HINDU MINORITY AND GUARDIANSHIP ACT, 1956

We now have access to ancient legal systems from all over the civilized world.

However, it's remarkable that we have not found another legal system where the

exact words, not just the ideas, still govern a large population today as they did

around three thousand years ago. This is unique to the ancient Hindu legal system.

Up until sixty years ago, before the Hindu Law Acts of 1955-1956 were put into

place, the ancient texts of Manu, Yajnavalkya, Vasistha, and others guided our

laws on marriage, inheritance, and adoption.

Ancient legal systems refer to the historical legal codes and practices from

various ancient civilizations, such as the Code of Hammurabi from Babylon,

Roman Law, and others. These systems provide insights into the laws and

regulations that governed societies in ancient times. The "exact words governing

today" means that the specific text from ancient Hindu scriptures is still in use

today, directly influencing modern laws and practices. This is a rare phenomenon,

as most ancient legal systems have evolved or been replaced over time. The

ancient Hindu legal system is derived from ancient Hindu scriptures like the

Manusmriti, the Yajnavalkya Smriti, and other Dharmashastra texts, which laid

down rules and guidelines for various aspects of life including law, ethics, and

social conduct.

The Hindu Law Acts of 1955-1956 are modern legislative acts passed in

India that reformed and codified Hindu personal laws. They include the Hindu

Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Minority and

Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956.

These acts modernized and codified the laws that were traditionally governed by

ancient texts. The texts of Manu, Yajnavalkya, and Vasistha are ancient Hindu

lawgivers whose writings and teachings formed the basis of Hindu law. The

Manusmriti, for example, is one of the earliest and most important texts on Hindu

law, while the Yajnavalkya Smriti and the texts attributed to Vasistha also hold

significant authority in the traditional Hindu legal framework.

CONCEPTUALISATION OF THE TERM MINORITY

The concept of "minority" generally refers to a group of people who are

numerically smaller or hold less power compared to the dominant or majority

group within a society. Minority status can be based on various characteristics,

such as ethnicity, religion, language, culture, or even political beliefs.

Key Aspects of the Minority Concept:

1. Numerical Definition: A minority is often defined by its smaller population size

relative to the majority group.

2. Cultural or Religious Distinction: Minority groups may have distinct cultural,

religious, or linguistic identities that set them apart from the dominant group.

3. Social and Political Implications: Being in a minority often means having less

influence or access to resources, leading to potential marginalization,

discrimination, or unequal treatment.

4. Legal Recognition: In many countries, minority groups are recognized and

protected by law, ensuring their rights to preserve their culture, language, and

religion, and to participate fully in society.

5. Diversity within Minorities: A minority group is not monolithic; it may include

diverse subgroups with varying perspectives and experiences.

Examples:

 Religious Minority: A group whose religion is different from the dominant

religion in a country, such as Muslims in India or Christians in Egypt.

 Ethnic Minority: A group distinguished by race or ethnicity, such as African

Americans in the U.S. or Kurds in Turkey.

A.M Bhattacharjee, Hindu Law and the Constitution (2018), p.5

 Linguistic Minority: A group that speaks a different language from the majority,

such as Catalan speakers in Spain.

Global Context:

Internationally, minority rights are often protected under various treaties and

declarations, such as the United Nations Declaration on the Rights of Persons

Belonging to National or Ethnic, Religious and Linguistic Minorities.

In sum, the concept of "minority" encompasses groups that are distinct in terms of

identity and often face challenges related to power dynamics and societal

inclusion.

CONCEPTUALIZATION OF THE TERM GUARDIANSHIP

Definition: Guardianship refers to the legal responsibility bestowed upon an

individual (the guardian) to care for and make decisions on behalf of another

person (the ward), typically a minor, an elderly person, or someone who is

mentally or physically incapable of managing their own affairs.

Key Aspects of Guardianship:

1. Legal Responsibility: Guardianship is a legal relationship established by a court,

giving the guardian the authority to make decisions concerning the ward’s

personal, financial, and legal matters. This includes decisions related to education,

health care, and property management.

