THE HINDU MINORITY AND

GUARDIANSHIP ACT, 1956

the interest of the persons who due to their minority or insufficien

Law ofguardianship aims at securing
themselves. Guardian &Wards Act, 1890 is applicable to all persons
mental capacityare unable to look after
that the provisions contained
in India. Section 2 of the Hindu Minority and Guardianship Act, 1956, provides
1956 shall be in addition to the provisions contained in Guardian &
in Hindu Minority & Guardianship Act,
in case of conflict between the provisions of
Wards Act, 1890 and is not in derogation ofsame. However,
Act, 1956 will apply in case of Hindus but if Hindu
two, the provision of Hindu Minority& Guardianship
such point provisions of Guardian &
Minority & Guardianship Act, 1956 is silent on some point then on
Wards Act, 1890 shall apply.

Definitions

Minor: Section 4(a) of the Hindu Minority and Guardianship Act, 1956 defines 'minor as a person

who has not completed the age of eighteen years.

Guardian: Section 4(b) of the Hindu Minority and Guardianship Act, 1956 defines 'guardian' as a

person who is entrusted with the

case and custody of minor's person or property or both and includes-
Kinds of Guardian

Natural Testamentary Appointed Empowered Other

by court under court
of wards

Defado By affinity

Anatural guardian;
father or mother
) A testamentary guardian ie. a guardian appointed by the Will of the minor's
A guardian appointed or declared by court
Wards.
v) A person empowered to act as such by or under any enactment relating to any Court of
Besides these, other types of guardians are

Defacto guardian;
) Guardian by affinity.

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 Hindu Larw

Natural Guardians
*

A natural guardidisy
Section C) states that a natural guardian is one who is mentioned in Section 6.
neral, is a person having the care of the person or property of minor or of both by virtue of his natu l
genc

relationship with the minor. According to Section 6 ofthe Act, the folowing are the natural guardians o
Hindu minor in respect of his person as well as his property
n case of a boy or unmarriced girl:The father and after him, the mother. However, custoay
1.
of a minor under the age of 5 years shall ordinarily be with mother.
her, the
In case
ofillegitimate boy or illegitimate unmarried girl: The mother and after
father
3. In case ofa married girl: The husband.
Thus, among the Hindus, father is generally the natural guardian of his children during their minority.
to mother to act as guardian which is revocable. The mother become natural
He may give authority
can

315,
guardian afier father's death. However, in Gita Hariharan v. Reserve Bank of India, AIR 1999in SC
Section
word 'after
the Supreme Court adopting the rule of harmonious construction observed that the
but in the
62) of Hindu Minority and Guardianship Act, need not necessarily mean 'after the lifetime'
absence' of and held the Section 6a) constitutionally valid. If the father is not in charge of the actual affairs
of the minor, either because of his indifference or because he is staying away from the place where the
mother and the minor are living or by virtue of mutual understanding between the parents or because of
mental or physical incapacity, then in all such situations, the father can be considered as absent and the
mother can act validly as first and equal guardian.
Under Section 6, the natural guardians are for the separate property of minor. They do not act with
ect to joint family property. The guardianship of entire joint family property including the interest o

minor's share vests in the Karta.

Natural guardian of adopted son: Section 7 of the Act provides that the natural guardian o
adopted son who is a minor, is his adoptive father and after him, the adoptive mother. This Act only deals
with guardianship of adopted son and not daughter. But on the principle of Section 12 of Hindu Adoption
and Maintenance Act, 1956, the adoptive father or adoptive mother shall be the natural guardian of adoptive

daughter.
Disqualification to be a
guardian
A person is disqualified to act as a guardian i f

H e has ceased to be a Hindu [proviso (a) to Section 6

2. He has completely or finally renounced the world [proviso (b) to Section 6]1.

3. He or she is step-father or step-mother [Explanation to Section 6].

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 Volume lll
Mains Examinations:
A Compendious Guide to JudicialServiaes
property of minor [Section 10].
4. He is a he/she cannot be guardian of
minor in which
minor's welfare [Section 13(2)]
5. His or her guardianship is against

Powers of a natural guardian

deals with the powers of natural
Act, 1956,
Section 8 of the Hindu Minority and Guardianship
to Section 8(1) of the Act, the natural guardian of
and restrictions on such power. According
guardian
to do all acts which are-
Hindu minor has power
for the benefit of the minor,
or
reasonable or proper
(a) Necessary or

minor's
protection o r benefit of
estate.

