Hindu Law minority & Guardianship

•Introduction:
•The King shall protect
the inherited property
and other of a minor
until he has returned.
•Narada however
mentions father, mother
and elder brother as
guardian of the minor.
•Decisions of English
Judges firmly
established the
supremacy of the father
as guardian and after him
the mother.
•Statutory recognition by
the guardians and wards
Act, 1890.
•This is a secular law for
appointment and
declaration of guardians
and allied matters,
irrespective of caste,
community or religion,
though in certain matters
the court will give
consideration to the
personal law of the parties.
•As far as Hindus as
concern law is to be found
in Hindu minority and
guardianship Act which
came into force on
25/8/1956.
Definition [Sec.4]
•Guardian means a person
having care of the person of a
minor or of his property or
both his person and property
and includes –
•A natural guardian.
•A guardian appointed by the
will of minor’s father or
mother.
•A guardian appointed or
declared by the court and
•A person empowered to act
as such by or under any court
of wards.
Natural guardian means any
of the guardians mentioned
in Sec.6.
Natural guardianship of an
adopted son [Sec.7]
Testamentary guardians and
their powers [Sec.9]
•Incapacity of a minor to
act as a guardian of any
property [Sec.10]
•Non-appointment of a
guardian for minor’s
undivided interest in
joint family property
[Sec.12]
•Welfare of minor to be f
paramount consideration
in appointment of a
guardian [Sec13]
Natural guardian
[Sec.6,7]
•Under old Hindu law, King
was supreme guardian.
During British period, idea
of natural guardianship,
first of father and after
him mother was
developed.
•Sec.6 (a)- In case of a
by and a unmarried girl,
father is natural guardian
and after him mother is
the natural guardian of
such person.[Custody of a
minor who has not
completed age of 5yrs is
to be ordinarily with
mother.
•Sec.6(b)- In case of a
illegitimate boy or an
illegitimate unmarried girl,
the mother and after her
father is natural guardian.
•In case of a (minor)
married girl as per clause
(c) her husband is her
guardian.
•Father’s refusal to act or
discharge hid duties as a
natural guardian in respect
of person & prop. Of
minor, mother can take
recourse to legal
proceedings and can be
appointed as a guardian
Jijabai V/s. Pathan khan-
supreme court held that in
peculiar circumstances
father should be treated as
non-existent and mother
could be considered as
natural guardian of minor’s
person and property.
Dr.Anand’s landmark decision in Githa Hariharan & Another V/s.
Reserve Bank on India and another – Where father is not in actual charge
of affairs of minor either because of his indifference or because of an
agreement between him and mother of minor and minor is in exclusive
care and custody of mother or father for any other reason is unable to
takecare of minor because of his physical and/or mental incapacity, the
mother can act as natural guardian of minor and all her actions would be
valid even during lifetime of father who would be deemed to be ‘absent’
for purpose of Sec.6(a) of Hindu minority and guardianship Act and see
19(c) of Guardian and Wards Act 1890.
Disqualifications to act as a guardian
•Conversion to another religion-[provision to Sec.6]
•Becoming a Sanyasi.
•Minority
Powers of Natural guardian [Sec.8]
•Natural guardian are empowered to all acts which are reasonable and
proper or are necessary for benefit of minor and minor’s estate.
•Previous permission of court required in following matters.
•Mortgaging or charging or transferring by sale, gift or otherwise any part
of Immovable property of minor or
•Leasing any part of immovable property for a term exceeding more than
one year beyond date on which minor would attain majority.
•Any disposal immovable property without permission of court is
voidable at instance of minor or by any person claiming under him
[Sec.8(3)]
•If guardian seeks court’s permission no court shall grant it except in case
of necessity or for evident advantage to the minor [Sec.8(4)]
•To such an application made by a natural guardian, provision of the
Guardian and Word Act 1890 would apply and court would protect
minor’s interest.
•Sec.9 (4) - Hindu mother entitled to act natural guardian of her minor
illegitimate children, can also by will, appoint a guardian for person or
property (or both) of such children.
•Sec.9(5) – Guardian so appointment by will has right to act as minor’s
guardian after death of minor’s father as mother, as case may be and to
exercise all rights of a natural guardian under this Act to such restriction
if any as are specified in this act and in the will.
•Sec.9(6) – When a testamentary guardian is appointment for a minor
girl, rights of a such a guardian would cease on marriage of the girl.
Powers if Testamentary guardian
•A testamentary guardian has all powers which a natural guardian has under
Act subject to such restriction which might have been imposed by will.
•Sec.9(5) – The guardian has the right to act as minor’s guardian after death of
father or mother and to exercise all rights of a natural guardian under the Act to
such extent and subject to such restrictions if any, as specified in Act and in the
will.
Incompetency of a minor to act as guardian of another minor’s property
[Sec.10]
A minor is incompetent to act as guardian of property of any Hindu minor. But
his right to act as natural guardian of person of his wife and children is
preserved.
De Facto guardian [Sec.11]
He undertakes general management and care and custody of
minor on his own, such persons are relatives or friends or well wishers of
minor and do this work out of minor and do this work out of love &
affection for minor.
Certificated guardian appointed by a court.
•The courts are empowered to appoint guardians under guardians and
wards Act 1890. Powers of certificated guardians are controlled by the
guardians and wards Act 1890.
