This article is written by Vijaya Gupta, from School of Law, Bennett University.

Introduction

Guardianship is a relationship between the person and the ward/ child who is unsound of mind or has been born with natural incapacities. A guardian is a person who has the right and the authority to take care of the child and the properties of the child. Under Hindu religion, there was no specific law on the guardianship of a child as all the members of the family stayed together. If the child is without their parents, then the head of the family was the person who would take care of the child. There were also no laws on guardianship before independence. Therefore, after independence, the Indian National Congress presented the Hindu Code Bills, 1950. The Hindu Code Bills consisted of Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act and Hindu Adoption and Maintenance Act. 

The law for guardianship under Hindu law was codified under Hindu Minority and Guardianship Act (hereinafter ‘The Act of 1956’). It was enacted in 1956. The Act was enacted to define the relation of the guardian with the minors, their rights and the power of the guardian on the minor and the property. The Act is an extended part of the Guardians and Wards Act. The Act was implanted in the form of statute to amend and codify certain parts of the law relating to minority and guardianship among Hindus. The Act majorly focuses on the guardian, types of guardians and protection of the child. 

Who is a natural guardian under hindu law

A guardian is a person who takes care of the child until he is capable of making the decisions on his own. In the Act of 1956, a guardian is a person who takes care of the person of minor or of his property or of both his person and property. It includes different types of guardians such as natural guardian, guardian appointed by the will of the minor’s father or mother or appointed or declared by the court. Under the Act there are three types of guardians, they are: 1. Natural Guardians, 2. Testamentary guardians and 3. Guardians appointed or declared by the court. 

Section 6 of The Act of 1956 states about the natural guardian of the minor. There are three types of natural guardians under the Act of 1956 they are father, mother or the husband. According Section 6 of the Act of 1956, father is the natural guardian and after him the mother becomes the natural guardian of the minor. Also, under Section 19 of the Guardians and Wards Act, 1890, it is stated that a father cannot be deprived of the natural guardianship of his minor child unless he has been found unfit. When the father is alive, he is the natural guardian and it is only after him the mother becomes the natural guardian. No outsider can become a guardian of the minor except father or mother. The guardianship of the minor is not about the legal right of the minor, but it takes the welfare of the child into consideration. Section 13 of the Act of 1956 states about the welfare of the minor. It is stated that Section 6 should be always read with Section 13 of the Act of 1956. Also, Section 7 and 17 of Guardians and Wards Act, 1890, it is construed that the welfare of the child should be seen while appointing a guardian of a minor child. For this Act, welfare of the minor is the most paramount consideration and father’s right of guardianship is subordinate to the welfare of the child. The word ‘welfare’ should not be measured by money nor mere physical comfort but it should also weigh the moral and ethical welfare of the child along with the physical well-being. Along with the welfare, the Court also considers the principle of parents’ patriae important for the custody of the child. If the Court finds the father unfit for the guardianship of the minor child, then the mother becomes the guardian of the minor.

Section 6 (a) of the Act of 1956 states that the father is the natural guardian of the minor, ‘after him’ the mother becomes the natural guardian. Before 1999, the word ‘after him’ means the guardianship to the mother is given only after the death of the father but after 1999, in the two landmark cases Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya, the Supreme Court held that during some circumstances the mother can act as a natural guardian of the minor even if the father is alive. the meaning of the word ‘after him’ was interpreted as ‘in the absence of’. The word ‘absence’ means that father’s absence from the minor’s property or person whatsoever. If both the parents are living separately for a long period of time and if the minor daughter is living with the mother then the mother becomes the natural guardian of the minor. Also, if the father is wholly indifferent to the matters of the minor or if he is physically unable to take care of the minor for any reason whatsoever, then the father can be considered absent and the mother can validly act on behalf of the minor. 

In the proviso of Section 6 (a) of The Act of 1956, it is stated that if the minor is below five years of age then the mother is the natural guardian of the minor child. The words in the Section ‘ordinarily with the mother’ should be read with Section 9 of the Guardians and Wards Act, 1890 which deals with the jurisdiction of the Court in which it states that ‘the place where the minor ordinarily resides’. The purpose of stating the mother as a natural guardian of the child who is below 5 years is that the mother is the best person to look after the welfare of the child and father cannot afford sufficient time to the needs of the child as well as the welfare of the child. The phrase ‘the place where the minor ordinarily resides’ when the child is below 5 years of age means that the Court will have the jurisdiction where the mother resides as the child is staying with the mother. Also, some Courts are of the view that the Courts will have the jurisdiction on the basis where the child ordinarily resides and not on the basis of the mother’s residence.

