Hindu Minority & Guardianship | Family Law - CLAT PG PDF Download

Hindu Minority and Guardianship

Historical Background of Guardianship 

• In traditional society, the father was seen as the sole guardian of a child's person and property, with absolute authority over the child's life, including conduct, education, religion, and maintenance.
• Mothers had no authority over children because they lacked independent legal status, their identities merging with their husbands' upon marriage.
• As divorce became possible and mothers gained independent legal existence, courts began to recognize their claims to custody.
• In Hindu law, the principle of guardianship was linked to the king's role as the supreme guardian of all minors in the state.
• Narada  , a sage, was the only one to mention parents as guardians.
• Guardianship law did not develop significantly because, in earlier times, the joint family concept was predominant, with the Karta (head) of the family being the guardian.
• Children were sent to schools or ashrams for education, where their Gurus (teachers) acted as guardians until they completed their education.

Legal Framework of Guardianship in India 

• Guardianship and Wards Act, 1890  : This secular act addresses major issues of guardianship and custody, applicable to all citizens of India irrespective of religion. It lays down rights and obligations of guardians, procedures for their removal and replacement, and remedies for misconduct.
• The Act supplements personal laws governing guardianship issues under every religion. Even if substantive law is personal law, procedural law is as per the Guardians and Wards Act, 1890.
• Section 9  : Jurisdiction for applications regarding guardianship of a minor's person or property is specified, with District Courts having jurisdiction based on the minor's residence or property location.
• Power of the Court to make orders as to guardianship  : The court can appoint or declare a guardian for a minor's person or property if it is satisfied that it is for the minor's welfare. This includes the removal of any guardian not appointed by will or instrument.
• An order appointing or declaring a guardian shall not be made until the powers of the previously appointed guardian have ceased under the Act.

Guardianship under Hindu Law 

• The Dharmashastras did not address guardianship law, which was developed by courts during British rule. It was established that the father is the natural guardian of children, followed by the mother after the father's death.
• Testamentary guardians were introduced, and the State, as parenspatrie, held supreme guardianship over minor children, exercised by the courts. The Hindu Minority and Guardianship Act, 1956, codified and reformed Hindu law on guardianship of minor children.
• Guardianship of the Person:  Under the Hindu Minority and Guardianship Act, 1956, a minor is defined as a person under eighteen years of age, considered physically and intellectually immature, thus requiring protection. Guardians exist primarily for the protection and care of the child, with the child's welfare being the paramount consideration, encompassing both physical and moral well-being.
• Power Over Minor's Property:  Generally, guardians may perform acts in the minor's interest. However, fraudulent, speculative, and unnecessary transactions are excluded. Before the Act, natural and testamentary guardians could alienate the minor's property if deemed necessary by the Supreme Court. Section 8 restricts this power, requiring court permission for alienating the minor's interest in property. Guardians have no rights over a minor's joint family interest.
• Liabilities of a Guardian:  Guardians, being fiduciaries, are personally liable for breach of trust and are not entitled to compensation unless specified in a will. They cannot possess minor's properties adversely, must manage affairs prudently, and are liable to render accounts. The guardian's liability ends if the minor discharges or settles accounts with the guardian after attaining majority.
• Rights of a Guardian:  Guardians have the right to represent the minor in litigations, claim compensation for legal expenses from minor's property, sue the minor after reaching majority to recover expenses, and refer matters to arbitration if in the minor's best interest.
• Removal of a Guardian:  The court can remove any guardian under Section 13 if it is not in the child's best interest. The welfare of the minor is the paramount consideration in appointing or declaring a guardian. No person has the right to guardianship if it is against the minor's interest.
• Statutory Provisions:  The Act applies to all Hindus domiciled in and out of India. It does not derogate the Guardians and Wards Act of 1890 but is an extension of it. The Act applies to the whole Hindu community regardless of the legitimacy of the child. It also includes converts or reconverts to Hinduism.
• Natural Guardians:  Natural guardians include the father, mother, and husband. The father is the natural guardian of minor legitimate children, while the mother is the guardian of minor illegitimate children. The husband is the guardian of his minor wife.
• Rights of Guardian of Person:  Natural guardians have rights to custody, determine children's religion, education, control movement, and reasonable chastisement, subject to the welfare of the minor children. They are also obligated to maintain their minor children.

Testamentary Guardians

Testamentary guardianship among Hindus emerged during the British period when Hindus were given testamentary powers. Initially, it was the father's right to appoint testamentary guardians, allowing him to exclude the mother from her natural guardianship over the children after his death. However, the  Hindu Minority and Guardianship Act, 1956  , expanded this power to both parents.

Key Provisions: 

• Father's Authority:  The father could appoint a testamentary guardian, but if the mother survived him, her status as the natural guardian would override his appointment.
• Mother's Authority:  If the mother appointed a testamentary guardian, her choice would take precedence over the father's appointment. If she did not appoint anyone, the father's nominee would become the guardian.
• Illegitimate Children:  The father could not appoint a guardian for his minor illegitimate children, as the testamentary power for such cases was granted solely to the mother.
• Appointment Process:  Under Section 9 of the Hindu Minority and Guardianship Act, a testamentary guardian can only be appointed through a will. The guardian of a minor girl ceases to be her guardian upon her marriage, and this guardianship does not revive even if she becomes a widow while still a minor.
• Powers of Testamentary Guardians:  According to Section 9(5), a testamentary guardian has powers similar to those of a natural guardian, with the ability to exercise all powers vested in a natural guardian, subject to the restrictions of the Act and the Will. The testamentary guardian's power to deal with property is also subject to the restrictions imposed by the Will.