(b) Necessary for the realization,

for minor's welfare-
Thus, a natural guardian can exercise any of the following powers
in case of legal necessity or for the benefit ofestate [Hanumaan
1. Power to alienate minor's property
6 MIA 393].
Prasad v. Mst. Bobooyee, (1856)

behalf of minor so as to bind the minor's estate.

2. Power to enter into contract on

behalf of his word with the sanction

of court.
3. Power to enter into compromise on

order the interest of child.

dispute to arbitration in
to preserve
4. Power to refer the

minor's interest.
5. Power to do all other acts necessary for

the where the guardian wishes to mortgage or charge

However, court's permission is required in
cases

The
of the immovable property of the minor. court
or by way of sale, gift, exchange, etc. any part
transfer
in case of necessity or for the evident advantage
shall not grant the permission to the natural guardian except
debts taken by him for the supply of necessaries
ofminor. The guardian can also bind the minor's estate for
SC 519, the Supreme Court laid down that after
minor. In Manik Chand v. Ram Chand, AIR 1981
to
which are
has been empowered to do all such acts
passing of the Act of 1956, the natural guardian
benefits of the child.
necessary for the welfare and

Restrictions on the power of natural guardian

of Section 8, which are discussed as

The powers of natural guardian is subject to the other provisions
under
the natural guardian
1. Minor cannot be bound by personal covenant: Section 8(1) empowers
to do any act for minor's benefit but he can in no case bind the minor by a personal covenant.
minor's property, the said agreement is not
Thus, where a father enters into an agreement to sell
binding upon minor.

2 No alienation without court's permission:

Section 8(2) of the Act lays down that the natura
guardian cannot

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94
 Hindu Lanes
(a) Mortgage, charge or transfer by sale, gift, exchange or otherwise any part ofimmovable property
or

Lease
(b) any part of such
property for a term exceedine 5 vears or for a term exceeding onc yee
beyond the date on
which minor will attain maiority, without the
previous permissio o he
court. Sub-section (4) further provides that the court shall
grant such permission
1. In case of necessity, or

2. For an evident advantage to the minor.

Thus, the Act throws upon the court the entire responsibility for granting such permission. Ihe

court musthold due inquiry before permission is granted and determine whether the proposed transaction

would be for minor's benefit, The procedure governing grant of permission are the same as laid down in
Section 31 of Guardianship and Wards Act, 1890. Once the permission is granted, the alienation made by

the guardian cannot be impeached by minor except in case of fraud or underhand dealing
Effect of contravention: Section 8(3) of the Act lays down that disposal of immovable property by
natural guardian which is not necessary, reasonable, proper or not for the benefit of estate or which has not
been sanctioned by court under Section 8{2), is voidable at the option of the minor or any person claiming
under him by a suit. Thus, a minor can challenge the acts of guardian in such cases by filing a suit within three

years from the date when he attains majority [Article 44 of Limitation Act].
Hindu Mother as Guardian

The Hindu Minority and Guardianship Act has improved the status of the mother as the natural
guardian and she can act as a guardian even when father is alive if it is in the interest of minor child. The law
relating to custody of a minor child by the mother is contained under Section 6(a) of Hindu Minority and
Guardianship Act, 1956, according to which the custody of a minor who has not completed the age of five
years shall ordinarily be with the mother. If the minor is more than five years of age and his/her father is
alive and fit, the mother is incompetent to act as natural
guardian.
In the case of K.S. Mohan
Sandhya Mohan, AIR 1993 Mad 59, the Madras High Court has held
v.

that custody of a child below the age of five years should be

given to its mother and only in exceptional
circumstances, father may claim the custody of that child. It is true even in cases where she is
the
employed
and the possibility to take
proper care over the child is lessened. The mere fact that the mother has not
visited the child for years did not indicate that she was not
attached to the child.
Relevant factors for granting custody: Proviso Section
to 6(a) uses the word 'ordinarily. In case of
a minor child below the
age of 5 years mother does not have absolute or indefensible right. The
factor in this regard is 'welfare of the
controlling
minor'. Supreme Court in Sumedha Nagpal v. State of Delhi,
2000 (2) HLR 199 (SC) held that controlling consideration regarding the custody of minor is welfare of