Clause (b) of Section 6 construes that the mother is the natural guardian of the illegitimate child and after her the father is the guardian. Clause (c) states that if the girl is married then the husband becomes the natural guardian. If the minor girl is married then also the husband is the natural guardian. It is also held in Section 21 of Guardian and Wards Act that a minor husband is competent to be the guardian of his minor wife. If the minor wife becomes a widow then the person is the guardian who was before the death of the husband.

In the explanation of Section 6 it is stated that the father and mother does not include step-father and step-mother.  Section 7, The Act of 1956 states that the natural guardian of the adopted son is the adoptive father and after him the adoptive mother. 

What are the powers of a natural guardian

Under old Hindu law, karta is the senior most member of the joint family. It is necessary to have at least a male member to constitute a joint family. It is stated that a Karta is competent to alienate joint family property for the benefit of the estate or legal necessity, and it also binds the coparceners who also include minors. Under Hindu law, there is no text that does not bar a minor to be the karta of the joint family. With the agreement of all the other counterparts, a minor can become the karta of the family. Also, in the absence of a father or any male member then the minor can act as the karta. When a minor male member construes as the karta of the joint family and if the mother acts as the natural guardian of the minor then the karta can act as the natural guardian so as to the interest of the members.

Section 8 of the Act of 1956 states about the powers of the natural guardian. The powers are given to the natural guardians for the welfare of the minor. The powers of the natural guardians are divided into two categories: one relates to absolute powers in respect of the person and property of his minor and the other relates with the powers which he may exercise subject to the sanction and control of the court. The apex court interpreted Section 8 and laid down that it is the Section states about the nature and extent of the powers of natural guardians with respect to the alienation of immovable property of the minor. The word ‘immovable property’ stated in the Section is interpreted as a minor’s definite property and does not mean his fluctuating indefinite interest in the joint family property.

Clause (1) of Section 8 states about the general powers of the guardian. It is pari materia to Section 29 of Guardians and Wards Act, 1890 which states that the guardian is appointed by the Court and he is bound by the judgment of the Court. The section construes the minor’s estate or the immovable property. It deals with the property of which the minor is the owner. The Section explains that the guardian can do all acts which are reasonable, good and for the benefit of the minor. The property of the minor is taken care of by the natural guardian of the minor. This Section does not allow the natural guardian to include the undivided interest of the minor in the joint family. If the natural guardian wants to acquire any property which benefits the minor, then he can acquire that property without taking any permission from the Court. It is observed that if the father or mother is not qualified as the guardian of the minor and he/she alienates the property then it does not validate the alienation.

Clause (1) also lays down that the guardian cannot bind the minor by personal covenants. Also, he cannot contract in the name of the minor so as to impose any liability on the minor. He can impose financial liability on the minor, but he cannot impose any further liability on him. A guardian has no authority to impose a personal obligation upon the minor or his estate by an unconditional undertaking to pay the debt or loan which is not contracted for the legal necessity or for the benefit of the minor. It is one of the views that a guardian has the power to bind his minor for the contract of purchase and the contract entered by the guardian is enforceable. Also, he has the power to bind his minor in the contract of sale, but the guardian has to alienate the minor’s property with the prior permission of the Court and then he can enter into the contract of sale which is enforceable. 

Sub-section (2) of the Section states about the limitations of powers of the natural guardians. This clause explains that the natural guardian cannot mortgage or charge, or transfer by sale, gift, exchange any part of immovable property of the minor, lease any part of the immovable property not exceeding 5 years without any previous sanction of the Court. A guardian has the right to transfer the properties belonging to the minor, provided that such transfer is either for the benefit of the minor or out of any legal necessity. If a natural guardian of a minor’s property disposes of the immovable property of the minor, he must seek the permission of the Court. An alienation made by the guardian without the permission of the Court is voidable at the option of the minor.

If the alienation is made by the mother without the sanction of the Court and it is voidable at the option of the minor, then it is the duty to first set aside the alienation to avoid the transfers and regain the property back from the purchasers. It is necessary to make a prayer in the lapse of three years of attaining majority or the suit would be barred due to limitation. It is necessary to set aside alienation before making any claim in respect of the property sold. If a prayer from setting aside the alienation is not made then the suit seeking possession would not be maintainable. A minor is an eo nominee party to a sale deed or other documents related to alienation, he must sue for the cancellation of the documents and it is enough if the minor applies for possession without getting the sale deed cancelled. An agreement made by a natural guardian is within its competence and for the benefit for the minor then the agreement is enforceable after receiving previous permissions of the Court. 

