Guardianship and Custody: Under Hindu Law
Guardianship and Custody: Under Hindu Law
Guardianship and Custody: Under Hindu Law
Minor Children
Under the Hindu Minority and Guardianship Act, 1956, S. 4(b), minor
means a person who has not completed the age of eighteen years. A minor is
considered to be a person who is physically and intellectually imperfect and
mmature and hence needs someone's protection. In the modern law of most
Natural Guardians
n Hindu law, only three persons are recognized as natuw.
al guardar
father, mother and husband.
Father"Father is the natural guardian of his minor
children, sons and daughters." Section 19 of the Guardianc ninor legitimat.
and Wards Aat
1890. lays down that a father cannot be deprived oof the natural
of his minor children unless
he has been found unfit. The
effect
provision has been considerably whittled down by judicial decisio
guardianshi
of thisp
Section 13 of the Hindu Minority and Guardianship Act which la andby
welfare of the minor is of paramount consideration and fatha
that
guardianship is subordinate to the
welfare of the The Aotgnt
child. The Act does
of
not
recognize the principle of joint guardians.
The position of adopted children is at par with natural born childro
dren.
An argument has been advanced before our courts : supp0se the fath
lather
is alive but he is a non-functioning natural guardian, can the mother:act
as
the natural guardian? This argument has prevailed before the Sun
Supreme
Court. Vaidyalingam, J., said that in the particular circunmstances of this easo
"the mother could be considered as the natural guardian of her mina
circumstances of the case were the father and
daughte." The particular
mother of a minor child had fallen out and the mother was living separately
The mother had been looking after the
from the father for over twenty years.
The child was all
affairs of her minor daughter and managing properties.
care.' Thus, it seems that where the father
along under her protection and is incapable of functioning as
fails to function or refuses to function or
exercise all powers and functions of a
guardian, the mother will be able to the court."
natural guardian without being appointed as guardian by
Mother.The mother is the natural guardian of the minor illegitimate
natural guardian of
children even if the father is alive. However, she is the
her minor legitimate children only if the father is dead or otherwise 1s
of acting as guardian. Proviso to clause (a) of Section 6, Hindu
incapable
Minority and Guardianship Act lays down that the custody of a minor Wno
has not completed the age of five years shall ordinarily be with the m0te
less
Thus, mother is entitled to the custody of the child below five years, ule
the welfare of the minor requires otherwise.
to
The mother's right of guardianship is not lost on her conversio
and
another religion so long as she is able to provide a congenial, com0rta
happy home.
The position of mother's guardianship of her adopted children s the
same as that of her natural born children.
In Gita Hariharan v. Reserve Bank of India and Vandana Snuin
Jayanta Bandhopadhaya,' the Supreme Court has held that undea
Circumstances, even when the father is alive, mother can act 23
suardian. The term 'after' used in Section 6(a) has been interp eted
absence of' instead 'after the
as
lifetime'.
Mother can act as guardian of minor for in event where tthe
he minors
for passport.
s e p a r a t e
for applying
lor.
entitled to guardiansh unless they are
are
re
not
Step-parents
ngrents
the court.
inted by
fically appointa
maturem i n o r wife
natural
n atural guardian
gui has the
guardian
person.-The
of person-The
of ildren:
minor chil
Rights respect of
hts in
following r i g h t s
to custody, of children,
Right the religion
(a) determine
b) Right to
education,
to and
(c) Right control
movement,
to
(d) Right
chastisement.
of the minor
in the interest
reasonable
relating to
children,
children." If the
child is of the age
the welfare of
matters
in all of the
c o n s i d e r a t i o n is
though in the welfare
paramount be consulted, child
should also rule is that a
his wishes the ordinary
of discretion, disregarded. Though it does
his wishes may be to the custody of the mother,
child, should be
committed
over to the
below the age of five would automatically be given
above that age may be
not meanthat a child
welfare cf the child above that age
in the would
custody of the father." Thus, though children of tender years
of the mother, not a hard and
Committed to the custody of the father. Again, it is
be ordinarily given in the custody over father"
not mother would always be preferred
is granted.
ast rule that for custody, touchstone on which custody
Neare of the child is the only
relations of the father"
mother is preferable over the the sole
ral love for child are
relevant but not
Debter financial conditions, mother had
living with father,
determi
glactors. In this case
child has been
school and
he was 3 years old. Child is
studying in a good
VantWhen custody will remain with
the
with father. It was held that
therday
ather?
nas
Sumedha Nagpal,
urter, the Supreme Court in Gaurav Nagpal v.