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A Compendious Guide toJudicial Servnaes
Jayanti Ganguli, AlIR 2008 SC 2262, the Supre
minor. In the case of Mausmi Moitra Ganguli v. preme
AlR 1973 SC 2090, observed that
children are not mere chattel,
referring to Rosy Jacob's case, destines and the lives
Absolute rights of parents over their .

of
nor are they mere playthings for their parents.
of their welfare as human beings so that they may grow un
p i.in
their children has yielded to the consideration
normal balanced manner.
2013 SC 102, the Supreme Court observed that an
Jiten Bhalla, AlR
.

In the case of Gayatri Bajaj v.

required to be made treating the interest and welfare of minor to hbe

order of custody of minor children is
relevant factors that have to be taken into consideration whil,
hile
of paramount importance. The following
deciding the issue of minor's custody
1.
1. The desire of child.
environment for proper upbringing.
2. Availability of a conducive and appropriate
take of the child.
Ability and means of the concerned parent
to care
3.
For instance, in Shaleen Kabra v. Shivani Kabra, AIR 2012 SC 2467, the parents of children were
in various litigations including divorce. Both the children were
living separately and have been involved
in to look after educational need of elder son
dosely associated with each other. Mother was not position
Father who was member of Indian Administrative Service was able to take care of children with the helo
of his father who was professor. It was held by Supreme Court that separation of children would be

the father and mother was given visitation

against their welfare. Custody of both the children were given
to

right to meet children once in a month.

In ABC v. The State (NCT of Delhi), AIR 2015 SC 2669, the Supreme Court concluded that, an
unwed mother can become the sole guardian of the child without disclosing the name of the child's father.
Also she would have all the rights against the child as a guardian under guardianship rights. The court has
also directed that name of father may not be made public and may also not be necessary for obtaining the

birth certificate, passport and for school purposes of child.

De facto Guardian

De fato guardian is nowhere defined in the Hindu Minority and Guardianship Act, 1956. A de facto

g1ardian is neither a legal guardian nor a testamentary guardian, nor a guardian appointed by the court but
he is a person who himself takes continuous interest in the management of the affairs of the minor and
administration of his property without any authority of law. He is not an intermeddler nor does an isolated
act of any person in regard to child's property make him a de facto guardian. Some continuous course of
conduct is necessary on his part. Thus, a person who has the care of properties of a minor but who is

neither a natural guardian, testamentary guardian or a guardian appointed by the court is only a de jaco

guardian.

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 Imdu lans
Power of
de lacto guardian
Under old Hindu law, the power of de Jacto guardian was similar to natural guardian and the transactions

entered into by de fado guardian void.

on behalf of the minor was regarded to be voidable and not

However, ater the commencement of Hindu Minority and Guardianship Act, Section 11 of the Act

abrogated the power or de Jacto guardian to alienate and deal with the property of a Hindu minor. Any

alienation made by de Jacto guardian would be, thus, void ab initio.

Thus, Section l1 of the Act has done away with de facto zuardian and the statute only recognizes natura
guardian, testamentary 8uardhan or guardian appointed by the court. In Madhe Gowda v. Ankegowda,
(2002), SCC 178, Supreme Court held that authority of a person to deal with or dispose of any property
of Hindu minor on the ground of his being de facto guardian has been done away with.

Testamentary Guardian
Section 9 of the Hindu Minority and Guardianship Act, 1956 deals with testamentary guardian of a

Hindu Minor. He is the one who is appointed by the Will of father or mother entitled to act as natural

guardian for the minor. Such a Will becomes effective only after the death of minor's father or mother as

the case may be after which the testamentary guardian can exercise all powers of natural guardian subject to

the terms of the Will by which he is appointed and the provisions of the Act.

