1

JAMIA MILLIA ISLAMIA

SYNOPSIS
Caregivers can assume legal guardianship of a child in out-of-home care
without termination of parental rights, as is required for an adoption. Legal
guardianship is more durable but more complex than transfer of custody to
caregivers. Guardianship is most frequently used by relative caregivers who
wish to provide a permanent home for the child and maintain relationships with
extended family members. A legal guardian is a person who has the legal
authority

(and

the

corresponding

duty)

to

care

for

the

personal

and property interests of another person, called a ward. Usually, a person has the
status of guardian because the ward is incapable of caring for his or her own
interests due to infancy, incapacity, or disability. Most countries and states have
laws that provide that the parents of a minor child are the legal guardians of that
child, and that the parents can designate who shall become the child's legal
guardian in the event of death.
Courts generally have the power to appoint a guardian for an individual in need
of special protection. A guardian with responsibility for both the personal well
being and the financial interests of the ward is a general guardian. A person
may also be appointed as a special guardian, having limited powers over the
interests of the ward. A special guardian may, for example, be given the legal
right to determine the disposition of the ward's property without being given any
authority over the ward's person. A guardian appointed to represent the interests
of a person with respect to a single action in litigation is a guardian ad litem.

HINDU LAW

JAMIA MILLIA ISLAMIA

Some jurisdictions allow a parent of a child to exercise the authority of a legal

guardian without a formal court appointment. In such circumstances the parent
acting in that capacity is called the natural guardian of that parent's child.
The Dharmashastras did not deal with the law of guardianship. During the
British regime the law of guardianship was developed by the courts. It came to
be established that the father is the natural guardian of the children and after his
death, mother is the natural guardian of the children and none else can be the
natural guardian of minor children. Testamentary guardians were also
introduced in Hindu law: It was also accepted that the supreme guardianship of
the minor children vested in the State as parens patrie and was exercised by the
courts. The Hindu law of guardianship of minor children has been codified and
reformed by the Hindu Minority and Guardianship Act, 1956. The subject may
be discussed under the following heads:
(i)
(ii)
(iii)
(iv)

Guardianship of person of minors,

Guardianship of the property of minors, and
De facto guardians, and
Guardians by affinity.

HINDU LAW

JAMIA MILLIA ISLAMIA

GUARDIANSHIP OF
THE PERSON
Minor Children
Under the Hindu Minority and Guardianship Act, 1956, S. 4(b), minor means a
person who has not completed the age of eighteen years. A minor is considered
to be a person who is physically and intellectually imperfect and immature and
hence needs someone's protection. In the modern law of most countries the
childhood is accorded protection in multifarious ways. Guardian is "a person
having the care of the person of the minor or of his property or both person and
property." It may be emphasized that in the modern law guardians exist
essentially for the protection and care of the child and to look after its welfare.
This is expressed by saying that welfare of the child is paramount consideration.
Welfare includes both physical and moral well-being. Guardians may be of the
following types : 1. Natural guardians, 2. Testamentary guardians, and 3.
Guardians appointed or declared by the court. There are two other types of
guardians, existing under Hindu law, de facto guardians, and guardians by
affinity.

HINDU LAW

JAMIA MILLIA ISLAMIA

Natural Guardians
In Hindu law only three persons are recognized as natural guardians father,
mother and husband, Father. Father is the natural guardian of his minor
legitimate children, sons and daughters." Section 19 of the Guardians and Wards
Act, 1890, lays down that a father cannot be deprived of the natural
guardianship of his minor children unless he has been found unfit. Me effect of
provision has been considerably whittled down by judicial decisions and by
Section 13 of the Hindu Minority and Guardianship Act which lays down that
welfare of the minor is of paramount consideration and father's right of
guardianship is 5;ubordinate to the welfare of the child. The Act does not
recognize the principle of joint guardians. The position of adopted children is at
par with natural-born children. The mother is the natural guardian of the minor
illegitimate children even if the father is alive. However, she is the natural
guardian of her minor legitimate children only if the father is dead or otherwise
is incapable of acting as guardian. Proviso to clause (a) of Section 6, Hindu
Minority and Guardianship Act lays down that the custody of a minor who has
not completed the age of five years shall ordinarily be with the mother. Thus,
mother is entitled to the custody of the child below five years, unless the
welfare of the minor requires otherwise.
Natural guardians are of three types:
A) Father- a father is the natural guardian of his minor legitimate children,
sons and daughters. A father cannot be deprived of the natural
guardianship of his minor children unless he has been found unfit. The
position of adopted children is at par with that of born children. In case
HINDU LAW

