Family Law-II Assignment

Title:
Minor and Guardianship under HMGA, 1956

Submitted by:
Shadab Anwar
Roll No. 19BLW049
B.A.LL.B (H)
Batch: Regular
Semester: 5th
Of Faculty of Law, Jamia Millia Islamia

Submitted to:
Prof. Kahkashan Y. Danyal, Associate Professor, (Faculty of Law, Jamia Millia
Islamia, New Delhi)

(November 25, 2021)

 Acknowledgement

The success and final outcome of this project required lot of genuine support of many people
and I am extremely fortunate to have got all this along the completion of my project work.

I owe my profound gratitude to my guide, Prof. Kahkashan Y. Danyal ( Faculty of Law,

Jamia Millia Islamia, New Delhi), Who guided me all through by providing all the necessary
information and instruction for developing it well.

I am hardly thankful and fortunate enough to get constant encouragement, guidance and
support from my parents for providing me with all amenities and the apt environment for
carrying my project work ahead and completing it successfully and equally I would like to
thank my friends for their constant boost and support all through.

Shadab Anwar
3rd Year (5th Semester)
B.A.LL.B (Hons.)
Jamia Millia Islamia, New Delhi
 Introduction
The age-old concept of guardianship, which is described in Shastras and the Quran, is an
important practise for a child's development. The primary goal of this notion is to safeguard a
child's welfare. Various statutes govern guardianship, including the Guardianship and Wards
Act of 1890, the Hindu Minority and Guardianship Act of 1956, and other personal laws. The
current essay examines the notion of guardianship as defined under the Hindu Minority and
Guardianship Act of 1956.
The Dharamshastras did not go into great length about the law of minor guardianship. The
texts are sparse and inconclusive. The texts mention protecting orphaned youngsters'
property, but not minors whose parents are still alive. The guardianship of the minor's person
receives very little attention. The King is the supreme guardian (parens patrie) of all minors
within the realm, according to the wide concept. Except for Narada, no other sage
acknowledges father and mother as guardians. The absence of any developed guardianship
law appears to be due to two factors. 1
Minor children were frequently raised in joint families and were constantly protected by the
Karta. Even after the death of the father, the child was not alone; whoever was the Karta
looked after the child. Even though a child was not born into a joint household, if he
belonged to the first three classes, he was required to study at the guru's ashrama and was
under the guru's protection. As a result, there was no need for a person's guardianship law.
The issue of guardianship of a minor's property might have arisen only in exceptional
circumstances, such as when the child lacked parents and was not a member of any joint
family. The general norm was established with regard to the property of such children. As the
realm's supreme guardian, the King ensured the safety of all children and their belongings.

1
Sarabjit Kaur, “Who are the Guardians Recognised under The Hindu Minority And Guardianship Act, 1956?”,
available at: https://www.legalserviceindia.com/legal/article-6542-who-are-the-guardians-recognized-under-
the-hindu-minority-and-guardianship-act-1956-.html (last visited on November 10, 2021).
 Historical Background
The concept of guardianship was related with patriarchy in the traditional rule, where the
father was recognised as the sole guardian of the child's person and possessions. Mother had
no autonomous legal position and had no authority over the child at the time.
During the British era, the courts began to establish the notion of guardianship by citing
Macnaghten and M/s Strange as authority, and formulated a list of guardians that included
father, mother, elder brother, other paternal relations, and maternal relations. The concept of
'natural guardian' was explained in the case of Purushottam Ratho v. Brundavana Dass
And Ors.2, which stated that the father is the natural guardian of the children, and that after
the father's death, the mother will be the natural guardian of the children, and that no one else
can be the natural guardian of the child. On the pattern of English law, testamentary
guardians were also incorporated in Hindu law. It was also accepted that the King had
ultimate Guardianship over minor children, which was exercised through the courts.3
The Hindu Minority and Guardianship Act, 1956 defined and reformed the Hindu law of
guardianship of minor children.

2
AIR 1931 Mad 597 a.
3
Supra note 1.
 Minor Child & Guardianship under HMGA, 1956
S. 4(a)4, of the Hindu Minority and Guardianship Act of 1956 defines a minor as someone
under the age of eighteen. A minor is a person who is physically and cognitively undeveloped
and hence need protection.
Most countries' contemporary laws provide protection to children in a variety of ways.
Guardian is "a person who has responsibility for the minor's person or property, or both,"
according to the definition.5 It should be underlined that guardians exist in modern law
primarily to protect and care for children and to ensure their welfare. This is represented by
stating that the child's welfare is the most important consideration. Physical and moral well-
being are both considered to be part of welfare.

