Analysis of The Changing Trend in Guardianship Under The Hindu Law

A guardian is a person who is appointed to look after another person or his property. He or she assumes the care and protection of the person for whom he/she is appointed the guardian.

The guardian takes all legal decisions on behalf of the person and the property of the ward. The occasion for taking care of another person may be his minority that is, a person who has not completed 18 years of age. It can also refer to guardianship of a person who because of physical and mental deficiencies is unable to take care of himself or his property. From early times, the condition of minority has been the ground for appointment of guardians in all societies. This is due to the fact that a minor person is considered unfit to take decisions for himself, which can be binding on him as regards others. Therefore, a minor person is treated in law as incompetent to enter into contract with a person who is an adult. In all matters therefore, a minor has also been considered unfit to represent himself except through his guardian. A guardian takes decision on behalf of the minor for protecting the interests of the minor and his property.

Due to the concept of joint families where a child without parents is taken care of by the head of the joint family therefore no specific laws were required regarding the guardianship but in the modern times the concept of guardianship has changed from the paternal power to the idea of protection. It was during the British regime that the Law of Guardianship was finally developed and the Hindu Minority and Guardianship Act, 1956 codifies the laws regarding minority and guardianship with the welfare of the child at the core. The Hindu Minority and Guardianship Act was established in 1956 as part of the Hindu Code Bills, the other three important acts that were also created during this time are the Hindu Marriage Act (1955), the Hindu Succession Act (1956), and the Hindu Adoptions and Maintenance Act (1956). All of these acts were put forth under the leadership of Jawaharlal Nehru who wished to modernize the then current Hindu legal tradition. The Hindu Minority and Guardianship Act of 1956 was meant to enhance the Guardians and Wards Act of 1890, not serve as its replacement. This act specifically serves to define guardianship relationships between adults and minors, as well as between people of all ages and their respective property.

The Hindu Minority and Guardianship Act delineates the policies regarding minorities according to Indian Hindu personal law. It came to be established after this that the father of a child is the natural guardian of the child and after his death, the mother becomes the natural guardian of the minor child or the children. It was also during this time that Testamentary guardianship was for the first time introduced in Hindu Law. It was so accepted and exercised by the courts that the supreme guardianship of the minor children is vested in the State as parens patriae. Latin, Parent of the country.] A doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf.

Guardianship Under the Hindu Law

The Hindu law of guardianship of minor children has been codified and reformed by the Hindu Minority and Guardianship Act, 1956. The Act is an extension of the Guardians and Wards Act, 1890 but not a substitution. The primary object behind the central legislation is to define the relationship between the guardian and the minor and to standardize the law guardianship under Hindu law. This Act extends to all of India with the exception of the state of Jammu and Kashmir. Any former law that is inconsistent with this law is declared legally void. This law supersedes all other relevant laws. This Act applies to all Hindus, meaning those who belong to the Hindu religion or any of its developmental forms. Both legitimate and illegitimate minors who have at least one parent that meets the stipulations outlined above fall under the jurisdiction of this Act. According to the Act, the person who has not attained the age of eighteen years is a ‘minor’.

Classical Hindu law did not contain principles dealing with guardianship and custody of children. In the Joint Hindu Family, the Karta was responsible for the overall control of all dependents and management of their property, and therefore specific legal rules dealing with guardianship and custody were not thought to be necessary. However, in modern statutory Hindu law, the Hindu Minority and Guardianship Act, 1956 provides that the father is the natural guardian of a minor, and after him, it is the mother. Section 6(a) of the HMGA provides that: In case of a minor boy or unmarried minor girl, the natural guardian is the father, and after him, the mother; and that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

The Guardians and Wards Act, 1890 is a secular law regulating questions of guardianship and custody for all children in India, whereas the Hindu Minority and Guardianship Act, 1956 codifies Hindu law on custody and guardianship. The HMGA and the personal laws act in supplement to the GWA by laying down the substantive law with respect to guardianship and custody, whereas the GWA lays down the procedure for applying to courts to appoint a guardian for a minor.

The subject may be discussed under the following heads: (i) Guardianship of person of minors, (ii) Guardianship of the property of minors, and (iii) De facto guardians, and (iv) guardians by affinity:

Minor Children – Under Sec. 4(b), a minor is that person who has not yet attained or reached the age of 18 years or someone who requires protection, for eg. a child who is not physically and intellectually perfect and also doesn’t have the understanding of the daily functioning of the world. In the concept under the present law, the welfare of the child amounts to both physical as well as moral well being of the child and thus the guardians exist essentially to satisfy these needs of the child. Guardian is one who has the care of either the person or his/her property or both of person and property, In modern law guardians are essentially for the protection and care of the child and to look after its both physical and moral welfare. i.e. the welfare of the child is of paramount consideration. Guardians may be of the following types:

1. Natural guardians
2. Testamentary guardians
3. Guardians appointed or declared by the court.

There are two other types of guardians, existing under Hindu law, de facto guardians, and guardians by affinity.

Natural Guardians: under the Hindu law, there are only three types of natural guardians. They are the father, the mother and the husband.

