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DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

2016-2017

FINAL DRAFT ON

Guardianship of person under hindu law

SUBMITTED TO SUBMITTD BY

MRS. SAMREEN HUSSAIN KEERTI BHARTI

ASST. PROFESSOR ROLL NO. - 70

DR. RMLNLU SEC - A


B.A.LLB (HONS.)
TABLE OF CONTENTS:
ACKNOWLEDGEMENT…………………………………………… 3
INTRODUCTION…………………………………………………… 4
Guardianship of person under hindu law……………………………. 4
Natural guardian ……………………………………………………. 4 -5
Geetha hariharan v reserve bank of india …………………………... 5-6
Testamentary guardians ……………………………………………. 7
Guardians appointed by court………………………………………. 8
Roxann sharma v arun kumar………………………………………. 8-9
CONCLUSION ……………………………………………………. 9
BIBLIOGRAPHY………………………………………………….. 10
ACKNOWLEGEMNT

I would like to take this opportunity to firstly, thank my teacher, Mrs. samreen hussain without
whose constant guidance and help this project would not be possible. I would also like to thank
my seniors for guiding me throughout the research and for helping me out when I got stuck. I
would also like to thank my batch mates and friends for keeping up the flame of competition
burning inside me even through the windiest nights.
INTRODUCTION

Guardianship of prson Under Hindu Law

Guardianship as conceived originally was, in most systems, an extension o paternal power. But
in modern law it implies an idea of protection. 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 Immature And Hence Needs Someone's Protection. In The Modern Law Of Most Countries
The Childhood Is Accorded Protection In Multifarious Ways. Guardian Is "A Person Having The
Care Of The Person Of The Minor Or Of His Property Or Both Person And Property." It May Be
Emphasized That In The Modern Law Guardians Exist Essentially For The Protection And Care
Of The Child And To Look After Its Welfare. This Is Expressed By Saying That Welfare Of The
Child Is Paramount Consideration.The Hindu Law Of Guardianship Of Minor Children Has
Been Codified And Reformed By The Hindu Minority And Guardianship Act, 1956. Welfare
Includes Both Physical And Moral Well-Being. Guardians May Be Of The Following Types : 1.
Natural Guardians, 2. Testamentary Guardians, And 3. Guardians Appointed Or Declared By
The Court. There Are Two Other Types Of Guardians, Existing Under Hindu Law, De Facto
Guardians, And Guardians By Affinity.1

Under the provisions of Hindu law, guardians can be of the following kinds:

(1) Natural guardians

(2) Testamentary guardians

(3) Guardians appointed or declared by the court

Natural guardians:

Section 6 of the Hindu Minority and Guardianship Act provides who the natural guardians
are.The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect
of the minor’s property (excluding his or her undivided interest in joint family property), are –

In the case of a boy or an unmarried girl-the father, and after him, the mother; provided that the
custody of a minor who has not completed the age of five years shall ordinarily be with the
mother;

In case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the
father;

In the case of a married girl-the husband:

1
Modern hindu law- paras diwan, page no. - 264
Provided that no person shall be entitled to act as the natural guardian of a minor under the
provisions of this section-

if he has ceased to be a Hindu, or

if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an
ascetic (yati or sanyasi).

Natural guardians are of three types


a. Father- a father is the natural guardian of his minor legitimate children, sons and daughters. A
father cannot be deprived of the natural guardianship of his minor children unless he has been
found unfit. The position of adopted children is at par with that of born children. In case the
father is incapable ,or fails or refuses to perform the functions the mother can be the guardian.2
b. Mother – the mother is the guardian of the minor illegitimate children even if the father is
alive. Mother’s right to guardianship stays even if she has converted her religion. The position
also remains the same even if the child is an adopted child and not a natural born child. 3

The father can appoint a testamentary guardian on his own will. If the father does not appoint ,
the mother’s appointee will resume the responsibility of the guardian.Guardians appointed by the
court are the guardians appointed by the virtue of the courts empowerment. Under the Guardians
and Wards Act,1980, the jurisdiction is conferred on the district court. The district court on its
own discretion appoints any person whenever it thinks it to be better for the welfare of the child.

In Geetha Hariharan v Reserve Bank of India, the validity of Section 6 was challenged. The
applicant argued that the communication from the RBI is arbitrary and was opposed to the basic
concept of justice under Article 32 of the Constitution. They therefore challenged the validity of
s. 6 of the Hindu Minority and Guardianship Act of 1956 (the Act). Further they argued that the
provisions of s. 6 of the Act seriously disadvantage women and discriminate against women in
the matter of guardianship rights, responsibilities and authority in relation to their own children.
The court observed that “the word ‘after’ did not necessarily mean after the death of the father,
on the contrary, it [means] ‘in the absence of’ be it temporary or otherwise or total apathy of the
father towards the child or even inability of the father by reason of ailment or otherwise.” Giving
the opinion of the Court, Banerjee J asserted the predominance of the child’s welfare in all
considerations. He considered the precedent of Gajre v. Pathankhan (1970 2 SCC 717) in which,
although the father was alive, he was not taking any interest in the affairs of the child. In that
case the mother was ruled to be the natural guardian of her minor daughter. He set out that the

2
Modern hindu law – paras diwan, page no. - 264
3
Modern hindu law – paras dawn, page no. - 265
Hindu law and the Act held that the father is the natural guardian and after him the mother but in
the above case, the Court held the opposite.4

c. Husband is the guardian of his minor wife.