4
The Hindu Minority And Guardianship Act, 1956.
5
The Hindu Minority And Guardianship Act, 1956, sec. 4(b).
 Kinds of Guardians
The HMGA, 1956 act deals with mainly three types of guardians-
1. Natural guardians
2. Testamentary guardians
3. Guardians appointed or declared by the courtts.
There are two more types of other guardians, existing under Hindu law, de facto guardians,
i.e., self appointed guardians, and guardians by affinity i.e., guardians of a minor widow. A
de facto guardian is someone who looks after a minor without legal authority. Self-appointed
guardians and guardians by affinity, such as guardians for a minor widow, are examples of de
facto guardians. However, if a person is only a de facto guardian, he does not have the
authority to sell or deal with a minor's property.
1. Natural Guardians (Sec. 6)6-
Section 6 of HMG Act 1956 defines only three natural guardians:
 For a legitimate boy or an unmarried girl, the father, and after father, the mother,
provided that the custody of a child less than 5 yrs of age will be with the mother.
 For an illegitimate boy or an illegitimate unmarried girl, the mother, and after mother,
the father.
 For a married woman, the husband.
It further states that no person shall be entitled to be a natural guardian of a minor if
 he ceases to be a Hindu or
 he renounces the world completely by becoming a hermit(vanaprastha) or an ascetic
(sanyasi).
Here, by father and mother, natural father and mother are meant. Step father or step mother
do not have any right to guardianship unless appointed by court.
Position of Father-
Pre- 1956, the right of the father was supreme. He could even appoint a person to act as a
guardian after his death even if the mother was alive. This is not the case now. Further, as
held in the case of Lalita vs. Ganga,7 a fathers right to guardianship is subordinate to the
welfare of the child. In the case of Githa Hariharan vs RBI,8 held the mother to be the
natural guardian in spite of the father being alive and further held that the word "after" means

6
The Hindu Minority And Guardianship Act, 1956.
7
1973 Raj. 93.
8
AIR 1999 2 SCC 228.
"in the absence" rather than "after the life" of the father. Thus, if a father is incapable of
protecting the interests of a minor due to any reason, he can be removed from guardianship.
Position of Mother-
Her illegitimate minors have a natural guardian in the mother. In the event of legitimate
minors, the mother has the right to custody of a child under the age of five years. This does
not negate the mother's entitlement to custody after the child reaches the age of five. In
Sheela vs Soli,9 it was decided that a mother's right to guardianship is not lost when she
converts to another faith as long as she is capable of providing sufficient care to the
youngster. Furthermore, the Supreme Court of India declared in Kumar V. Jahgirdar vs
Chethana Ramatheertha10, that the mother's right to guardianship does not immediately
lapse following her remarriage. In all of these situations, the child's welfare must take
precedence above the parents' convenience and enjoyment.
Position of Husband-
Husband and wife are regarded one in Hindu shastras. As a result, it is assumed that the
husband is the guardian of a minor wife. However, under Section 13, a court may revert
guardianship to the minor's father or mother if it is in the minor's best interests.
A guardian, on the other hand, has no authority over a minor's shared family interests. In an
undivided family the father or other senior male member for the time being as KARTA is
entitled to handle the complete coparcenary property including the minor’s interest. When all
of the coparceners are minors, the family's managing member is competent to be the guardian
of his wife or child, or the wife and child of another minor family member. In such a
circumstance, the court may appoint a guardian for the entire joint family property until one
of them reaches majority. Despite the fact that the other sons are minors, the guardian is
obligated to transfer over the property to him. The mother is not entitled to custody of her
minor son's coparcenary interest. As his natural guardian, she is entitled to custody of his
person and separate property, if any.
Rights of guardian of person –
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

9
AIR 1981 Bom 175.
10
Special Leave Petition (civil) 4230-4231 of 2003.
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.
Powers of a Natural Guardian(Sec. 8)11-
Section 8 of the HMGA lays down the powers of a natural guardian.
Section 8 (1) provides that 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
realisation, protection or benefit of the minor's estate. Also, the guardian cannot bind the
minor by a personal covenant in any case.
Section 8 (2) provides that the natural guardian shall not, without the previous permission of
the court:
 mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the
immovable property of the minor; or
 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) specifies that any disposal of immovable property by a natural guardian, in
contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or
by any person claiming under him.
Section 8 (4) provides that no court shall grant permission to the natural guardian to do any of
the acts mentioned in sub-section (2) except in the case of necessity or for an evident
advantage to the minor.
Section 8 (5) provides that the Guardians and Wards Act, 1890, shall apply to and in respect
of an application for obtaining permission of the court under sub-section (2) in all respects as
if it were an application for obtaining the permission of the court under section 29 of that Act.
Removal of a Natural guardian:
Court has the power to remove any guardian in accordance to section 13 if-
 He ceases to be a Hindu.
 He becomes hermit or ascetic.
 Court can remove if it finds that it is not in the best interest of the child.

