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Guardianship under Hindu Law

July 29, 2024

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This article is written by Oishika Banerji and further updated by Pruthvi Ramkanta Hegde. This article explains guardianship under Hindu law and lays down several provisions of the Hindu Minority and Guardianship Act of 1956 along with landmark judicial precedents. The article also covers the meaning and evaluation of guardians under Hindu law.

Table of Contents

Introduction

“Parents are the ultimate role models for children. Every word, movement, and action has an effect. No other person or outside force has a greater influence on a child than the parent.” This statement by American television producer and actor Bob Keeshan highlights the significant influence parents have on their children.

Parents ensure their physical, emotional, and educational development. The role of parents is indispensable and deeply enshrined in the societal fabric. However, there are circumstances where parents may be unable or unavailable to fulfil this needy role. In such situations, the question arises who will step in to provide the necessary care and protection to such a child? The concept of guardianship has paved the way to protect such children.

The concept of guardianship has evolved from one of parental authority to one of protection in recent years and the Hindu Minority and Guardianship Act of 1956 codifies the laws regarding minority and guardianship with the welfare of the child at the core. Under Hindu law, guardianship is a critical aspect that addresses this concern. The Hindu Minority and Guardianship Act of 1956 lays down comprehensive provisions in this regard. The enactment includes provisions for appointing guardians in the absence of parents. Through the many decisions, Indian courts have also played a phenomenal role in interpreting and enforcing guardianship laws. This article provides a deep understanding of the concept of guardianship under Hindu law by means of judicial precedents.

Historical background of guardianship in “Hindus”

In traditional societies, guardianship was deeply rooted in patriarchy. Fathers were considered the sole authority over their children’s lives and property. They had absolute control over their conduct, education, religion, and upkeep, with little interference from the courts. After marriage, mothers were seen as part of their husbands and had no legal authority over their children because they lacked independent legal status.

In ancient Hindu law, the king was regarded as the ultimate guardian of all minors within the state. Apart from Narada, who mentioned parents as guardians, the law largely revolved around the authority of the family’s head, Karta, in joint family systems and gurus in educational institutions.

During British rule, the concept of guardianship evolved through court decisions. Initially, these decisions were influenced by the teachings of legal scholars like Strange and McNaughten. They defined a list of potential guardians, including fathers, mothers, elder brothers, and other relatives. Eventually, the concept of natural guardianship emerged. These sources stated that fathers were natural guardians, and after their deaths, mothers assumed this role. Other than these two, no one else has inherent guardianship rights.

Meaning of a guardian

The word “guardian” is derived from the old French term “gardien,” which means “keeper” or “custodian.” It originated from the Germanic source of the verb “guard.” In general, a guardian is a person who takes on the legal responsibility of caring for someone who can not look after themselves, especially a child who has lost their parents or an incompetent person.

Section 4(b) of the Hindu Minority and Guardianship Act, 1956 provides that “guardian means a person having the care of the person of a minor or of his property or of both his person and property and includes:

(i) a natural guardian,

(ii) a guardian appointed by the will of the minor’s father or mother,

(iii) a guardian appointed or declared by a court, and

(iv) a person empowered to act as such by or under any enactment relating to any court of wards.”

As per the definition, a guardian is someone who is legally responsible for taking care of a minor, their property, or both. This includes different types of guardians, like a natural guardian (usually the parents), a guardian named in the will of the child’s father or mother, a guardian appointed or declared by a court, and a person given this responsibility under any law related to the court of wards. Essentially, a guardian ensures the minor’s well-being and manages their affairs when the parents are unable to do so. The definition in the Hindu Minority and Guardianship Act of 1956 is more comprehensive, as it not only defines “guardian” but also categorises different types of guardians. The Hindu Minority and Guardianship Act of 1956 specifically applies to Hindus and includes provisions that align with Hindu personal laws only.

Application of Hindu Minority and Guardianship Act, 1956

Section 3 of the Hindu Minority and Guardianship Act of 1956 prescribes the provisions for the application of the Act. Accordingly, it states that the Act applies to:

Any person who follows Hinduism in any form, including Virashaiva, Lingayat, or followers of the Brahmo, Prarthana, or Arya Samaj movements.
Any person who is Buddhist, Jain, or Sikh by religion.
Any person living in the areas where this Act is effective who is not a Muslim, Christian, Parsi, or Jew, unless it can be shown that such a person would not have been governed by Hindu law or any related customs if this Act had not been passed.
Any child, whether born to married or unmarried parents, if both parents are Hindus, Buddhists, Jains, or Sikhs.
Any child, whether born to married or unmarried parents, if one parent is a Hindu, Buddhist, Jain, or Sikh, and the child is raised as part of that parent’s community.
Anyone who has converted or reconverted to Hinduism, Buddhism, Jainism, or Sikhism.

Exception

This Act does not apply to members of any Scheduled Tribe as defined in Article 366(25) of the Constitution of India. However, the Central Government can make it applicable to them by issuing a notification in the Official Gazette.

Interpretation of Hindu

In this Act, the term “Hindu” includes anyone to whom the Act applies, even if they are not Hindu by religion. This is based on the specific provisions mentioned earlier in the Act.

Guardianship under Hindu Minority and Guardianship Act, 1956

The Act includes various aspects, such as the types, rights, powers, and responsibilities of guardians. It also covers the appointment and removal of guardians for minors. It includes the following aspects:

Natural guardian

Section 6 of the Hindu Minority and Guardianship Act of 1956 prescribes the provisions for the natural guardian of a Hindu minor. Accordingly, the Section says that the natural guardian of a Hindu minor is responsible for both the child’s personal well-being and property. However, a person cannot act as a natural guardian if there is any undivided interest in joint family property. The following person can become the natural guardian of the minor child:

For a boy or an unmarried girl, the father is the natural guardian, with the mother taking over if the father is unavailable.
For children under five years old, custody usually goes to the mother. In the case of an illegitimate boy or an unmarried illegitimate girl, the mother is the primary guardian, followed by the father.
For a married girl, the natural guardian is her husband.