Rights of a natural guardian

A natural guardian has the following rights in respect of minor children:

(a) Right to custody

(b) Right to determine the religion of children

(c) Right to control the education

(d) Right to control movement

(e) Right to reasonable chastisement

GURDIP KAUR VS. GHAMAND SINGH DEWA SINGH: In view of the majority opinion the
answer to the question referred to the Full Bench is that the term " co-parcenary property"
occurring in Act, 1956, means the property which consists of ancestral property or joint
acquisitions, or property thrown into the common stock and accretion to such property. The
regular first appeal would now go back to the Division Bench for final disposal on merits.

The appointment of a guardian by the court is regulated by the Guardians and Wards Act, 1890.
The district court has the power to appoint or declare a guardian in respect of person or separate
property of the minor. But it has no jurisdiction to appoint a guardian of minor’s undivided
interest in the Mitakshara joint family property.

However, if all coparceners are minors, the court may appoint a guardian in respect of entire
joint family property.

1.1 Guardianship of person of minors


Under the Hindu Minority and Guardianship Act,1956, 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 immature and hence need someone’s protection.

Rights Of Guardian Of Person. -The Natural Guardian Has The Following Rights In Respect Of
Minor Children:

(A) Right To Custody, .

(B) Right To Determine The Religion Of Children,

4
http://sanamurtaza.blogspot.in/2013/03/guardianship-under-hindu-law.html
(C) Right To Education,

(D) Right To Control Movement, And

(E) Right To Reasonable Chastisement

These rights are conferred on the guardians in the interest of the minor children and therefore of
each- of these rights is subject to the welfare of the minor children. The natural guardians have
also the obligation to maintain their minor children.

Testamentary guardians

When, during the british period, testamentary powers were conferred on hindus, the testamentary
guardians also came into existence. It was father's prerogative to appoint testamentary guardians.
By appointing a testamentary guardian the father could exclude the mother from her natural
guardianship of the children after his death. Under the hindu minority and guardianship act,
1956, testamentary power of appointing a guardian has now been conferred on both parents.' the
father may appoint a testamentary guardian but if mother survives him, his testamentary
appointment will be ineffective and the mother will be the natural guardian. If mother appoints
testamentary guardian, her appointee will become the testamentary guardian and father's
appointment will continue to be ineffective. If mother does not appoint, father's appointee will
become the guardian. It seems that a hindu father cannot appoint a guardian. Of his minor
illegitimate children even when he is entitled to act as their natural. Guardian, as s. 9(1) confers
testamentary power on him in respect of legitimate children. In respect of illegitimate children,
section 9(4) confers such power on the mother alone.

Under section 9, hindu minority and guardianship act, testamentary guardian can be appointed
only by a will. The guardian of a minor girl will cease to be the guardian of her person on her
marriage, and the guardianship cannot revive even if she becomes a widow while a minor. It is
necessary for the testamentary guardian to accept 'the guardianship. Acceptance may be express
or implied. A testamentary guardian may refuse to accept the appointment or may disclaim it, but
once he accepts, he cannot refuse to act or resign except with the permission of the court. 5

(1) a hindu father entitled to act as the natural guardian of his minor legitimate children may, by
will, appoint a guardian for any of them in respect of the minor's person or in respect of the
minor's property (other than the undivided interest referred to in section 12) or in respect of both.

(2) an appointment made under sub-section (1) shall have no effect if the father predeceases the
mother, but shall revive if the mother dies without appointing, by will, any person as guardian.

(3)a hindu widow entitled to act as the natural guardian of her minor legitimate children and
hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of

5
Modern hindu law, page no. - 268
the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for
any of them in respect of the minor's person or in respect of the minor's property (other than the
undivided interest referred to in section 12) or in respect of both.

(4) a hindu mother entitled to act as the natural guardian of her minor illegitimate children may,
by will, appoint a guardian for any of them in respect of the minor's person or in respect of the
minor's property or in respect of both.

(5)the guardian so appointed by will has the right to act as minor's guardian after the death of the
minor's father or mother, as the case may be, and to exercise all the rights of a natural guardian
under this act to such extent and subject to such restrictions, if any, as are specified in this act
and in the will.

(6) the right of the guardian so appointed by will shall, where the minor is girl, cease on her
marriage.