Who may appoint: The Act recognizes the right of the following persons to appoint guardian of the
person and property (separate) of a Hindu minor

1. Father (Section 9(1)]: A Hindu father, natural or adoptive, can, by Will, appoint a guardian in
respect of minor's person or separate property or both. But the father cannot supersede the

mother to act as natural guardian by appointing testamentary guardian if he predeceases her but

if mother dies wthout appointing any guardian, the appointment made by the father shall revive

. Widow [(Section 9(3)] : A Hindu widow entitled to act as a natural guardian of her legitimate
children may, by Will, appoint a guardian for any of them in respect of their person or separate
property or both. Similarly, a Hindu mother entitled to act as a natural guardian of her legitimate

children because the father has become disentitled to act as such, may also appoint a testamentary
guardian.
3. Mother [Section 9(4)]: A Hindu mother entitled to act as a natural guardian of her minor
illegitimate children may appoint aguardian by Will for any of them in respect of minor's person
or property or both.

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A Compendious Guide toJudicial

Minor as a Guardian

that a minor can act as guardian in

and Wards Act, 1890, provides
n
Section 21 of the Guardianship

following cases
child minor wife.
person of his minor
or
He can act as a guardian of the
(a)
of joint family property of a Hindu minor, in the capacity of Karta of
(b) He can act as guardian
joint family.
the property of another
Act prohibits a minor to act as a guardian of
However, Section 10 of the
to the extent of property of other
& Wards Act stand superseded
minor. Thus, the rule of Guardians
minor wife and children is still
the natural guardian of the person of his
minor. However, the right to act as
protected.

Guardians by Affinity

Before the commencement Minority and Guardianship Act, guardian by affinity was
of the Hindu

also in existence. The guardian by affinity is the guardian

of a minor widow. Mayne says, 'the husband's
of a minor widow, in preference to
relations, if there exists any, within the degree of Sapinda are guardians
her father and her relations'. In Chinna v. Vinayagathammal, AIR 1929 Mad. 110, Madras High Court
observed that by marriage, a girl passes into the family of her husband. Her husband's gotra' therefore
becomes her 'gotra' and her husband's sapindas become her sapindas, as she becomes one with her husband.

If she becomes a widow when minor, it follows as a matter of course that the eldest among the nearest

becomes her guardian. This is in with the Hindu notion of merger of

sapindas of her husband consonance

the identity of the wife in the husband.

It is not clear whether the institution of guardians by affinity has been abolished by the Hindu Minority
and Guardianship Act, or not. So, the law still holds good and is not repealed so long as it is not inconsistent

with the provisions of the Act [Section 5].

Previous Years' Questions of Mains Examinations

the
Explain the different categories ofguardians under the Hindu Minority & Guardianship Act, 1956 and examine
situations when a guardian loses his or her guardianship rights. [HJS 2019]

With the help of decided cases, discuss under what circumstances a Hindu wife can be a natural guardian?
DS 2017]

What are the rules relating to the natural guardianship of a Hindu minor? What are the powers of a natural

guardian? [PJS 1995]

Discuss the law relating to natural guardian of a Hindu minor. Does the law discriminate on the basis of sex?

[HJS 2009]

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 Himdu Laws
Who are natural
zuardians of a son in Hindu law?
Who is a de facto [RJS 1991]
guardian of a Hindu
minor?
L aCann he
moral welfare? he
dispose ofthe
dispose of the minor's
minor's property tne latter's education and
property for the iat
What are the RJS 1999]
powers of a natural
guardian under the Hindu
challenge actions of a guardian, if Minority and Guardianship Act, 1956/ Can a s inor
so, when and
how?
DJS 2001]
Who is the natural
guardian of a Hindu-minor in the case of a boy or an unmarried giri'
What are the powers of natural
[RJS 1980-81]
guardian?
(RJS 1988]
Who is a testamentary guardian?
[RJS 1984, 1986, HJS 1996]
Write short note on Lawful guardian of a
minor widow.
[HJS 1998]
A' and 'B'were married for 18 years and
recently they got divorced. They have 'C, a 8 year old child. 'A' claimed
custody of 'C on the ground that he is a rich person and can
sponsor the best education of'C. 'B is a school teacher
demanding the custody of'C, saying that she will do her best to the
give best care to'C.
Discuss what are the requirements for
claiming the custody of child. Decide who is entitled to get the custody in
above circumstances.
OJS 2019)

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