OVERVIEW OF THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956

Author: Daksha Dhiman

INTRODUCTION

The Hindu Minority and Guardianship act came into existence in the year 1956 when the lawmakers analysed the need to implement essential rules and regulations binding on premature children incapable of taking their life decisions. I was established under the Hindu Code Bill in 1956 during the British period with its aim to modernize the prevailing Hindu traditions. Communities except Muslims, Christians, Parsis and Jewish are covered under this Act.

The act basically prescribes all the procedure and eligible identities enlisted in the act which can seek help and support for handling a minor’s matters. Prior to the introduction of the act i.e., 1956, guardianship under the classical Hindu law had no recognition. According to the sacred text of Narada, King was considered as the guardian. It was the father also being a karta of the entire family had the absolute power to look after such matters. The Hindu Minority and Guardianship act broadly claimed that father will be the natural guardian of a child and after him, mother will be considered as the natural guardian. The ultimate goal of the act is to protect the welfare of the child. Ever step taken by the legal authorities or the family members along with the provisions of the act must be for the child’s benefit and his welfare.

WHO IS A MINOR AND A GUARDIAN?

Explained under Section 4(a), “a minor is someone who has not completed the age of 18 years”. A guardian is defined under Section 4(b) as “a person who has completed the age of 18 and he is taking proper care of a minor and his property and as well as his own.”

VARIOUS KINDS OF GUARDIANSHIP

The Act recognises the guardianships as follows:

Guardianship of a minor in person

• Natural guardian
• Testamentary guardian
• Guardianship by affinity

Guardianship of a minor’s property

Guardianship by Affinity

NATURAL GUARDIAN

The Section 4© of the Act explains that a father and a mother are the natural guardians of a child. Even though Father is given preference over mother regarding natural guardianship, there’s a provision that is Section 6(a) of the Act which allows mother to be the natural guardian of the child up to 5 years of child’s age. Also, in case of a minor illegitimate child, a mother is considered as the natural guardian of the child even if father is alive. However, under the Act, a mother can be the natural guardian only in cases if the father is dead or incapable of the guardianship duties. In case NARAYAN V. SUPARNA[1], the court said that “in particular circumstances of the case mother could be considered as a natural guardian of her minor daughter where father fails to function or refuses to function or is incapable. Mother will then have the powers and duties of a guardian even without being appointed”.

Section 6 of the Act also considers a Husband to be the natural guardian of his minor wife. But minor wife’s welfare is the most important aspect. A husband may not get the guardianship of his minor wife if it’s not for her welfare.

Under Section 7 of the Act, natural guardianship of an adopted son is passed on to the adoptive father by giving him the first preference and then to the adoptive mother.

Section 8 of the said act lays down the powers of a natural guardian that must be exercised keeping in mind the welfare of the child. No guardian can abuse their powers. Without the court’s permission, a natural guardian is not allowed to:

• mortgage, charge, sale, gift or exchange the immovable property or any of its part belonging to the minor
• Lease any property or its part for a term more than five years or for a time period more than one year after the date the minor attains majority.
• Disposing the property under any above-mentioned clauses is voidable on the instance of the minor or any other person who claims under him.
• The court shall not grant permission to the natural guardian for the acts mentioned above except in necessary matters involving a child’s benefit and advantage.

TESTAMENTARY GUARDIAN

Recognised under Section 9 of the Act, a testamentary guardian is the one appointed by a will.  The will expressly limits all the powers, duties and obligations of a testamentary guardian. It is necessary for a testamentary guardian to accept the appointment which can be express or implied. A testamentary guardian has the right to decline their appointment opportunity but once it is accepted, it cannot be resigned without the Court’s permission. Anyone, be it father or mother can be chosen as a testamentary guardian but there are certain instances that are to be followed. If father appoints a testamentary guardian but mother survives or rejects him then mother is considered as the natural guardian. If father appoints a testamentary guardian and mother also appoints one, then mother’s testamentary guardian will prevail and father’s appointee will become ineffective. In case a guardian is appointed for a minor girl, he will cease to be her guardian on her marriage. In case Vinod Kumari v. Draupati Devi[2], a Hindu female went to the court for guardianship of her two sons. She was a step mother to one of her sons. The court concluded that a step mother cannot be a testamentary guardian so grandmother was given the testamentary guardianship for the step son.

