The concept of guardianship in India is given in Shastras as well as Quran with different objectives.
There are different statutory provisions in Indian relating to guardianship like Hindu minority and guardianship act, 1956, Guardians and Wards Act,1890, Islamic laws, Parsi laws, Christian laws, etc.
In this article, I will be talking about guardians and their types under Hindu Law.
Introduction
Under Hindu law, the main Act to deal with the provision of guardianship is The Hindu Minority and Guardianship Act, 1956. But it is a complementary Act. It complements the Guardian and Wards Act,1890. The provisions which are not given in the Guardian and Wards Act,1890 or about which it is silent, The Hindu Minority and Guardianship Act, 1956 will fill that gaps. Both the Acts are read with each other. The only difference between the two Acts is that the Guardians and Wards Act,1890 is a secular law and The Hindu Minority and Guardianship Act,1956 is a Hindu Law,i.e, applies to Hindus only.
Difference between Custody and Guardianship
- Custody is granted specifically as matrimonial relief to a parent who seeks custody, whereas guardianship exists as law.
- A guardian need not be a custodian, or a custodian, a guardian of the child.
- Guardianship is a more comprehensive term and connotes wider rights than mere custody.
- Custody could be for a short duration or for a specific purpose but guardianship is more permanent in nature.
Who is a guardian?
Guardian is defined under section 4(b) of the Hindu Minority and Guardianship Act,1956 as:
“guardian” means a person having the care of the person of a minor or of his property or of both his person and property and includes—
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor’s father or mother,
(iii) a guardian appointed or declared by a court, and
(iv) a person empowered to act as such by or under any enactment relating to any court of wards;
Source: https://indiankanoon.org/doc/110381761/
A guardian is a person who takes care of the minor until he attains majority or is able to take care of himself. Guardian has different powers under this Act in relation to minor’s person or minor’s estate. Even adopted or illegitimate children have guardians.
Types of guardians
- Natural guardian
- Testamentary guardian
- Appointed by court
- De facto guardian
1. Natural guardian
Natural guardians are guardians by default. They are not appointed by the Court. As per the Hindu Minority and Guardianship Act,1956, there are three types of natural guardians:
- Father
- Mother, and
- Husband
As per Section 6 of the Act, in the case of a legitimate minor child, his natural guardian is Father and after him, the Mother. If the child is below the age of 5 years, the custody of the child will be with the mother.
In the case of an illegitimate minor child, Mother is the natural guardian and after her, the Father.
In the case of a minor married girl, the Husband of the girl will be her natural guardian.
Under Section 7 of the Act, if the child is adopted, his natural guardian will be Adoptive Father and after him, the Adoptive Mother.
Disqualifications from natural guardianship:
- 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)
Powers of Natural guardian (Section 8)
- To do all acts which are necessary or reasonable and proper for the benefit of the minor, or for the benefit of the minor’s estate but cannot bind the minor under a contract.
- Guardian can lease the property, but not for more than 5 years or for a term that extends more than a year of the date of the minor attaining majority.
- Guardian cannot transfer/mortgage/charge/sale/exchange any immovable property in name of the minor without prior permission of the court. The court will grant such permission only if there is a necessity or there is an evident advantage to the minor.
- If the guardian makes a contract regarding the minor or his immovable property which violates any of these conditions then the contract shall be voidable at the instance of the minor.
2. Testamentary guardian and their powers ( Section 9)
A testamentary guardian is appointed by a Natural guardian i.e, father or mother by way of a will.
A testamentary guardian has the right to act as the 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.
There can be three instances under this provision:
- If the mother has already died, and the father appointed X as the guardian of a minor child. Then after the death of the father, X will be the testamentary guardian.
- If both father and mother are alive, and Father appointed X as testamentary guardian by will, after the death of the father, X will not be the guardian as the neutral guardian i.e, Mother is still alive. But after the death of the mother, if she has not appointed any testamentary guardian, X will be the guardian.
- Father appointed X by will as a testamentary guardian, and he dies. Mother has appointed Y and also died. In this case, Y will be the testamentary guardian.
3. Guardian appointed by the Court (Section 13)
The Court can appoint a guardian after due satisfaction and going through the proper procedure( in case both the parents died or the child is abandoned) for the welfare of the minor.
The Court may take orders under the Guardians and Wards Act,1890 as it is supplementary with the Hindu Minority and Guardianship Act, 1956. He acts under the control of the Court.
4. De facto guardian (Section 11)
These are neither natural nor testamentary guardians. They act on their own will for the welfare of the minor. De facto guardian does not possess any type of power.
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