There are specific exceptions where a person cannot act as a natural guardian:

If they have ceased to be a Hindu or,
If they have renounced worldly life to become a hermit or an ascetic. It is important to note that the terms “father” and “mother” in this context do not include step-fathers or step-mothers.

In Navin Singh vs. Smt. Jyoti Parashar And Another (2004), the Allahabad High Court delved into the interpretation of the term “natural guardian” as outlined in Section 6(a) of the Hindu Minority and Guardianship Act of 1956. The court’s interpretation is aligned with the Guardians and Wards Act of 1890, and the Hindu Minority and Guardianship Act, 1956. Section 25 of the Guardians and Wards Act, 1890, deals with the return of the custody of a minor to their guardian. The term “guardian” under this Act is broadly defined and not limited to the natural guardian alone. The court emphasised that a “guardian” includes any person having the care of the minor or their property. In this case, the court acknowledged that the mother, Jyoti Parashar, although not the natural guardian, could file an application for custody under this Act because she was currently taking care of the minor child, Nick Singh. Section 6(a) of the Hindu Minority and Guardianship Act, 1956, designates the father as the natural guardian of a Hindu minor boy. Petitioner contended that application under Section 25 of the Guardians and Wards Act was not maintainable since he, as the father, is the natural guardian within the meaning of Section 4(c) of the Hindu Minority and Guardianship Act. Further contended that the Family Court at Agra lacked jurisdiction as Nick was ordinarily residing in Maharashtra. The findings of the Family Court regarding custody were perverse.

However, the court held that natural guardianship does not automatically entitle the father to take custody of the child in all circumstances. The court recognised the father’s position as the natural guardian but noted that the child’s welfare was paramount. Meanwhile, the court harmonised the provisions of both Acts by stressing the welfare of the child as the primary consideration in custody disputes. While the Hindu Minority and Guardianship Act, of 1956, acknowledges the father as the natural guardian, the Guardians and Wards Act, of 1890, allows for a broader interpretation of guardianship, it allows the mother or any other person caring for the child to seek custody. However, the court interpreted that the label of “natural guardian” does not automatically confer an absolute right to custody. Instead, the focus must be on who can best serve the child’s welfare and interests. The court upheld the Family Court’s orders and rejected the petitioner’s contention. The court held that the primary consideration was the welfare of the child. The court permitted the Family Court to hear the matter and deemed the respondent’s application for custody of the child valid.

Natural guardianship of adopted son

Section 7 of the Hindu Minority and Guardianship Act of 1956 states the natural guardianship of adopted sons. Accordingly, Section 7 states that when a minor boy is adopted, the person who naturally becomes his guardian changes. After adoption, the adoptive father becomes the natural guardian of the boy. If the adoptive father is no longer able to be the guardian, e.g., due to death, the adoptive mother then becomes the natural guardian.

Powers of natural guardians

Section 8 of the Hindu Minority and Guardianship Act of 1956 prescribes the provisions for the powers and limitations of natural guardians. Accordingly, it states that:

General powers of the guardian

As per Section 8(1) of the Act, the natural guardian has the authority to take actions that are necessary, reasonable, and proper for the benefit of the minor or the minor’s property. However, the guardian cannot make personal commitments on behalf of the minor.

Restrictions on property transactions

As per Section 8(2), without the court’s prior permission, the natural guardian cannot:

Mortgage, sell, gift, exchange, or otherwise transfer any part of the minor’s immovable property.
Lease any part of the minor’s property for more than five years or for a period extending beyond one year after the minor reaches adulthood.

Voidable transactions

As per Section 8(3), any property transaction by the natural guardian that violates Section 8(1) or Section 8(2) can be declared void, if challenged by the minor or someone acting on the minor’s behalf.

Court permission

As per Section 8(4), the court will only grant permission for the guardian to conduct restricted actions mentioned in Section 8(2), if it is necessary or advantageous for the minor.

Application of the Guardians and Wards Act, 1890

As per Section 8(5), the process for getting court permission under Section 8(2) follows the rules of the Guardians and Wards Act of 1890. Specifically, such applications are treated as proceedings under the Guardians and Wards Act. The court must follow specific procedures and have particular powers as per the Guardians and Wards Act. If the court denies permission, an appeal can be made to a higher court.

“Court” under this Section refers to the city civil court, district court, or any court authorised under Section 4A of the Guardians and Wards Act, 1890. The relevant court is the one with jurisdiction over the location of the minor’s property. If the property spans multiple jurisdictions, any court covering a part of the property’s location can handle the case.

In Minor Mahima vs. E.K. Lingamoorthy (2014), the Madras High Court interpreted the application of Section 8(2) of the Hindu Minority Act. This case involved Kalaivani, the mother of the minor petitioners, seeking permission to sell immovable property belonging to her minor children under Section 8(2) of the Hindu Minority and Guardianship Act, 1956. Kalaivani’s husband, (the father of the minors) had passed away in a motor accident and left behind the property in question.

The main issue arose as to whether Kalaivani, as the natural guardian of the minors, could seek permission to sell the minors’ property under Section 8(2) without being formally appointed as guardian under Section 29 of the Guardians and Wards Act, 1890.

Petitioner contended that as the natural guardian of the minors under Section 6(a) of the Hindu Minority and Guardianship Act, she had the inherent right to manage and dispose of the minors’ property for their benefit. She contended that Section 8(2) of the Act allowed her to seek permission from the court without needing a prior appointment under Section 29 of the Guardians and Wards Act.

The respondents contended that Section 29 of the Guardians and Wards Act mandated a formal court appointment before a guardian could deal with a minor’s property exceeding specified limits. They contended that Kalaivani lacked the legal standing to apply under Section 8(2) without first being appointed as guardian under Section 29.

The court, after hearing both parties’ arguments, held that Section 8(2) of the Hindu Minority and Guardianship Act allowed natural guardians, such as Kalaivani, to seek court permission to sell minors’ property without requiring prior appointment under Section 29 of the Guardians and Wards Act. The court further emphasised the welfare principle and the inherent rights of natural guardians to act in the best interests of minors. Section 29 of the Guardians and Wards Act applies to guardians appointed by the court and mandates prior court permission for specified property transactions. The court clarified that Section 8(2) of the Hindu Minority and Guardianship Act did not impose the same formalities regarding court appointments for natural guardians.

