GUARDIANSHIP: Is The Child’s Best Interest Protected Under Hindu Law

Introduction

The ancient texts of India have hardly discussed the concept of guardianship due to the durable familial structure in the Vedic society and resolute presence and powers of the Karta. Thus, there were hardly any laws on guardianship in India. The emergence of guardianship as a legal concept began from the advent of the British Empire and slowly with the passing of time these laws were incorporated in the Hindu Laws. 

Before we do in-depth investigation into the topic and discuss the liabilities of a guardian under the Hindu law, we need to have a lucid understanding of the basics to help us understand it better. In India, guardianship is regulated by the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890, in Hindu family, which deals with the basic principles and laws relating to appointment of a guardian. This article along with discussing the liabilities mentioned in the Minority and Guardianship Act, 1956, briefly talk about other various heads under the Act that would render our understanding lucid. Hindu law of guardianship is codified law while the Muslim law of guardianship is not codified.

Guardianship under Hindu Law

Who is minor?

 As per section 4(a) of the Hindu Minority and Guardianship Act, 1956 means a person who has not completed the age of 18 years. They are considered to be a person who is physically and mentally imperfect & immature and hence needs someone’s protection.

Who is Guardian?

A Guardian as defined under section 4(b) of the  Hindu Minority and Guardianship Act, 1956,  means a person taking care of the minor physically or of his property or of both him and his property. The section farther states the different types of guardians:

  1. Natural guardian
  2. Testamentary guardian
  3. Guardian appointed by the court

Other than the above-mentioned guardians, there are two other types:

  1. De facto guardian
  2. Guardians by affinity

Natural Guardians

Only three persons are considered as natural guardians in Hindu law: father, mother, and husband.

Father is the natural guardian of his minor legitimate children, sons, and daughters.  According to section 19 of the Guardians and Wards Act, 1890, father cannot be deprived of the natural guardianship of his minor children unless he has been found unfit. According to section 13 of the Hindu Minority and Guardianship Act, 1956, welfare of the minor is of foremost consideration and father’s right of guardianship.

The mother is the natural guardian of the minor illegitimate or legitimate children doesn’t matter whether the father is alive or not. Mother is entitled to the custody of the child below 5 years unless the welfare of the minor requires otherwise.

Testamentary Guardians

According to the section 9 of Hindu Minority and Guardianship Act, 1956, testamentary power of appointing a guardian has now been grant to both parents. As per section 9(1) of the Act, a father has the testamentary power of appointing a guardian for his legitimate children or his property, or both.

However, section 9(2) of the Act, states that if the mother is alive after the death of the father then she will be the guardian of the children and the will made by the father would remain ineffectual and it will be bring back only if the mother dies without appointing a guardian by will.

As per section 9(4)of the Act, empowers the mother of the illegitimate children to appoint a guardian for the children, property, or both. In the case of a minor girl, the guardianship shall end at her marriage and that would not revive even if she becomes a widow while being a minor.

A testamentary guardian can be appointed only by a will. Testamentary guardianship is valid when it is accepted by the guardian ‘the guardianship’ which may be express or implied. A testamentary guardian may decline to accept the appointment or may disclaim it at the initial stage, but after the acceptance, they cannot refuse except with the permission of the court.

Guardians Appointed by the Court

According to the Guardians and Wards Act, 1890 the courts are empowered to appoint guardians. The court may appoint a person as the guardian if they regard it essential in the subject matter of the welfare of a child.

The District Court has the power to appoint or mention a guardian in respect of the person as well as separate property of the minor. The High Courts have the power to appoint guardians of the minor as well as for his property. This power also covers the undivided interest of a coparcener. The guardian who is appointed by the court is known as a certificated guardian.

Powers of certificated guardians are regulated by the Guardians and Wards Act, 1890. Only a few certain acts which he can perform without the permission of the court.  Powers are co-extensive with the powers of the sovereign. A certificate is under the supervision, guidance, and control of the court.

Guardianship by affinity

Guardianship by affinity is the guardianship of a minor widow by a person in relation to the husband within the degree of sapinda. Father-in-law can be a guardian by affinity but section 13 of the Hindu Minority and Guardianship Act states that the welfare of the child must be of supreme consideration, therefore, it is essential to check whether the minor widow would be safe and her needs would be fulfilled by the guardian by affinity. 

De Facto Guardian  

The term “de facto guardian” is not mentioned anywhere in any law but it has always been acknowledge by the court. A de facto guardian is a person who has taken a continual interest in taking care of, managing the child, and his or her property, or both. A de facto guardian is not a legal guardian and consequently, legally he has no power over the child as well on the property of the child, but he has assumed and takes care of the child as well as the property. 

Liabilities of Guardian

  • The Guardian in carrying out the above mentioned powers can in no case bind the minor by a personal contract. This means that though the guardian may impose a financial liability on the minor’s estate and it cannot make him personally liable for the losses or the liabilities that arise due to such contract.
  • According to section 8(3) of the Hindu Minority and Guardianship Act, 1956, any disposal of the immovable property by a natural guardian violating the conditions is voidable in the case of the minor or any other person claiming under him. Where the property is sold by the guardian for the benefit of the minor even then can a minor challenge the transaction only after attaining the age of majority if it was done without the permission of the court.
  •  As per section 12 of the Hindu Minority and Guardianship Act, 1956, has prohibited an appointment of a guardian for the minor who has undivided interest in the Hindu property which is being taken care of by any mature member of the family. Only the High Court has the power to appoint a guardian for the same, if it deems fit.

Conclusion

After critically examine the provisions related to guardianship under Hindu law, it can be clearly deduced that ensuring the welfare of the minor and that a safe and nourishing environment is made accessible for the minors growth can be clearly derived as the biggest liability or the responsibility of the guardians and paramount guiding principle for the judiciary. Therefore, these laws ensure that the child interest is protected by guardianship under Indian laws.

References

https://www.legalserviceindia.com/legal/article-2094-minority-and-guardianship.html

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