UNIT- V

-Ms. Namratha
Assistant Professor
BMSCL.
 Guardian:
• A Guardian means a person having the care of the person of another or of his
property or both.
• Sec 4(b) of Hindu Minority and Guardianship Act defines the word ‘Guardian’ as
follows:
• “Guardian means a person having the care of the person of a minor, or of his property,
or of both his person & property & includes:
1. Natural guardian
2. A guardian appointed by the will of the minor’s father or mother (Testamentary
guardian)
3. A guardian appointed or declared by a court
4. A person empowered to act as such by or under any enactment relating to any court
of wards.
 Besides this, there are other types of guardians such as:
5. Defacto guardian
6. Adhoc guardian
7. Guardian by affinity
 1.Natural Guardian
• A natural guardian is one who becomes a guardian because of the natural
relationship with a minor.

• In other words, a natural guardian is a person having the care of the person of a
minor or of his property or both, because of his natural relationship with the minor.
 Sec 6 of Hindu Minority & Guardianship Act says that, the natural guardian of a Hindu
minor is one who takes care of his person and property are:
1. unmarried girl or a boy- the father is the Natural guardian & after him the mother.
Provided that, the custody of a minor who has not completed the age of 5 years, shall
ordinarily be with the mother.
2. an illegitimate boy or an illegitimate girl, the mother shall be a Natural Guardian & after her
the father.
3. married girl, the husband shall be a Natural guardian.
Provided that no person shall be a Natural guardian of a minor, if-
a. He ceases to be a Hindu, OR
b. He has completely & finally renounced the world becoming a hermit
 [Here, “father” & “mother” does not include a step mother & a step father]
 Jijabai v. Pathan khan
• In this case, the father was alive but had fallen out with the mother of the minor daughter
& was living separately for several years without taking any interest in the affairs of the
minor. SC held that, a father would be considered as non-existence & mother would be
considered as Natural guardian.
Githa Hariharan v. Reserve Bank of India
• In this case, the court held that, when father is not staying with the children, that can be
considered as ‘absent’ and the mother can act validly on behalf of the minor as a guardian.
• SC adopted rule of harmonious construction & held that the word ‘after’ in sec 6(a) of
the Hindu Minority & Guardianship Act need not necessarily mean ‘after the life time’ but
‘in the absence of’.
• If the father is not in the charge of actual affairs of the minor, either because of some
physical or mental incapacity or because he is staying away from the place where the
mother and the minor are living, then in all such situations, the father can be considered
as ‘absent’ and the mother can act validly on behalf of the minor as the Guardian.
• However, the predominant consideration in every case would be the welfare of the minor.
 Shobha Devi v. Bhima & others
• In this case, Orissa HC held that where father being a Natural guardian & is alive as fit to
be a Natural guardian of the minor who is more than 5 years old living with the mother,
then mother is incompetent to represent the minor. The mother in such a case cannot
maintain a suit unless the father has been declared to be incompetent by a Court.
 Dr. Snehalatha Mathur v. Mahendra Narayan
• A mother who had custody of her daughter aged about 5 months took a decree of divorce
from her husband. Later she left to a foreign country temporarily & for the time being
entrusted custody of a child with her parents (maternal grand mother & maternal grand
father).
• Daughter stayed with the maternal grandfather & grandmother and developed great
affection with them. Later on the father brought a suit for the custody of the daughter,
claiming that he is the natural guardian & therefore the daughter should be given in his
custody.
 Generally, the child upto the age of 5 years is in custody of mother. In the present case,
the Court agreed although the child is in the custody of maternal grandfather & maternal
grandmother, yet she would be deemed to be in the custody of her mother only.
• But court held that, keeping in view the overall interest & welfare of the child, it is
desirable to entrust the child into the custody of the father because he is very much keen
to look after her.
 Most important thing here is the ‘welfare of the child’ .
While deciding the guardianship of a child, Court will consider the availability of a
conducive & appropriate environment for proper upbringing together with the ability &
means of the concerned parent to take care of the child are some of the relevant factors
that have to be taken into consideration by the court while deciding the issue of custody
of the minor.
 Powers of Natural Guardian (Sec8):
1. He may do all the acts which are necessary for the benefit
of the minor or realisation, protection or benefit of the
minor’s estate. This power of a Natural Guardian excludes
fraudulent, unnecessary or unreasonable transactions.
2. without previous permission of the court shall not-
 mortgage, create charge or transfer any immovable
property of the minor- sale/gift/exchange, etc
 lease any part of such property for a term
 exceeding 5 years or
 exceeding more than 1 year
 beyond the date on which the minor will attain majority.
3. Any disposal of immovable property by a Natural
Guardian in contravention of sub sec 1 0r 2- Viodable at the
instance of minor or ‘any person claiming under him’.