Under Section 6(a) of the Hindu Minority and Guardianship Act, after the father’s demise, the mother, Kalaivani was recognised as the natural guardian of the minors. The court upheld that Kalaivani’s natural guardianship sufficed for invoking Section 8(2) without requiring a formal appointment under Section 29. It affirmed Kalaivani’s right as a natural guardian to seek permission to sell the minors’ property under Section 8(2) solely based on her status and responsibilities under the Hindu Minority and Guardianship Act.

Testamentary guardians and their powers

Section 9 of the Act lays down the provision for testamentary guardians, which means guardians who are appointed by will and also prescribe their powers. Accordingly, the Section states that,

As per Section 9(1), a Hindu father, who is the natural guardian of his legitimate minor children, can appoint a guardian for his children through a will. This guardian can be responsible for the child’s person, property, or both, except for undivided property interests.
As per Section 9(2), if the father dies before the mother, the guardian appointed by the father’s will does not become effective. However, if the mother later dies without appointing another guardian in her will, the father’s appointed guardian will take effect.
As per Section 9(3) & Section 9(4), a Hindu widow or a mother, who is the natural guardian of her legitimate minor children, can appoint a guardian through a will. This guardian can be responsible for the child’s person, property, or both, excluding undivided property interests. This applies to:
- A widow acts as a natural guardian.
- A mother acts as a natural guardian because the father is not entitled to act as such.
As per Section 9(5), the guardian appointed through a will can act as the minor’s guardian after the death of the father or mother, as applicable. This guardian will have the same rights as a natural guardian under this Act, within the limits specified by the Act and the will.
As per Section 9(6), if the appointed guardian is for a minor girl, their rights and duties as a guardian end when the girl gets married.

Incapacity of a minor to act as guardian of property

As per Section 10, a minor cannot act as the guardian of another minor’s property. Essentially, minors are not allowed to manage or take responsibility for the property of another minor.

De Facto guardian not to deal with minor’s property

As per Section 11, after this law came into effect, no one can manage, sell, or handle the property of a Hindu minor just because they have been acting as the minor’s guardian without legal authority. Being a de facto guardian does not give a person the right to deal with the minor’s property.

In Mayilswami Chettiar vs. Kaliammal (1967), the Madras High Court dealt with the matter regarding the alienation of the minor’s property by the de facto guardian. This particular case concerned a mortgage executed by a mother on behalf of her minor children, where the mortgage amount was Rs. 1,500, but the lower courts found that only Rs. 900 was justified by necessity. It was to cover family costs like upkeep and the education of minor children.

The issue considered was whether a mortgage executed by the mother, acting as the natural guardian of the minor, was valid if the father or the other natural guardian was alive.

The appellant argued that since the father was alive, the mother acting as de facto guardian had no authority to mortgage the property of the minors within the meaning of Section 11 of the Hindu Minority and Guardianship Act.

The Madras High Court made a reference to Section 11 of the Hindu Minority and Guardianship Act, 1956, which provides that any alienation of the minor’s property made by the de facto guardian after 25th August 1956 is not valid and the same is void ab initio. The de facto guardian will have no authority to make any transactions that would bind the minor. However, the court pointed out that an act of a de facto guardian as the mother in this case can legally mortgage a minor’s property in cases of necessity under Hindu law, even if there was a legal guardian father. The fact that the father had signed the mortgage deed, and hence evidenced agreement to the transaction, had, in turn, supported the mortgage on the grounds of apparent authority. The court also referred to the decision delivered in Arunachala Reddi vs. Chidambara Reddi (1902) and held that where the mother of a minor acting as a de facto guard sells or mortgages the son’s property for legal purposes, the same shall be valid in law. This case illustrates that in cases of emergency, a de facto guardian, specifically a mother, may also have the power to protect the interests of a minor, notwithstanding the existence of a guardian duly appointed by will or otherwise. Ultimately, the court held the mortgage to be valid in respect of Rs. 900 requisite for the welfare of the minors.

No guardian for the minor’s undivided interest in joint family property

Section 12 of the Hindu Minority and Guardianship Act, 1956 states that, when a minor has a shared interest in family property that is managed by an adult family member, no guardian will be appointed for that minor’s share of the property. Accordingly, if a minor has a shared interest in joint family property, and an adult family member is managing the property, a guardian will not be appointed specifically for the minor’s share of that property. The reasoning behind this is that the property is already being managed by a responsible adult family member. However, the section also clarifies that this does not limit the High Court’s authority to appoint a guardian if it deems it necessary for the minor’s interest.

The welfare of minors is the paramount consideration

Section 13 of the Act provides that the welfare of minors is to have a paramount consideration. Section 13 of The Hindu Minority and Guardianship Act, 1956, focuses on the importance of the minor’s welfare in guardianship decisions. It states that:

When a court appoints or declares someone as the guardian of a Hindu minor, the most important factor to consider is the minor’s welfare. This Section further states that the welfare of the minor is the most critical factor in any court decision regarding the appointment of a guardian. If the court feels that someone’s guardianship would not be in the best interest of the minor, that person cannot be appointed as a guardian, regardless of what other laws might suggest.

In Sunil Kumar Chowdhary and Another vs. Sm. Satirani Chowdhary and Another (1969), the Calcutta High Court dealt with two main issues, judicial separation and child custody. Regarding child custody, the petitioner argued that their son, who lived with the respondent, was not receiving proper education and care.

However, the court observed that the child was well-settled in the reputable Don Bosco School and well-cared for by his mother. The court emphasised the principle outlined in Section 13 of the Hindu Minority and Guardianship Act, which prioritises the child’s welfare above all else. This provision overrules the father’s automatic right to guardianship under Section 19 of the Guardians and Wards Act. The court concluded that it was in the best interest of the child to remain with his mother and the court dismissed the petitioner’s application for custody of the child. Thereby, the court reinforced that the child’s welfare is the paramount consideration.