2. Types of Guardianship:

o Guardianship of a Minor: This form of guardianship is typically established

when a child's parents are unable to care for them due to death, incapacity, or other

reasons. The guardian assumes the role of a parent, providing care, protection, and

making decisions in the best interest of the child.

o Guardianship of an Incapacitated Adult: This applies to adults who are unable

to manage their own affairs due to mental illness, disability, or advanced age. The

guardian is responsible for the ward's well-being, including medical care, living

arrangements, and financial decisions.

3. Temporary vs. Permanent Guardianship: Guardianship can be temporary, such

as in cases where a guardian is needed for a short period, or permanent, where the

guardian’s role continues indefinitely, often until the ward is capable of making

decisions or until the ward’s death.

4. Duties of a Guardian:

o Personal Care: Ensuring the ward’s basic needs are met, including food, clothing,

shelter, and healthcare.

o Financial Management: Handling the ward’s finances, including income,

expenses, and property management, to protect the ward’s assets.

o Legal Decisions: Acting on behalf of the ward in legal matters, ensuring their

rights are protected.

5. Guardianship vs. Custody: While both involve care for another person, custody

generally refers to the physical care and responsibility of a child, typically within

the context of parental rights. Guardianship, on the other hand, extends beyond

physical care and can include decision-making authority over various aspects of

the ward's life.

6. Termination of Guardianship: Guardianship can end when the ward reaches

adulthood (in the case of a minor), regains capacity, or if the court deems the

guardianship no longer necessary. In some cases, a new guardian may be

appointed if the original guardian can no longer fulfill their duties.

Legal Context:

Guardianship laws vary by jurisdiction, but they generally prioritize the best

interests of the ward. Courts often oversee the guardianship process to ensure the

guardian is acting in the ward's best interest.

Thus, guardianship is a legal arrangement where an individual or entity is

given the responsibility to care for and make decisions on behalf of someone who

is unable to do so themselves. It is a vital mechanism for protecting the rights and

well-being of those who are vulnerable.

INTRODUCTION

The Hindu Minority and Guardianship Act, 1956 extends to the whole of India

and applies also to Hindus domiciled in the territories to which this Act extends

who are outside the said territories.

The provisions of this Act shall be in addition

to, and not, save as hereinafter expressly provided, in derogation of, the

Guardians and Wards Act, 1890.

In G.P Vijayakumar v. Punjab and Sind Bank

, the Court held that the Act

defines a minor as a person who has not completed the age of 18 years. According

to the Act, the natural guardian of a Hindu minor has the power to do all acts that

are necessary, reasonable, and proper for the benefit of the minor.

According to Section 3(1), this Act applies,

(a) to any person who is a Hindu by religion in any of its forms or

developments, including a Virashaiva, a Lingayat or a follower of the Brahmo,

Prarthana or Arya Samaj;

(b) to any person who is a Buddhist, Jain or Sikh by religion, and

who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any

such person would not have been governed by the Hindu law or by any custom or

usage as part of that law in respect of any of the matters dealt with herein if this

Act had not been passed.

DEFINING HINDU, BUDDHIST, JAIN, OR SIKH IDENTITY

Section 1 (2)

Section 2

AIR 1999 Kerala 367

Explanation to Section 3(2) clarifies that the following persons are Hindus,

Buddhists, Jains, or Sikhs by religion, as the case may be:

(i) any child, legitimate or illegitimate, both of whose parents are Hindus,

Buddhists, Jains or Sikhs by religion;

(ii) any child, legitimate or illegitimate, one of whose parents is a Hindu,

Buddhist, Jain or Sikh by religion and who is brought up as a member of the tribe,

community, group or family to which such parent belongs or belonged; and

(iii) any person who is convert or re-convert to the Hindu, Buddhist, Jain or Sikh

religion.

By virtue of Section 3(2) notwithstanding anything contained in sub-section

(1) nothing contained in this Act shall apply to the members of any scheduled

Tribe within the meaning of clause (25) of article 366 of the Constitution unless

the Central Government, by notification in the Official Gazette, otherwise directs.

