TOPIC - GUARDIANSHIP UNDER HINDU LAW

Name: YASH PANKAJ DESHMUKH

Roll No: 15
Subject: Family Law - II
Class: B.L.S., LLB Submitted to
Year: Fourth Year (Semester VII) Mrs.Harshada Rajput
SUB TOPICS

1. ABSTRACT
2. INTRODUCTION
3. APPLICATION OF THE ACT
4. GUARDIANSHIP OF THE PERSON
5. GUARDIANSHIP OF MINOR’S PROPERTY
6. GUARDIAN BY AFFINITY
7. DE-FACTO GUARDIANSHIP
8. WELFARE OF THE CHILD TO BE PARAMOUNT CONSIDERATION
9. CRITICAL ANALYSIS OF THIS ACT
10. CONCLUSION
 GUARDIANSHIP UNDER HINDU LAW

ABSTRACT :-

Hindu law defines marriage as the union of a man and a woman with the intention of starting a family and
bearing children. The children are required to help their parents in their old age and even after their passing by
engaging in rituals and offering presents to God. As a result, the parents must exercise prudence and embrace
parental duty in order to prepare for his tasks. Guardianship controls a parent's rights and obligations. Why do
we need to create another essay regarding guardianship when there is already so much information available?

In this research, we'll address the issue from many angles. Hindu law will be applied throughout the entirety of
the text. As the divorce trend has grown in recent years, families have become much more estranged. The issue
of custody—rather than guardianship—has historically caused conflict in marriages; this issue will also be
covered. The Hindu concept of guardianship is represented by a number of axes, each of which is going in a
different direction yet crossing over at the centre.

Keywords- Minority and Guardianship Act, Minor, Hindu, Mother, Father, Welfare and Adoption.
INTRODUCTION:-

The United States' Constitution, laws, and treaties do not apply to, and are not reliant upon, a parent's custody
and guardianship of his kid.

India is a nation with many unique laws; each locality has its own set of laws. The majority Hindu population
has a separate family law than the Muslims, who make up the largest minority group. More modest minority
groups include the Jews, Parsis, and Christians, all of which have unique family laws despite being a relatively
small portion of India's overall population.

Any person who adheres to Hinduism in all of its architectural and philosophical manifestations is a Hindu. The
Hindu faith has undergone various stages in its 5,000-year history. There have occasionally been expansions,
ground-breaking ideas, and practices that are occasionally completely at odds with one another. The
distinguishing feature of Hinduism has been its ability to accept and acclimate all perspectives, views,
dissentions, practices, and callings while maintaining its fundamental unity.

In our nation's recent history, there has been a flurry of activity on the front of individual law.

The Hindu Marriage Act, 1954 and the Special Marriage Act, 1954 are both undergoing revisions that aim to
include "lost" dissolution of marriage as a basis for separation. There are also agreements about the division of
marital property and the postponement of the legal cooling off period before a marriage may be legally
dissolved. Individual legislation changes are unquestionably necessary considering that the majority of our laws
are outdated. The legislation governing guardianship was created under the British Empire. According to the
rules, the father is the minor's natural guardian, and following his death, the mother will take over that role. No
one else is permitted to serve in that capacity. It was agreed that the courts served as the state's " parens patriae"
and had the primary care of the minor children. The Hindu Minority and Guardianship Act of 1956 defined and
revised the Hindu law governing guardianship of minor children.
APPLICATION OF THE ACT :-
In Narayan Laxman Gilankar vs. U.K. Kaushik, it was argued that by seeing the precursor to this
demonstration, one can instantly see how the Act modifies and institutionalizes various legal provisions
pertaining to Hindu minorities and guardianship. It doesn't imply that the topic will be covered in its entirety.
The Hindu Code Bill, which was approved and received presidential approval on August 25, 1956, has three
parts, the third of which is the Hindu Minority and Guardianship Act, 1956. With the exception of Jammu and
Kashmir, this rally encompasses the entirety of India. Dadra and Nagar and Pondicherry have been contacted.
According to ancient scriptures and the Hindu law that was governed during the British era, the law of
guardianship is based on the inability of children, insane persons, and idiots to monitor their desires. Similar to
this, the person who provides necessities to the minor must request the minor's bequest for reimbursement
under the Contract Act.