JAMIA MILLIA ISLAMIA

the father is incapable, or fails or refuses to perform the functions the

mother can be the guardian.
B) Mother the mother is the guardian of the minor illegitimate children
even if the father is alive. Mothers right to guardianship stays even if she
has converted her religion. The position also remains the same even if the
child is an adopted child and not a natural born child.
C) Husband is the guardian of his minor wife.
The father can appoint a testamentary guardian on his own will. If the father
does not appoint, the mothers appointee will resume the responsibility of the
guardian. Guardians appointed by the court are the guardians appointed by the
virtue of the courts empowerment. Under the Guardians and Wards Act, 1980,
the jurisdiction is conferred on the district court. The district court on its own
discretion appoints any person whenever it thinks it to be better for the welfare
of the child.
In Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta
Bandhopadhaya, the Supreme Court has held that under certain circumstances,
even when the father is alive mother can act as a natural guardian. The term
'after' used in Section 6(a) has been interpreted as 'in absence of' instead 'after
the life-time'.
The natural guardian of a minor male or a minor unmarried female is the father.
On the event of death of the father, the mother is considered the natural
guardian. As per the Section 6, of the Act, the natural guardian forfeits his
position, in case he converts in another religion. Under the provisions of the
Act, if a person becomes Sanyasin or opt for Vanaprastha, he will lose his
position as a natural guardian.

HINDU LAW

JAMIA MILLIA ISLAMIA

Unlike the old Hindu Law, the Hindu Minority and Guardianship Act, 1956,
provides that the custody of children under the age of five years shall be given
to the mother and not to father.
As per the provisions of the Act, a minor cannot be considered as the guardian
of the property of another minor. Therefore, a husband under the age of 18 years
is not entitled to claim the position of legal guardian of a minor wife.

HINDU LAW

JAMIA MILLIA ISLAMIA

Rights of guardian of person

The natural guardian has the following rights in respect of minor children:
(a) Right to custody,
(b) Right to determine the religion of children,
(c) Right to education,
(d) Right to control movement, and
(e) Right to reasonable chastisement
These rights are conferred on the guardians in the interest of the minor children
and therefore of each- of these rights is subject to the welfare of the minor
children. The natural guardians have also the obligation to maintain their minor
children.

HINDU LAW

JAMIA MILLIA ISLAMIA

Testamentary Guardians
Under the provisions of the Act, the father or mother of a minor, by their will
can appoint a testamentary guardian. As per the old Hindu Law in case of death
the father then, even if the mother was alive, the testamentary guardian was
considered as the legal functioning guardian of a minor. However, under the
provisions of the Hindu Minority and Guardianship Act, 1956, if the father is
dead and the mother is still alive, she and not the testamentary guardian, is
considered as the legal guardian. Even if the deceased father has appointed a
testamentary guardian in his will, the mother can still appoint a separate
testamentary guardian. In case of death of the mother, the guardian appointed by
her is given preference over the testamentary guardian appointed by the
deceased father.
When, during the British period, testamentary powers were conferred on
Hindus, the testamentary guardians also came into existence. It was father's
prerogative to appoint testamentary guardians. By appointing a testamentary
guardian the father could exclude the mother from her natural guardianship of
the children after his death. Under the Hindu Minority and Guardianship Act,
1956, testamentary power of appointing a guardian has now been conferred on
both parents.' The father may appoint a testamentary guardian but if mother
survives him, his testamentary appointment will be ineffective and the mother
will be the natural guardian. If mother appoints testamentary guardian, her
appointee will become the testamentary guardian and father's appointment will
continue to be ineffective. If mother does not appoint, father's appointee will
become the guardian. It seems that a Hindu father cannot appoint a guardian of
HINDU LAW

JAMIA MILLIA ISLAMIA

his minor illegitimate children even when he is entitled to act as their natural
guardian, as S. 9(1) confers testamentary power on him in respect of legitimate
children. In respect of illegitimate children, Section 9(4) confers such power on
the mother alone.
Under Section 9, Hindu Minority and Guardianship Act, testamentary guardian
can be appointed only by a will. The guardian of a minor girl will cease to be
the guardian of her person on her marriage, and the guardianship cannot revive
even if she becomes a widow while a minor. It is necessary for the testamentary
guardian to accept 'the guardianship. Acceptance may be express or implied. A
testamentary guardian may refuse to accept the appointment or may disclaim it,
but once he accepts, he cannot refuse to act or resign except with the permission
of the court.