Section 3(3) states that the expression “Hindu”, in any provision of this Act

shall be construed as if it included a person who, though not a Hindu by religion,

is, nevertheless, a person to whom this Act applies by virtue of the provisions

contained in this section.

In Chandrakala Menon v. Captain Vipin Menon

, the Court observed the

scope and application of the Hindu Minority and Guardianship Act, emphasized

the importance of the guardian's actions being in the best interest of the minor.

In Kusa Paride v. Baishnab

, the Court held that the provisions of the Hindu

Minority and Guardianship Act are complementary. In cases of repugnancy, the

provisions of this Act will prevail over other laws.

By virtue of Section 3(2A), notwithstanding anything contained in sub-section (1), nothing contained in this Act

shall apply to the Renoncants of the Union Territory of Pondicherry.

1993 All India Hindu Law Reporter 270 (SC)

AIR 1966 Ori. 60

DEFINITIONS (Section 4)

Section 4 deals with definitions.

MINOR [Section 4(a)]

“Minor” means a person who has not completed the age of eighteen years.

GUARDIAN [Section 4(b)]

“Guardian” means a person having the care of the person of a minor or of his

property or of both his person and property, and includes—a natural guardian,

(i) a guardian appointed by the will of the minor’s father or mother,

(ii) a guardian appointed or declared by a court, and

(iii) a person empowered to act as such by or under any enactment

relating to any Court of wards.

NATURAL GUARDIAN [Section 4(c)]

“Natural guardian” means any of the guardians mentioned in section 6.

In Ramachandra v. Annapurni Ammal

, it was observed by the Court that

no person can claim to be the legal guardian of a minor unless they fall within one

of the four classes of persons enumerated in the Act.

In K. Jagannathan v. Vasudevan Chettiar

, the Court held that a document

affecting a partition would not be invalid if the minor is represented by the mother,

especially when the father does not object. The mother, being a natural guardian,

can represent the minor in such transactions.

In Ratan v. Bisan

, the Court found under the Act that, a person who is not

AIR 1964 Kerala 269

AIR 2001 Mad 184

AIR 1978 Bom 190

a natural guardian, testamentary guardian, or a guardian appointed or declared by

the court, or empowered by any statute relating to the court of wards, may still be

considered a guardian if they have taken upon themselves the care of the minor's

person or property.

OVER-RIDING EFFECT OF ACT (Section 5)

Section 5 states that save as otherwise expressly provided in this Act,

(a) any text, rule or interpretation of Hindu Law or any custom or usage as

part of that law in force immediately before the commencement of this Act Shall

cease to have effect with respect to any matter for which provision is made in this

Act.

(b) any other law in force immediately before the commencement of this Act

shall cease to have effect in so far as it is inconsistent with any of the provisions

contained in this Act.

In Swaminathan v. Angayarkanni Ammal

, the Court held that the age of

majority for a minor, for whom a guardian has been appointed by the court, will be

21 years and not 18 years.

NATURAL GUARDIANS OF A HINDU MINOR (Section 6)

Section 6 provides that the natural guardians of a Hindu minor; in respect of

the minor's person as well as in respect of the minor’s property (excluding his or

her undivided interest in joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and after him, the

mother: provided that the custody of a minor who has not completed the age of

five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl—the

AIR 1964 Mad 11

mother, and after her, the father;

Provided that no person shall be entitled to act as the natural guardian of a

minor under the provisions of this section—

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a

hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation.

In this section, the expressions “father” and “mother” do not include a step-

father and a step-mother.

In Geeta Hari Haran v. Reserve Bank of India

, the Court held that the acts

of the mother are valid in such circumstances even during the lifetime of the

father, who would be deemed to be absent for the purposes of this section and

other allied acts dealing with guardianship.

In Chakki v. Ayyappan

, the Court observed that where the mother had

converted to Islam, she disentitled herself from continuing as the guardian. The

welfare of the child required separation from the mother, and custody was given to

the father.

