Hindu Minority and Guardianship Act

Course-LL.B-I

Subject-Family Law

Unit-II

1

HINDU MINONORITY AND GUARDIANSHIP ACT, 1956HINDU MINONORITY AND GUARDIANSHIP ACT, 1956Guardianship Under Hindu Law

The Dharmashastras did not deal with the law of guardianship. During the British regime the law of guardianship was developed by the courts. It came to be established that the father is the natural guardian of the children and after his death, mother is the natural guardian of the children and none else can be the natural guardian of minor children.

Testamentary guardians were also introduced in Hindu law:

It was also accepted that the supreme guardianship of the minor children vested in the State as parens patrie and was exercised by the courts.

In the modern law of most countries the childhood is accorded protection in multifarious ways. Guardian is "a person having the care of the person of the minor or of his property or both person and property." It may be emphasized that in the modern law guardians exist essentially for the protection and care of the child and to look after its welfare. This is expressed by saying that welfare of the child is paramount consideration. Welfare includes both physical and moral well-being

• The Hindu law of guardianship of minor children has been codified and reformed by the Hindu Minority and Guardianship Act, 1956.

• The Act is principally intended to declare as to who are the persons entitled to act as the natural guardians of a Hindu minor in respect of the person and property of the minor and to impose certain restrictions on the powers of such guardians. It is, therefore, both a codifying and a supplement enactment and its provision must be read in the context of the law laid down in the Guardians and Wards Act, 1890

• The subject may be discussed under the following heads :

• (i) Guardianship of person of minors,• (ii) Guardianship of the property of minors, • (iii) De facto guardians, and • (iv) Guardians by affinity.

• Hindu Minority and Guardianship Act, 1956 does not codify the entire law of guardianship applicable to Hindus but amends and codifies only certain parts of law relating to minority and guardianship among Hindus. The provisions are to be read supplemental to the Guardians and Wards Act. The Act does not apply to minors with court guardians. Provisions of the Act are supplementary to that of Guardianship and Wards Act.

• Section 3:------------ Application of Act• (1) This Act applies,-

• (a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

• (b) to any person who is a Buddhist, Jaina or Sikh by religion and

• (c) to any person domiciled in the territories to which this Act extends who is not a Muslim, Christian , Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

• Section 3:------------ Application of Act• Explanation: The following persons are Hindus, Buddhists,

Jainas or Sikhs by religion, as the case may be:-

• (i)any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

• (ii) any child, legitimate, or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged ; and

• (iii) any persons who is a convert or re-convert to the Hindu, Buddhists, Jaina or Sikh religion.

• (2) Notwithstanding any thing contained in sub section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

• (3) The expression ‘ Hindu’ in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

• Section 4 :-------------- Definitions• In this Act-• (a) ‘minor’ means a person who has not completed the

age of eighteen years• r/w• THE INDIAN MAJORITY ACT, 1875 • Section 3.:------ Age of majority of persons

domiciled in India. -Subject as aforesaid, every minor of whose person or property, or both, a guardian, other than a guardian for a suit within the meaning of [Order XXXIIof the Code of Civil Procedure], has been or shall be appointed or declared by any Court as Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, notwithstanding anything contained in the Indian Succession Act or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years and not before.

• Section 4 :-------------- Definitions• (b) ‘guardian’ means a person having the care of

the person of a minor or of his property, or of both his person and property and includes-

• (i) a natural guardian, (Section 6,7,8)• (ii) a guardian appointed by the will of the minor's

father or mother ,i.e. testamentary guardian (Section .9)

• (iii) a guardian appointed or declared by a court, and (Guardians and Wards Act, 1890 )

• (iv) a person empowered to act as such by or under any enactment relating to any Court of Wards;

• (c) “natural guardians” means any of the guardian mentioned in section 6.and

• De facto guardian under the old law

• Section 6:-----------Natural guardians of a Hindu minor

• The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are-

• (a) in the case of a boy or unmarried girl- the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

• (b) in the case of illegitimate boy or an illegitimate unmarried girl- the mother, and after her, the father;

• (c) in the case of married girl -the husband:

• PROVIDED that no persons shall be entitled to act as the natural guardian of a minor under the provisions of this section-

• (a) If he has ceased to be a Hindu ,or• (b) If he has completely and finally renounced the world becoming a hermit

(vanaprastha) or an ascetic (yati or sanyasi)

• Explanation In this section, the expression “father” and “mother” do not include a step- father and a step-mother.

