The Hindu Minority and Guardianship Act
Hindu Minority and Guardianship Act
The Hindu Minority and Guardianship Act were established in the year 1956 as part of the Hindu Code Bills. This act extends to the whole of India except the State of Jammu & Kashmir and applies to Hindus domiciled in our country. This act was launched to enhance the rules under Guardians and Wards Act, 1890. Hindu Minority and Guardianship act was introduced to modernise the Hindu legal tradition and to codify certain parts of the laws relating to minority and guardianship among Hindus. This act serves explicitly to define guardianship relationships between minors and adults, as well as between the people of all ages and their respective property. In this article, we view the various aspects of the Hindu Minority and Guardianship Act, 1956 in detail.
Applicability
The Hindu Minority and Guardianship Act apply to follow persons in India:
- Guardianship act applies to any person who is a Hindu by religion or any of its forms or developments, including the Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
- To any person who is a Jaina, Buddhist or Sikh by religion
- This act applies to any person who is domiciled in the territories
Note: To apply the Hindu Minority and Guardianship Act in the territories, the person should not belongs to Muslim, Christian, Parsi, or Jew by religion
If it is proved that any of such person is governed by the Hindu law or by any customs or usage as part of Hindu law in respect of any of the matters dealt, this act would not be applicable.
Applicability of Hindus, Buddhists, Jainas or Sikhs
Hindu Minority and Guardianship Act apply to the following persons who belong to Hindus, Buddhists, Jainas or Sikhs by religion:
- This act applies to any child of Hindus, Buddhists, Jainas or Sikhs
- Legitimate or illegitimate of Hindus, Buddhists, Jainas or Sikhs are governed under Hindu Minority and Guardianship Act
- Both of whose parents are Buddhists, Hindus, Jainas or Sikhs by religion is applicable for this act
- This act also applies to any person who is converted or re-converted to the Hindu, Buddhist, Jaina or Sikh religion
- Guardianship act applies to any child, legitimate or illegitimate, one of whose parents are a Hindu, Jaina Buddhists or Sikh by religion and who is brought up as the member of the tribe, family, group or community to which such parent belonged
Note on Guardian
According to Hindu Minority and Guardianship Act, 1956 the guardian is defined as a person having the care of a minor or of his property or both the person and the property. The Guardian defined in following terms under this act:
- A natural guardian
- A guardian appointed by a will of the minor’s mother or father
- A guardian appointed or declared by the court
- A person empowered to act or under any enactment relating to any court towards
Natural Guardians of a Hindu Minor
As provided in this Hindu Minority and Guardianship Act, 1956, the following are entitled to be the natural guardians in respect of the minor’s person as well as in respect of the minor’s property excluding the undivided interest in the joint family:
- In case of a Hindu boy or an unmarried girl, the natural guardians will be the father and after him the mother
- According to this act, the custody of a minor who has not completed the age of five years will ordinarily be with the mother (the guardian will be a mother)
- If an illegitimate boy or an illegitimate unmarried girl, the natural guardians will be the father and after her the father
- In the case of a Hindu married girl, the husband will be the guardian
Non-applicability
As per the provision of Hindu Minority and Guardianship Act, 1956, no person will be qualified to act a natural guardian of a Hindu minor:
- If that person has ceased to be a Hindu
- If such guardian has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)
Note: In this act, the expressions father and mother do not include a stepfather and a stepmother.
Rights of Natural Guardian
The natural guardian of having the following rights in respect of minor children:
- Right to custody
- Right to determine the religion of children
- Right to education
- Right to control movement
- Right to reasonable chastisement
Natural Guardianship of Adopted Son
In case of an adopted son who is a minor pass, the natural guardian will be the adoptive father and after him the adoptive mother.
Powers of the Natural Guardian
Subject to the provisions of the Hindu Minority and Guardianship Act, 1956, the natural guardian of a Hindu minor has the power to do all acts, which are mandatory or reasonable and proper for the benefit of the minor for the realisation, protection or benefit of the minor’s estate.
Note: As per the provision of this act, the guardian can in no case bind the minor by a personal covenant.