The Father - Section 19 of the Guardians and Wards Act, 1890 states that the "Father is the natural guardian of his minor legitimate children, sons and daughters." It also states that the father cannot be deprived of this right until and unless he is declared unfit for the same. Under Sec. 13 of the Hindu Minority and Guardianship Act which lays down that the welfare and well being of the minor is of utmost importance, whereas the father’s right of guardianship comes on a subordinate level. It is so stated in the act that the position of the adopted children is at par with that of the natural born child.

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 as stated in the case of Sundara Murthy v. Shanmuga Nadar[1] and Ramachandra v. Annapoorni[2].

The Mother – the mother is the natural guardian of her minor legitimate child/children only if the father is dead or otherwise declared unfit, but she is the natural guardian of her minor illegitimate child even if the father is alive and perfectly fit. The position of a mother’s guardianship of her adoptive child is the same as her natural born child/children. Provision to Section 6, clause (a) of the Hindu Minority and Guardianship Act lays down that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Thus, mother is entitled to the custody of the child below five years, unless the welfare of the minor requires otherwise.

In the case of Gita Hariharan v. Reserve Bank of India[3], and Vandana Shiva v. Jayanta Bandhopadhaya[4], the Supreme Court of India held that under certain circumstances even during the time when the father is alive, the mother can act like a natural guardian to the child/children. The term 'after' used in Section 6(a) has been interpreted as 'in absence of' instead 'after the life-time'.

In the Gita Hariharan case, the constitutional validity of Section 6(a) was challenged as violating the guarantee of equality of sexes under Article 14 of the Constitution of India. The Supreme Court considered the import of the word after and examined whether, as per the scheme of the statute, the mother was disentitled from being a natural guardian during the lifetime of the father. The Court observed that the term after ‘must be interpreted in the light of the principle that the welfare of the minor is the paramount consideration and the constitutional mandate of equality between men and women. The Court held the term after in Section 6(a) should not be interpreted to mean after the lifetime of the father, but rather that it should be taken to mean in the absence of the father. The Court further specified that absence could be understood as temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise. Therefore, in the above specific situations, the mother could be the natural guardian even during the lifetime of the father. Section 13 of the HMGA declares that, in deciding the guardianship of a Hindu minor, the welfare of the minor shall be the paramount consideration and that no person can be appointed as guardian of a Hindu minor if the court is of the opinion that it will not be for the welfare of the minor. The following can be concluded with respect to guardianship under the HMGA. First, the father continues to have a preferential position when it comes to natural guardianship and the mother becomes a natural guardian only in exceptional circumstances, as the Supreme Court explained in Gita Hariharan. Thus, even if a mother has custody of the minor since birth and has been exclusively responsible for the care of the minor, the father can, at any time, claim custody on the basis of his superior guardianship rights. Gita Hariharan, therefore, does not adequately address the original problem in Section 6(a) of the HMGA. Second, all statutory guardianship arrangements are ultimately subject to the principle contained in Section 13 that the welfare of the minor is the paramount consideration.

In response to the stronger guardianship rights of the father, this is the only provision that a mother may use to argue for custody/guardianship in case of a dispute.[5]

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 the Supreme Court held that the mother should be considered as the natural guardian of the minor girl - Jijabhai Vitharao Gajre v. Pathankhan[6].

No person shall be entitled to act as the natural guardian of the minor under the provision that either they have changed their religion or has completely renounced the world. Stepparents are not entitled to guardianship unless it is specified by court. The act does not recognise the principles of joint guardians.

The Husband – the husband is the natural guardian of his minor wife. The courts, to interpret this provision have subjected it to the welfare of a minor wife and it has been held that it is generally not in the welfare of the child that the immature minor wife to live in custody of her husband, it was spoken about in the case of Arumgo v. Viraraghava[7] & Navneet v. Purshotam[8].

The Power of Natural Guardian can be kept under two heading:

Right regarding the body of Minor – Keeping in the view of the importance of above lines the body of minor under Section 8 (i) that the natural guardian can perform all the function regarding care of the minor which are in his/her benefits.

The Power of Natural Guardian Property of Minor – Section 8 of HMGA 1956 describes the powers of a natural guardian as follows:

A guardian can do any act, subject to provisions of this section, that are necessary or are reasonable and proper for the benefit of the minor or the benefit of the minor’s estate. But the guardian, in no case, shall bind the minor by a personal covenant.

The guardian cannot, without prior permission from the court cannot:

Mortgage, charge, or transfer the immovable property of the minor by way of sale, gift, exchange, or otherwise.

Lease the immovable property for a term more than 5 years or where the lease ends one year after the minor attains majority.

Any sale of immovable property in violation of the above two points, is voidable at the insistence of the minor.

The court shall not give permission for sale of immovable property unless it is necessary or clearly in the benefit of the minor.

These powers also include the following:

• Right to custody
• Right to determine the religion of children
• Right to education
• Right to control movement
• Right to reasonable chastisement

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. 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 restrictions, if any, as are specified in this Act and in the will. The right of the guardian so appointed by will shall, where the minor is girl, cease on her marriage.