In Nirali Mehta vs. Surendrakumar Surana & Another (2013), the Bombay High Court addressed the legal and welfare considerations surrounding the custody and access rights of grandparents over a minor child when the natural guardian is alive and capable. In this case, the petitioner is the mother of a minor child named Eklavya. The petitioner and her husband were divorced by mutual consent. The husband gave up custody and visitation rights to Eklavya in exchange for the petitioner’s waiving child support and agreeing to maintain Eklavya. The grandparents (parents of the ex-husband) filed a petition seeking custody and access to the child.

The main issue involved in this case was whether the grandparents have the right to claim custody and access to the child when the mother is alive and acting as the natural and legal guardian.

The petitioner contended that she is the legal and natural guardian of the child. The father has given up his rights, and thus the grandparents do not have any legal standing to claim custody. On the other hand, the respondent contended that they have the right to seek custody and access to the child under Section 19 of the Guardian and Wards Act, 1890, and Section 13 of the Hindu Minority and Guardianship Act, 1956. They argued that it would be in the child’s welfare to have access to them.

The court ruled in favour of the petitioner. The court emphasised that in Section 13 of the Hindu Minority and Guardianship Act, the welfare of the minor is the paramount consideration in appointing or declaring any person as a guardian. The Court stated that only a legal guardian has the right to claim custody and access to a minor. The Court clarified that the welfare of the child does not mean giving custody or access to someone who cannot be legally appointed as a guardian. The Court noted that any person other than the parents can only be considered for guardianship in their absence and must show that it is for the child’s welfare. It was held that the grandparents do not have legal rights to custody or access to the child when the natural guardian, the mother in this case, is alive and capable of taking care of the child. The petition filed by the grandparents was dismissed.

Significant court rulings surrounding guardianship under Hindu Law

Paras Ram vs. State (1960)

The Allahabad High Court provided guardianship by affinity with a logical conclusion in Paras Ram vs. State (1960). In this case, the father-in-law of a minor widow had forcibly taken away the widow from her maternal home and got her married in return for money to a person against the widow’s wish. The issue that appeared before the Hon’ble High Court was whether the father-in-law in this present case could be held guilty for his actions.

The Court held that the father-in-law could not be held to be guilty as he was the lawful guardian of the minor widow. It has been the Act of 2006 (Child Marriage Prohibition Act) and the decision made in T. Sivakumar vs. Inspector of Police, Thrivallur Town Police Station (2011) that has brought a change in the law.

Rajalakshmi And Others. vs. Minor Ramachandran And Another (1966)

In Rajalakshmi And Ors. vs Minor Ramachandran And Another (1966), the plaintiffs were minor children of Arumuga Padayachi through his concubine Marimuthu Ammal. The properties in question were settled on them by Anjalai Ammal under a deed of settlement (Exhibit A-1). Anjalai Ammal settled properties on the minor plaintiffs, with Arumugha Padayachi mentioned as their guardian. The settlement imposed conditions and restrictions on alienation. Despite restrictions in the settlement, Arumugha Padayachi proceeded to mortgage and sell some of the properties without fulfilling the conditions set out in the deed. Legal disputes arose regarding the validity of these alienations under the Hindu Minority and Guardianship Act, of 1956.

The main issues are:

Whether the actions of Arumugha Padayachi in mortgaging and selling the properties were valid under the terms of the settlement deed and the Hindu Minority and Guardianship Act, of 1956.
Whether Arumugha Padayachi could be considered a legal guardian under the Act, or merely a de facto guardian.

Plaintiffs contended that Arumugha Padayachi was not a legal guardian under the Act, as the settlement deed did not formally appoint him as such, and he was not the natural guardian of the minors.

Respondent contended that Arumugha Padayachi was appointed as the guardian under Exhibit A-1 and thus had the authority to alienate the properties.

The court found that guardianship under the Hindu Minority and Guardianship Act, 1956 under Section 6 specifies that the natural guardian of an illegitimate boy is the mother, and thereafter the father. Section 11 of the Hindu Minority and Guardianship Act, 1956 invalidates any disposal of a minor’s property by a de facto guardian without court permission.

The court found that Arumugha Padayachi was not appointed as a guardian under the settlement deed in a legal capacity. His actions in alienating the properties were thus deemed void under the Hindu Minority and Guardianship Act, 1956, which required court sanction for such disposals. The court clarified that Arumugha Padayachi, not being a natural guardian, testamentary guardian, or appointed by the court, but he could only be considered a de facto guardian. Hence, his authority to dispose of the minor plaintiffs’ properties was restricted under Section 11 of the Hindu Minority and Guardianship Act. The court awarded mesne profits and directed specific payments to be made in relation to the alienations made by Arumugha Padayachi.

Lalta Prasad vs. Ganga Sahai (1973)

In Lalta Prasad vs. Ganga Sahai (1973), which appeared before the Rajasthan High Court was concerned with a revision application by the father of two minor boys above the age of five years against an order of the District Judge, Jaipur City, Jaipur, that had appointed their grandfather as their interim guardian under Section 12 of the Guardians and Wards Act, 1890. Section 6 of the Hindu Minority and Guardianship Act, 1956 considers the “father” as a natural guardian of his minor legitimate children. Further, Section 19 of the Guardians and Wards Act, 1890 states that a father cannot be deprived of the natural guardianship of his minor children unless he has been found to be unfit for the same. The petitioner, in this case, had contended that the learned District Judge had no jurisdiction to appoint the grandfather as interim guardian in view of Section 19(b) of the Act.

The High Court had observed that the provisions of Section 19 of the Guardians and Wards Act, 1890, and Section 13 of the Hindu Minority and Guardianship Act, 1956 must be interpreted together and harmonised by the courts under Section 2 of the Hindu Minority and Guardianship Act, 1956 which states that the Act of 1956 is to treat as a supplement to the Act of 1890. In light of the rigour of the prohibition contained in Clause (b) of Section 19 of the Guardians and Wards Act, 1890, the rigour of the prohibition contained in Clause (b) of Section 13 of the Hindu Minority and Guardianship Act, 1956 must be considered to have been greatly relaxed in the interest of the minor’s welfare. In light of this case, the Hon’ble High Court held that the welfare of the minor children was of paramount consideration, and therefore, the father’s right of guardianship was to be considered subordinate to the welfare of the children.

