The law of guardianship is based on the incapacity, which the law attributes to minors and persons, who are deficient in mental capacity, like lunatics and idiots. It is presumed that such persons are incapable of looking after themselves or of maintaining their property or entering into a contract. It is therefore necessary to entrust the management of the affairs to proper guardians.
The general law, relating to guardianship, is contained in the Guardian and Wards Act 1890. This is an Act, which applies to all persons in India, including Hindus. The provisions of Hindu Minority and Guardianship Act are in addition to and not in substitution or derogation to the Guardian and Wards Act.
Who is a Guardian?
A guardian is a person, who takes care of, either the person or the property of the minor or, both. The person, who is so taken care of, is called a WARD. Guardians can be of 5 types in Hindu law. They are as follows:
- Natural Guardians;
- Testamentary Guardians;
- Certificated Guardians;
- De Facto Guardians;
- Guardians by Affinity
If a man has illegitimate sons, and he is now happily married to someone else, is he still responsible to provide for them?
No, he need not. The mother is considered the natural guardian of illegitimate children, even if the father is alive. However, she can file a complaint for maintenance under Section 125 C.P.C.
There can only be three kinds of natural guardians. One is the father, the other is the mother and the third is the husband of a minor wife.
The husband of a minor wife is often believed to be her natural guardian and as such, you would have to take care of your wife’s expenses- no matter how frivolous. However, the courts believe that, in most cases, it is not in the interest of the wife to have her husband as her natural guardian. Therefore, the, courts could order that your father-in-law should continue as her guardian until she attains majority, in spite of her marriage to you. However, as a natural guardian, you have certain rights as well. These are as follows:
- Right to Custody;
- Right to determine the religion of children;
- Right to education;
- Right to control over movement;
- Right to reasonable chastisement
(This generally applies to parents, who are the natural guardians of their children. This is not applicable in the case of a minor wife.)
It must be remembered that these rights are generally available to the mother or father and are not really available to the husband.
Section 8 deals with the powers of a natural guardian with special reference to immovable property. Section 8 of the Act provides that the natural guardian of a Hindu minor has power to do all acts, which are necessary, reasonable and proper:
(i) for the benefit of the minor, or
(ii) for the realisation, protection or benefit of the minor ”s estate.
However, the previous permission of the court is required in the following cases:
(i) Cases, where the guardian wishes to mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor;
(ii) Cases, where the guardian wishes to lease any part of the immovable property of the minor- for a term exceeding five years or for a term exceeding more than one year beyond the date on which the minor would attain majority.
The Act expressly provides that any disposal of immovable property of a minor by his natural guardian, in contravention to what is stated above, is voidable at the instance of the minor or any person, claiming under him. The rule is obviously for the protection and benefit of the minor.
SALIENT FEATURES OF HINDU MINORITY AND GUARDIANSHIP ACT
The basic changes brought about by the insertion of sections 8 & 9 of the Act, the specific principles of minority and guardianship under the uncodified law which have been repealed by the Act may be summarised as follows:
- The age of minority amongst Hindus has been made the same as under the general law i.e.18 years.
- The long list of natural guardians, existing under the old Hindu law, has been reduced to three only.
- It has provided that the de facto guardian has no power to deal with a Hindu minor”s property. Prior to the Act, a de facto guardian had the power to alienate property and bind the minor”s estate by such alienation (which could even include the immovable property of the minor).
- Some control has been imposed over the powers of natural and testamentary guardian.
- The right of a father to appoint a guardian for the minor by will, during the lifetime of the mother, has been taken away
- The Act has vested the mother with the power to appoint by will, a guardian, who would act in preference to a guardian, appointed by the father in certain cases.
- Under the Act, the custody of a minor child, below 5 years, is ordinarily to be with the mother. Under the uncodified Hindu law, the father was entitled to the custody of such a child.
PROPERTY RIGHTS OF A GUARDIAN
He will be able to alienate his ward’s property in the following two cases:
- If there is a legal necessity to do so;
- If the ward will directly benefit by the sale.
However, it must be remembered that the minor can claim damages from the guardian, if it is found that he acted in a negligent manner while handling legal matters.
The Court is bound to remove any guardian, who exerts an immoral or evil influence upon his ward. If any guardian acts in a manner, not befitting his status, he is liable to be removed from his position.
Power to handle legal matters on behalf of the minor consists of your power to settle matters out of court, when it is in the minor”s interest to do so. However, this power of yours is subject to approval by the court and, if it is found that you did not act in the minor’s interest, the Court can quash your decision and may even remove you from the guardianship.
A testamentary guardian is a guardian, appointed by a will. Section 9 provides that a Hindu father, who is entitled to act as the natural guardian of his minor legitimate children, may, by will, appoint a guardian for the person or property of such children. No such testamentary guardian can be appointed by the father to the undivided interest of the minor in joint family property. A father cannot appoint a testamentary guardian, so as to exclude the mother from her right to act as the natural guardian of her children, under section 6.
Under the Hindu Minority & Guardianship Act, the powers of such a guardian are considerably curtailed. He can only exercise the rights of a natural guardian, subject to restriction in section 8 and also subject to restriction in the will, appointing him as such guardian.
CIRCUMSTANCES CONSIDERED WHILE DECIDING THE CUSTODY OF THE CHILD
In deciding custody cases, courts take several things into consideration. These include the following:
- Welfare of the child;
- Wishes of the parents;
- Wishes of the child;
- Age and Sex of the Child.
In these cases, the Courts might decide that it is in the best interests of the child to continue to stay with the grandparents. Also, even if they do remove her from her grandparent”s custody, they would probably prefer to give custody to her mother, since she is very young. Generally, it is the mother, who is given custody of very young children. As the daughter is very young, her wishes cannot be taken into consideration as it is apparent that she is not of an age where she can make decisions for herself. Therefore, the Courts would probably give custody to the grandparents or to the mother.
- No, a step-parent is not entitled to be a guardian, unless he or she is specifically appointed by the court.
- In general, parents are always granted the right to visit their children, especially since the Court wants to allow the child to develop affection for its parent. However, this will not be the case if the Court feels that letting the parent/parents visit would be harmful for the welfare of the child.