Types of Guardians
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This article has been written by Mridul Tripathi, a student of law at Vivekananda Institute of Professional Studies (affiliated to Guru Gobind Singh Indraprastha University).

Introduction

The ancient texts of India have hardly discussed the concept of guardianship due to the enduring familial structure in the Vedic society and unyielding presence and powers of the Karta. Therefore, there were hardly any laws on guardianship in India. The emergence of guardianship as a legal concept began from the advent of the British Empire and slowly with the pace of time these laws were incorporated in the Hindu Laws. 

Before we dive deep into the topic and discuss the liabilities of a guardian under the Hindu law, we need to have a clear understanding of the basics to help us understand it better. In India, guardianship in a Hindu family is regulated by the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890 which deals with the basic principles and laws regarding appointment of a guardian. This article along with discussing the liabilities mentioned in the Minority and Guardianship Act, 1956, touches upon other various heads under the Act that would render our understanding lucid. 

Definition of the terms ‘Minor’ and ‘Guardian’ under Hindu Law

Section 4 of the Hindu Minority and Guardianship Act, 1956 deals with the relevant definitions but while reading the definitions one must always keep in his mind that the definitions must always be read in subject to the qualification that their application must not be inconsistent to the subject matter. In applying this, if there appears a repugnancy between the context and the words and expression of the statute, it should be resolved harmoniously and read in consonance as well as to effectuate the intention of the legislature. For example, the term Guardian has a wide connotation but in this act it is reserved to a minor and to his/her property. This definition can be inapplicable in case of any other enactment. Sec 4 encompasses definition of the terms – minor, guardian and a natural guardian.

Minor

Minor as defined u/s 4 (a) Act means a person who has not completed the age of 18 years.

Guardian

A Guardian as defined u/s 4(b) of the Hindu Minority and Citizenship Act, 1956 means a person taking care of the minor physically or of his property or of both him and his property and includes the following:

  • A Natural Guardian:Father, Mother and Husband (impliedly repealed).
  • Testamentary Guardian:A person appointed by the will of the minor’s father or mother.
  • Certified Guardian:Appointed or declared by the court.
  • A Person empowered by any enactment relating to any Courts of Wards.

Types of Guardians

Guardians are appointed to ensure the welfare of the child. Apart from the three major types that are defined and included in Section 4 of the Act i.e. natural, testamentary and the ones appointed by the court, there also exist de facto guardians (Self appointed Guardians) and guardians by affinity(Guardians of a minor widow). De-facto Guardians are mentioned in Sec 11 of the Hindu Minority and Guardianship Act, 1956 and discussed under limitations in this article.

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Natural Guardian of a Hindu Minor

Section 6 of the Hindu Minority and Guardianship Act, 1956 recognises three persons as natural guardians, the father, the mother and the husband.

Clause (a)- In case of a boy or an unmarried girl- The father, and after him, the mother: provided that the i case of a minor child less than the age of 5 years, the custody shall rest with the mother.

Before 1956, a father would have been successful in curtailing the guardianship rights of the mother by appointing a testamentary guardian before his death but after the 1956 Act, the appointment of a testamentary guardian is rendered ineffective if the mother of the child is still alive.

Although, the law states that the father when alive is the natural guardian of the child and only after his death would the mother become a natural guardian, there are certain exceptions to it. The Supreme Court has clarified that the word ‘after’ as mentioned in the section doesn’t only connotes ‘after the death of’ but also entails ‘in absence of’ as well. Where the father hasn’t raised any objection to any actions of the mother due to his indifference or where the minor has been in the exclusive care of the mother and the father hasn’t taken care of the property of the minor or of him in person due to some mental or physical incapacity, he would be deemed absent for the purpose of this section[1]. The mere fact that the mother has remarried won’t fetter her rights and her request wouldn’t be disqualified.[2]. When it comes to custody, as a general rule, the court would not deprive the father of custody of the minor, but in all such cases the court has always kept the welfare of the child as the paramount interest and factor in delivering the pronouncements and has not given the custody of the minor child to his father where the child’s interest was being compromised.

Clause (b)– Mother lawful Guardian of her illegitimate children:

Mother is held to be the natural guardian of the illegitimate child even if the father of such minor is alive. No preferential right is given to the father.

Clause (c)– Husband lawful guardian of a minor wife:

This clause stands impliedly repealed due to the provisions of s.3 of the Prohibition of Child Marriage Act, 2006.

Proviso to Section 6 of the Act states that a person shall not be entitled to act as the natural guardian of a minor only if he has either ceased to be a Hindu or he has completely renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Testamentary Guardian

Testamentary guardians are the ones that are appointed by the will of the parents of the minor. Section 9 of the Hindu Minority and Guardianship Act deals with the provisions related to the testamentary guardians. Sub-section 1 and Sub-section 2 deals with the rights of the father and states that the hindu father has the right to appoint a guardian and if he dies before the death of the mother, then such an appointment shall fail. It will only revive if the mother dies without appointing, by will, any person as guardian.

The rights of the mother include appointing a guardian for her illegitimate child. In this case even if she has predeceased the father, the father won’t have the right to appoint the guardian though he would be deemed at the natural guardian of the child. The testamentary rights are also vested in the widows and mother who are entitled to act as the natural guardian due to disentitlement of the father. In the case of a minor girl, as soon as she gets married, the testamentary rights of the guardian extinguish.

Testamentary Guardians have the same rights and limitations as that of a natural guardian. 

Guardians appointed by the court (Certified Guardians)

The Guardians appointed by the court are termed as certified Guardians and the Court appoints a Guardian keeping in mind various psychological, physical and financial factors. The powers of such Guardians are regulated by the Guardians and Wards Act, 1980. The power to appoint a guardian in respect of as mitakshara hindu family minor who has an undivided interest only rests with the High Court (sec 12 of the The Hindu Minority and Guardianship Act, 1956.) 

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 in pari materia with sec 29 of the Guardianship and Wards Act, 1890.[3] 

Liabilities of the Guardians

  1. 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.
  2. 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[4].

  1. 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[5].
  2. The limitations are not only enforced on the natural guardians but also on the de facto guardians as per section 11 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.
  3. 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.
  4. 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. 

Conclusion

After reading the laws formulated and the various precedents set by the judiciary, it can be clearly deduced that ensuring the welfare of the minor and that a safe and nourishing environment is made accessible for the minors growth can be clearly derived as the biggest liability or the responsibility of the guardians and paramount guiding principle for the judiciary. 

References

[1] Gita Hariharan vs Reserve Bank of India, AIR 1999 SC 1149

[2] Bakshi Ram vs Shila Devi, AIR 1960 Punj 304

[3] Narayan Laxman Gilankar vs Uday Kumar Kashinath Kaushik, AIR 1994 Bom 152.

[4] Than Singh vs Barelal, AIR 1974 MP24

[5] Narayan Laxman Gilankar vs Uday Kumar Kashinath Kaushik, AIR 1994 Bom 152.

  • Bare Act, Universal’s Marriage and Divorce Laws.
  • Mulla, Hindu Law, 22nd Edition.
  • Modern Hindu Law, Paras Diwan and Peeyushi Diwan, 23rd Edition.

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