Sakharam vs. Shiv Deorao (1974)

The issue before the Bombay High Court in Sakharam vs. Shiv Deorao (1974) was concerned with the natural guardian’s power over the minor’s property. Observing that a guardian is supposed to do all those acts which are necessary for the minor’s interests and their proper benefit, the Court stated that the generality of this power will exclude all kinds of fraudulent, speculative, and unnecessary transactions. Considering that the powers provided to the guardian under Section 8 are wide powers, the Court upheld that the powers are meant to empower the guardian to act safely for the welfare of the concerned minor. The court went further to state that nothing provided under Section 8 of the Hindu Minority and Guardianship Act 1956 restricts the Karta’s power to alienate the minor coparcener’s interest in the joint family property whenever he has the power to do the same.

Sheila Umesh Tahiliani vs. Soli Phirozshaw Shroff And Ors. (1981)

The Bombay High Court while deciding on the case of Sheila Umesh Tahiliani vs. Soli Phirozshaw Shroff And Ors. (1981) took into consideration the mother’s right of guardianship and its extent under the Hindu Minority and Guardianship Act, 1956. The Petitioner had filed a petition for the custody of her minor son Malcolm under the Guardians and Wards Act of 1890. The Petitioner, who was formerly a Zoroastrian, married Kersi Soli Shroff according to the Zoroastrian religion’s rites and doctrines. Kersi Shroff died on the 18th of April, 1979, in Bombay under sad circumstances and the petitioner gave birth to a son on March 13, 1979, about a month before the death of the aforementioned Kersi, and his custody had been the subject matter of dispute in this case.

The Hon’ble High Court had observed that a mother’s right of guardianship does not get lost on her conversion to some other religion so long she has been able to provide comfort and a happy home to her child.

Suresh Babu vs. Madhu (1984)

In Suresh Babu vs Madhu (1984), the Madras High Court dealt with a custody dispute over a minor daughter named Meera alias Pincky. The case involves a wife (respondent) asking for custody of her young daughter, Meera, from her husband (appellant). She filed a petition in the District Court, Tiruchirappalli, under Section 25 of the Guardians and Wards Act, along with Section 6(a) of the Hindu Minority and Guardianship Act. The wife was faced with physical abuse from her husband. After their daughter Meera was born, the wife hoped things would get better, but her husband’s behaviour did not change. Eventually, he made her leave their home and go back to her parents’ house in Madras. The wife said she was forced to leave behind her jewellery and other things and that her husband’s father did not help her. She tried to make things better, but her husband did not listen. She sent a legal notice to her husband asking for custody of Meera, but he did not respond. She believes she is the best parent for Meera and that leaving her with her husband would be bad for Meera. Worried about her daughter’s well-being, the wife went to court to seek Meera’s custody.

The main issue in this case was,

Who should have custody of the child according to Hindu law?
Is the father fit to be the natural guardian of the child?
Does the mother have a statutory preference for custody, especially for children under five years old?

The appellant argued that under the Hindu Minority and Guardianship Act, the father is automatically the natural guardian of a child unless proven unfit. Since there has been no formal request to declare the father unfit or to appoint someone else as the guardian. Thus the respondent’s request to obtain custody of the child should be denied. Further contended according to Section 6 of the Hindu Minority and Guardianship Act, the father is inherently recognized as the primary guardian of a Hindu child. Only in cases involving children under five years old does the law give priority to the mother’s right to custody. The appellant further argued that the lower court did not adequately consider what would be best for the infant’s well-being. They further contended that the appellant comes from a wealthy family, and was capable of providing every necessary thing for the child’s upbringing. They contended that the appellant himself would be well-suited to care for the child. The appellant highlighted that the welfare of the child should not only focus on material comforts but also on emotional care and affection. Further contended that an application under Section 25 of the Guardians and Wards Act can only be filed by a legal guardian of the minor. The legal guardian must have had custody of the minor at some point, and this custody must have been taken away.

On the other hand, the respondent argued that under Section 4(2) of the Guardians and Wards Act and Section 4(b) of the Hindu Minority and Guardianship Act, 1956, the respondent qualifies as a “guardian” because she has had the care of the minor child. They contended that there is no conflict between these statutes, and therefore, the respondent is entitled to file an application under Section 25 of the Guardians and Wards Act. The respondent contends that the child was removed from her custody. They further contended Section 25 focuses on what is explicitly stated. If the law does not explicitly exclude someone or something from a provision, then that person or thing is assumed to be included under that provision. Thus, the respondent asserted her right to seek custody of the child based on her role as a guardian under these Acts.

The court, after listening to both parties’ arguments, interpreted that under Hindu law, the term “guardian” as defined in the Guardians and Wards Act and the Hindu Minority and Guardianship Act is broad enough to include not only legal guardians but also those who have actual care and custody of a minor. In this case, although the father is the natural and legal guardian, the respondent, who had physical custody of the child, also qualifies as a guardian under these Acts. The court emphasised that Section 25 of the Guardians and Wards Act applies to any guardian who has had custody of a minor removed from them. Since the respondent’s custody of the child was disrupted when she was sent away from her matrimonial home, the court found that she met the legal requirements to invoke Section 25 of the Guardianship Act. Therefore, the court upheld the lower court’s decision to restore custody of the infant to the respondent. The court ruled that her application for custody was maintainable under the law. The appellant’s objections were dismissed and the court affirmed the restoration of custody to the respondent.

Vijayalakshmi vs. The Inspector Of Police, Karur Police (1990)

In the Vijayalakshmi vs. The Inspector Of Police, Karur Police (1990), Vijayalakshmi, the petitioner, and her husband got married in 1982 and had two children. Due to alleged cruelty by her husband, the petitioner moved to her parents’ house in Karur in 1985. She filed a maintenance petition under Section 125 of the CrPC, and a court ordered her husband to pay maintenance for her and their children. However, her husband converted to Islam, remarried, and did not regularly pay maintenance. In June 1990, he entered Vijayalakshmi’s house in her absence and took their children.

The main issue was whether the court should direct the petitioner’s husband to return custody of the children to her.

The petitioner argued that the children were in her custody at her parent’s house, and her husband took them away without her consent. She sought their return based on her rights as a mother and custodian. In response, her husband claimed there was a prior compromise where the petitioner agreed not to enforce the maintenance order. He also asserted that the petitioner had deserted him.

