Guardianship under Hindu Law
By:
Vijay
Sardana
Twitter - @vijaysardana
The Dharmashastras did not deal with the law of
guardianship.
Guardians may be of the following types:
1. Natural guardians,
2. Testamentary guardians, and
3. Guardians appointed or declared by the court.
There are two other types of guardians, existing under Hindu law,
(i) de facto guardians, and
(ii) guardians by affinity.
Natural
Guardian : 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 Patriae and was exercised by the courts. 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.
The Hindu law of guardianship of minor children has
been codified and reformed by the Hindu
Minority and Guardianship Act, 1956. The subject may be discussed under the
following heads:
1. Guardianship of person of minors,
2. Guardianship of the property of minors, and
3. De facto guardians, and
4. Guardians by affinity.
Guardianship of the
person
Minor Children:
Under the Hindu
Minority and Guardianship Act, 1956, Section 4(b), minor means a person who
has not completed the age of eighteen years. A minor is considered to be a
person who is physically and intellectually imperfect and immature and hence
needs someone's protection. 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.
Natural
Guardians
In Hindu law only three persons are recognized as
natural guardians father, mother and husband, Father. “Father is the natural
guardian of his minor legitimate children, sons and daughters." Section 19
of the Guardians and Wards Act, 1890, lays down that a father cannot be
deprived of the natural guardianship of his minor children unless he has been
found unfit.
Me effect of Lh1s provision has been considerably
whittled down by judicial decisions and by Section 13 of the Hindu Minority and
Guardianship Act which lays down that welfare of the minor is of paramount consideration and
father's right of guardianship is subordinate to the welfare of the child.
The Act does not
recognize the principle of joint guardians.
The position of adopted children is at par with
natural-born children. The
mother is the natural guardian of the minor illegitimate children even if the
father is alive. However, she is the natural guardian of her minor legitimate
children only if the father is dead or otherwise is incapable of acting as
guardian.
The
Hindu Minority and Guardianship Act, 1956,
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 –
- 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).
Explanation: - In this section the expression
“father” and “mother” do not include a step-father and a step-mother.
Proviso to clause (a) of Section 6, 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.
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.
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 subsection (1) or sub-section (2), is voidable 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 (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-
(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 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 (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.
According
to Section 13 - Welfare of minor to be paramount consideration:
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.
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.
In Gita Hariharan v. Reserve Bank of India and
Vandana Shiva v. Jayanta Bandhopadhaya, the Supreme Court has held that
under certain circumstances, even when the father is alive mother can act as a
natural guardian. The term 'after' used in Section 6(a) has been interpreted as
'in absence of' instead 'after the life-time'. –
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.
Testamentary
Guardians
Testamentary guardian is a person named in a will to act as a guardian.
Usually testamentary guardians are appointed by a widowed parent of a minor
child or disabled adult child to render assistance to the children. Parents may
indicate their preference for a guardian in a valid will with regard to the
guardianship of their children. Court will determine the availability or
suitability of the decision or preference of the parent.
When, during the British period, testamentary
powers were conferred on Hindus, the testamentary guardians also came into
existence. It was father's prerogative to appoint testamentary guardians. 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.'
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 not 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 a 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 the 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 a girl, cease on her marriage.
Important: 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 Sec.
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.
Important:
·
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 is 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.
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.
Guardianship
by affinity
In pre-1956 Hindu
law there existed a guardian called
guardian by affinity. The guardian by affinity is the guardian of a minor
widow. Mayne said that "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."' The judicial. pronouncements have also
been to the same effect. The guardianship by affinity was taken to its logical
end by the High Court in Paras Ram v. State In this case the
father-in-law of a minor widow forcibly took away the widow from her mother's
house and married her for money to an unsuitable person against her wishes. The
question before the court was whether the father-in-law was guilty of removing
the girl forcibly. The Allahabad High Court held that he was not, since he was
the lawful guardian of the widow.
A question has
come before our courts, whether the nearest sapinda of the husband
automatically becomes a guardian of the minor widow on the death of her husband
or whether he is merely preferentially entitled to guardianship and therefore
he cannot act as guardian unless he is appointed as such? Paras Ram seems to
subscribe to the former view, and the Madras and the Nagpur high Courts to the
latter view.
Under Section 13,
Hindu Minority and Guardianship Act, in the appointment of 'any person as guardian,
the welfare of the child is paramount consideration. The fact that under Hindu
law father-in-law has preferential right to be appointed as guardian is only a
matter of secondary consideration.
In our submission,
it would be a better law if the guardianship of the minor wife, both of her
person and property, continues to vest in the parents. We do not have much of
textual guidance or case law on the powers of the guardians by affinity.
Probably his powers may be taken to be at par with those of the natural
guardian.
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,
Kanta. said that Hindu law tried to find a solution out of two difficult situations:
one, 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 secondly, 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. 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.