HINDU LAW

10

JAMIA MILLIA ISLAMIA

Guardians Appointed by the Court

The courts are empowered to appoint guardians under the Guardians and Wards
Act, 1890. The High Court also have inherent jurisdiction to appoint guardians
but this power is exercised sparingly. The Hindu Minority and Guardianship Act
are supplementary to and not in derogation to Guardians and Wards Act. Under
the Guardians and Wards Act, 1890, the jurisdiction is conferred on the District
Court: The District Court may appoint or declare any person as the guardian
whenever it considers it necessary in the welfare of the child.' In appointing ,,a"
guardian, the court takes into consideration various factors, including the age,
sex, wishes of the parents and the personal law of the child. The welfare of the
children is of paramount consideration.
The District Court has the power to appoint or declare a guardian in respect of
the person as well as separate property of the minor. The chartered High Courts
have inherent jurisdiction to appoint guardians of the- person as well as the
property of minor children. This power extends to the undivided interest of a
coparcener
The guardian appointed by the court is known as certificated guardian.
Powers of Certificated guardians:- Powers of certificated guardians are
controlled by the Guardians and Wards Act, 1890. There are a very few acts
which he can perform without the prior permission of the court. In the ultimate
analysis his powers are co-extensive with the powers of the sovereign and he
may do all those things (though with the permission of the court) which the
sovereign has power to do. A certificated guardian from the date of his
appointment is under the supervision, guidance and control of the court.
HINDU LAW

11

JAMIA MILLIA ISLAMIA

GUARDIANSHIP OF
PROPERTY OF
MINORS
The Hindu Minority and Guardianship Act was established in 1956 as part of
the Hindu Code Bills. Three other important acts were also created during this
time and they include the Hindu Marriage Act (1955), the Hindu Succession Act
(1956), and the Hindu Adoptions and Maintenance Act (1956). All of these acts
were put forth under the leadership of Jawaharlal Nehru, and were meant to
modernize the then current Hindu legal tradition. The Hindu Minority and
Guardianship Act of 1956 were meant to enhance the Guardians and Wards Act
of 1890, not serve as its replacement. This act specifically serves to define
guardianship relationships between adults and minors, as well as between
people of all ages and their respective property.
The Guardians and Wards Act, 1890 was a law to supersede all other laws
regarding the same. It became the only non-religious universal law regarding
the guardianship of a child, applicable to all of India except the state of Jammu
and Kashmir. This law is particularly outlined for Muslims, Christians, Parsis
and Jews as their personal laws don't allow for full adoption only guardianship.
It applies to all children regardless of race or creed. Following is an overview of
the act.

HINDU LAW

12

JAMIA MILLIA ISLAMIA

According to this act a minor/child is any person who has not completed 18
years of age. The court or appointed authority has the ability to decide the
guardian of a child by appointing one a guardian or removing another as a
guardian. No order will be passed without an application. Applications should
contain all possible information about the child and guardian and reasons for
guardianship. Once the court admits the application into court, then the court
will set a date for the hearing. The court will hear evidence before making a
decision. A minor and his property may have more than one guardian. The court
must work in the interest of the minor, taking into consideration the age, sex,
religion, character of the guardian, the death of the parent(s), relation of the
child to the guardian, etc. The minor's preference may be taken into
consideration.
The collector of the district where the minor lives can be appointed the guardian
of the child. A minor will not a appointed if the child or her/his property is
under a court of wards, if the minor is married and her husband is fit to take care
of her, or whose father is alive and is deemed fit to take care of her. Guardians
are not meant to make a profit out of their office, but can receive remuneration
as the court sees fit. A minor can not be deemed a guardian of another minor. A
guardian is responsible for the health, education and support of the ward.
Guardians who wish to move the child out of the courts jurisdiction may only
do so with the permission of the court. Failure to get permission is a punishable
offence. A guardian of property may not mortgage or sale the property of a ward
without the permission of a will or the court who must act in the interest of the
ward.
A list of the wards property, immovable and movable, must be submitted by the
guardian to the court. The court can allow the guardian to take funds from the
property, or use part of whole of the property of the child for maintenance of the
HINDU LAW

13

JAMIA MILLIA ISLAMIA

minor. A court may remove a guardian for abusing the trust of the court and not
fulfilling his role as a guardian. A person who no longer wishes to be a guardian
can apply to the court for a discharge. Other punishable offences are: failure of
the guard to produce the property of the ward, failure to produce the ward in
court when requested, and failure to produce accounts. Reports produced by
subordinates of the court or collector can be considered evidence by the court.
Certain orders can be appealed in a High Court

Shyamrao Maroti Korwate v. Deepak Kisanrao Tekam, 2011-1. L.W.