Testamentary Guardian (Sec. 9)12-

11
The Hindu Minority And Guardianship Act, 1956.
12
The Hindu Minority And Guardianship Act, 1956.
When Hindus were granted testamentary powers during the British period, testamentary
guardians were established. It was up to the father to name testamentary guardians. The father
could remove the mother from her natural care of the children after his death by appointing a
testamentary guardian. Both parents now have testamentary power to appoint a guardian
under the Hindu Minority and Guardianship Act of 1956. ' The father may appoint a
testamentary guardian, but if the mother survives him, the testamentary guardian will be
rendered ineffective, and the mother will become the natural guardian. If the mother appoints
a testamentary guardian, the testamentary guardian will be her appointee, and the father's
appointment will be rendered ineffective. If the mother does not appoint, the guardian will be
appointed by the father.
A person who becomes a guardian due to the will of a natural guardian is called a
testamentary guardian. Section 9 defines a testamentary guardian and his powers.
 For a legitimate boy or a girl, the father, who is a natural guardian, may appoint any
person to act as the guardian of the child after the death of the father. However, if the
mother is alive, she will automatically become the natural guardian and after her
death, if she has not named any guardian, the person appointed by the father will
become the guardian.
 A widow mother who is a natural guardian, or a mother who is a natural guardian
because the father is not eligible to be a natural guardian, is entitled to appoint a
person to act as a guardian after her death.
 For an illegitimate child, the power of appointing a testamentary guardian lies only
with the mother.
 The right of the guardian so appointed by will shall, where the minor is a girl, cease
on her marriage.
Only a will can appoint a testamentary guardian under Section 9 of the Hindu Minority and
Guardianship Act. On her marriage, the guardian of a minor girl ceases to be the guardian of
her person, and the guardianship cannot be reinstated even if she becomes a widow while still
a minor. Acceptance of the guardianship by the testamentary guardian is required.
Acceptance might be explicit or oblique. A testamentary guardian may refuse or disclaim the
appointment, but once accepted, he cannot refuse to act or resign unless the court gives him
permission.13
Guardians appointed by the Court (Sec.13)14-
13
Ibid.
14
The Hindu Minority And Guardianship Act 1956.
The Guardians and Wards Act of 1890 gives courts the authority to appoint guardians. The
High Courts also have inherent authority to appoint guardians, but this authority is rarely
used. The Hindu Minority and Guardianship Act is a supplement to the Guardians and Wards
Act, not a replacement for it. The District Court is given jurisdiction under the Guardians and
Wards Act of 1890: The District Court has the authority to appoint or declare anyone as the
child's guardian whenever it deems it necessary for the child's welfare. ' When assigning a
"guardian," the court considers a number of issues, including the child's age, gender, parental
wishes, and personal law. The safety and well-being of the children is of paramount
importance.
The District Court has the authority to appoint or declare a guardian for the minor's person
and separate property. The authorised High Courts have inherent jurisdiction to appoint
guardians for minor children's person and property. This power extends to a coparcener's
undivided interest.
The guardian designated by the court is known as certificated guardian. Certificated
guardians have certain powers. The Guardians and Wards Act of 1890 regulates the powers
of certificated guardians. There are only a few acts that he can perform without the court's
permission. In the end, his powers are coextensive with those of the sovereign, and he may do
anything the sovereign can do (with the court's approval). From the moment he is appointed,
a certificated guardian is subject to the court's monitoring, guidance, and control.
Guardianship by Affinity-
A guardian known as guardian by affinity existed in Hindu law prior to 1956. A minor
widow's guardian is the guardian through affinity. "The husband's related, if any, within the
degree of sapinda, is the guardian of a minor widow in preference to her father and his
relations," Mayne declared.15 The same effect has been achieved by court statements. The
High Court in Paras Ram v. State16 brought affinity guardianship to its logical conclusion.
In this case, a minor widow's father-in-law forcibly removed her from her mother's home and
married her for money to an undesirable person against her will. The court had to decide if
the father-in-law was guilty of forcibly removing the girl. He was not, according to the
Allahabad High Court, because he was the widow's legitimate guardian.
A question has come before our courts, if the nearest sapinda of the husband automatically
becomes a guardian of the minor widow on the death of her husband or whether he is just
preferentially entitled to guardianship and consequently he cannot serve as guardian unless he