• Even if the father neglects to look after, or to discharge his obligations towards, the minor, or refuses to act natural guardian, the mother cannot be the natural guardian of the minor so long as the father is alive .-Sundara Murthy V. Shanmuga Nadar AIR 1980 Mad 207 and Ramachandra V.Annapoorni AIR 1964 Ker 269.

• Merely because the father is not residing with the family, he does not cease to be the natural guardian. The natural guardian ceases to be so only under the two ground mentioned in the proviso to the section.- Michayel Nadar v. Sreedharan Babu 1992 (2) HLR 17 (Ker).

• In such an event, the only course open to the mother is to take legal proceedings and obtain appropriate orders of the court to act as the guardian of the minor.- Narain Singh v. Sapurna kher AIR 1968 Pat.318.

• In a case where the mother and father had fallen out and were living separately and the minor daughter was under the care and protection of her mother (though her father was alive) the Supreme Court held that the mother should be considered as the natural guardian of the minor girl.-Jijabhai v. Pathankhan AIR 1971 SC 315.

• Section 7…… Natural guardianship of adopted son

• The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.

• From the moment the minor is adopted by a person it is the adoptive father that becomes the natural guardian and the natural parents cease to be the natural guardians.

• The comments under s.6 would equally apply to the adoptive parents as natural guardians of the minor. In the case of death of the adoptive parents, though the natural parents are alive, necessary proceedings have to be taken under the Guardians and Wards Act, 1890 for the appointment of the guardian.

• 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(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.

• Section 8…….. Powers of natural guardian • (1) The natural guardian of a Hindu minor has power, subject to the

provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.

• (2) The natural guardian shall not, without the previous permission of the court-

• (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or

• (b) 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.

• (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section(2), is viodable at the instance of the minor or any person claiming under him.

• (4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.

• (5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the 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, and in particular-

• (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof;

• (b) the court shall observe the procedure and have the powers specified in sub-sections (2),(3) and (4) of section 31 of that Act; and

• (c) 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, within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate 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 situate.

•

• Section 9….Testamentary guardians and their powers

• • (1) A Hindu father entitled to act as the natural guardian of his minor

legitimate children may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both.

• (2) An appointment made under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.

• (3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children and Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both.

• (4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property or in respect of both.

• (5) The guardian so appointed by will has the right to act as minor's guardian after the death of the minor's father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.

• (6) The right of the guardian so appointed by will shall, where the minor is girl, cease on her marriage.

• The father may appoint a testamentary guardian but if mother survives him, his testamentary appointment will be ineffective and the mother will be the natural guardian. If mother appoints testamentary guardian, her appointee will become the testamentary guardian and father's appointment will continue to be ineffective. If mother does not appoint, father's appointee will become the guardian.

• It seems that a Hindu father cannot appoint a guardian. of his minor illegitimate children even when he is entitled to act as their natural. guardian, as S. 9(1) confers testamentary power on him in respect of legitimate children. In respect of illegitimate children, Section 9(4) confers such power on the mother alone.

• The guardian of a minor girl will cease to be the guardian of her person on her marriage, and the guardianship cannot revive even if she becomes a widow while a minor. It is necessary for the testamentary guardian to accept 'the guardianship

• Section 10….Incapacity of minor to act as guardian of property.

• A minor shall be incompetent to act as guardian of the property of any minor.

• Section 11…..De facto guardian not to deal with minor's property

• After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.

• • During the lifetime of a natural or testamentary guardian or a

guardian appointed by the court, any person who gifts the property to the minor, cannot appoint some other person in the gift deed, as the guardian. It would be of no avail and such person can not act as guardian of the property gifted. But any person as a next friend of the minor can file a suit on behalf of the minor.-Girdhari v. Anand AIR 1967 Pat 8 and Danial v. Raghu AIR 1967 Ori 68.

• Section 12…….Guardian not to be appointed for minor's undivided interest in joint family property

• Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest:

• PROVIDED that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.