The court looked into Section 6 of the Hindu Minority and Guardianship Act. Section 6 basically says that if a father used to be Hindu but converted to another religion, the mother automatically becomes the natural guardian of their minor children. The court pointed out that the father could not claim guardianship rights under Hindu law in such cases. The court held that the well-being of the children is the most important thing. So the court ordered the petitioner’s husband to give the children back to her custody.

Githa Hariharan vs. Reserve Bank of India (1999)

The Supreme Court of India, in the landmark case of Githa Hariharan vs. Reserve Bank of India (1999), decided on the validity of Section 6 of the Hindu Minority and Guardianship Act of 1956, which was challenged by the petitioner on the ground that the dignity of women is a right inherent under the Indian Constitution, which as a matter of fact stands negatived by Section 6 of the Act of 1956. The Apex Court was hearing a request for custody of the petitioner’s minor son, who was born through the petitioner’s and the first respondent’s legal marriage. It should be noted that a divorce case was already underway in the Delhi District Court, and the first respondent had asked for custody of their minor son in that case. The Petitioner, on the other hand, had filed a request for support for herself and her little son. Ms. Indira Jaisingh, who testified in support of the petitioner, argued that Section 6 of the Act severely disadvantaged women and discriminated against them when it comes to guardianship rights, obligations, and control over their own children.

The Honourable Supreme Court interpreted that the word ‘after’ under Section 6 must be given a meaning that would suit the requirement of the case as it related to the minor’s welfare, while also taking into account the fact that law courts prefer to keep legislation in place rather than declare it void. The word ‘after’ does not necessarily indicate after the father’s death; rather, it denotes an intention to attach the connotation of ‘in the absence of’, be it temporary or otherwise, absolute apathy of the father toward the child, or even inability of the father due to illness or another.

Navin Singh vs. Smt. Jyoti Parashar (2004)

In Navin Singh vs. Smt. Jyoti Parashar (2004), the Allahabad High Court dealt with several aspects concerning custody and guardianship under the Hindu Minority and Guardianship Act, 1956, and the Guardians and Wards Act 1890.

Smt. Jyoti Parashar, the respondent, married the petitioner in 1997 against her family’s wishes. They had a son named Nick Singh in 1998. Allegedly, the petitioner’s family was involved in illegal activities, and the respondent left him in 2003 due to mistreatment and threats to engage in illicit activities. She moved to Agra with their child and filed for custody under Section 25 of the Guardians and Wards Act, 1890, after Navin Singh took the child forcibly back to Maharashtra.

The main issue was who the rightful custodian of the child was.

The petitioner argued that Agra’s Family Court had no jurisdiction since the child was living in Maharashtra. The petitioner further claimed that, as the father and natural guardian under the Hindu Minority and Guardianship Act, custody could not be granted to the mother within the meaning of Section 6 of the Hindu Minority and Guardianship Act. He also contended that the respondent’s application under Section 25 of the Guardians and Wards Act, 1890, was not maintainable since he was the natural guardian.

The court held that the Agra Family Court had jurisdiction to hear the case since the child was residing with the respondent in Agra at the time of filing. While the petitioner was the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, the court emphasised the child’s welfare was paramount and granted interim custody to the respondent, considering her better financial stability and living conditions. The court underscored that while the father held natural guardianship, custody decisions had to prioritise the welfare of the child. This principle aligned with precedents such as the Supreme Court’s ruling in Smt. Surinder Kaur Sandhu vs. Harbax Singh Sandhu (1984), in which the court emphasised that the child’s best interests override any automatic entitlement to custody based solely on guardianship status. Further, the court looked at the term “after” in Section 6(a) of the Hindu Minority and Guardianship Act. This section talked about who could be a child’s guardian. In common understanding, “after” might be understood to mean after someone had died. The court explained that here, “after” did not just mean after the father’s death. Instead, it meant “in the absence of.” So, if the father was not able to take care of the child for any reason, not just death, the mother could be the guardian. The main aim was to ensure that the child’s best interests were taken care of, regardless of whether the father was alive or not. The court thereby accepted the respondent’s application under Section 25 of the Guardians and Wards Act, 1890. It ruled that “guardians” in the Act included all guardians, not just natural guardians.

Gaurav Nagpal vs. Sumedha Nagpal (2008)

A minor’s ethical and moral welfare was considered an important factor under the Hindu Minority and Guardianship Act, 1956 by the honourable Supreme Court of India in Gaurav Nagpal vs. Sumedha Nagpal (2009). In the present case, the couple got married on October 14, 1996, and their first kid was born on November 15, 1997. The respondent further had abandoned the child on 8.8.1999, according to the Appellant, but she filed a Habeas Corpus petition with the Delhi High Court on 25.8.1999. The petition was dismissed by the High Court due to a lack of territorial jurisdiction. The respondent thereafter had filed a Special Leave Petition and a Writ Petition under Article 32 of the Constitution of India, 1950 in response to the High Court’s order dated 14.1.2000. The Appellant was granted interim custody of the 20-month-old child by this Court. At last, a contempt petition was filed by the respondent for violation of the terms by the Appellant. The Apex Court made the following observations as have been presented hereunder;

The well-being of the child is the most important factor for the Court to consider. However, the child’s well-being should not be judged solely in terms of money or physical comfort. The term “welfare” must be interpreted broadly. The child’s moral or religious well-being, as well as its bodily well-being, must be considered and affectionate ties cannot be overlooked.
The primary purpose of using habeas corpus in a child custody case is not to test the legality of confinement or restraint as contemplated by the ancient common law writ or by statute, but to provide a means for the court, in the exercise of its judicial discretion, to determine what is best for the child’s welfare, and the decision is reacquired.
In considering what will be for the welfare of the minor, the court shall have regard to the age, sex, and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

Deepti Bhandari vs. Nitin Bhandari (2011)

The issue before the Supreme Court of India in Deepti Bhandari vs. Nitin Bhandari (2011) was concerned with the visitation rights of parents. Taking note of the inconvenience being faced by the respondent and his family members, the Apex Court observed that visitation rights can be arranged by keeping in view the convenience of the parents of the child, and therefore it needs to be decided by the parents themselves. The interference of the courts unnecessarily was only complicating the matter.