The Guardianship and Wards Act, 1890, and the Hindu Minority and Guardianship Act, 1956, both include the
legal provisions pertaining to guardianship and minorities. The Guardians and Wards Act is supplemented by
the provisions of this demonstration. This is thus because the 1956 demonstration did not codify the whole
legislation pertaining to Hindu minorities and guardianship. The demonstration nonetheless unifies the
arrangement for who is eligible to serve as both natural and testamentary guardians and presents certain
limitations on the powers of such guardian with regard to the removal and the board of a minor's property.

 Section 10- Grounds of Judicial Separation, Hindu Marriage Act, 1955.

 Section 23- Judicial Seperation, Special Marriage Act, 1954
 Narayan Laxman Gilankar v. U.K. Kaushik, (1994) 1 HLR 492 (Bom.)
 On 5th August 2019, the Government of India revoked the special status, or limited autonomy, granted under
Article 370 of the Indian Constitution to Jammu and Kashmir. Therefore, this act now extends to whole of India.
  Section 1- The Hindu Minority and Guardianship Act, 1956.

GUARDIANSHIP OF THE PERSON:-

The Hindu Minority and Guardianship Act, 1956, Section 4 clearly defines the terms "minor" and "guardian" in
clauses (a) and (b), respectively. However, when discussing "natural guardianship," Section 4(c) states that
anything mentioned in Section 6 regarding guardians is the definition of "natural guardian." In general, there
are three different kinds of guardianship: natural guardianship, testamentary guardianship, and court-appointed
guardians. In addition to these, Hindu law recognizes two further categories of guardians: de facto guardians
and guardians by affinity.

1) NATURAL GUARDIANSHIP:-

When we look at Section 6, it states that a natural guardian is someone who acquires that role via a natural
connection to the child. A child's natural guardian provides care for them, and if they don't, they need a court
order to do so. The natural guardians of a minor are the father and mother. The father has preference over the
mother in terms of serving as a guardian. The mother assumes that role following the death of the father (and
not before).

The mother cannot act as the minor's guardian if the father inadvertently specifies another person in his will as
the guardian. In Narain vs. Sapurna, it was decided that the mother does not acquire the right or is not
considered as a natural guardian if the father declines or becomes unable to function as the guardian throughout
his lifetime due to his actions. Additionally, it was decided in the case of Rajalaxmi vs. Ramachandra that the
mother's remarriage does not prevent her from acting as a natural guardian of her minor children, and that a
woman is the guardian of her illegitimate kid unless the father of the child can be determined.

The validity of Section 6 has also been contested in several situations, such as the Githa Hariharan case. It was
claimed that Section 6(a) breaches Articles 14 and 15 of the Constitution in that it places the mother of the
minor in a lower position solely on the basis of sex as the clause makes her right to be the child's natural
guardian cognizable "after" the father. The court noted that there is no such discrimination in Section 4(b) of
the Hindu Minority and Guardianship Act, 1956, and that the mother is the natural Guardian as specified in
Section 6. Phrase "the father and after him the mother" does indeed imply that the mother becomes the minor's
guardian upon the passing of the father. Even in situations. when the father is unable to act for the child's
welfare due to indifference, negligence, or bodily or mental weakness, the mother might be considered the
child's natural guardian in lieu of the father. In that phrase, the words "after" and "absent" simply mean "in the
absence of" and "where father is alive but is mentally incapable or is indifferent to discharging his obligations,"
respectively.

 Section 68 – Indian Contract Act.

 Suryaprakasham v. Gangaraju, AIR 1956 AP 33.
  Dakshinamurthy, In re, (1969) 1 MLJ 345, See also Yeshoda v. Sindhura, (2002) 1 HLR 641

D. Rajaiah v. Dhanapal, AIR 1986 Mad 99

The duties of natural guardians include providing for their minor children by granting them a few privileges,
including:

i) Right to custody,
ii) Right to determine the religion of the children,
iii) right to education,
iv) right to control movement, and
v) Right to reasonable chastisement. These rights are presented on the guardian in light of a legitimate
concern for the minor children and hence every one of these rights is subject to the welfare of the
children.