In Narendra Singh v. Sapurna Kaur

, the Court found that when the father

refuses to act as the natural guardian or has neglected his obligations, another

person, particularly the mother, can initiate legal proceedings to be appointed as

the guardian of the minor's person and properties.

In Mohini v. Virendra Kumar

, the Court observed that the mother is

AIR 1999 SC 1149

1988 All India Hindu Law Reporter (Ker) 107

AIR 1968 AP 318

AIR 1977 SC 1359

entitled to be the proper guardian for the custody of a minor son who is 11 years

old, considering the facts of the case.

In Venkata Krishnayya v. Satya Kumar

, the Court ordered that the

custody of the child was given to the parents of the deceased mother, based on the

preference of the child, rather than to the father.

NATURAL GUARDIANSHIP OF ADOPTED SON (Section 7)

The natural guardianship of an adopted son who is a minor passes, on

adoption, to the adoptive father and after him to the adoptive mother.

POWERS OF NATURAL GUARDIAN (Section 8)

Section 8(1) states that the natural guardian of a Hindu minor has power,

subject to the provisions of this section, to do all acts which are necessary or

reasonable and proper for the benefit of the minor or for the realization, protection

or benefit of the minor's estate; but the guardian can in no case bind the minor by a

personal covenant.

By virtue of Section 8(2) the natural guardian shall not, without the previous

permission of the court,

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any

part of the immovable property of the minor; or

(b) lease any part of such property for a term exceeding five years or for a

term extending more than one year beyond the date on which the minor will attain

majority.

Section 8(3) provides that any disposal of immovable property by a natural

AIR 1978 Kant. 220

Section 7

guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the

instance of the minor or any person claiming under him.

By virtue of Section 8(4) no court shall grant permission to the natural

guardian to do any of the acts mentioned in sub- section (2) except in case of

necessity or for an evident advantage to the minor.

In Kumar v. Jahgirdar

, the Supreme Court held that in matters

concerning the custody of a minor child, the child's welfare and best interests are

paramount. The preferences or convenience of the parents are secondary

considerations.

In Smt. M.C. Nagalakshmi & Ors v. M.A. Farooq & Anr

, the Court

observed that a lawsuit was filed seeking specific performance of a contract

concerning a minor's estate. The suit was initiated after the plaintiff reached the

age of majority, without repudiating the contract made during their minority. The

court held that the contract is enforceable under these circumstances.

In Vishwambhar v. Laxminarayan

, the Supreme Court ruled that any

alienation of a minor’s property by a natural guardian without the Court’s

permission or without a legal necessity is voidable, not void.

Section 8(5) states that the Guardians and Wards Act, 1890 (8 of 1890), shall

apply to and in respect of an application for obtaining the permission of the court

under sub-section (2) in all respects as if it were an application for obtaining the

permission of the court under section 29 of that Act, and in particular—

proceedings under that Act within the meaning of section 4A thereof;

(d) the court shall observe the procedure and have the powers specified in

AIR 2001 SC 2179

AIR 2007 Kant. 105

2001 (6) SCC 163, AIR 2001 SC 2607

sub-sections (2), (3) and (4) of section 31 of that Act; and

(e) an appeal shall lie from an order of the court refusing permission to the

natural guardian to do any of the Acts mentioned in sub-section (2) of this section

to the court to which appeals ordinarily lie from the decisions of that court.

Section 8(6) provides that in this section, “Court” means the city civil court

or a district court or a court empowered under section 4A of the Guardians and

Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the

immovable property in respect of which the application is made is situate, and

where the immovable property is situate within the jurisdiction of more than one

such court, means the court within the local limits of whose jurisdiction any

portion of the property is situate.

TESTAMENTARY GUARDIANS AND THEIR POWERS (Section 9)

According to Section 9(1) a Hindu father entitled to act as the natural

guardian of his minor legitimate children may, by will appoint a guardian for any

of them in respect of the minor’s person or in respect of the minor’s property (other

than the undivided interest referred to in section 12) or in respect of both.

By virtue of Section 9(2) an appointment made under sub-section (1) shall

have no effect if the father predeceases the mother, but shall revive if the mother

dies without appointing, by will, any person as guardian.