Sub-section (3) of Section 8 states about the restrictions on the power of natural guardians. A natural guardian deals with the immovable property in contravention to sub-section (1) and (2) then it is voidable and does not bind on the minor. The phrase ‘any person claiming under him’ includes a transferee for setting aside the sale by such person and he can avoid the alienation by the natural guardian stated in the sub-section. He also has the power to set aside the sale. It is also stated that to confer a right of suit in circumstances not only on minors, but also on a person to whom the minor has transferred his rights. If the father appoints the mother as a natural guardian when he dies and the mother sold the property without the previous permission of the Court then the sale is not enforceable under Section 8 (3). It is observed that setting aside the alienation made by the natural guardian by the minor after attaining majority is a personal right. 

Sub-section (4) of the Section states about the sanction of the Court. It construes that the Court has the power to grant permission to the natural guardian to the acts mentioned in sub-section (2) only if it is necessary or evident advantage of minor. The language of this subsection is pari materia with Section 31 (1) of Guardians and Wards Act, 1890.  Sub-section (5) construes that in respect of the permission of the Court for the acts mentioned in sub-section (2),Section 29 of The Guardians and Wards Act, 1890 will apply. The Court means the civil court or a district court or the court empowered under Section 4A, Guardians and Wards Act, 1890. 

Is there a gender discrimination for guardianship under hindu law

From the British era, women are considered as secondary in every matter over man. The society would never take into consideration a woman’s opinion irrespective of any caste. There were many laws which were gender biased or unequal to the people in the country. The woman was always said to look after the family and house but without any doubts the Hindu law does not follow it.  There are many laws in Hindu law which are gender biased in nature such as Hindu Minority and Guardianship Act, 1956, Hindu Succession Act, Hindu Adoption Act, Guardians and Wards Act, 1890. 

The Hindu Minority and Guardianship Act, 1956 is considered to be gender biased by many people in the country because Section 6 (a) of the Act of 1956 states that the father is the natural guardian and after him the mother is said to be the natural guardian. There are many judgments such as the Gita Hariharan case, Padmaja Sharma case where the Court has considered the mother as a natural guardian even though the father is alive such as. The words ‘after him’ in Section 6 (a) was earlier considered to be after the death of the father but after the Gita Hariharan case the meaning of the words ‘after him’ was stated by the Apex Court as ‘in the absence of’.

Though in many cases, the judge was in the view to make the mother as the natural guardian though the father is alive, but the same change was not brought in the Act. In the 133rd Law Commission Report recommendation was made to erase the injustice to the woman and work on the welfare principle. It was recommended that it should provide legal status of both parents with respect to guardianship and custody. It was recommended to make changes in the Section 19, Guardians and Wards Act, 1890 and in Section 6 (a), 7 of Hindu Minority and Guardianship Act. The Report also stated that it should amend the adopted son to adopted daughter. The Guardians and Wards Act, 1890 was also considered as gender biased until 2010 but the gender discrimination was removed from the Guardians and Wards Act by amending the Section 19 (b) in 2010 amendment.

Though the gender discrimination was removed from the Act, 1890 but it was not removed from the Minority and Guardianship Act. There was a similar recommendation made in the 257th Law Commission Report in which it was stated that equality cannot be only in terms of roles and responsibilities but also in the terms of rights and legal position of the parents. Therefore, the inequality should be removed. After many recommendations by the Government, there was no amendment in Section 6 (a) of the Act of 1956. 

After the 2015 Law Commission Report, in 2019 NCW chairperson Rekha has a set of recommendations to the Ministry of Women and Child Development. The recommendations were made to ensure that women, especially rape survivors and single mothers are not discriminated.  The main changes in The Act of 1956 the Commission stated that it should not be father after him the mother, but it should be father or mother according to the circumstances. Both of them are the natural guardians of the minor child. The Act of 1956 gives preference to the father over mother which violates the Article 14 and 15 of Constitution of India. The Commission also made a point that they should remove the word ‘illegitimate’ from the Act. They also suggested to amend Section 7 of the Act by changing from adopted son to adopted child as they wanted to remove the discrimination between the son and daughter. All the recommendations are put together and it is submitted to the Ministry of Women and Child Development. 