2) TESTAMENTARY GUARDIANSHIP-

Before the Hindu Minority and Guardianship Act of 1956 was passed, a Hindu father could not select a
guardian for his minor kid and might thus deny even the mother guardianship. The mother lacked the authority
to choose a testamentary guardianship in the event of the father's passing. A will has the power to name a
testamentary guardian. According to Section 9 of the 1956 Hindu Minority and Guardianship Act, the situation
has now altered.

The testamentary guardian must also receive the guardianship appropriation, which may be expressed or
implied. While a testamentary guardian is allowed to terminate the agreement, once the guardianship is granted,
the guardian is not permitted to do so without the court's permission.

The testamentary guardian has all of the powers, rights, and obligations of the natural guardian, provided that
they are not restricted by the will; however, his obligation to provide support is not private and only exists to
the extent that there are minors' properties. For instance, under the previous legislation, a testamentary guardian
might, if warranted by the circumstances, sell or mortgage a sizable piece of the minor's real estate, but under
the new law, such a transaction would require the court's approval before being entered into.

3) GUARDIANS APPOINTED BY THE COURT

The Guardians and Wards Act of 1890 gives the court the authority to choose a guardian for young children.
The High Court also has the authority to choose guardianship, however this power is rarely used. It has been
decided that the District Court had jurisdiction under the Guardianship and Wards Act, 1890, in instances like
Babu Ram vs. Keshavachand and Bimla vs. Subhash. Anytime it deems it essential for the child's care, the
court may proclaim or appoint anybody as the guardian. Similar to this, the court ruled in Mohini vs. Virendra
that the welfare of the minor must always be taken into account when appointing or declaring someone as the
Guardian of a minor. The wellbeing and interest of a child are prioritized over the convenience or pressure of
the parents in custody disputes, it was also decided in one of the cases.
  Family Law- Paras Diwan, pg. 260.
 Hindu Law- B.M. Gandhi, pg. 504.
 AIR 1978 P & H 124. 28 1992 Pat 96.
 Section 17- Guardian and Wards Act, 1890

GUARDIANSHIP OF MINOR’S PROPERTY:-

The sole guardian of a minor's property is the child's natural guardian, unless where the minor has an undivided
stake in joint family property, in which case the minor's legal guardian is also the guardian. It is possible for
minors to choose to have alienations of their real estate annulled without the court's approval. A transferee of
the minor can also prevent an erroneous alienation made by the guardian, as was determined in Amrith v.
Sornam. Also, no court approval is required when the guardian purchases property for the benefit of the child.

In a recent ruling, the Supreme Court clarified the law of alienation. "Whether a transferee from a minor after
he attained majority, can file a suit to set aside the alienation made by the minor's guardian or the said right is
one to be exercised only by the minor" was the question that needed to be answered. Given the circumstances
of the case, the Supreme Court bench determined that the person making the claim via a minor must file a
lawsuit within three years of the minor's passing in order to have the defendant form a sale agreement.

GUARDIAN BY AFFINITY: -
The guardian of a minor widow was referred to as a guardian by affinity until 1956. According to Mayne, a
minor widow's guardians should be her husband's relatives, if any, to the degree of sapinda, rather than her
father and his family. The idea of Guardianship by affinity was abolished in Paras Ram vs. State. if the closest
sapinda of the husband automatically becomes a guardian of the minor widow upon the death of her spouse or
if he is preferentially entitled as such was the subject that was brought before the court. According to the
Madras and Nagpur bench, under Section 13 of the Hindu Minority and Guardianship Act, the child's wellbeing
is the only consideration.

Considering that The second consideration is that father-in-law have the right to be named as guardians under
Hindu law. Therefore, it would be preferable if the minor widow's guardianship, both of her person and The
parents receive property.

DE-FACTO GUARDIANSHIP :-
Before the Hindu Minority and Guardianship Act was passed, a de facto guardian had the same authority to
alienate his ward's property as a natural guardian.