15
Chinna vs Vinayaghathammal, AIR 1929 Mad 110 at 112; Asizwani Kumar vs Fulkumari, 77 CWN 349.
16
AIR 1960 All 479.
is appointed as such? The Madras and Nagpur high courts appear to support the former, while
Paras Ram appears to support the latter. The wellbeing of the child takes precedence in the
appointment of a guardian under Section 13 of the Hindu Minority and Guardianship Act.
The fact that the father-in-law has a preferred right to be designated as guardian under Hindu
law is simply a minor influence.
In our opinion, it would be a better law if the minor wife's guardianship, both of her person
and property, remained with her parents. On the powers of the guardians by affinity, there is
little textual guidance or case law. His abilities are most likely comparable to those of the
natural guardian.
De Facto Guardian-
A de facto guardian is a person who, without legal power, takes an ongoing interest in the
minor's well-being or in the management and administration of his property. 'Hindu
jurisprudence has always recognised the principle that if liability is incurred on behalf of
another in a case where it is justified, then the person on whose behalf the liability is
incurred, or at the very least his property, is liable, even if no authorization was given for the
liability to be incurred.'
Although there is no mention of a 'de facto guardian' in any of the books, his presence has
never been denied in Hindu law. It was stated that Hindu law attempted to find a solution to
two difficult situations: first, when a Hindu child has no legal guardian, there would be no
one to handle and manage his estate in law, and thus without a guardian, the child would not
receive any income for his property; and second, a person without title could not be permitted
to interfere with the child's estate in order to cause him loss. The Hindu law addressed this
issue by granting legal status to de facto guardians.17
Section 1118 states that a de facto guardian does not have the authority to dispose of or deal
with the minor's property solely because he is the de facto guardian. The status of a de facto
guardian is a point of contention. Some HC hold that de facto guardian alienation is void,
whereas de jure guardian alienation is voidable (Ashwini Kr vs Fulkumari, Cal HC 1983),
while others hold that both are voidable (Sriramulu' case 1949). It is now widely established
that a de facto guardian does not have the authority to assume debt, gift property to a minor,
or refer a dispute to arbitration.
A mere intermediator isn't the same as a de facto guardian. A single or evasive act by a
person in relation to a child's property does not qualify him as a de facto guardian. To

17
Ethilulu vs Pathakal, AIR 1950 Mad 390; Kusicabai vs Chandrabtutga, AIR 1918 Nag 100.
18
The Hindu Minority And Guardianship Act , 1956.
become a de facto guardian, a person must maintain a consistent pattern of behaviour. In
other words, a de facto guardian is someone who is not a legal guardian and has no legal right
to act in that capacity, but has nonetheless assumed responsibility for the child's possessions
as if he were one. De facto guardianship refers to a situation in which past actions have
resulted in current status. The phrase literally translates to 'from what has been done.'
 Conclusion
Adoption of a kid by any guardian establishes a link between the child and the guardian, it
establishes a subject matter of personal law, and it is obligatory for a minor to defend his
property, which is why a guardian is appointed to look after him and his property. Special
appreciation to the legislators who enacted these legislation to safeguard minors and their
property, as well as unmarried girls and widows. This ensures that no one can steal the
property of a minor.
As a result, a guardian is extremely important for a youngster to defend himself physically
and mentally from harm.
 Bibliography
1. Dr. Paras Diwan & Pyushi Diwan: Family Law, Allahabad Law Agency, Faridabad.
2. B. M. Gandhi: Hindu Law, Eastern Book Co., Lucknow.
3. Sarabjit Kaur, “Who are the Guardians Recognised under The Hindu Minority And
Guardianship Act, 1956?”, available at: https://www.legalserviceindia.com/legal/article-
6542-who-are-the-guardians-recognized-under-the-hindu-minority-and-guardianship-act-
1956-.html (last visited on November 10, 2021).
4. Dr. Basant K. Sharma: Hindu Law, Central Law Publications, Allahabad.
5. Mayank Madhaw: Family Law Part-I, Singhal Law Publications, Delhi.
6. The Hindu Minority And Guardianship Act, 1956.