.Saien v.
Union of ndia, AIR 2017 J& K 12.
nugo v. Viraraghava, Purshotamn, ILR (1926)
LR (1901) 24 Mad 255; Navneet v.
BOm 268.
Purshotam, ILR (1926)
Bom 268. "gnava, ILR (1901) 24 Mad 255; Navneet v.
,K.Urmila,
4. AIR 1985 HP 100.
ar Jahagirdar v.
Nathu
v. Chethana Ramatirtha, AIR 2004 SC 1525.
Aruna, AlRR1987 AR 2017 SC
929
MPhilips Del 81; Vivek Singh v. Romani Singh.
Mausups v. Sunil Jacob, AIR 2017 SC 1522.
tausami Moitra
AIR
2009 SC 557.Ganguli v. Jayanti Ganguli, AIR 2008 SC 2262.
FAMILY LAW G u a r d i a n sA p p
custody may
cases on
Some ontheDistrict
Jiteen Balla astheguardian
Deepti Bhandari i nappointing a
i n c l u d i n gt h e a s
Shaleen Kabra
The weltare o f
Rajan Chawla
or pass any
o r d ers
rs facilitating
1acilitating children's
children's welfare
.
modify,
T h e D i s t 2
Courts can
r e s p e c to ft h e
Testamentary Guardians
by the Court
Appointed
Guardians. point guardians unuer the uardian
Gardias empowered
and
appoint o r declare any person
Guardians
the District Court may
Under The welfare of the child.
Court.
onsiders it n e c e s s a r y in the
on t h eD i s t r i c t
whenever it consideration various factors.
t a k e s into
guardi.
the c o u r t law of the child.
the guardian, the personal
inting a
wishes parents and
of the
sex, consideration.
age, paramount
cludingthe the children is of guardian in
a
of to appoint o r declar
The welfare Court has
the power
of the minor.
The District well a s
s e p a r a t e property
appoint
as jurisdiction to
the person inherent
respect of High
Courts have
minor children. This power
The
chartered the property of
as well a s
1ardians of the person
interest ofa coparcener.
294
within the a m b i t of these powers
ers.
with the
guardian that natural dian cannot,
guardian.
a n y part
of
of immovable property, or
t o
le
s e out,
sale,
i pil
previous
otherwise,
years
Inve
o r for a m
exchange
or
for a t e r m
exceeding
which the minor
minor
exce
would attuing
such property date
date on
o n
of the
than o n e year
beyond
down
(4) lays
that
tDe court shall
not g r a n t
i n sub-section (9
pe 01ssion
to the
ority. 1
Sub-section
for thetoevident act mentioned
do any advantage of the minor. Sub-sectio i cas
down Cer
natural guardian
by natural guardian:in
that any
disposal of immovable
property
7 ot
(1) or dure for obtaining the
proced
of
sub-section
person
claiming
under him.
The
the
Guardians and Wards Act, 1890. permission p
any
court is regulated by immovable propertv. the ta
of the of minor's
of alienation
though it
or benefit,
ne o o r d i
In respect be necessity'
c o n t i n u e s to
used in sub-section (4
guardian's pow r and ' e v i d e n t advantage of a u l
4. Than
v.
Sornam, AIR 1977 Mad
Singh v.
Barelala, AIR 1974 427 (FB).
MP 24.
GUARDIANSHIP AND CUSTODY
The minor
property
of the is limit and subject
Within this
of prop with the o w n property. the
li deal deals with his the guardian has
the
down in the Act,
should
pruder
limitations
laid protection and benefit
ordinary
realization,
certain
specif f o r the
necessary
to
do all things
a1thority to has n o power to
minor's
property. The guardian
limitation.
o r to lease
of the down a major o r otherwise,
Section 29 lays exchange,
sale, gitt,
mortgage, for any term
transfer by five years o r
exceeding
the minor will
t e r m cease
charge or for a
the property o n which
a n v part
of beyond the
date
court will
accord
than o n e year of the court. The
alienation is for
more
extending permission
the prior proposed
finds that the
without
minor,
to be a alienation only if it
minor. Under Section 32,
the
Dermission for the
an
advantage of from
the evident power of
the guardian
or for the
necessity restrict o r
extend
under this section,
to define, e x e r c i s e itS power
court has power o r may
not within the
The court may exercise his powers
time to time. is bound to court.