Transfer of Property
The natural guardian should get the previous permission of the court, to mortgage or transfer by sale, gift, exchange or any part of the immovable property of the minor
Lease of a Property
The previous permission from the court is needed to lease any part of minor’s property for a term exceeding five years (5 years) or for a term extending one year beyond the date on which the minor attains majority
Disposal of Property
Any disposal of immovable property by the natural guardian, in contravention of subsection the Hindu Minority and Guardianship Act, 1956, is voidable at the instance of the minor or any person claiming under him.
No Permission
No court will grant permission to the natural guardian to do any of the acts such as Transfer of Property or Lease of a Property except in case of necessity or for an evident advantage to the minor.
Application for Obtaining Permission
According to the provision of Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956, the guardian needs to furnish an application for obtaining the permission of the court to transfer or lease a minor’s property.
- The guardian needs to apply for permission to the city civil court, or a district court or a court empowered under the Guardians and Wards Act, 1890 (8 of 1890).
- Submit the application to the concerned court within the local limits of whose jurisdiction any portion of the property of minor is situated.
An appeal reclines from an order of the court refusing permission to the natural guardian to do any of the acts of property transfer to the court to which appeals ordinarily lie from the decisions of that court.
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Guardians Appointed by the Court
As mentioned above, the courts are empowered to appoint guardians under the Hindu Minority and Guardianship Act. The High Court also has inherent jurisdiction to appoint guardians, but this power is exercised sparingly. While appointing a guardian, the court takes into consideration various factors as mentioned below:
- The age of the guardian
- Gender of the guardian
- Wishes of the parents
- The personal law of the children
- The welfare of the children
Welfare of Minor
In the appointment of the declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor will be the paramount consideration.
No person will be entitled to the guardianship by virtue of the provisions of the Hindu Minority and Guardianship Act or of any laws relating to guardianship in marriage among the Hindus if the court is of the opinion that her or his guardianship will not be for the welfare of the minor.
Testamentary Guardians and their Powers
Testamentary Guardians and their Powers under the Hindu Minority and Guardianship Act is explained below:
Hindu Father as Natural Guardian
A Hindu father can be entitled to act as a natural guardian of his minor legitimate children may appoint the guardian for any of them in respect of the minor’s person or respect of the minor’s property or respect of them both.
An appointment made as natural guardian of his minor legitimate will not affect if the father predeceases the mother but will revive if the mother dies without appointing, by will, any person as guardian.
Hindu Widow as Natural Guardian
A Hindu widow can be entitled to act as a natural guardian of her minor legitimate children under the Hindu Minority and Guardianship Act, 1956.
- Hindu mother can be entitled to act as the natural guardian of her minor legitimate children because of the father has become disentitled to act by will, appoint the guardian for any of them in respect of the minor’s person or respect of the minor’s property or respect of both.
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Hindu Mother as Natural Guardian
A Hindu mother can be entitled to act as the natural guardian of her minor illegitimate children, by will appoint a guardian for any of them in respect of the minor’s person or respect of the minor’s property or respect of both.
Right of Guardian Appointed by Will
The guardian appointed by will has the right to act as the minor’s guardian after the death of the minor’s father or mother and to exercise all the rights of a natural guardian under this Hindu Minority and Guardianship Act, 1956 to such extent and subject to such restrictions as specified in this Act and in the will.
Rights of Guardian for a Minor Girl
If the minor is a girl, the right of the guardian so appointed by a will may be ceased on her marriage.
Incapacity of Minor
According to the rules of the Minority and Guardianship Act, 1956, a minor will be incompetent to act as a guardian of the immovable property of any minor.
Rights of De facto Guardian
A de facto guardian is defined as a person who takes a continuous interest in the welfare of the minor’s person or the management and administration of his property without any authority of law. After the commencement of the Minority and Guardianship Act, 1956, no person will be authorised to dispose the property or deal with the property of a Hindu minor entirely on the ground of her or his being the de facto guardian of the minor.
No Guardian for Minor’s Undivided Interest
If a minor has an undivided interest in the joint family property and if the property is under the management of the adult members of the family, no guardian will be appointed for such minor in respect of such undivided interest.
