Natural Guardian under Hindu Law

Abstract 2 This article will help you understand the issues related to Natural Guardianship and some basic definitions for the same under the Hindu Minority and Guardianship Act, 1956.

Introduction

For a child, especially during his/her growing years, it is important to have a support system in the form of a guardian, to whom, the child can look up to as well as a person who can take action for the benefit and welfare of the child. In our country, as there are multiple religions and faith, the personal matters of the people who follow particular religions are governed by their personal laws. For a minor and guardian, both of who are Hindus and follow Hinduism, are governed by the Hindu Minority and Guardianship Act, 1956. As per Section 4(a) of Hindu Minority and Guardianship Act, 1956(hereafter referred as Act), minor means a person who has not completed the age of 18 years and as per Section 4(b) major means a person who takes care of the minor, his property or both, including natural guardian under Hindu law, a guardian appointed by the court, a guardian appointed by father’s or mother’s will and a person empowered to act as guardian relating to court of wards. But this definition is not exhaustive and a guardian would also include a De facto guardian, who is self-appointed.

Meaning of Natural Guardian under Hindu Law

Section 4(c) of the Act states that natural guardian under Hindu law means as mentioned in Section 6 of the Act. Section 6 of the Act envisages the following persons as the guardian of a Hindu Minor:

  1. Father—in case of unmarried boy or girl, and after the mother, but in case of a child below the age of 5 years the guardian will always be the mother.
  2. Mother—in case of illegitimate boy or girl, and after her, the father.
  3. Husband—in case of a married woman.
  4. Adoptive father—in case of adoptive child, and after him the adoptive mother[1].
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Termination of Guardianship[2]

  1. If the guardian ceases to be a Hindu
  2. If the guardian has completely renounced the world and has become an ascetic.

Guardianship Act and Gender Discrimination

The wording of Section 6 of the Act that for a minor child father is the first natural guardian and after that only the mother can act as a natural guardian, on a peripheral reading seems to create gender discrimination. In Githa Hariharan v. Reserve Bank of India[3], the Act was challenged as being violative of Article 14 of our Constitution and the court held that the terminology of Section 6 means that the mother can take care of the child when the father is not in charge of actual affairs of the minor, either because of his indifference, or by virtue of mutual understanding between the parents, or because of some physical or mental incapacity or if he is staying away from home.

Though the court has settled the conflict of the terminology in Section 6 of the Act, in the light of present scenarios, where women earn equal to and more than their respective partners, the reason as to why both the parents shall have the right of guardianship equally over the minor is a question to be answered. As rightfully remarked in Smita Krishna Shetty v. Vinay Shankar Shetty[4], ‘the drawing of such presumption is most inappropriate in the context of contemporary realities. Women, including single women, are able to combine in themselves multitudinous roles of being able members of the workplace and successful home-makers. An interpretation which is anachronistic to the rapidly evolving position of women must be discarded’.

The Law Commission in its report in 1989[5], made various recommendations and suggestions to remove gender discrimination. It recommended equal right of guardianship. Pursuant to the law commission report and also opinions in judgements and by jurists, the Personal Laws (Amendment) Act, 2010 amended Article 19(b) of the Guardian and Wards Act, 1890 which recognises right of the mother in par with the father, hence if the mother or father is alive and fit to be guardians, no other person can be appointed as a guardian. But the provisions of Section 6 of the Act have not been changed, which is gender discriminatory.

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In the case of an illegitimate child, the guardian is the mother, the rationality of which is also questionable as to how a mother can be burdened to take care of minor, solely on the basis that the legitimacy of the child is not legal. A father and mother are both equally important and one cannot be weighed more than the other.

Rights of a Natural Guardian[6]

  1. Guardian can do any act for the benefit and welfare of the minor.
  2. He should take reasonable care of the minor’s property.
  3. Prior permission of court is required for mortgage, charge; transfer of minor’s immovable property by way of sale, gift or exchange, or leasing the property exceeding five years.

The welfare of the child must be given paramount importance [7]

Whenever there are conflicts as to the appointment of guardian with respect to the minor, the courts shall look into the welfare of the child and shall appoint guardian and take decisions with respect to guardianship based on this principle. As observed in Baby Sarojan v. M.K.Nair[8], the court held that the dominant design of the statutory provision is clear to the effect that there cannot be any unbridled, unlimited or absolute power to any person, whether he is the legal guardian or natural guardian, to have the custody of the minor, simply that he holds the position, that he is the natural guardian. The principle to be applied in case of minors who cannot be expected to express their intelligent preferences, the state assumes the ultimate responsibility for the welfare of the children.

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[1] Section 7, Hindu Minority and Guardianship Act, 1956.

[2] Section 6(c), Hindu Minority and Guardianship Act, 1956.

[3]A.I.R 1999 S.C. 1149 .

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[4](2005) I H.L.R 78 at 80 (India).

[5] 133 rd Report , ‘Removal of Discrimination Against Women in Matters Relating to Guardianship and Custody of Minor Children’ ,1989

[6]Section 8, Hindu Minority and Guardianship Act, 1956

[7] Section 13, Hindu Minority and Guardianship Act, 1956

[8] A.I.R 1982 Ker 277