5.
right of the guardian appointed by the will shall cease after
GUARDIANSHIP
Hindu Minority and Guardianship Act, 1956
Definitions of the Minor and the Guardian:
 Section 4(a), minor means -under 18 years
 Section 4(b), a guardian means a person who has
completed the age of 18 and he is taking proper care of a
minor and his property
KINDS OF GUARDIAN
 Natural Guardian
 Testamentary Guardian
 A Guardian appointed by the Court
 De Facto
NATURAL GUARDIAN ( SEC 6)
1) Legitimate minor son/ unmarried daughter- Father—after
him—mother
2) Illegitimate minor son/ unmarried daughter- mother- after
her father
3) custody of the child –mother- under five years
4) Married girl- husband
SEC 7- ADOPTED SON,
adoptive father and after him, the adoptive mother.
TERMINATION OF GUARDIANSHIP IF-
a) he or she is no more a Hindu, or
b) he or she has renounced the world -sanyasi
Note: In the above provision, the word father and mother do
not include a step-father and a step-mother.
POWERS OF NATURAL GUARDIAN (SEC 8)
 do everything which is necessary for the benefit and in the
interest of the minor.
GUARDIANSHIP OF MINOR’S PROPERTY
 guardian cannot mortgage, charge, gift, sell,
or exchange the immovable property of the minor. without
the permission of the court.
 can lease any part of the property for a period of five years
but not beyond that. permission of the court is required if
more than 5 yrs
 If the guardian does not follow the rule and disposes of the
immovable property, then it shall be voidable at the option
of minor or any other person claiming on behalf of the
minor.
 The court shall allow the guardian to transfer or lease the
property only when it finds necessary to do so in the
interest or advantage of the minor.
TESTAMENTARY GUARDIAN (SEC 9)
Guardian who is appointed by will or a testament of a person
is known as a testamentary guardian.
1. father may appoint any person as the guardian
2. father will not operate if the mother is alive
3. mother of illegitimate child can appoint any person as their
guardian by making a will.
4. After the death of the father or mother, person appointed
will be natural guardian of children
the marriage of a girl.
CUSTODY OF MINOR (SEC 13)
 custody of a minor who has not completed the age of
five years shall ordinarily be with the mother
POONAM VS KRISHANLAL AIR 1989.- To ensure the
welfare of the child, the custody may even be given to the
third person as was given mother and grand father by SC
RE MADHAB CHANDRA SAHA 1997, a father was never
active in the interest a minor and after a long time demanded
the guardianship. His claim was rejected.
CHAKKI VS AYYAPAN 1989, a mother who says she will
keep living with friends and may beget children from others,
was not considered appropriate for custody in the minor's
interest
CONSIDERATION FOR APPOINTMENT OF
GUARDIAN
 in the appointment of the guardian of a minor, the welfare
of the minor is made the first and paramount
consideration, and no other consideration, such as the
superiority of the mother or father is taken into account.
 age, sex and religion of the minor, the character and
capacity of the proposed guardian and his nearness of kin
to the minor, the wishes, if any, of a deceased parent, and
any existing or previous relations of the proposed guardian
with the minor or his property.
 If minor is old enough to form an intelligent preference ,
the court may consider that preference.
 The court shall not appoint or declare any person to be a
guardian against his will.
CASES
SMT BETI BAI VS. JAGDISH SINGH AND ORS
First wife dead, husband dead, left minor son, second wife
took whole property, son case and won
PARAS RAM VS. STATE (guardianship by affinity) Father in
law remarried his minor widowed daughter in law without her
consent.. court held not guilty as he is natural guardian now
GITHA HARIHARAN V RBI
Sec 6- After father means “in the absence”, against Art 15-
equality-the mother is also the guardian of her minor children
along with the father(incapable)
SHEELA VS SOLI, 1981 BOM HC, it was held that a mother's
right to guardianship is not lost upon conversion to another
religion if she is able to provide proper care to the minor.
Further, in Kumar vs Chethana AIR 2004, SC has held that the
mother's right to guardianship is not lost automatically after
her remarriage. In all such cases, welfare of the child has to be
considered above all including the convenience and pleasure
of the parents.