But after 1956, it was decided that no one could dispose of or deal with the property of a Hindu minor, whether
it be immovable or mobile, only because they were the minor's de facto guardian.
  Kumar v. Chetna, AIR 2001 SC 2179
 The decision was made keeping in view Article 60 of the Limitation Act, 1963.
 According to Hindu law, when two persons offer Pinda to the same ancestor, they are Sapindas to each other.
Section 3(f) of Hindu Marriage Act, 1955 defines Sapinda Relationship
 Hindu law and usage, 11th ed. 288.

WELFARE OF THE CHILD TO BE PARAMOUNT CONSIDERATION :-

The welfare of the minor will be the first priority, as stated in Section 13 of the Act, when appointing someone
as the guardian of a Hindu minor. The term "welfare" should be understood broadly in this section. The term
includes not only the minor's worldly and practical wealth, but also every aspect of the minor's good and
religious wellbeing, education, and infancy. The court may consider a number of factors when deciding what is
best for the minor's welfare, including the minor's ages, gender, and religion; the guardian's character and
authority; his proximity to the minor's family; the wishes of the minor's deceased parent, if any; and the minor's
past and present relationships with the proposed guardian. The child's welfare is the only priority under this
provision. Guardianship is a duty rather than a privilege. Today, the wellbeing of the kid is seen as holy and
sacrosanct; parental interests are no longer seen as sacred or sacred.

CRITICAL ANALYSIS OF THIS ACT

According to Section 7 of this demonstration, the father initially has custody of an adopted minor kid following
receipt, and afterwards the mother. The focus of this presentation is on adopting sons, with the underlying
supposition that couples only adopt sons when they are unable to produce them naturally. This limitation
highlights the fundamental flaw in male centric thinking.

A married underage girl's husband is her guardian, according to Section 6 of the legislation. This is another
example of a male-centric society in which the spouse is seen as the wife's protector, which would often justify
her independence and uniqueness. Regrettably, patriarchal thought systems will generally be reflected in law
since male domination of society is so deeply ingrained in all aspects of society.

 Section 13- Welfare of minor to be paramount consideration, Hindu Minority and Guardianship Act, 1956.
  Hanuman Prasad v. Babooee, (1856) 6 MIA 393 ; Kasturi v. Sabinivas, AIR 1970 AP 440 (alienation voidable like
that made by a legal guardian); Panchu v. Hrishikesh, AIR 1960 Cal 446 (alienation by a de facto guardian for
legal necessity of minor cannot be impeached).
 Section 11, Hindu Minority and Guardianship Act, 1956.
 Sunil Kumar v. Sati Rani, AIR 1969 Cal 573 4545 Raj Kumar Mahant v. Indra Kumari, 1972 MPLJ 725.

CONCLUSION
Any guardian who adopts a kid establishes a relationship between the child and the guardian, which becomes a
matter of individual law and, for minors, is crucial to their access to property and possessions. As a result, this
demonstration is produced, which exposes to us the rights and powers of guardians.

In addition, the cat has some male-centric beliefs that should be changed in light of a valid concern for sexual
orientation compatibility. There should be more effort done in relation to anything comparable, despite the fact
that many judgements have been made that this demonstration was an example of the standards at the time.

BIBLIOGRAPHY

1. Research Papers
 Guardianship and the Hindu Minority and Guardianship Act, 1956" by Dr. S. Ravichandran in
the Indian Journal of Family Law.
 Guardianship and the Management of Minor's Property: Legal Challenges" by R. N. Trivedi in
the Journal of Legal Studies and Research.
 Safeguarding the Financial Interests of Minors: A Comparative Study" by A. Sharma in the
Indian Journal of Family Law.
 Property Transactions and Guardianship: A Legal Perspective" by S. Menon in the Indian
Journal of Property Law.
 Family Disputes and Guardianship: A Legal Perspective" by S. K. Singh in the Indian Journal of
Family Law.
 Changing Family Dynamics and Guardianship Laws" by A. P. Singh in the Journal of
Comparative Family Law.
2. Books
 "Hindu Minority and Guardianship Act, 1956" -.
 "Mayne's Hindu Law and Usage" by Dinshah Fardunji Mulla

3. Legal Journals and Magazines