• Section 13……Welfare of minor to be paramount consideration

• (1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

• (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

• What constitutes the welfare of the minor has to be determined by the court after a careful consideration of the facts and circumstances of the case, as the Act does not lay down any tests or guidelines to determine what is for the welfare of the minor.

• The court has to take into account all relevant facts on record and to decide whether father or mother should be appointed as a guardian of the minor. While arriving at this conclusion, the welfare of the minor alone will be supreme consideration. It is not necessary for the court to appoint father alone as a guardian in preference to mother under s.6. That section is further controlled by s.13 (2) which gives ample power and jurisdiction to the court not to appoint a person as a guardian if it is the opinion of the court that such appointment was not in the interest of the minor. The expression "welfare" is wide enough to include material as well as spiritual welfare. The court has to consider as to what order would be best for securing the welfare and happiness of the minors. The welfare of the children cannot at the same time be confined to either physical comfort or the comfort that money can secure. The children have to be properly brought up, educated in healthy surroundings in order to enable them to have the benefits of educations and also to secure a footing in life later on. Where mother of minor children aged above 5 years, was unable to maintain herself or her children while father was earning substantial amount and as a position to look after the children and educate them, held, the welfare of the children compels that they should be allowed to remain with the father, rather than with the mother

• Guardians Appointed by the Court

• The courts are empowered to appoint guardians under the Guardians and Wards Act, 1890. The High Courts also have inherent jurisdiction to appoint guardians but this power is exercised sparingly. The Hindu Minority and Guardianship Act is supplementary to and not in derogation to Guardians and Wards Act. Under the Guardians and Wards Act, 1890, the jurisdiction is conferred on the District Court: The District Court may appoint or declare any person as the guardian whenever it considers it necessary in the welfare of the child.' In appointing ,,a" guardian, the court takes into consideration various factors, including the age, sex, wishes of the parents and the personal law of the child. The welfare of the children is of paramount consideration.

• The District Court has the power to appoint or declare a guardian in respect of the person as well as separate property of the minor. The chartered High Courts have inherent jurisdiction to appoint guardians of the- person as well as the property of minor children. This power extends to the undivided interest of a coparcener

• The guardian appointed by the court is known as certificated guardian. Powers of Certificated guardians. Powers of certificated guardians are controlled by the Guardians and Wards Act, 1890. There are a very few acts which he can perform without the prior permission of the court. In the ultimate analysis his powers are co-extensive with the powers of the sovereign and he may do all those things (though with the permission of the court) which the sovereign has power to do. A certificated guardian from the date of his appointment is under the supervision, guidance and control of the court.

• De Facto Guardian

• A de facto guardian is a person who takes continuous interest in the welfare of the minor's person or in the management and administration of his property without any authority of law. Hindu jurisprudence has all along recognized the principle that if liability is incurred by one on behalf of another in a case where it is justified, then the person, on whose behalf the liability is incurred or, at least, his property, is liable, notwithstanding the fact that no authorization was made for incurring the liability.‘

• A mere intermeddler is not a de facto guardian. An isolated or fugitive act of a person in regard to child's property does not make him a de facto guardian.

• To make a person a de facto guardian some continuous course of conduct is necessary on his part. In other words, a de facto guardian is a person who is not a legal guardian, who has no authority in law to act as such but nonetheless he himself has assumed, the management of the property of the child as though he were a guardian.

• De facto guardianship is a concept where past acts result in present status. The term literally means 'from that which has been done.'

• MUSLIM LAW• There are two types of guardianship over a

minor: - 1. Wilayah or guardianship of the property and education and marriage of the ward 2. Hizanah or guardianship over the rearing and bringing up of the child.

• Guardians are appointed in the following manner: - 1. by natural right, or 2. by testament, or 3. by appointment by a judge

• Guardianship for purposes of marriage• Guardianship extends to the father and grandfather and other relations in

their absence. But when a minor is given in marriage by a guardian, other than the father or the grandfather, he or she can, in exercise of what is called the option of puberty, refuse to be bound by the marriage and ask the court to annul the marriage.

• Other male relations entitled to hizanat are:

1. nearest paternal grandfather

2. full brother

3. consanguine brother

4. full brother’s son

5. consanguine brother’s father

6. full brother of the father

7. consanguine brother of the father

8. father’s full brother’s son

9. father’s consanguine brother’s son

• Among the Shias hizanat belongs to the grandfather in the absence of the father.

