This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides an understanding of the concept of guardianship under Hindu law through case studies.
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, 1956 codifies the laws regarding minority and guardianship with the welfare of the child at the core.
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.”
This article provides a deep understanding of the concept of guardianship under the Hindu law by means of judicial precedents.
Guardianship under Hindu Law through judicial precedents
Section 6 of the Hindu Minority and Guardianship Act, 1956 defines only three natural guardians:
- For a legitimate unmarried boy or a girl, the father, and after the father, the mother provided that the custody of a child less than 5 years of age will be with the mother.
- For an illegitimate boy or a girl, the mother, and after the mother, the father.
- For a married woman, the husband.
The aforementioned provision is inclusive of a proviso which states that “no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).”
Sections 7 and 8 of the Act of 1956 talk about natural guardianship of adopted sons and the powers of natural guardians respectively. It is Section 9 of the Act that lays down the provision for testamentary guardians (guardians who are appointed by will) and their powers. Section 13 of the Act has been much in discussion for over several years now as it provides that the welfare of minors is to have a paramount consideration.
Lalta Prasad v. Ganga Sahai (1973)
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 present case of Lalta Prasad v. Ganga Sahai (1973) that appeared before the Rajasthan High Court was in concern 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. 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 harmonized 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 rigor of the prohibition contained in Clause (b) of Section 19 of the Guardians and Wards Act, 1890, the rigor 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.
Githa Hariharan v. Reserve Bank of India (1999)
The Supreme Court of India in the landmark case of Githa Hariharan v. Reserve Bank of India (1999) decided on the validity of Section 6 of the Hindu Minority and Guardianship Act of 1956 that was challenged by the Petitioner on the ground that the dignity of women is a right inherent under the 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 top 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.
Sheila Umesh Tahiliani v. Soli Phirozshaw Shroff And Ors. (1981)
The Bombay High Court while deciding on the case of Sheila Umesh Tahiliani v. 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.
Paras Ram v. State (1960)
The Allahabad High Court provided guardianship by affinity with a logical conclusion in the case of Paras Ram v. 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 of 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 the case of T. Sivakumar v. Inspector of Police, Thrivallur Town Police Station (2011) that has brought a change in the law.
T. Sivakumar v. 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 guardian of his minor wife in the 2011 case of T. Sivakumar v. Inspector of Police, Thrivallur Town Police Station. 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 could be said to be 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.
Gaurav Nagpal v. Sumedha Nagpal (2008)
A minor’s ethical and moral welfare was considered as an important factor under the Hindu Minority and Guardianship Act, 1956 by the Supreme Court of India in the case of Gaurav Nagpal v. 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 wellbeing 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 v. Nitin Bhandari (2011)
The issue before the Supreme Court of India in the case of Deepti Bhandari v. 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 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.
Sakharam v. Shiv Deorao (1974)
The issue before the Bombay High Court in the present case of Sakharam v. 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 be excluding 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 for empowering the guardian to act safely in 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 minor coparcener’s interest in the joint family property whenever he has the power to do the same.
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 list of cases that have been discussed under this article is not an exhaustive list but definitely covers the major cases.
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