 Vishambar v. Lakshminarayan
4. Court shall grant permission- sub sec (2): only in case of
necessity or for an evident advantage of the minor.
5. To obtain permission from court- file application
2. A GUARDIAN APPOINTED BY THE WILL
OF THE MINOR’S FATHER OR MOTHER
Testamentary Guardians-
• Guardians appointed by a will of the father or mother,
entitled to act as a natural guardian for the minor.
• Will becomes effective only after the death of the Testator.
 Sec 9 of Hindu Minority and Guardianship Act, 1956
1. A Hindu father –
• entitled to act as a natural guardian
• legitimate minor
• may appoint a guardian by will
• in respect of minor’s person or property.
2. An appointment made by the father- shall have no effect:
• if the mother is alive,
• if he pre-deceases the mother.
3. Hindu Mother may appoint guardian by will-
• When she is entitled to act as the Natural Guardian of her
minor legitimate children, by reason of the fact that the
father has become disentitled to act as Natural Guardian.
4. Hindu mother –entitled to act as Natural Guardian of her
minor illegitimate children may appoint guardian by will.
5. Guardian appointed by will has power to act as minor’s
guardian-
 after the death of minor’s father or mother, as the case
may be.
6. Right of guardian by will- ceases to effect:
 at the majority of a child or,
 on the marriage of the Girl child
 Who may appoint a Guardian by Will:
1. The father, natural and adoptive
2. The Mother, natural and adoptive
3. The Widow mother, natural and adoptive

 Who may be appointed as a Testamentary Guardian:

 No limit
 he should be entitled to act as a Guardian
 must not be a minor, hermit, non-Hindu and insane.
 3. GUARDIAN APPOINTED OR
DECLARED BY THE COURT
District court has power to appoint Guardian
Sec 13 of Hindu Minority & Guardianship Act, 1956-
 Welfare of the minor shall be the paramount
consideration.
 No person shall be entitled to guardianship-
 If in the opinion of the Court, his /her guardianship- is not
be for the welfare of the minor.
 S.L. Mohan v. Virendra Kumar
 D. Rajaial v. Dhana Pal & another
 Who can apply for appointment as Guardian:
1. The person desirous of being or claiming to be in
guardian of the minor or,
2. any relative or friend of the minor; or
3. the collector of the district or other local area in which-
a. The minor ordinarily resides;
b. the minor holds property; or
4. If the minor belongs to a class, the collector who has
authority with respect to that class.
 Removal of the Guardian: (applicable to testamentary guardian
& guardian appointed by court)
• Sec 39 of Guardians & Wards Act-
1. Abuse of his trust
2. Continuous failure
3. Incapacity to perform the duty
4. Illtreatment or neglect to take proper care of his ward
5. Continuous disregard to any of the provisions of the Act.
6. Conviction in case of an offence for defect of character
7. Having an adverse interest
8. Ceasing to reside within the local limits of the jurisdiction of
the court
9. Insolvency and bankruptcy.
 4. GUARDIAN UNDER ANY
OTHER ENACTMENTS
Order 32 of Civil Procedure Code- Guardian ad litem
5. Defacto Guardian
6. Adhoc Guardian
7. Guardian by affinity
 ADOPTION
 Meaning of Adoption
 Adoption in Old law: Prior to Hindu Adoption and Maintenance Act, 1956
 Person who could be adopted:
1. Hindu
2. male
3. Nearest Sapinda
4. Identity of caste
5. Deaf or dumb cannot be adopted
6. Orphan not validly adopted
7. Only Son cannot be adopted
8. Eldest son cannot be adopted
9. Son already adopted cannot be adopted
10. Illegitimate son cannot be adopted
11. Joint adoption- not possible
 Hindu Adoption &
Maintenance Act, 1956
Essentials of a valid adoption: (sec 6)
 No adoption shall be valid unless-
1. The person adopting has the capacity and also the right
to take in adoption
2. the person giving in adoption has the capacity to do so.
3. the person adopted is capable of being taken in
adoption.
4. the adoption is made in compliance with the other
conditions mentioned in Chapter-II- Sec 11 which includes
actual giving & taking (Datta Homam which was required
under the Old law, is now no longer necessary)
1. Person adopting has the capacity & also the right to take
in adoption
 Capacity:
a. Capacity of male to take in adoption (Sec 7)
b. Capacity of female to take in adoption (Sec 8)
 Right:
c. Right of male and female to adopt (sec 11)
2. Person giving in adoption has the capacity to do so (Sec
9)
No person except-father or mother or the guardian of a
child
 Father or Mother if alive- has equal right to give a son or
daughter in adoption
 Where both father or mother are dead/ unsound
mind/parentage is not known- Guardian of a child can give
child in adoption- with previous permission of the court to
any person including the guardian himself.
