Minority and guardianship

1. The Act and its relation to the Guardians and Wards Act

The Hindu Minority and Guardianship Act, 1956 (HMGA) codifies the law of guardianship for Hindus. Section 2 makes it supplemental to the Guardians and Wards Act, 1890, which continues to govern the procedure for appointment of guardians by court. Under the old Hindu law the father was the natural guardian, and the King, as parens patriae, was the ultimate guardian of all minors; the courts inherited that role.

Section 4(a): a minor is a person who has not completed eighteen years. Section 4(b): a guardian is a person having the care of the person of a minor or of his property, or of both, and includes a natural guardian, a guardian appointed by the will of the minor's father or mother, a guardian appointed or declared by a court, and a person empowered to act as such under any enactment relating to a court of wards.

2. Kinds of guardians

• Natural guardian (sections 6 and 7): by operation of law.
• Testamentary guardian (section 9): appointed by the will of a parent.
• Guardian appointed or declared by the court: under the Guardians and Wards Act, 1890.
• De facto guardian: a person who, without legal title, takes charge of a minor and his property. Section 11 takes away his power to deal with the property.

3. Natural guardians: section 6

The natural guardians of a Hindu minor, in respect of the minor's person and property (excluding his undivided interest in joint family property), are:

• (a) for a boy or an unmarried girl, the father, and after him, the mother; provided that the custody of a minor who has not completed five years shall ordinarily be with the mother;
• (b) for an illegitimate boy or an illegitimate unmarried girl, the mother, and after her, the father;
• (c) for a married girl, the husband.

The proviso disqualifies a person who has ceased to be a Hindu, or has completely and finally renounced the world by becoming a hermit or ascetic. “Father” and “mother” do not include a stepfather or stepmother. Section 7 makes the adoptive father, and after him the adoptive mother, the natural guardian of an adopted son.

The word “after”. Read literally, section 6(a) made the mother a guardian only after the father's death. In Githa Hariharan v. Reserve Bank of India, 1999 INSC 66, (1999) 2 SCC 228, AIR 1999 SC 1149, the RBI had refused to accept a mother's application for bonds in her child's name without the father's signature. The Court read “after” to mean “in the absence of”. The father is absent not only when he is dead but also when he is not in actual charge of the minor's affairs, whether because of indifference, an agreement between the parents, or physical or mental incapacity. In such cases the mother can act as natural guardian during the father's lifetime. This reading was adopted to keep the section consistent with Articles 14 and 15 and with India's obligations under CEDAW. Earlier, in Jijabai Vithalrao Gajre v. Pathankhan, 1970 INSC 171, (1970) 2 SCC 717, a mother who lived apart from a husband who took no interest in their daughter was held to be the natural guardian, and her lease of the minor's land was upheld.

4. Powers of a natural guardian: section 8

• Section 8(1). The natural guardian may do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate. He cannot bind the minor by a personal covenant.
• Section 8(2). He shall not, without the previous permission of the court, (a) mortgage, charge, or transfer by sale, gift, exchange or otherwise any part of the minor's immovable property, or (b) lease it for more than five years or for a term extending more than one year beyond the date on which the minor will attain majority.
• Section 8(3). A disposal in contravention of sub-sections (1) or (2) is voidable at the instance of the minor or any person claiming under him.
• Section 8(4). The court shall not grant permission except in case of necessity or for an evident advantage to the minor.

5. Testamentary guardians: section 9

A Hindu father who is the natural guardian may appoint a guardian by will for the minor's person or property (other than an undivided interest). But if the father dies before the mother, his appointment has no effect while she lives; it revives if she dies without appointing a guardian by her own will. A widowed mother, or a mother entitled to act because the father is disqualified, may also appoint by will. The mother of an illegitimate child may appoint a guardian by will. Section 9(5) lets a testamentary guardian act after the minor's father or mother has died, subject to the Act; for a girl, the guardianship ends on her marriage.

6. The de facto guardian: section 11

Under the old law a de facto guardian, such as an uncle managing an orphan's land, could alienate the minor's property for legal necessity. Section 11 ends this: after the Act no person is entitled to dispose of or deal with the property of a Hindu minor merely on the ground of being his de facto guardian. Such a transfer is not merely voidable but void, and the minor need not sue to set it aside: Madhegowda v. Ankegowda, 2001 INSC 575, (2002) 1 SCC 178.

Section 12 adds that where a minor has an undivided interest in joint family property managed by an adult member, no guardian shall be appointed for that interest; the Karta manages it.

7. Welfare of the minor: section 13

In appointing or declaring any person as guardian, the welfare of the minor is the paramount consideration. No person is entitled to guardianship under the Act, or under any law of guardianship in marriage among Hindus, if the court is of opinion that his guardianship will not be for the minor's welfare. Even the father's preferential right under section 6 yields to it.

Welfare means more than money: the child's comfort, health, education, moral and emotional well-being, stability and, where the child is old enough, his or her own preference. See Gaurav Nagpal v. Sumedha Nagpal, 2008 INSC 1324, (2009) 1 SCC 42, and Nil Ratan Kundu v. Abhijit Kundu, 2008 INSC 920, (2008) 9 SCC 413, where the Court refused custody to a father facing a criminal case connected with the mother's death and stressed that a custody court must consider the child's wishes. The same principle governs custody under the Guardians and Wards Act: Rosy Jacob v. Jacob A. Chakramakkal, 1973 INSC 74, (1973) 1 SCC 840.

8. Problem

A father has left the family and shows no interest in his eight-year-old son. The mother sells the son's ancestral house (inherited by him from his grandmother) to pay for his schooling, without court permission. On attaining majority, the son wants the house back.

Issue. Could the mother act as natural guardian while the father was alive, and is the sale binding?

Law. Section 6(a) read with Githa Hariharan; section 8(2) and (3).

Application. The father's indifference makes him “absent”, so the mother was the natural guardian. But a natural guardian needs the court's previous permission to sell immovable property, whatever the purpose. None was obtained.

Conclusion. The sale is voidable at the son's instance under section 8(3). He can sue to set it aside within the limitation period after majority, though the court may require him to account for the benefit he received.

How this is examined

As an essay: “Who is a natural guardian under the Hindu Minority and Guardianship Act? Explain his powers.” Cover section 6, Githa Hariharan, section 8, and close with section 13. As short notes: de facto guardian, testamentary guardian, or welfare of the minor. Problems usually involve a sale of a minor's land without court permission.