GUARDIANSHIP HINDU LAW

HINDU LAW

CHAPTER-6

•  GUARDIANSHIP 

(i) Guardian

(ii) Natural Guardians

(iii) Powers of a Natural Gurdian

(iv) Testamentary Guardian (Sn,9)

(v) Court Guardian

(vi) Defacto Guardian

GUARDIANSHIP

(i) Guardian : 

The Hindu Minority and Guardianship Act defines ‘puardiarr in Sn. 4. 

Guardian means a person having the care of the person of a minor or of his property or of both his person and property. They are 

1. Natural Guardian 
2. Testamentary Guardian 
3. Court Guardian 
4. Guardian under Court of Wards 
5. De facto Guardian

Though not prohibited by the Act, he is subject to restrictions under Sn.ll. 

(ii) Natural Guardians: 

A Natural Guardian may be in respect of a minor as well as his property (i.e., person+property) excluding the undivided share in the joint family property. In case of a boy or unmarried girl, the natural guardian is the father and after him, the mother. Generally, for a child, below 5 years, mother is the custodian. In case of an unmarried girl, illegitimate boy, the natural guardian is the mother and after her death, the father. In case of a married girl the husband is the natural guardian. 

Certain qualifications are specified to a natural guardian: 

a) He must be a Hindu. 

b) He must not have completely and finally renounced the world by becoming a sanyasi or a vanaprasta. 

In respect of an adopted son, the adoptive father is the natural guardian, and after him the adoptive mother. (Step mother and Step father are not natural guardians). 

(iii) Powers of a natural Guardian:

The natural guardian is empowered under the Act (Sn.8) to do all acts which are necessary or reasonable and proper for the benefit of the minor. He may do all acts 

(1) for realisation 

(2) for protection 

(3) for benefiting the estate of the minor. 

However, the Act strictly prohibits the natural guardian from committing the minor under a personal covenant. This seems 

to be in keeping with the decision of the privy council in Hanuman Prasad’s case. Here a natural guardian was held authorised to alienate on the grounds of legal necessity. How ever, under the new Act, the sanction of the court for alienation is an essential condition in respect of immovable property. 

Further the natural guardian should not, without the permission of the Court. 

(1) Mortgage, 

(2) Charge, 

(3) Sell, gift or exchange or

(4) Lease the property above 5 years, or for period extending more than one year beyond the period of minority of the minor. Any transfer in violation of above, is voidable. While granting permission to the natural guardian the court shall look to the necessities of the minor and also the advantage to him. 

The leading case is Manik Chand V. Ramchandra. The Supreme Court held that in a Contract entered into by the Guardian the test is whether it is for the benefit and interests of minor. 

(iv) Testamentary Guardian. Sn. 9. 

i) He is a person appointed under a will by a person who could be the natural guardian of the minor. The guardian may be appointed for the legitimate children, for his property or for both. He cannot appoint for illegitimate children. 

ii) Under old Hindu law, a mother could not appoint a guardian, but under the Act, she may by will appoint a guardian for the minorhis property or for both. (Here, in old law, father could exclude the mother of the minor from acting as a guardian by appointing some other person, but now she cannot be excluded). 

iii) A Hindu Mother (who could act as the natural guardian) may by will appoint a guardian for illegitimate children. 

iv)Powers: 

(a) The guardian so appointed has the power to act after the death of the testator. 

(b) He is entitled to exercise all the powers of a natural guardian (Add Ch. 5.3]. 

(c) His power as guardian ceases, on the marriage of the minor girl. 

(v) Court Guardian: 

The court may appoint a guardian as provided for in the Court of Wards Act 1898. His appointment, powers and responsibilities are fixed by the court itself, as per the Court of Wards Act. 

The Welfare of the child must be the paramount consideration 

in appointing the guardian by the court. All the acts of the guardian are tested on the touchstone of the interests and benefit of the minor. 

(vi) De facto Guardian: 

He is a person who has in fact (i.e., factually), the care of the minor or his property or both. He has no status, under this Act (Sn. 11). This section does not bar such a person from exercising his power. Thus de facto guardian is not abolished, but his power to alienate is taken away. 

Hence, he cannot sell the minors property even with courts permission. In such a case, the court may appoint a court guardian with authority to sell etc.