GUARDIAN ASSIGNED BY THE COURT (CERTIFIED GUARDIAN)

Under the Shastric Hindu Laws, King was considered to be the guardian of the state. The power rested with the king to choose any close relative of the minor as his /her guardian. The relatives from fathers’ side were given priority over relatives from mother’s side. The powers regarding appointment of a guardian have been granted to the Courts under the Guardians and Wards Act, 1890. 

Section 13 of the Hindu Minority and Guardianship Act prescribes it clearly that while appointing a guardian by a court, child’s welfare must be a “paramount consideration”. While appointing the guardian, the court shall look into the wishes, age, sex of the child and also the personal law of the child. The jurisdiction of appointing guardians for a Hindu Minor under the Guardians and Wards Act lies with the District Court. The Chartered High Courts have inherent jurisdiction to assign guardians for a minor as well as his property. In case Mohini v. Virendra[3], the court concluded that while appointing a person as guardian of a minor or his property, welfare of the child must be the paramount consideration.

DEFACTO GUARDIAN

Under Section 11, a de facto guardian cannot dispose or make any deals with the property of the minor and also has no rights to advance any debt from that property. Where a child has no legal guardian, he would not be able to manage and discover the advantages he holds with that property. In order to let a minor, know of his rights and advantages he holds, the concept of de facto guardian was included in the Act.

UNDIVIDED INTEREST IN JOINT FAMILY PROPERTY

A Joint Family Property which is being managed by adult family member and a minor having an undivided interest in that property cannot be assigned any guardian for that undivided interest. A District court cannot appoint a guardian in respect of undivided interest in a Hindu Joint Family property but the provisions of Section 12 of the 1956 Act allow the High Court to exercise its jurisdiction to appoint guardians for minors having undivided interest in the Hindu Joint Family.

GUARDIANSHIP BY AFFINITY

Before the commencement of the act in 1956, a guardian for a minor widow was called as a guardian by affinity which was included in the Guardians and Wards Act 1890. There is no specific provision for guardian by affinity under the Hindu Minority and Guardianship Act 1956. The said provision is only for the widow’s benefit and safety.

CONCLUSION AND SUGGESTIONS

The ideology of the Indian population considers children as a blessing of God. A child who is incapable to manage his or her property related matters and his or herself must be guided accordingly to get a healthy growth environment. The Act of 1956 has given a huge relief to those who either lack the ability to manage or don’t have a helping hand. The “welfare principle” is the ultimate goal of the act. But it has an implied preference for a patriarchal approach. Various provisions have given preference to father over mother in case of acting as a natural guardian which hampers the modern idea of gender equality and discrimination. On one hand the act provides relief to a child but on the other it has a male dominating tone that embarks its statutes. An important case that marked the essence of gender equality was ABC v. The State NCT of Delhi[4], which concluded that unwed mother must be given equal rights and be recognised as legal guardian of her child without disclosing the name of biological father. The above-mentioned case is the need for the entire judiciary to understand what this act is really about. Not only for the child but also for the parents to have their rights exercised equally and fairly.

What really needs to be understood is that the modern era where women empowerment is highly influential movement, such laws having traditional approach must be amended by coping up with the dynamic environment and the changing mindsets of the modern society.

REFERENCES

Kaushiki Sharma, Minority and Guardianship under Hindu law, LawBhoomi, December 27, 2020.

Ashpreet Kaur, All you need to know about the Hindu Minority and Guardianship Act, 1956, IPleaders, 18 June 2019.

Harjinder Singh, Hindu Minority and Guardianship Act 1956

http://www.harjindersingh.in/hindu-minority-and-guardianship-act-1956

Sonali Abhang, Guardianship and Custody Laws in India- Suggested Reforms from Global Angle,

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[1] Narayan v. Suparna, AIR 1968 Pat 318.

[2] Vinod Kumari v. Draupati Devi, 7 July 2010.

[3] Mohini v. Virendra, AIR 1977 SC 1359.

[4]              ABC v, The State NCT of Delhi, 2015 SCC OnLine SC 609.