Guardians under Hindu law: kinds, powers & functions

Guardians under Hindu law: kinds, powers & functions


Right from the beginning of life till death, one evolves a lot. But at that stage of time where we are vulnerable, we need support i.e Guardian. The definition of guardian is defined under the Hindu Minority and Guardianship Act,1956 codified to deal with the welfare of the child at the core. Section 13 of the act deals with the welfare of the minors. The concept of Guardianship  was developed by the courts during the British regime, but, the Hindu dharmashastras, have not elaborated or talked about it much. This act through Section 6 (a) establishes that the Father is the natural guardian of a minor child, and, after him, the mother. No one can be the natural guardian apart from the parents.

Guardianship and its kinds

Under the Hindu Minority and Guardianship Act, 1956, S. 4(b), any person below 18 years and who is physically and intellectually imperfect and immature and hence needs someone’s protection.
Under Hindu Minority and Guardianship Act, 1956, guardianship can be provided in multiferous ways.

Guardianship and its kinds

Guardian is “a person having the care of the person of the minor or of his property or both.” Minors are not considered capable enough to make a decision of their own by the law.
Guardians can be of different types

1. Natural guardian
2. Testamentntary guardians, appointed by the will of minor’s parent
3. Guardian declared by the court

Natural guardian-

Section 6 of the Hindu Minority and Guardianship Act, 1956 defines natural guardians and father, mother and husband can be the natural guardians and Section 6 should always be read with Section 13 of the Hindu Minority and Guardianship Act, 1956.
Section 19 of the Guardians and ward act 1890, also gives natural guardianship rights to the father unless found unfit.

Supreme Court in its two landmark judgements of the case Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya,  in 1999 changed the interpretation of the word ‘after that’ in Section 6(a) of the Hindu Minority and Guardianship Act, 1956. The Supreme court in holding that the Supreme Court held that during some circumstances the mother can act as a natural guardian of the minor even if the father is alive. the meaning of the word ‘after him’ was interpreted as ‘in the absence of’. The word ‘absence’ means that father’s absence from the minor’s property or person whatsoever. If both the parents are living separately for a long period and if the minor daughter is living with the mother then the mother becomes the natural guardian of the minor.

Powers of a natural Guardian 

Section 8 of the Act states the power of a natural given to the natural guardian for the welfare of a minor. The guardian has all the power to do reasonable and proper acts for the benefit of the minor, subject to provision of the action, but can’t force or binds his own contract to the minor.

The natural guardian, without permission of the court, can’t mortgage, transfer by sell or gift or anything to the immovable property of the minor

The natural guardian can’t lease any part of the property, for more than 5 years, or, more than one year beyond the date of the majority, the minor will attain.

An appeal shall 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.
(6) In this section, “Court” means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situated, and where the immovable property is situated within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situated.

Testamentary guardian

Appointed by a will after the death of natural guardian to supervise and protect over the child and his/her estates. Testamentary guardians can only come into the act after the death of natural Guardians. Testamentary guardians and their powers are stated under Section 9 of the Hindu Minority and Guardianship Act, 1956.

The power to appoint a Testamentary guardian lays with

•The Hindu father, either he is natural or adoptive.
• A Hindu, either natural or adoptive mother
• A Hindu widowed mother, either adoptive or natural.

But, as per Section 9(2) of the Hindu Minority and Guardianship Act, 1956, an appointment made by the mother for testamentary guardian will prevail and if the mother mentions any testamentary guardian in the will, then, the appointment made by the father will render ineffective.

In the case of Smt. Vinod Kumari v. Smt. Draupadi Devi, the Supreme Court has ruled that a stepmother cannot be granted the status of the testamentary guardian.

Powers of Testamentary guardian

As per Section 9(5), a testamentary guardian has the same power as a natural guardian and can exercise whole power vested with the natural Guardian. Testamentary guardian can alienate any property of a minor for his welfare after seeking permission from the court.
Guardianship on a minor girl ends with the marriage, as after that, her husband becomes her natural guardian mentioned in Section 9(6) of the Hindu Minority and Guardianship Act, 1956. Guardianship of a testamentary guardian ends when the child attains the age of 18 years.

Removal of a Testamentary guardian

Section 39 of the Guardians and wards Act states certain grounds for removal of a Testamentary guardian:
• ill-treatment towards a child by the Testamentary guardian
• fails to perform the assigned duty
• Abuse of his trust
• Incapability in performing the assigned duty
• Conviction under any offence
• If he neglects or acts against any provision of the law.

Guardian appointed by the court or legal guardian

A person who has been appointed by the court to look after the interest of the other person or his ‘ward’ and his property. This statement brings us back to the earlier days of ‘Smritis, where the overall jurisdiction of the child was sanctioned by the King. A legal guardian can be appointed in four cases:

Guardian for an incapacitated citizen (due to age or health), for a minor, a physically disabled person and an incompetent adult. This power is vested to the court under the
Guardians and Wards Act, 1890. The guardian who is appointed by the Courts, he/she will be known as a certified guardian.

Under Section 13 of the Hindu Marriage and Guardianship Act, 1956, while the appointment of any person as guardian is going on by a Court, the advantage of the minor shall be the primary consideration.

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