Law of Guardianship

In one minute

A guardian is a person who has the care of a minor's person, property or both. A Hindu minor may have a natural guardian, a guardian appointed by will, or a guardian appointed or declared by a court. The father is the natural guardian of a boy or unmarried girl, and after him the mother.

The natural guardian cannot sell or mortgage the minor's immovable property without the court's permission. The welfare of the minor is the paramount consideration. Guardianship is different from custody.

Legal provision

• Section 4, Hindu Minority and Guardianship Act, 1956: a minor is a person under eighteen. A guardian is a person having the care of the minor's person or property or both, and includes a natural guardian, a testamentary guardian, a guardian appointed or declared by a court, and a person acting under a Court of Wards law.
• Section 6: the natural guardians. For a boy or unmarried girl, the father and after him the mother, but custody of a child under five ordinarily stays with the mother. For an illegitimate child, the mother and after her the father. For a married girl, the husband. A person who has ceased to be a Hindu or has become a hermit or ascetic cannot act.
• Section 7: guardianship of an adopted minor son passes to the adoptive father and after him the adoptive mother.
• Section 8: powers of the natural guardian.
• Section 9: testamentary guardians.
• Sections 10 to 12: a minor cannot be guardian of property, a de facto guardian cannot deal with the minor's property, and no guardian is appointed for the minor's undivided interest in joint family property.
• Section 13: welfare of the minor is the paramount consideration.

Meaning and definition

A guardian is a person in charge of a minor's care. The guardianship covers the minor's person (upbringing, education, health) and the minor's property. The Act applies in addition to the Guardians and Wards Act, 1890 (section 2).

• Guardian of a Hindu minor
  • Natural guardianSection 6: father, then mother; mother, then father for an illegitimate child; husband for a married girl.
  • Testamentary guardianSection 9: appointed by will of the father or mother.
  • Court-appointed guardianAppointed or declared by a court, under the Guardians and Wards Act, 1890.
  • De facto guardianTakes care of the minor without authority; cannot deal with the minor's property (section 11).

Detailed explanation

Step 1: natural guardians (section 6)

The father is the natural guardian of a boy or an unmarried girl, "and after him, the mother". The custody of a child below five stays ordinarily with the mother. The mother is the natural guardian of an illegitimate child, and after her the father. The husband is the natural guardian of a married girl. The words "father" and "mother" do not include a step-father or step-mother. This guardianship covers the minor's person and property, but not the minor's undivided interest in joint family property.

Step 2: how the words "after him" are read

In Githa Hariharan v. Reserve Bank of India the Supreme Court held that "after" in section 6(a) does not necessarily mean after the father's death. It means in the absence of the father, whether temporary, by apathy or by inability. The Court read the section down and did not declare it void. A mother can therefore act as natural guardian while the father is alive but absent from the child's affairs.

Step 3: powers of the natural guardian (section 8)

• He may do all acts necessary or reasonable and proper for the benefit of the minor or the minor's estate.
• He can never bind the minor by a personal covenant.
• He needs the court's previous permission to mortgage, charge or transfer by sale, gift or exchange any part of the immovable property, or to lease it for more than five years or beyond one year after majority.
• A disposal in breach is voidable at the instance of the minor or a person claiming under him.
• The court gives permission only in case of necessity or for an evident advantage to the minor.

Step 4: testamentary guardians (section 9)

A Hindu father entitled to act as natural guardian of his legitimate minor children may appoint a guardian by will for the person or property of a child. The appointment has no effect if the father dies before the mother, but revives if she dies without appointing someone. A widow, or a mother entitled because the father is disentitled, may also appoint by will. A mother can appoint a guardian for her illegitimate minor children. The guardian acts after the death of the father or mother, within the limits of the Act.

Step 5: de facto guardian and joint family interest

After the Act, a person who simply looks after the minor cannot dispose of or deal with the minor's property (section 11). A minor cannot be the guardian of another minor's property (section 10). Where a minor has an undivided interest in joint family property under the management of an adult member, no guardian is appointed for that interest (section 12), but the High Court's power is saved.

Step 6: welfare principle (section 13)

When a court appoints or declares a guardian, the welfare of the minor is the paramount consideration. No person is entitled to guardianship under the Act or any law on guardianship in marriage if the court thinks it will not be for the welfare of the minor.

Exceptions and special rules

• Disqualification: a natural guardian who has ceased to be a Hindu or has become a hermit or ascetic cannot act.
• Court permission: the Guardians and Wards Act, 1890 applies to the application for permission under section 8 as if under section 29 of that Act.
• Welfare over right: a parent's right gives way if the minor's welfare requires.

Don't confuse: guardianship and custody

Point	Guardianship	Custody
Meaning	Legal authority over the minor's person and property	Actual physical care and control of the child
Who holds	Natural, testamentary or court-appointed guardian	The person with whom the child lives
Can be separate	Yes	Yes: a father can be guardian while the mother has custody
Rule on a child under five	Father is the natural guardian	Ordinarily with the mother (section 6(a) proviso)

Common mistakes

• Saying that the father alone is the guardian. The mother may act in his absence (Githa Hariharan).
• Saying that a natural guardian can sell the minor's property freely. Court permission is needed (section 8(2)).
• Calling such a sale void. It is voidable (section 8(3)).
• Mixing guardianship with custody.
• Forgetting that the minor's undivided interest in joint family property is outside the natural guardian's authority.

Apply it

Problem

The father of a minor Hindu girl in Warangal wishes to sell the girl's house, which she inherited from her grandmother, to pay for his business. He does not apply to any court. Is the sale valid?

Issue

Can a natural guardian sell a minor's immovable property without the court's permission?

Rule

Section 8(2) requires the court's previous permission, and section 8(4) allows it only in case of necessity or evident advantage to the minor. A sale in breach is voidable (section 8(3)).

Application

The father needs permission for the sale. His business need is not a necessity or advantage of the minor.

Conclusion

The sale is voidable at the girl's instance. The court would not grant permission for a sale for the father's business.

Leading case laws

• Githa Hariharan v. Reserve Bank of India

  Facts. The Reserve Bank refused a mother's application for a bond in her minor son's name without the father's signature. In a second petition, a father claimed to be the only natural guardian in a custody dispute.

  Principle. "After" in section 6(a) does not necessarily mean after the father's death. It means in the absence of the father. The section survives.

  Why it matters. It lets the mother act as natural guardian when the father is absent, apathetic or unable (para 25).

How to write this answer in the exam

Key points to remember

• Minor means under eighteen.
• Natural guardian of a boy or unmarried girl: the father, and after him the mother.
• Custody of a child under five ordinarily with the mother.
• Section 8: no sale or mortgage of the minor's immovable property without court permission; breach is voidable.
• De facto guardian cannot deal with the minor's property (section 11).
• Welfare of the minor is paramount (section 13).

Quick self-test

Related topics

• The Hindu Minority and Guardianship Act 1956
• Law of Maintenance
• Concept of Adoption