T. Sivakumar vs. Inspector of Police, Thrivallur Town Police Station (2011)

The Madras High Court expressed strong dissent of the aspect of the law that recognizes husbands as the guardians of their minor wives in the 2011 case of T. Sivakumar vs. Inspector of Police, Thrivallur Town Police Station (2011). The two major issues that were brought before the Hon’ble High Court in the present case were;

Whether a marriage contracted by a person with a female of fewer than 18 years be said to be a valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?
Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody?

While answering the issues and granting custody to the minor girl, the Court observed that it shall consider the minor girl’s paramount welfare, including her safety, notwithstanding the legal right of the person seeking custody and the grant of custody. The same shall not prejudice the parties’ legal rights to seek appropriate relief in the civil court. The Court went further to state that a law cannot be interpreted in a way that makes it either redundant or unworkable to defeat the very objective of the Act in concern. Therefore, an adult man who has married a female child thereby violating the Prohibition of Child Marriage Act shall not be the natural guardian of the girl child.

Shri Shivappa S/O Eerappa Meti vs. Sri Ramesh Shivaputrappa Jamadar (2020)

In Shri Shivappa S/O Eerappa Meti vs. Sri Ramesh Shivaputrappa Jamadar (2020), Shri Shivappa and Smt. Sharada Meti, (petitioners) were grandparents of two minor children. Ramesh Shivaputrappa Jamadar, (respondent) was the father of the children. Shweta, daughter of the petitioners, married the respondent on 25 May 2010. After marriage, Shweta was allegedly harassed by her husband and his parents for dowry. The harassment included physical and mental abuse and led to intervention by police and a women’s grievance redressal forum.

Shweta and Ramesh had two daughters, born on 3 June 2012 and 7 November 2014. Shweta died from electrocution on 25 August 2017 at her parents’ house. Post her death, Ramesh remarried within eight months and did not visit or care for the children.

Meanwhile, the respondent filed a case for the custody of the children under Sections 6 and 13 of the Hindu Minority and Guardianship Act, 1956, and Section 17 of the Guardians and Wards Act, 1890.

The primary issue in this case was the transfer of the custody case (G&W No. 4/2018) from the Principal Judge Family Court in Hubballi to the Family Court in Belagavi.

Petitioner claimed that the respondent has never been involved in the children’s lives and only filed for custody to harass them. They emphasised their health issues and the challenges of travelling to Hubballi for court proceedings.

Respondent’s Argument:

The respondent asserted his legal right as the natural father under Section 6 of the Hindu Minority and Guardianship Act, 1956. He had the right to have custody of his children.

The Karnataka High Court after hearing both parties’ contentions, allowed the petition and transferred the case (G&W No. 4/2018) from the Family Court in Hubballi to the Family Court in Belagavi. The court took into account the fact that the children have always lived with their grandparents in Belagavi, and the health conditions of the petitioners would make it difficult for them to travel to Hubballi. The court found it just and equitable to transfer the case to Belagavi. The court emphasised that the children’s welfare is paramount.

Umesh Kaithwas vs. Rajendra Borasi, (2024)

In Umesh Kaithwas vs. Rajendra Borasi (2024) Umesh Kaithwas, the petitioner, sought the custody of his son, Nirbhay, who had been living with his maternal grandparents, Rajendra Borasi the respondent, and Seema Borasi, since the death of his mother, Chanchal Kaithwas. Umesh and Chanchal married in 2019 and had a son, Nirbhay, in 2021. Tragically, Chanchal passed away in November 2022.

The petitioner is an employed and financially stable person. Petitioner contended that as Nirbhay’s father and natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, he should have custody to ensure his son’s wellbeing, education, and future. He claimed that the grandparents, due to their old age, illiteracy, and financial instability, could not provide the same level of care and support to the child. On the other hand, the respondents, Nirbhay’s grandparents, opposed the petition. They asserted that they had been taking good care of Nirbhay since his mother’s death.

The court referred to Section 6 of the Hindu Minority and Guardianship Act, 1956, and noted that the natural guardian of a Hindu minor is the father unless it is against the child’s welfare. Section 13 of the same Act emphasises that the child’s welfare is the paramount consideration in custody matters. The court also mentioned other cases, like Amol Ramesh Pawar vs. The State of Maharashtra (2014) and Shekhar Jagdish Prasad Tewari vs. The State of Maharashtra (2019). In these cases, the courts upheld the father’s right to custody unless it would harm the child. After thoroughly reviewing all the evidence and hearing arguments from both parties, the court came to the conclusion that Umesh, being the biological father and natural guardian of the child, should have custody of the child. The court recognised that Nirbhay, being very young, needed his father’s love and care. Additionally, the person making the request in this case is financially stable and capable of providing a better environment. The grandparents, although caring, did not have enough resources to meet Nirbhay’s long-term needs. Therefore, the court overturned the trial court’s decision and instructed the grandparents to give custody of Nirbhay to Umesh within ten days. However, the court also granted visitation rights to grandparents.

Gyanedra Pr. Tripathy vs. Sanjaya Kumar, (2024)

In Gyanedra Pr. Tripathy vs. Sanjaya Kumar (2024) revolves around land initially acquired by minors through their mother as their guardian in 1996. Subsequently, in 2001, another sale of this land took place, where the same minors’ mother sold the land to the defendant. The dispute arose because this sale did not have prior permission from the District Judge, as required by law under the Hindu Minority and Guardianship Act, 1956. The plaintiffs, now becoming adults, contended before the court that since they did not benefit from the sale and no possession was given to the defendant, the transaction should be considered invalid.

The central legal issue was whether the sale deed executed by the mother, acting as guardian, without obtaining prior permission from the District Judge was legally valid.

The petitioner contended that the sale was void because it violated the law’s requirement for court permission. According to Section 8(2) of the Hindu Minority and Guardianship Act, 1956, such permission is mandatory for any transaction involving minors’ immovable property to protect their rights. The petitioner also argued that since they did not receive any educational benefits or possession of the land, the sale was not in their best interest.

