Types of Guardian under Hindu Minority and Guardianship Act, 1956
A guardian can be described as a person who provides and protects another person, mostly a minor. In simple words, a person who takes care of a minor and protects its wealth and property can be termed as a guardian. Earlier, the provisions regarding “guardian” and “minor” was mentioned in the Guardians and Wards Act, 1890. After the independence of India from colonial rule, the personal laws were undergoing a drastic change as per the needs of the post-independent Indian society. As a result, the Hindu Minority and Guardianship Act, 1956 was enacted in the seventh year of independence on 25 August 1956.
The Hindu Minority and Guardianship Act, 1956 dealt with minors, their guardians and the provisions related to the same. The act consists of a total of 13 Sections dealing with who is a minor or guardian, types of guardian, the over-riding effect of the act, powers of guardian and welfare of the minor. Under Section 4 of the act, a guardian is defined as “a person having the care of the person of a minor or of his property or of both his person and property.” The act mentions the following types of guardians:
- a natural guardian.
- a guardian appointed by the will of the minor’s father or mother.
- a guardian appointed or declared by a court.
- a person empowered to act as such by or under any enactment relating to any Court of wards.
Section 6 states the natural guardian of a Hindu minor. As the per section, a natural guardian will be in respect to the minor person as well as the minor’s property, excluding their undivided interest in the joint family property. A natural guardian can be classified into three cases:
In the case of a minor girl or boy: the natural guardian of a minor child is with the father, and the mother of the minor will be categorised as the natural guardian after the father. However, in case the minor is less than five years of age the custody shall ordinarily with the mother.
In the case of an illegitimate minor boy or girl: if the minor child is an illegitimate child, then, in that case, the mother will be the first natural guardian. After the mother, the father is the natural guardian.
In the case of a married girl: the act states that the husband of the minor married girl is the lawful natural guardian.
A person who ceases to be a Hindu or renounces worldly desires by accepting vanaprastha ashram or sanyasi cannot be entitled to be a natural guardian of a minor. Further, section 6 doesn’t recognise step-father or step-mother in the category of “father” and “mother”. However, in the case of adoption, the adoptive father is deemed to be a natural guardian, after him, the adoptive mother.
Section 9 of the Hindu Minority and Guardianship Act, 1956 defines a testamentary guardian and its powers. A testamentary guardian is a person appointed by the father(natural guardian) of the minor, who will be a guardian in respect to the minor’s person or minor’s property. A testamentary guardian will start acting as the minor’s guardian after the death of the minor’s father or mother, as the case may be. However, if the father of the minor dies before the mother of the minor, in that case, such an appointment will have no effect and shall come into effect if the mother of the minor dies without appointing a guardian. Further, a mother of the illegitimate child can also appoint a testamentary guardian.
A testamentary guardian is entitled to the same rights, limitation and powers as a natural guardian up to an extent under the Hindu Minority and Guardianship Act. A testamentary guardian of a minor girl ceases to be its guardian after the marriage of the girl.
Guardian Appointed by the Court
In the absence of the first two kinds of guardian, the guardian appointed by the court comes into play. In this, the court appoints a guardian in respect to the minor or minor’s property or both. Section 13 states that the welfare of the minor should be a “paramount consideration” while appointing a minor. Hence, the welfare of the minor is taken into account a paramount consideration while appointing a guardian.
- The Minority and Guardianship Act, 1956, No. 32, Act of Parliament,1956.