardian includes
        i. Natural guardian - biological parents
        ii. Testamentary guardian - appointed by will of parents,
        iii. legal guardian - appointed or declared by court
        iv. Statutory Guardian- appointed under any enactment related to any court of wards.
    c) Natural Guardian – Guardian mentioned U/s 6
  • Section 6 – Natural Guardian
    - one who become guardian by reason of natural relationship.
    a) a boy or unmarried girl - father after him mother.
    b) illegitimate child – mother after her father
    In case of custody of child less than 5 years, ordinarily, mother shall be guardian
    c) Married girl - The husband
    - Guardian can be disqualified i) He or she ceases to be Hindu ii) on renunciation of world
    - Stepmother or stepfather are not natural guardian adoptive parents are natural guardians
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Jijabai vs Pathan Khan

FACTS

Father was alive, but had fallen out with mother of the minor daughter and wife were living separately for several years without taking interest in affairs of minor who was in keeping in care of mother

JUDGEMENT

Supreme court held that father could be treated as non-existence and mother could be considered as natural.

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Githa Hariharan v. RBI

JUDGEMENT

Supreme Court held that word “after” in section 6 It is need, not necessarily means “after the lifetime”, but “in absence of “

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In another case

FACTS

couple had a daughter, and after some years, there were dispute among them during the relationship. Mother had made bank account on name of minor and never mind and used to deposit sum for use of minor for studies and other needs. And when she reached the bank, bank refused to withdraw without sign of father.

JUDGEMENT

Court held that father here cannot be considered as an actual guardian, and hence, signature not necessary for withdrawal.

  • Section 7 – Adaptive
    - father and adoptive mother are National Guardian of minor adopted Son as per under section 6
  • Section 8 – Power of natural Guardian.
    - Have power to do all acts which are necessary or reasonable and proper for benefit of minor for the realisation, protection or benefit of minor estate.
    - Without previous permission of court guardian may not
    a) mortgage or charge or transfer by Sale, Gift, Exchange. Any part of immoveable property of minor.
    b) Please any part of property:
        i) For term exceed more than 5 year
        ii) one year beyond the date on which minor will attain majority.
    - Any contravention and disposal of there of is voidable act instance of minor or any person claiming under him
    - No person shall be granted unless it is necessity and evident that it is for benefit to minor
    - Guardian and wards act apply to in respect of obtaining permission
    - Civil court or district court, or any court empowered under the Guardians and wards act 1890, within local limits of whose jurisdiction of the immoveable property situated in.
  • Section 9 – Testamentary Guardian and Powers.
    - Father - National Guardian has right to appoint Guardian of his minor legitimate children by for minor or his property or both
    - Appointment shall not be in effect if mother is alive, but shall be received If mother dies without appointing any person guardian by will. But if mother makes a will, it will prevail.
    - Widow- have right to act as natural guardian of her minor legitimate children Mother of legitimate children is considered as natural guardian if husband is disentitling to act such because 1) Conversion 2) Renunciation She has right to appoint guardian by will for minor, property and Both
    - Hindu Mother – Natural Guardian of illegitimate child have right to appoint guardian by will for minor and his property
    - Guardian have only right over minor’s person or property or both only after the death of both parents
    - Right of guardian cease – where it minor is on her marriage.
  • Section 10 – Incapacity of Minor to act as Guardian of property
    - Minor is incompetent to act as guardian for property of another minor or his property
  • Section 11 – De facto guardian not to deal with minors’ property.
    - De facto guardian has no right to dispose of or deal with property of minor merely on the ground that he is de facto guardian.
  • Section 12 – Guardian not to be appointed for a minor’s Undivided interest in joint family property because Karta has hold on such property
  • Section 13 - Welfare of minor is of paramount consideration.
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