• When Right if Hizanat may be lost by Hazina or Hazin. All the schools of Muslim law agree that a hazina should be:

i) of sound mind

ii) good moral character

iii) living at such a place where there is no risk, morally or physically to the child

iv) of such a age which would qualify her to bestow on the child the care it may need (not applicable to the mother)

• The Shia law is very categorical and lays down that a person who has ceased to be muslim is not entitled to the cutody of the child. Also hazina who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of hizanat. The cardinal principal of hizanat in muslim law is the “welfare of the child”.

• Guardianship for purposes of management and preservation of property

• The guardianship of a minor for the management and preservation of his property devolves

• (1) first on his or her father, • (2) then on the father's executor,• (3) next on the paternal grandfather,• (4) then on his executor, • (5) then on the executors of such executors,• (6) finally on the ruling power or his representative -- a

Qazi or judge.• Ultimately it rests upon the Qazi to appoint a guardian for

an infant's property when there is no near guardian In case of default of the mother as well as the paternal kindred of a minor, the minor's maternal relations (according to proximity) are entitled to guardianship for the purposes of education and marriage, and not management of the ward's property, unless appointed in the late owner's Will or by the Qazi.

• Guardianship (custody) for purposes of bringing up children (education etc.)

• The mother is the most entitled to the custody (Hizanah) of her infant child during marriage and after separation from her husband, unless

• she: 1) has become an apostate, or• 2) is wicked, or • 3) is unworthy to be trusted • Following females are entitled to custody in the absence of mother:

1. maternal grandmother

2. maternal great grandmother

3. maternal aunt and great aunt

4. full sister

5. uterine sister

6. consanguine sister

7. paternal aunt

• The woman's custody of a boy terminates when he is 7-years old, whereas the custody of a girl terminates when she reaches puberty.

• The man's custody continues until puberty for a boy, and not just until puberty for a girl, but until she can safely be left to herself and trusted to take care of herself.

• It is important to always bear in mind that under Muslim Law, personal emancipation does not necessarily lead to an emancipation of property.

• As a matter of fact, the Islamic system recognizes two distinct periods of majority:

• 1) One has reference to the emancipation of the person of the minors from the patria protestas (bulughyet),

• 2) The other to the assumption by them of the management and direction of their property (rushd).

• "Puberty. Arabic bulugh, bulughiyat. The puberty of a boy is established as soon as the usual signs of manhood are known to exist; but if none of these signs exist, his puberty is not clearly established until he has completed his eighteenth year. The puberty of a girl is established in the same way; but if the usual signs of womanhood are known not to exist, her puberty is not established until her seventeenth year has been completed.

• When a boy or girl approaches the age of puberty and they declare themselves adults, their declaration must be credited, and they then become subject to all the laws affecting adults, and must observe all the ordinances of the Muslim faith.

• Syed Ameer Ali says: "The validity of marriages contracted for minors by any guardian other than the father or the grandfather, is not established until ratified by the parties on arriving at puberty. Such ratification in the case of males must be express, and in the case of females, may be either express or implied on arriving at either ratifying the contract entered into during their minority or of canceling it.

• According to the Sunnis, in order to effect a dissolution of the matrimonial tie, in exercise of the right of option reserved to the parties, it is necessary that there should be a decree of the judge; and until such decree is made, the marriage remains intact. If before a decree has been obtained one of the parties should die, the survivor would be entitled to inherit from the deceased.

• The Shi'ahs differ materially from the Sunnis on this. They hold that a marriage contracted on behalf of minors by any unauthorized person (fazuli), i.e. any person other than a father or a grandfather, remains in absolute suspension or abeyance until assented to by the parties on arriving at puberty; that, in fact, no legal effect arises from it until such ratification, and if in the interval previous to ratification, one of the parties should die, the contract would fall to the ground and there would be no right of inheritance in the survivor." (Personal Law of the Mahommedans,)."

References

• Bare Act of Hindu Marriage Act-Universal Law Publishing Co. Pvt. Ltd.

• Bare Act of Hindu adoption and guardianship act-Universal Law Publishing Co. Pvt. Ltd.

• Bare Act of Succession Act -Universal Law Publishing Co. Pvt. Ltd.

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