Guardians appointed by the court:

The courts are empowered to appoint guardians under the guardians and wards act, 1890. The
high courts also have inherent jurisdiction to appoint guardians but this power is exercised
sparingly. The hindu minority and guardianship act is supplementary to and not in derogation to
guardians and wards act. Under the guardians and wards act, 1890, the jurisdiction is conferred
on the district court: the district court may appoint or declare any person as the guardian
whenever it considers it necessary in the welfare of the child.' in appointing ,,a" guardian, the
court takes into consideration various factors, including the age, sex, wishes of the parents and
the personal law of the child. The welfare of the children is of paramount consideration.
However, if all coparceners are minors, the court may appoint a guardian in respect of entire
joint family property.

The district court has the power to appoint or declare a guardian in respect of the person as well
as separate property of the minor. The chartered high courts have inherent jurisdiction to appoint
guardians of the- person as well as the property of minor children. This power extends to the
undivided interest of a coparcener. The guardian appointed by the court is known as certificated
guardian. Powers of certificated guardians. Powers of certificated guardians are controlled by the
guardians and wards act, 1890. There are a very few acts which he can perform without the prior
permission of the court. In the ultimate analysis his powers are co-extensive with the powers of
the sovereign and he may do all those things (though with the permission of the court) which the
sovereign has power to do. A certificated guardian from the date of his appointment is under the
supervision, guidance and control of the court.

In roxann sharma v/s arun sharma - a remarkable judgment dealing with interim custody of
child suffering in parent’s matrimonial disputes, visitation rights and p, a 2 judge bench of
supreme court laid down various propositions of law while awarding the interim custody till final
disposal by the trial court to the mother. The bench speaking through justice vikramjit sen, lays
down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation
rights’ and tests the issue from the angle of provisions of hindu minority & p act, 1956 and
guardian & wards act, 1890.in a custody battle between estranged parents, a minor child, who
has not completed five years of age, shall be allowed to remain with the mother, the supreme
court has ruled saying that in such cases child should not treated as a "chattel". The court said
that under hindu minority and p (hmg) act, a father can be guardian of the property of the minor
child but not the guardian of his person if the child is less than five years old.

The court said that there can be no cavil that when a court is confronted by conflicting claims of
custody there are no rights of the parents which have to be enforced; the child is not a chattel or a
ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point
for consideration. Parliament rightly thinks that the custody of a child less than five years of age
should ordinarily be with the mother and this expectation can be deviated from only for strong
reasons.

The apex court quashed the order of bombay high court which granted custody of a two-year-old
child to father on the ground that the mother had not established her suitability to be granted
interim custody of the infant.6

The hmg act postulates that the custody of an infant or a tender aged child should be given to
his/her mother unless the father discloses cogent reasons that are indicative of and presage the
livelihood of the welfare and interest of the child being undermined or jeopardized if the custody
is retained by the mother. Section 6(a) of the act, therefore, preserves the right of the father to be
the guardian of the property of the minor child but not the guardian of his person whilst the child
is less than five years old. It carves out the exception of interim custody, in contradistinction of
p, and then specifies that custody should be given to the mother so long as the child is below five
years in age. The court said that the act placed the onus on father to prove that it was not in the
welfare of the infant child to be placed in the custody of mother and hc order virtually nullifies
the spirit of the enactment. The act immediately provides that the custody of a minor who has not
completed the age of 5 years shall ordinarily be with the mother. The use of the word 'ordinarily'
cannot be over-emphasized. It ordains a presumption, albeit a rebuttable one, in favour of the
mother.

6
http://www.legalservicesindia.com/article/article/child-custody-&-guardianship-204-1.html
CONCLUSION: hindu minority and guardianship act 1956 as the name suggests assigns legal
guardians to minors. This act is in best interest to safeguard the rights of minors and ensuring
their wholesome development.
Legally there should be a nominated guardian and this is where this act is discriminatory and by
default gives guardianship rights of a minor to the father.

BIBLIOGRAPHY:

BOOKS:

MODERN HINDU LAW by Dr. Paras Diwan

HINDU LAW by B.M.Gandhi

E – RESOURCES:

Https://www.google.co.in/search?Sclient=psyab&rlz=1C1NHXL_enin699in699&biw=1366&bi
h=662&q=guardianship+under+hindu+law&oq=guardianship+under+hindu+law&gs_l=hp.3...37
80.3780.1.5380.1.1.0.0.0.0.0.0..0.0....0...1c.1.64.psyab..1.0.0.g0x0cdnq0ow&pbx=1&bav=on.2,o
r.&bvm=bv.135974163,d.c2i&ion=1&ech=1&psi=1f0dwlnvccxvatohzy4aw.1476615637994.9&
ei=6F0DWJ60EYeGvQTf4Ky4CQ&emsg=NCSR&noj=1

Http://www.hrln.org/hrln/child-rights/pils-a-cases/1685-landmark-judgment-pronounced-by-sc-
dealing-with-guardianship-a-custodial-and-visitation-rights-to-parents-and-children-stuck-in-
matrimonial-disputes.html

Https://www.google.co.in/webhp?Sourceid=chromeinstant&rlz=1C1NHXL_enin699in699&ion=
1&espv=2&ie=UTF-8#q=guardianshi+under+hindu+law

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