 Before granting permission to a guardian- court shall be
satisfied that adoption is for the welfare of the child.
3. The person adopted is capable of being taken in adoption
(Sec 10):
 Hindu
 not already been adopted
 not married, unless custom permits.
 not completed the age of 15 years, unless custom permits.
4. The adoption is made in compliance with the other
conditions mentioned in Chapter-II
 Sec 11- includes actual giving and taking
 Datta Homam which was required under the Old law, is
now no longer necessary
 MAINTENANCE
Following categories of persons who are entitled to claim
maintenance:
1. Wife
2. Widowed daughter-in-law
3. aged infirm parent & the children;
a. Legitimate & illegitimate son,
b. legitimate & illegitimate daughter,
c. aged and infirm parents,
4. The dependents of the deceased, which includes,
a. His father
b. his mother,
c. his widow
d. the son, son of a predeceased son and the son of a predeceased son of
a predeceased son of the deceased
e. his unmarried daughters, the unmarried daughters of a predeceased
son and the unmarried daughters of a pre-deceased son of a
predeceased son.
f. his widowed daughter,
g. the widow of the son & the widow of the predeceased son of a
predeceased son,
h. his minor illegitimate sons,
i. his unmarried illegitimate daughters.
 MAINTENANCE OF WIFE
 Sec 18 of the Hindu Adoption & Maintenance Act
 two separate powers are conferred on the wife
1. Right to maintenance
2. Right to separate residence
 Hindu wife whether married before or after the commencement of
this Act, shall be entitled to be maintained by her husband during
her life time.
 A Hindu wife shall be entitled to live separately from her husband
without forfeiting her claim to maintenance-
 he is guilty of dissertion
 Cruelty
 any other wife living
 he keeps concubine
 he ceased to be Hindu by conversion
 any other cause justifying her living seperately
 Hindu wife shall not be entitled to separate residence &
maintenance from her husband if she is-
 Unchaste or
 ceases to be a Hindu- by conversion to another religion.
Sec 19: Maintenance of widowed daughter-in-law:
 Hindu wife whether married before or after the commencement of this
Act shall be-
 entitled to be maintained after the death of her husband by her father-in-
law:
 Provided, to the extent that-
she is unable to maintain herself out of her own earnings or
other property or
 where she has no property of her own
 is unable to obtain maintenance –
a. From the estate of her husband or her father or mother, or
b. from her son or daughter, if any, or his or her estate
 ceases on re-marriage
Sec 20: Maintenance of children & aged parents
 Hindu is bound, during his /her lifetime-
 to maintain his or her legitimate /illegitimate children, And
 his/her aged or infirm parents
 Legitimate /illegitimate child can claim maintenance from his/her
father or mother- so long as he is a minor
 The obligation of a person to maintain his or her aged or infirm
parent or a daughter who is unmarried extends in so far as the
parent or the unmarried daughters- is unable to maintain himself
or herself out of his/her own earnings.
 “Parent” includes a childless step-mother.
Sec 21: Dependants
 means the following relatives of the deceased-
 his or her father;
 his or her mother;
 his widow, so long as she does not re-marry
 his or her son
 son of his predeceased son
 the son of a predeceased son of his predeceased son,
 so long as he is a minor:
 Provided & to the extent that he is unable to obtain maintenance-
 In case of a grandson from his father’s or mother’s estate
 in case of a great –grandson from the estate of his father or mother or
father’s father or father’s mother
his/her unmarried daughter
 unmarried daughter of his predeceased son
 unmarried daughter of a predeceased son of his predeceased son
 So long as she remains unmarried:
 Provided & to the extent that she is unable to obtain maintenance-
 in the case of a grand-daughter from her father’s or mother’s
estate
 in case of a great-grand-daughter from the estate of her father or
mother or father’s father or father’s mother;
his widowed daughter:
 Provided & to the extent that she is unable to obtain maintenance-
a. From the estate of her husband; or
b. from her son or daughter if any/ his/her estate; or
c. from her father-in-law or his father or the estate of either of
them
 any widow of his son
 son of his predeceased son
 so long as she does not re-marry:
 Provided & to the extent that-
 she is unable to obtain maintenance from her husband’s estate
 in the case of a grandson’s widow, also from her father-in-law’s
estate.
 his/her minor illegitimate son-
 so long as he remains a minor
 his/her illegitimate daughter-
 so long as she remains unmarried
Sec 22: Maintenance of dependants
Sec 23: Amount of maintenance
Sec 24: Claimant to maintenance should be a Hindu
Sec 25: Amount of maintenance may be altered on change of
circumstances