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Guardianship under Hindu Law

May. 18, 2020   •   anshu sharma

TYPES OF GUARDIANSHIP

According to section 4 (b) of the HMGA types of guardianship:

  1. Natural Guardian
  2. Testamentary Guardian
  3. Guardian appointed and declared by the court
  4. A person empowered to act under any other enactment relating to courts of Wards
  5. Karta
  6. Guardian ad litem and De facto

NATURAL GUARDIAN

Natural guardians are the most powerful among all kinds of guardians. Father, mother, and husband are in the category of natural guardians. Guardianship of minor children from the father cannot be taken away unless he is unfit. Section 6 of HMGA deals with the Natural Guardianship of Hindu Minor. Conditions laid down under section 6 are,

a) Guardian of the legitimate boy or unmarried girl is the first father and then mother. In a matter of custody, it is with mother up to 5 years of a child.

b) If a child is illegitimate then the first guardian of the child will be a mother.

c) The Guardian of the married minor girl will be her husband. In case the husband is also minor then he cannot take any decision but his natural guardians will act as guardians of the married minor girl.

Disabilities to be Natural Guardians:

a) When one party changes religion or ceases to be a Hindu [1]

b) Renouncement of the world/civil death [2]

c) Owing to minority i.e. minor husband cannot be a guardian in a matter of property, however, he can be a guardian of his wife for other purposes.[3]

d) If guardianship is prejudiced to the welfare of the child [4]

Rights and Powers of Natural Guardians:

a) Necessary/Reasonable/Proper benefit of the child and his property -

This right or power is limited. However, he can only transact it in such a manner the right of the property remains with the child. E.g. Rent, Mortgage, etc. Natural Guardians cannot effect any absolute sale of property without permission of Court and in the interest of the child, such decisions are voidable. Son can recover losses on the attainment of majority.[5]

b) Custody Rights

c) Child’s Education

d) Religion-

If they convert, minor may deemed to have converted as well. Thus, the guardian's conduct is important. Their practice in bringing up a child in a particular religion is also important and decides the child’s religion.

e) On lease - The lease can be given for 5 year periods, but it can be renewed. In between the lease period of the child attains majority, then the lease cannot be made for more than 1 year after the attainment of majority. Lease otherwise made is invalid.

TESTAMENTARY GUARDIAN

Under section 9 of HMGA, Natural Guardians may appoint Testamentary Guardian through a Will for their legitimate child. For the appointment of Testamentary Guardian child’s father needs not to take the consent of his wife. Testamentary Guardian’s powers would be same as Natural Guardian unless otherwise specified in the Will.

In the case of illegitimate child, only mother can appoint a Testamentary Guardian.

In the case of a minor girl child after marriage, the Husband can appoint a Testamentary Guardian only if he is major.

GUARDIAN APPOINTED BY THE COURT

Courts may appoint multiple guardians- one for taking care of properties and others for necessities, etc.

PERSONS EMPOWERED TO ACT UNDER ANY OTHER LAW INCLUDING GUARDIANS AND WARDS ACT

Corporations and companies can also be guardians. NGO / President i.e. Any legal character may act as a guardian.

KARTA

Karta also acts as a guardian but this is a different nature than others. He acts as the guardian of the entire JHF irrespective of age. After the attaining majority child may conduct own affairs but Karta can continue to be Guardian.

DE FACTO & AD LITEM GUARDIAN

Under section 11 of HMGA De facto Guardians means who takes care of a child and his property without authority of Law. De facto Guardians have the right to recover the expenses incurred (while taking care of minor) only by way of being his De facto guardian. If uncle, grandfather, or any other person is taking care of the child. Such persons not legally competent to act as guardians, but are behaving like guardians.

Ad litem Guardians: Guardians appointed to take care of litigation pending on behalf of the minor. He cannot take any decision except regarding the litigation.

The author is Dhruvi Anajwala a third-year student from Gujarat National Law University .


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