•In appointing a guardian – welfare of minor is of paramount
consideration.
Guardianship regarding minor’s undivided interest in joint family
property (Sec.12).
When a minor’s undivided interest in the joint family property is under
the management of an adult member of this family, no guardian shall be
appointment for such undivided interest of the minor.
Minor’s welfare to be paramount consideration[Sec.13]
•Sec.13 of Act gives wide power to the court. Sec.13 read with Sec.4 of Hindu
minority and guardianship Act entitles court to ignore the provisions of Sec.19 of
Guardians and wards Act in the interest of the child.
•It reiterates a well-established principle in appointment or declaration of any
person as guardian of a Hindu minor i.e. welfare of minor will be paramount
consideration.
•Welfare includes not only material and physical well being of minor, but also
every factor connected moral and religious welfare, education and upbringing of
the minor.
 In Thrity H. Dholi Kuka v. Hoshiam S. Dholi Kuka
the Bombay High Court refused custody of the minor
daughter to the mother on the ground that she was a
working woman and therefore would not be available
to the child for most part of the day. In appeal the
Supreme Court analysed the entire situation in great
detail, and keeping in view the well-established
criteria of best interest of the child, ordered custody to
the mother. In Kirti Kumar Joshi v. Pradip Kumar
Joshi the mother had died under suspicious
circumstances and father was facing charge under
section 498 of IPC, the Supreme Court awarded
custody of minor children to maternal uncle as against
the father.
The Supreme court in the case of Rajesh Gupta v. Ram
Gopal Agarwala observed that in custody matters, it is
not the legal rights of the parties but welfare of the child is
prime criteria. A writ of habeas corpus was filed by the
father of the child but it was held by the court that the
mother could continue with the child’s custody. In Sardar
Bhupinder Singh v. Jasbir Kaur the court held that even
though under Sec.6 (a) of the Hindu Minority and
Guardian Act, the father is the natural guardian of his
minor son, the predominant consideration is the child’s
welfare and the section has to be read along with sec. 13 of
the Act. The fact that the father has a better financial
status than the mother should not come in the way of
awarding custody to the mother, where the welfare of the
child so demands.
The Court observed in Anil Kapoor v. Rajiv Baijal that
the right to custody of the child in is not always absolute.
Welfare of the child is of paramount importance while
granting custody. In Jayant Rajan v. S. Lakshmann it
was held that if due to strained relations, mother
commits suicide, father still may claim custody as a bad
husband is not necessarily a bad father.
In Laxmi v. Vasantha Kumari it was held that the fact
that mother after the death of the father of the child, has
remarried to a person belonging to another religion, by
itself, is not a ground to deprive her the custody of her
child. In the case of Mausami Moitra Ganguli v. Jayant
Ganguli it was held that to determine the question as to
which parent the care and control of a child should be
committed, the first and paramount consideration is the
welfare and the interest of the child and not right of
parents. Heavy duty is cast on the court to exercise its
discretion, keeping to mind the welfare of the child as
paramount consideration.
 Similarly in Raichand’s case the court observed that
father-in-law’s claim must be subordinated to the
paramount consideration of the minor’s welfare and as
she was of sufficient age to form an intelligent preference,
her wishes should also be considered. In Gaurav Nagpal
v. Sumedha Nagpal the Court held that the word welfare
used in S.13 of 1956 Act had to be construed liberally and
must be taken in its widest sense. The moral and ethical
welfare of the child must also weigh with the court as well
as its physical well-being.
 In Lekha v. P. Anil Kumar it was held that though
under the Hindu law the father is the natural guardian
of the minor under ordinary circumstances, the
paramount consideration in granting custody of the
minor child should be the interest of and welfare of the
child. The wishes of the child are of relevance in
deciding custody of the child and a remarried mother
cannot be termed as a ground for not granting custody
of the child to her. Accordingly mother was granted
custody of the child and father was permitted to have
custody of the child from mother during important
festivals and school vacations.
In the case of Purvi Mukesh Gada v. Mukesh Ppatlal
Gada and Others it held that it was incumbent upon the
High court to find out the welfare of the children before
passing the order regarding custody because welfare of
the child is the supreme consideration in such matters.
[missing] In Nil Ratan Kundu v. Abhijit Kundu the
issue was relating to custody of a child whether it can be
given to father because he is natural guardian. The
Supreme Court held that ‘positive test’ whether such
custody would be in the interest of the child would be
material. The Court called the child to ascertain his
wishes and appeal of the grand parents was allowed.
In Vikram Vir Vohra v. Shalini Bhalla the Apex court
observed that the criteria in custody cases is the welfare
of the child. with factors to be considered while
awarding custody of a child and court reiterated that
welfare of the child is of paramount important in
matters relating to custody of child and may be given
primacy over even statutory provision. In this case
respondent mother wanted to take child to Australia for
better job opportunity and wanted to stay with his
mother. It was held that the welfare of the child lies with
keeping the child with the mother in Australia with
modified visitation rights for the father in India.
•If court is of opinion that the appointment of a particular person as
guardian will not be for welfare of minor. Such a person shall not be
entitled to be minor’s guardian even if by virtue of the provisions of this
Act he or she is otherwise entitled to be so or any other law relating to
guardianship in marriage among Hindus.