Hindu Minority and Guardianship Act, 1956

Types of Guardian

1. Natural Guardian

Section 6 of the Act stipulates that Natural Guardian is a type of guardianship that arises from the natural relationship between the minor and the father, mother, or adopted parents. In this regard, the father is recognized as the natural guardian of a minor girl or boy. However, after the father’s death, the mother becomes the next in line to be the natural guardian.

Section 6 (1) provides that, in the case of a minor boy or unmarried girl, the father and, subsequently, the mother are considered natural guardians, with the custody of a minor under the age of five remaining with the mother. However, this statutory provision was modified by two landmark cases, namely Gita Hariharan v/s Reserve Bank of India and Vandana Shiva v/s Jayanta Bandhopadhya.

The Supreme Court held that, in some instances, the mother can be recognized as the natural guardian even when the father is alive. The Court further clarified that the term “after him” should be construed as “in advance of.” In this context, the absence of the father means the absence of a father from the life of children. Moreover, if the parents have separated and are living apart for an extended period, and the minor child is residing with the mother, she would automatically become the natural guardian of the minor.

In cases where the father of a child is unconcerned about the life and welfare of the minor, or is physically unable to take care of the minor, the father can be deemed absent. In such a scenario, the mother can validly act on behalf of the minor as its natural guardian.

The Hindu Minority and Guardianship Act details the natural guardianship of minor children. Section 6(2) dictates that in the case of an illegitimate boy or an unmarried girl, the natural guardians are the mother and father. In contrast, Section 6(3) states that when a girl is married, the husband becomes the natural guardian.

Power of natural guardian

Section 8 of the Act goes into detail regarding the powers that are vested in a natural guardian of a Hindu minor. As per the act’s provisions, a natural guardian is responsible for performing all essential and valuable tasks that are necessary for the protection and well-being of the minor. These tasks may include ensuring the minor’s education, healthcare, and general welfare.

Moreover, the natural guardian is required to obtain court permission before engaging in any transaction, transferring, or mortgaging the minor’s immovable property. This is to ensure that the minor’s property rights are protected and not compromised in any way. Additionally, if the natural guardian wishes to lease the minor’s property for a period of more than five years or one year after the minor attains the age of majority, court permission is mandatory.

It’s important to note that any disposal of the minor’s immovable property by the natural guardian is considered voidable unless initiated by the minor or someone acting on their behalf. This means that if the minor decides to challenge the transaction, they have the right to do so. The court cannot authorize any of the aforementioned actions unless it is in the best interest of the minor.

To obtain court permission, an application must be submitted to the court within whose local jurisdiction the minor’s property is situated, as per Section 29 of the Guardians and Ward. This ensures that the court that is most familiar with the minor’s circumstances makes the decision that is in their best interest

2. Testamentary Guardian

Testamentary guardians are those appointed via a will to provide for a minor’s guardianship in the event of the natural guardian’s demise or incapacitation. However, a testamentary guardian cannot act as the guardian if the natural guardians are still alive. During the British period, testamentary powers were conferred on fathers, which allowed them to exclude the mother from her right to be the natural guardian of the child.

After the enactment of said act, it is clear that a natural guardian is preferred above a testamentary guardian. Suppose the father appoints a testamentary guardian and the mother outlives him. In that case, she will become the natural guardian of the child, and the testamentary guardian will only exercise their rights and power after the mother’s passing.

It’s essential to understand the difference between a natural guardian and a testamentary guardian to ensure that your minor children receive proper care and protection in case of any unforeseen circumstances.

Who may appoint a Testamentary Guardian?

1. 1. Hindu father, either natural or adoptive.
   2. Hindu mother, either natural or adoptive.
   3. A natural widowed mother, either natural or adoptive.

Who can appoint a testamentary guardian?

A Hindu father is entitled to act as a natural guardian and he even can appoint a testamentary guardian by his will for the protection of the minor and his property after his death. If a Hindu father appoints a testamentary guardian but the mother is alive, so in this case after the death of the father testamentary guardian appointed by the father will have no right, the mother will become the natural guardian of the child.

However, if the mother is alive, then she becomes the natural guardian of the child after the father’s death, and the testamentary guardian appointed by the father ceases to have any legal right over the child. This provision is in place to ensure that the child’s welfare remains the top priority, and the mother, being the biological parent, is best suited to fulfill this role.

In case both parents appoint different testamentary guardians, and the father passes away while the mother is still alive, then the testamentary guardian appointed by the mother takes over the responsibility of the child after her death. This provision ensures that the child’s interests are protected, and they have a stable and nurturing environment to grow up in.

To illustrate this, suppose A and B are parents of C, where A is the father, and B is the mother. A appoints X as the testamentary guardian, while B appoints Y as the testamentary guardian. If A dies first, then B becomes the natural guardian of the child and after B’s death, Y will become the testamentary guardian of the child, ensuring that the child receives adequate care and support .

Power of Testmentary Guardian

Section 9 of the Hindu Minority and Guardianship Act, 1956 deals with appointing a testamentary guardian and outlines their rights. As per Section 9 (1), a Hindu father who is the natural guardian of a minor legitimate child has the authority and power to appoint a guardian for the child by including it in his will. The appointed guardian will then be responsible for the care of the minor child as well as their property.

Who is disqualified from becoming a testamentary guardian?

In the legal case of Smt Vinod Kumari v/s Smt Draupadi Devi, a Hindu woman approached the court seeking guardianship of her two sons. The first son was born out of wedlock with her now-deceased husband, while the second son was born to her husband from a previous marriage. The court observed that the woman was the stepmother of the son born out of wedlock and therefore concluded that she could not be appointed as a testamentary guardian. Instead, the court appointed the grandmother as the testamentary guardian of the stepson. This decision was based on the legal principle that a stepmother cannot be considered a testamentary guardian.

Removal of testamentary Guardian

Section 39 of the Guardian and Ward Act, 1890

39(i) There is ill-treatment by Testamentary guardians.

39(ii) Fails to perform assigned duties.

39(iii) Incapable to perform assigned duties.

39(iv)Abuse of his trust.

39(v)If he acts in any way which is against any of the provisions of the act.

39(vi) Conviction in any case for any offense.

39(vii) Having an adverse interest in the ward.

39(viii) If he ceases to live within the local limits of the jurisdiction.

39(xi) If he is insolvent or bankrupt

Case

KIRTIKUMAR JOSHI v/s PRADIP KUMAR JOSHI

The father and the maternal uncle both sought custody of two minor children. The children’s mother had died under suspicious circumstances and the father was facing charges under Section 498A of the Indian Penal Code. The children were currently residing with their maternal uncle and had expressed their desire to continue living with him instead of their father. The court ultimately granted custody to the maternal uncle.