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

De Facto Guardians

• A  de facto guardian  is someone who takes a continuous interest in the welfare of a minor's person or the management and administration of their property, without any legal authority. Hindu jurisprudence acknowledges that if someone incurs liability on behalf of another in a justified manner, the person on whose behalf the liability is incurred, or their property, is liable, even if there was no authorization for incurring the liability.
• De facto guardianship is a concept where past actions lead to present status. It literally means 'from what has been done.' The recognition of de facto guardians dates back to Hindu law as early as 1856. The Privy Council, in a case involving  Hanuman Prasad  , stated that under Hindu law, the right of a bona fide incumbrancer who has taken charge of land as a de facto guardian, created honestly for the purpose of saving the estate or benefiting the estate, is not affected by the lack of union between the de facto and de jure title.
• While the term 'de facto guardian' is not explicitly mentioned in Hindu texts, its existence has never been denied in Hindu law. In the case of  Sriramulu Kanta  , it was stated that Hindu law aimed to find a solution to two challenging situations: firstly, when a Hindu child has no legal guardian, there would be no one to manage the child's estate legally, resulting in the child not receiving any income for their property; and secondly, a person without title should not be allowed to interfere with the child's estate in a way that could cause loss to the child. To address this issue, Hindu law accorded legal status to de facto guardians.

Powers of De Facto Guardians

• Section 11 of the Hindu Minority and Guardianship Act, 1956 prohibits a de facto guardian from dealing with the minor's property. According to Section 11 of the 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." 
• It is now well established that a de facto guardian does not have the right to incur debt, gift a minor's property, or make any reference to arbitration.

Guardianship by Affinity

1. In pre-1956 Hindu law, there existed a guardian known as the guardian by affinity. The guardian by affinity is the guardian of a minor widow. According to Mayne, "the husband's relation, if there exists any, within the degree of sapinda, are the guardians of a minor widow in preference to her father and his relations." Judicial pronouncements have also supported this view.
2. The concept of guardianship by affinity was taken to its logical conclusion by the High Court in the case of  Paras Ram v. State  . In this case, the father-in-law of a minor widow forcibly took her from her mother's house and married her against her wishes to an unsuitable person for financial gain. The court had to determine whether the father-in-law was guilty of forcibly removing the girl. The Allahabad High Court ruled that he was not, as he was the lawful guardian of the widow.

Powers of the Guardians

• Section 8(1) of the Hindu Minority and Guardianship Act, 1956 vests in the natural guardian the power to take all the actions that are necessary or reasonable and proper for the benefit of the minor or take any action to realise, benefit or protect minor's estate.
• A minor's estate means a minor's definite property and not his fluctuating indefinite interest in the joint Hindu family estate. Section 8 is inparimateria with sec 29 of the Guardianship and Wards Act, 1890.

Powers of Natural Guardian.- Section 8

• 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.
• The natural guardian shall not, without the previous permission of the court,-
• mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or 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.
• Any disposal of immovable property by a natural guardian, in contravention of sub-section (l) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
• 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.
• The Guardians and Wards Act, 1890 (8 of 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-
• proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof.
• 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
• an appeal 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.
• 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 (8 of 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.

Liabilities of the Guardians

• The Guardian in carrying out the above mentioned powers can in no case bind the minor by a personal covenant. This means that though the guardian may impose a financial liability on the minor's estate yet cannot make him personally liable for the losses or the liabilities that arise later due to such contract.
• Sub section 2 of Section 8 read with section 5 of the Hindu Minority and Guardianship act, 1956 supersedes the power vested in a natural minor to dispose of the immovable property of a Hindu minor. It is laid down explicitly that a natural guardian without the previous permission of the court-
• Can not Mortgage, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor, or
• Can not Lease any part of such property for a term more than that of five years or for a term more than that of one year after the date from the minor's majority.
• It has been expressly mentioned in the Section that no court shall grant permission in aforementioned conditions unless it is proven that there is a case of necessity or an evident advantage of the minor. Section 31 of the Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court. Only a civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 within whose jurisdiction the property is situated or a part of the property is situated shall have the power to adjudicate upon the application. Where the property is being acquired by the guardian for the benefit of the minor, no permission of the court is necessary.
• As per Sec 8(3) of the Hindu Minority and Guardianship Act, 1956, any disposal of the immovable property by a natural guardian contravening the conditions is voidable at the instance of the minor or any other person claiming under him.
• Where the property is sold by the guardian for the benefit of the minor even then can a minor challenge the transaction only after attaining the age of majority if it was done without the prior permission of the court.
• The limitations are not only enforced on the natural guardians but also on the de facto guardians as per section 1 1 of the Hindu Minority and Guardianship Act, 1956. Strictly put, though a de facto guardian is nowhere defined in the law yet it is a person who hasn't been appointed by the court or through a testament or naturally but is a person who takes care of the guardian out of love and affection.
• Section 12 of the Hindu Minority and Guardianship Act, 1956 has prohibited an appointment of a guardian for the minor who has undivided interest in the Hindu property which is being taken care of by an adult member of the family. Only the high court if it deems fit based on the facts of the case has the power to appoint a guardian for the same.
• Sec 13 of the Act acts as a general principle of over every other provision mentioned in the act and states that all the decisions and all the appointments that are to be taken are to be done with the sole intention that is securing the welfare of the child.

Rights of a Guardian

• Under Section 33 of the Hindu Minority and Guardianship Act the guardian of the ward in charge shall be entitled to such allowances for the care and pains in the execution of his duties.
• Under Section 13 of the Hindu Minority and Guardianship Act, a guardian must look after the health and education of the ward.
• Under Section 33A, the execution of the will by the guardian to his ward shall not take place without the guardian.
• Under Section 13, the property of the ward is to be handled carefully as a man of ordinary prudence would deal with.