Section 9(3) states that a Hindu widow entitled to act as the natural guardian

of her minor legitimate children, and a Hindu mother entitled to act as the natural

guardian of her minor legitimate children by reason of the fact that the father has

become disentitled to act as such, may, by will, appoint a guardian for any of them

in respect of the minor’s person or in respect of the minor’s property (other than

the undivided interest referred to in section 12) or in respect of both.

By virtue of Section 9(4) a Hindu mother entitled to act as the natural

guardian of her minor illegitimate children may; by will, appoint a guardian for

any of them in respect of the minor’s person or in respect of the minor's property

or in respect of both.

Section 9(5) states that the guardian so appointed by will has the right to act

as the minor’s guardian after the death of the minor’s father or mother, as the case

may be, and to exercise all the rights of a natural guardian under this Act to such

extent and subject to such restrictions, if any, as are specified in this Act and in the

will.

By virtue of Section 9(6) the right of the guardian so appointed by will shall,

where the minor is a girl, cease on her marriage.

INCAPACITY OF MINOR TO ACT AS GUARDIAN OF PROPERTY

(Section 10)

According to Section 10 a minor shall be incompetent to act as guardian of

the property of any minor.

In Ibrahim v. Ibrahim

, it was suggested by the Court that a minor's right to

act as a guardian should be limited to the personal control of his wife and child.

The minor should have no authority to manage their properties.

In Budhi Jena v. Dhobai Naik

, it was held that a Hindu minor lacks the

capacity to act as a guardian for anyone else's property. However, he can serve as

the natural guardian for the persons of his minor wife and children. This section

recognizes that a minor can act as the guardian of another minor's property, and he

can also serve as the karta and manager of a joint Hindu family. This principle is

based on the assumption reflected in Section 21 of the Guardians and Wards Act.

1916 39 Mad 608

AIR 1958 Ori. 7

DE FACTO GUARDIAN NOT TO DEAL WITH MINOR’S PROPERTY

(Section 11)

After the commencement of this Act, no person shall be entitled to dispose

of, or deal with, the property of a Hindu minor merely on the ground of his or her

being the de facto guardian of the minor.

GUARDIAN NOT TO BE APPOINTED FOR MINORS UNDIVIDED

INTEREST IN JOINT FAMILY PROPERTY (Section 12)

Section 12 states that where a minor has an undivided interest in joint family

property and the property is under the management of an adult member of the

family, no guardian shall be appointed for the minor in respect of such undivided

interest:

Provided that nothing in this section shall be deemed to affect the jurisdiction

of a High Court to appoint a guardian in respect of such interest.

In Padmawati v. Kulwant Rai

, the Court held that the Court cannot appoint a

guardian for the undivided interest of a minor coparcener in joint family property

when the property is under the management of an adult family member. By law,

the eldest member of the family automatically assumes the role of Karta and does

not need to be appointed by the coparceners.

WELFARE OF MINOR TO BE PARAMOUNT CONSIDERATION

(Section 13)

By virtue of Section 13(1) in the appointment of declaration of any person

as guardian of a Hindu minor by a court, the welfare of the minor shall be the

paramount consideration.

Section 11

(2008)150PLR42

Section 13(2) provides that no person shall be entitled to the guardianship by

virtue of the provisions of this Act or of any law relating to guardianship in

marriage among Hindus, if the court is of opinion that his or her guardianship will

not be for the welfare of the minor.

ARRANGEMENT OF SECTIONS IN THE ACT

SECTIONS

1. Short title and extent.

2. Act to be supplemental to Act 8 of 1890.

3. Application of Act.

4. Definitions.

5. Over-riding effect of Act.

6. Natural guardians of a Hindu minor.

7. Natural guardianship of adopted son.

8. Powers of natural guardian.

9. Testamentary guardians and their powers.

10. Incapacity of minor to act as guardian of property.

11. De facto guardian not to deal with minor’s property.

12. Guardian not to be appointed for minors undivided interest in joint family

property.

13. Welfare of minor to be paramount consideration.