Conclusion

Guardianship is a term which means “a bundle of rights and powers which a person in relation to the person and property of a minor child”. In the Hindu religion, there was no guardianship law as all the family members always stayed together. If the parents are not there, then the other members of the family would take care of the child. Therefore, to have a proper guardianship law in the country, the Parliament enacted the Hindu Minority and Guardianship Act, 1956. This Act was enacted to define the relation between the guardian and the child and also to make proper guardianship laws. Under the Act, 1956, there are three types of guardians and one of them is the natural guardian. Section 6 states about the natural guardian and Section 8 states about the powers of natural guardians. Section 6 particularly states that the father is the natural guardian and after him the mother. It meant that only after the father is dead the mother becomes the natural guardian. But in the landmark case of Gita Hariharan v. RBI, the meaning of the word ‘after him’ was changed to ‘in absence of’. It was stated that there is a gender discrimination in this Section as the first preference was given to mother. There were many Law Commission Reports in which the recommendations were made to remove the gender discriminations but The Act, 1956 was never amended. Lately, in 2019, the NCW chairperson Smt. Rekha Sharma reviewed the guardianship law and made some recommendations and submitted it to the Ministry of Women and Child Development. As we are living in 21st century, there should not be any gender discrimination, and everybody should be treated equally in every law. Therefore, the gender discrimination should be removed from the Act and both father and mother should be considered as natural guardians. 

References

A. Case laws

1. Amiratha Kudumban v. Sornam Kudumban, AIR 1977 Mad 172
2. Amirtham Kudumbam v. Saran Kudumbam, (1991) 3 SCC 20
3. Amitabh Kumar Sahi v. State, 2016 SCC OnLine Del 3135
4. Biswanath Charit v. Damodar Patra, AIR 1982 Cal 199
5. Gaurav Nagpal v. Sumedha Nagpal, (2008) 8 SCC 31
6. Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228
7. Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148
8. Harshadbhai Desai v. Bhavnaben Desai, AIR 2003 Guj 74
9. Jagannathan v. AM Vasundevan Chettiar, (2001) 2 CTC 641
10. Jijabai Vithalrao Gajre v. Pathankhan AIR 1971 SC 315
11. Jiten Bouri v. State of West Bengal, 2003 SCC OnLine Cal 78
12. Krishna Prasad Paul v. State of West Bengal, 2005 SCC OnLine Cal 262
13. Lily Manna v. State of West Bengal, 2007 SCC OnLine Cal 603
14. Nagappan v. Ammasai Gounder, (2004) 13 SCC 480
15. Narayan Laxman Gilankar v. Uday Kumar Kashinath Kaushik, AIR 1994 Bom 152
16. Padmaja Sharma v. Ratan Lal Sharma, (2000) 4 SCC 266
17. Padmavati v. Kulwant Rai, 2008 (1) HLR 517 (P&H) 
18. Pannilal v. Rajendra Singh,  (1993) 4 SCC 38
19. Parimal Kanti Pal v. State of West Bengal, 2007 SCC Online Cal 76 
20. Rajat Pangaria v. State of Bikaner and Jaipur & Ors, 2007 SCC OnLine DRAT 7
21. Reeta Khare v. Manoj Khare, 2019 SCC OnLine MP 3514
22. Sarabjit v. Piara Lal, AIR 2005 P&H 237
23. Saroj v. Sunder Singh, (2013) 15 SCC 727
24. Sri Narayan Bal and Ors v. Sridhar Sutar, (1996) 8 SCC 54
25. Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42
26. Than Singh v. Dhruv Agarwal v. Bunny Investments and Finance P. Ltd and Ors, 2007 SCC OnLine CLB 54
27. Vandana Shiva v. Jayanta Bandhopadhaya, AIR 1999 SC 1149
28. Vishwambhar v. Laxminarayan (2001) 6 SCC 163

B. Statutes

1. Hindu Minority and Guardianship Act, 1956
2. Guardians and Wards Act, 1890

C. Books

1. Hindu Law, Mulla, 23rd Edition
2. Modern Hindu Law, Paras Diwan

D. Journals 

1. Impact on Hindu Guardianship Law, CNLU LJ (7) [2017-18]
2. Anumeha Karnatak and Mihir Narvilkar, Treatment of Minor’s Property in India, IJLLJS

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