Guardianship

By: Bhaskar M.R.

The Hindu Minority and Guardianship Act, 1956 is an Act to amend and codify the law relating to minority and guardianship among Hindus. Under the Indian Majority Act, 1875, a person attains majority on his completing 18 years age but before the completion of that age. That Act applies to all persons including Hindus but an exception is made with respect to the capacity of any persons to act in the matter of marriage, dower, divorce, and adoption.

Guardians may be divided into three classes, namely:

• Natural guardians
• Testamentary guardians
• Guardians appointed under the Guardians and Wards Act, 1890.

Who is a Minor?

Minor is a person who has not completed the age of 18 years. So, a minor attains majority on completion of 18 years of age and not on reaching the eighteenth year of age. Previously, the minors for whom guardians were appointed by the court, the prescribed age for attaining majority was after the completion of 21 years of age. This has been amended now and all minors attain majority on completion of eighteen years of age.

Who is a Guardian?

Guardian is person, who takes care of the minor person or acts as caretaker to his property or both person and property, since a minor cannot enter into any contract. The Guardian should act in the best interests of the minor. The Guardian should be a major.

Guardians are of different types:

• Natural guardian = Guardian appointed, by will by the parents of the minor, who are called testamentary guardians.
• Guardian appointed by the court = Persons empowered to act as guardians by an enactment relating to any court of wards

Natural guardians of a Hindu minor are his father and mother; Father is the natural guardian of boy or an unmarried girl. In the absence of the father, the mother will be the natural guardian. But in case of minors who have not completed five years of age, mother will be the custodian.

In case of an illegimate boy or illegimate unmarried girl, the mother would be the natural guardian and thereafter, the father. Illegimate means, children born to unmarried parents. In the case of a married girl, the husband would be the natural guardian.

But such instances are very rare, since child marriage is prohibited. Stepmother and stepfather cannot be natural guardians. Similarly, a person who has converted to any other religion, or one who has become a sanyasi or renounced the world cannot be a natural guardian.

What is the position of the mother, if the father appoints a guardian to a minor person, property, by Will?

Father may appoint a guardian by Will to the person and property of his minor child. However such appointment of a guardian by Will does not have any effect if the father dies living behind his wife (mother of the minor child) who is the natural guardian of the minor child.

The mother, (natural guardian) will succeed as guardian and not the person appointed by Will of the father. She may appoint a different guardian by her Will; who will succeed as guardian, on the death of the mother.

In case, she does not appoint any guardian, by Will, the guardian appointed by the father by Will, will succeed as guardian of minor on the death of the mother. The guardian will act only until the minor completes eighteen years of age.

Can a guardian be appointed to the minor’s undivided interest in joint family property?

The Kartha is head of the Hindu joint family who is empowered to manage the property. In such cases no guardian shall be appointed. The Kartha takes care of the person and the property of the minor who is the coparcener. However, the competent court may appoint a guardian for undivided share of the minor in the joint family property also.

Who is the natural guardian of an adopted son?

The adoptive father, and after the adoptive father, the adoptive mother would be the natural guardians of an adopted minor son. The original parents of the son given in adoption will not be natural guardians.