the guardian directions given by
the
but if it does, a c c o r d a n c e with the
and in powers of
limitation laid down the court has general
the guardian,
appointment of
At the time of powers.
the limit of guardian's
defining and fixing himself request the court to fix and
Under Section 33,
the guardian may may on
Under this section, the guardian
define the scope of his powers. of the court in respect
instructions or opinion
specitic matters seek directions,
administration of the minor's properties.
of the management and
LIABILITIES O F GUARDIANS
of all
fiduciary, the guardians
The legal position of all guardians being No guardian is entitled to
are liable personally for breach of trust.
pe or made under
the provisionls
nuneration unless permitted under the will,
of the
Guardians and Wards Act.
Th uardian's legal position being fiduciary, he cannot take possessionn
f min no matter how long
he may be in
i or's property adversely to the minor,
he will
The down and reauires from a guardian that
mSsession. law lavs
minor. Prudent
the properties, business and affairs of the
mana uaently
aa nent does not mean that he is bound to contest every possible claim
against the minor or to litigate on behalf of the minor, irrespective of the
Chance of succe advantages a r e received
out of the
minor's esta
tat
whatever pecuniary
guardian is bound to hold them for the
minor's benefit.
e,the
1. Chater
oreet Singh, AIR 1983 P & H 406.
FAMILY LAw
296
This wll include not merely the actual profits reccived u
ut of the
which would have been
nnor's property but als0 all those profits
fterrecivn
for the gross and wilful neglect. However, if the minar
atta
for his acts or
nowledge
majority, discharges the guardian alter full knowledge
o m i s s i o n s comes to an end.
of
facts, guard
lhability
The guardian's fiduciary position also makes the guardio
dvan
render all accounts. However, once the minor, on attaining ole to
a settlement of accounts with the guardian, he can get them
them ro reach majority,
re-opened
Teaches
establishes fraud on the part of the guardian. only it
he
RIGHTS OF GUARDIAN
The guardian is entitled to represent the minor in all litigot.
REMOVAL OF GUARDIANS if
The court has power to remove any guardian from the guardians minor.
1t comes to the conclusion that to do so will be in the interest of tne
that
Section 6,
no person
Hindu Minority and Guardianship Act, specifically lays dowu
shall. be entitled to act as the natural guardian of the minor
(1) If the guardian has ceased to be
Hindu, or a
orld
C2) f the guardian has eompletely and finally renounced the wor
The Hindu Minority and
or mother cannot
Guardianship
Act does not say that1 Nor
appoint by will a non-Hindu as guardian of the
child
the :
minor. It is, thus, submitted that unless it is evidently to
law o f
1al
sndvantage
ol the minor, such as
when
the
the
guardian
of the
interferes with the
P it 1s not obligatory on e part co
tn'sreligio
stnamentary
, guardian of a Hindu minor, nor is it bound not to
non-Hindu
- tes
of the minor, though the court may nat
appoint a an-Hindu guardian
non-F
cannot
courts
have ime and again
said that the 'principal matter to be
infant.'
is the welfare of the
The
property. ases
these ca s
in
idered
III
GUARDIANSHIP BY AFFINITYY
are
the same
apinda, pronouncements
olations.
"2
The judicial
his
its logical end by the High
effect." taken to
by affinity w a s of a minor widow
The guardianshipState." In case, the
father-in-law
Paras Ram v.
this house and married her for
Court in widow from her mother's
the before the
forcibly took away her wishes. The question
unsuitable person against the girl forcibly.
money to a n the f a t h e r - i n - l a w
w a s guilty of removing
whether the lawful
court was he w a s not, since he
was
huge change.
In our submission, it would be a better law if the guardianship of the
minor wife, both of her person and property, continues to vest in the parents.
We do not have much of textual guidance or case law on the powers or
ardians
Those of the
by affinity. Probably his powers may be taken to be at par with
natural guardian.
Bhag
ind Law.Murlidhar, AIR 1943 Pc 106; Gangabai v. Bherumal, AlR 1976 Raj 153.
2. Hindu
3. Chinna and Usage, (11th
V. Vinayaghathammal,
ed.) 288.