The defendant argued that the mother, as a guardian, had bought the land using her own funds for the educational benefit of her children. Therefore, she had the authority to sell it without additional permission. They claimed that possession had been delivered to the defendant, and the sale was valid under these circumstances.

The trial court agreed with the plaintiffs and declared the sale deed void because it lacked the necessary court permission under Section 8(2) of the Act. It ruled that the mother, despite being the guardian, did not have the legal authority to sell the minors’ property without fulfilling this requirement. When the matter reached the Orissa High Court, the court upheld this decision, by emphasising the protective intent of the law towards minors’ property rights. It dismissed the defendant’s appeal. Thereby, the court affirmed the injunction against interference with the plaintiff’s possession of the land.

Raj Kaur vs. State of Punjab and Others (2024)

In Raj Kaur vs. State of Punjab and Others (2024), Raj Kaur (petitioner) married Harjit Singh on 03.03.2011. They had two children, Vanakjot Kaur (born on 08.09.2012) and Ravinderjit Singh (born on 06.07.2014). The marriage was dissolved by divorce on 09.11.2022, and the petitioner retained custody of both children. After her divorce, the petitioner moved to her parental home with her children. Later, she moved to her elder sister’s (respondent No.4) home in Faridkot. In May 2023, the petitioner remarried Kashmir Singh and moved to her new matrimonial home with her son. She left Vanakjot Kaur with respondent No.4 to prepare for entrance exams for Jawahar Navodaya Vidyalaya School. During the Diwali break, when the petitioner went to visit Vanakjot Kaur, she found that the child had been taken by respondents No.3 & 4, and the school authorities refused to allow the petitioner to meet her daughter.

The main issue was whether the petitioner should restore Vanakjot Kaur’s custody.

The petitioner argued that under Section 6 of the Hindu Minority and Guardianship Act, 1956, she is the natural guardian of her daughter and should have the legal right to her custody.

Petitioner further argued that the welfare of the child would be best served under her care and further contended that her daughter was wrongfully taken away by respondents No.3 & 4.

The respondents argued that Vanakjot Kaur’s welfare was best served while staying with them. They claimed that they were taking good care of her and that she was preparing for her entrance exams without any harassment. They further contended that Vanakjot Kaur expressed her desire to stay with them, which should be respected.

The court in camera proceedings interacted with Vanakjot Kaur in private and noted that she was above average in prudence and expressed her willingness to stay with respondents No.3 & 4. The Court acknowledged that under Section 6 of the Hindu Minority and Guardianship Act, 1956, the petitioner is the natural mother and guardian. However, Section 13 of the same Act prioritises the welfare of the child. The Court decided that while the petitioner is the natural guardian, however the child’s desire and welfare must be considered. Therefore, the petition was disposed of, and the court allowed the petitioner to seek custody through appropriate legal channels. The court further ordered that respondents No.3, 4 & 5, including the school authorities, must not prohibit the petitioner from meeting her daughter, following the school’s rules and regulations.

Ashok Kumar vs. The Inspector General Of Registration (2024)

In Ashok Kumar vs. The Inspector General Of Registration (2024), a three-year-old boy, referred to as “A,” in the case was born on 28 November 2021 to “K” (mother) from an illicit relationship when “K” was a minor. “K” wanted to give her child up for adoption, and Ashok Kumar (petitioner) and his wife agreed to adopt “A.” They created an adoption deed and presented it for registration. The registration was refused because “K,” now an adult, was unmarried at the time of giving the child for adoption.

The main issues were:

Could an unmarried adult woman give her child up for adoption?
Was the consent of the biological father required if he was not involved in the child’s life?

The petitioner argued that the refusal to register the adoption deed was incorrect and relied on the Hindu Adoptions and Maintenance Act, 1956.

The respondent argued that the refusal was correct due to the absence of the biological father’s consent.

The court held that being unmarried did not disqualify a woman from giving her child for adoption. The law used the terms “father” and “mother,” not “husband” and “wife.” The court noted that according to Section 6 of the Hindu Minority and Guardianship Act, 1956, the mother was the natural guardian of an illegitimate child. Since the biological father was not identified and involved, his consent was not required. The mother, “K,” was deemed competent to give the child up for adoption. The reason for refusal was found to be invalid and based on a patriarchal mindset. It incorrectly assumed an unmarried woman could not give her child up for adoption. The court highlighted that the child’s welfare was paramount and also praised the petitioner and his wife for taking the child in adoption. The court set aside the refusal check slip and ordered the registering authority to register the adoption deed upon re-presentation, subjected to the usual formalities.

Conclusion

Guardianship is a relevant subject matter under Hindu law and the purpose behind the legislation that has been constructed for this subject matter is to take definite and proper care of the minor individuals. The majority of the cases that have been discussed in this article show an inclination towards the welfare of the minor as provided under Section 13 of the Hindu Minority and Guardianship Act, 1956.

The Law Commission of India has recently submitted its Report No. 257 on “Reforms in Guardianship and Custody Laws in India” to the Union Minister of Law and Justice. The report suggests several changes to existing laws with regard to the “welfare of the child” in custody and guardianship matters. The Commission believes that changing the law will ensure courts prioritise the child’s welfare and can help address this imbalance. This would protect the child’s future, regardless of changes in the family. Thus, the Judiciary has delivered several crucial decisions by considering the welfare of the child.

Frequently Asked Questions (FAQ’s)

Does the Hindu Minority and Guardianship Act have an overriding effect?

Yes, the Hindu Minority and Guardianship Act has an overriding effect. Section 5 of the Act, prescribes the overriding effect. Similarly, these provisions take precedence over previous laws and customs that might have governed similar matters before their enactment.

Who is considered a minor under this Act?

As per Section 4(a) of the Act, a person who is under eighteen years of age is considered a minor under this Act.

What is a de facto guardian?

A de facto guardian is someone who acts as a guardian in fact or in practice, even though they may not have been legally appointed as a guardian. They assume responsibility and make decisions for a minor or incapacitated person.

What does “void ab initio” mean?

“Void ab initio” refers to something being void from the beginning or invalid from the outset. It indicates that an act or contract is treated as if it never existed legally.

References

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