In the case of Manik Chandra v. Ram Chandra[9] has held that the meaning of "necessity" and "advantage" of a minor are quite wide and the courts have the power to widen their scope as per the case facts before giving the permission.

As per section 12, no guardian can be appointed for the undivided interest in the joint property of the minor. However, the court may appoint a guardian for the complete joint family if required. Minor cannot the guardian of another minor: – As described in Section 10 of the Act that no minor cannot be guardian of another minor. In the case of Ibrahim v. Ibrahim, 1916, it was held the minor can be the guardian of his wife but cannot be guardian of her property.

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.

Testamentary Guardians: This form of Guardianship too came into being during the times of the British. In this particular type of Guardianship it is important and necessary for the testamentary guardian to accept 'the guardianship’. Acceptance may be express or implied. A testamentary guardian may refuse to accept the appointment or may disclaim it, but once he accepts, he cannot refuse to act or resign except with the permission of the court. Under Section 9, Hindu Minority and Guardianship Act, testamentary guardian can be appointed only by a will. 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 was father's decision to appoint testamentary guardian/s. By appointing a testamentary guardian the father could exclude the mother from her natural guardianship of the children after his death. Under the Hindu Minority and Guardianship Act, 1956, testamentary power of appointing a guardian has now been conferred on both parents. 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 per Sec. 9(1) confers testamentary power on him in respect of legitimate children. In respect of illegitimate children, Sec. 9(4) confers such power on the mother alone.

The powers conferred to Testamentary Guardians: According to Sec. 9(5) of the Hindu Minority and Guardianship Act, the testamentary guardian has the power to exercise all the rights of the natural guardian, subject to the restrictions, if any, laid down by the will or by the Act. A testamentary guardian cannot sell minor’s property without prior permission of the court.

Guardians appointed by the Court: The guardian appointed by the court is known as certificated guardian. The appointment of a guardian by the court is regulated by 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 has the power to appoint or declare a guardian in respect of person or separate property of the minor. 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 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 co-parcener. A Hindu father or other senior coparcener of a family has no power to appoint, by will or otherwise , testamentary guardians for the coparcenary property of the minor[10].

Power of that of the Guardians appointed by the Courts / Certified Guardians: their powers 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 for which he shall require the permission of the Hon’ble 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.

Guardianship by Affinity: this is one of those laws which existed in the pre-1956 laws. This form of Guardianship was for a minor widow. In Paras Nath v. State, Allahabad HC 1960[11], held that the father-in-law is the rightful guardian of a minor widow. However, this view has not been adopted by Nagpur HC and Madras HC and held that the welfare of the child is to be considered first before anything else.

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. The term 'de facto guardian' as such is not mentioned in any of the texts, but his existence has never been denied in Hindu law.

In Sriramulu[12], it was stated by J. Kanta, that Hindu law tried to find a solution out of two difficult situations:

When a Hindu child has no legal guardian, there would be no one who would handle and manage his estate in law and thus without a guardian the child would not receive any income for his property and, a person having no title could not be permitted to intermeddle with the child's estate so as to cause loss to him.

The Hindu law found a solution to this problem by according legal status to de facto guardians. 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.'

The de facto guardian was recognised in Hindu law as early as 1856. The Privy Council in Hanuman Pd.[13] said that 'under Hindu law, the right of a bona fide incumbrancer, who has taken a de facto guardian a charge of land, created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not affected by the want of union of the de facto with the de jure title.

Liabilities of a Guardian: since the legal position of a guardian is fiduciary, he is personally liable for breach of trust. He is not entitled to any compensation unless explicitly specified in a will.

A guardian cannot take possession of minor’s properties adversely.

Must manage the affairs prudently.

Liable to render all accounts.

If the minor, after attaining majority, discharges the guardian or reaches a settlement of account, the guardian’s liability comes to an end.

Rights of a Guardian: A guardian has a right to:

Represent the minor in litigations.

Get compensation for legal expenses from minor’s property.

Sue the minor after he attains majority to recover expenses.

Refer matters to arbitration if it is in the best interest of the minor.

Have exclusive possession of minor’s property.

Removal of a Guardian: Court has the power to remove any guardian in accordance to Sec. 13.

Ceases to be a Hindu.

Becomes hermit or ascetic.

Court can remove if it finds that it is not in the best interest of the child.

[1] AIR 1980 Mad 207

[2] AIR 1964 Ker 269

[3] JT 1999 (1) SC 524

[4] AIR 1999 SC 1149

[5] IOSR Journal Of Humanities And Social Science (IOSR-JHSS) Volume 20, Issue 7, Ver. VI (July 2015)

[6] AIR 1971 SC 315

[7] ILR (1901) 24 Mad. 255

[9] AIR 1968 MP 150

[10] Chidambaram Pillai v.Rangaswami AIR 1941 Mad 561

[11] AIR 1960 All 479

[12] Ethilulu v. Pathakal, AIR 1950 Mad. 390, Kusubai v. Chandrabhaga, AIR 1918 Nag. 100

[13] (1856) 6 MIA 393