AIR 1929 Mad 110 at 112; Ashwani Kumar v.
4. Pulkumari,
AIR 77 CWN
349.
1960
5.
AIR 2012 All 479.
Mad. 62.
298
FAMILY LAW
A de
DE FACTO GUARDIAN
facto
wellare of the guardian is a person who akes a
n
recognized
a case
the principle that if
and a
law.is iindu jurisprudensrati interest in th
liability incurred by one onnce hasratuallon flis
where it is justified, then the person,
incurred or, at least, his on
hose behalfehalf of an along
who,
property, 1s
liable,
authorization was made for incurring tne notwithstanding the liab abi
The term 'de facto liability.
but his guardian' as such 1s not
existence has never been denied in Hindu mentioned in a r
J. said that law. In Srire.
Hindu law tried to find a solution out
one, when a Hindu child has no
legal guardian,
of two difi
there
Kantexts,
cult situations
manage his estate in law and thus would be
would handle and
child would not receive
any income for his without a One wha
property and Secondllan, the
having no title could not be permitted to intermeddle
so as to cause
loss to him. The Hindu law found a with the
according legal status to de facto guardians. solution to this estate
A mere intermeddler is not a de problem
by
facto guardian. An
act of a person in
regard to the child's property does not: isolated. fugitive
guardian. To make a person a de facto guardian, some make him a de facd
conduct is necessary on his part. In other continuous c urse o
person who is not a legal guardian, who has no
words, a de
facto guardian is ofa
but nonetheless he himself has authority in law to act as s
assumed, the
management of the property Such
the child as though he were a
where past acts result in guardian. De facto guardianship
is a concent
of
1. Ethilulu
or to
borrow money on the Dlna OL negotiabie
v. Pathakal, AIR security egotiable
100 1950 Mad
390; Kusubai v.
2. (1856) 6 1918 Nag
3.
Jagdev
MIA 393. Chandrabnug
a, AIR
v.
Radha, AIR 1994
Guj 124.
.MILY LAW
2 GUARDIAN GUARDIANSHIP AND CUsTODY
299
awho akes
e a
nsfrumment, provided t h a t
that the contract, debt or loanis for legal necessi
management continuc
aw. Hindu and uous inte
admir
'4 Cstate and provided further that the guardian has not
Lnder the contract, debt or negotiable instrument. In no
person, jwhose
incurreduby. adminishastrato
risprudence
trnelit
c h d e d
h i si a b i l i t y
y is p e r s o n a l l y
liable,
one on the
ettled that ttled law that de facto guardian has
on It is also settled
iable, notwithstandin behalf 1 1s n o w
minor.
tne liability.
behalf the of : debt
al
onb e h a l l r
of thereference
po to arbitration or to make a gift of minor's
tthat
h facto guardian by the Hindu
0 power
Hindumentioned
guardian, de facto or de jure
now
The
d in in any role
has
1956-62.
Acts, 19
a b a n d o n e d child, can give such
law. In
n e w
of tha
M a i n t e n a n c e
A minor
and undling o r
Sriramulu! Knnd
s
in Hindu Minority
law a
hild
c h i l
11 of the n . The
section runs as
under:
shall be entitled to
guardian the
guardian.
d e a l with,
the property of a Hindu
the minor.
guardian of
found a solution to this eet.ate dispose
of, o r
her being the de facto
abolishes a de facto
de
to guardian. An isolated or fugitive Thereis
a
tion11,
Hindu
to dispose of
rity
Minorit
'entitled' to dispose
or
otherwise
a l i e n a t e
a guardian. In
he
submission
F e d e r a l
two provision
ona f o r e s a i d gua
and de jure d e
the
Juo
TriCPC.vedi, J.,
drew support for this view
from
c a n file a
suit on
behalf of
the m
uardian, the position
facto
by which a "next friend" friend" guardian, the
de
o r a de facto
T
nation
m a d e
guardian."
estu
te
Lardshipsaid that
more orr Jesc
mother,: as "next
suit for specific
p erformance
y ade
b i n d
to
of
nego
Sridharan,
AlR
L
Spowers
secur
S ia
ty, AIR 1918.
N a g
o
the
n Chandrabhaga
i v. 2.
Ker anoramaji,
200; Taleri v. Malhyalap. AlR 1972 Mys 31.
AIR 1971 SC
315.
300 FAMILY LAW