Under the provisions of Hindu law, guardians can be
of the following kinds:
(1)
Natural guardians
(2)
Testamentary guardians
(3)
Guardians appointed or declared
by the court
Natural
guardians
Section 6 of the
Hindu Minority and Guardianship Act provides who the natural guardians are.
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 –
in the case of a
boy or an 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;
in case of an
illegitimate boy or an illegitimate unmarried girl-the mother, and after her,
the father;
in the case of a
married girl-the husband:
Provided that no
person shall be entitled to act as the natural guardian of a minor under the
provisions of this section-
if he has ceased
to be a Hindu, or
if he has
completely and finally renounced the world by becoming a hermit (vanaprastha)
or an ascetic (yati or sanyasi).
Father: father
is the natural guardian of all of his legitimate children and he is the natural
guardian of his illegitimate children after the mother.
Mother: mother
is the natural guardian of her illegitimate children and of her minor
legitimate children after the father.
In Geetha
Hariharan v Reserve Bank of India[1],
the validity of Section 6 was challenged. The court observed that “the word
‘after’ did not necessarily mean after the death of the father, on the
contrary, it [means] ‘in the absence of’ be it temporary or otherwise or total
apathy of the father towards the child or even inability of the father by
reason of ailment or otherwise.”
Husband: husband
is the natural guardian of his minor wife.
Rights of a
natural guardian
A 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 control the education
(d)
Right to control movement
(e)
Right to reasonable
chastisement
Natural
guardian’s power over minor’s property
Section 8 lays
down that a natural guardian can do all acts that are necessary or reasonable
and proper for the benefit of the minor or for the realization, protection or
benefit of minor’s estate.
Section 8 states
that: (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.
Testamentary
guardians
Section 9
provides that:
(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.
Section 9(5) of
the Hindu Minority and Guardianship Act lays down that 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 appointment
of a guardian by the court is regulated by the Guardians and Wards Act, 1890. The
district court has the power to appoint or declare a guardian in respect of
person or separate property of the minor. But it has no jurisdiction to appoint
a guardian of minor’s undivided interest in the Mitakshara joint family
property[2].
However, if all coparceners are minors, the
court may appoint a guardian in respect of entire joint family property.
Guardians ad litem are sometimes appointed in probate matters to
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