1
Guardians and Wards Act (25 of 1890), Sections 4, 7, 8, 17/Persons entitled to
apply for order as to guardianship, Welfare of minor is the paramount
consideration, Hindu Minority and Guardianship Act (6 of 1956), Sections 6, 13
Definition of Minor, Guardian. In a matter of custody of a minor child, the
paramount consideration is the welfare of the minor, and not rights of the
parents or relatives under a statute which are in force.
Respondent-father got married within a year after the death of his first wife and
also having a son through the second marriage, residing in a rural village,
working at a distance of 90 kms Though father is the natural guardian in
respect of a minor child, Child was all along with the maternal grand-father and
his family since birth, residing in a Taluka Centre where the child is getting
good education-District Judge was justified in appointing the appellant maternal
grandfather as guardian of the minor child (as on date age 8 years) till the age of
12 years.

HINDU LAW

14

JAMIA MILLIA ISLAMIA

On attaining the age of 12 years by the minor, the father is free to make a fresh
application and depending on the welfare and wish of the child, further order
has to be passed in the matter of custody.
Hindu Minority and Guardianship Act (6 of 1956), Sections 6, 13 Definition of
Minor, Guardian See Guardians and Wards Act (25 of 1890), Sections 4, 7,
8, 17 Persons entitled to apply for order as to guardianship; Welfare of minor is
the paramount consideration.

Gayatri Bajaj v. Jiten Bhalla, (2012)

An order of custody of minor children either under the provisions of
The Guardians and Wards Act, 1890or Hindu Minority and Guardianship Act,
1956 is required to be made by the Court treating the interest and welfare of the
minor to be of paramount importance. It is not the better right of the either
parent that would require adjudication while deciding their entitlement to
custody. The desire of the child coupled with the availability of a conducive and
appropriate environment for proper upbringing together with the ability and
means of the concerned parent to take care of the child are some of the relevant
factors that have to be taken into account by the Court while deciding the issue
of custody of a minor. What must be emphasized is that while all other factors
are undoubtedly relevant, it is the desire, interest and welfare of the minor
which is the crucial and ultimate consideration that must guide the
determination required to be made by the Court.
In the present case irrespective of the question whether the abandonment of
visitation rights by the wife was occasioned by the fraud or deceit practiced on
her, as subsequently claimed, an attempt was made by this Court, even by
means of a personal interaction with the children, to bring the issue with regard
HINDU LAW

15

JAMIA MILLIA ISLAMIA

to custody and visitation rights to a satisfactory conclusion. From the materials

on record, it is possible to conclude that the children, one of whom is on the
verge of attaining majority, do not want to go with their mother. Both appear to
be happy in the company of their father who also appears to be in a position to
look after them; provide them with adequate educational facilities and also to
maintain them in a proper and congenial manner. The children having expressed
their reluctance to go with the mother, even for a short duration of time, we are
left with no option but to hold that any visitation right to the mother would be
adverse to the interest of the children. Besides, in view of the reluctance of the
children to even meet their mother, leave alone spending time with her, we do
not see how such an arrangement, i.e., visitation can be made possible by an
order of the court.
Taking into account all the aforesaid facts, we dismiss these appeals, affirm the
impugned orders passed by the High Court of Delhi and deny any visitation
rights to the petitioner and further direct that the children would continue to
remain in the custody of their father until they attain the age of majority.

HINDU LAW

16

JAMIA MILLIA ISLAMIA

DE FACTO GUARDIAN
A de facto guardian is a person who takes continuous interest in the welfare of
the minor's person or in the management and administration of his property
without any authority of law. Hindu jurisprudence has all along recognized the
principle that if liability is incurred by one on behalf of another in a case where
it is justified, then the person, on whose behalf the liability is incurred or, at
least, his property, is liable, notwithstanding the fact that no authorization was
made for incurring the liability.'
The term 'de facto guardian' as such is not mentioned in any of the texts, but his
existence has never been denied in Hindu law. In Sriramulu Kanta, said that
Hindu law tried to find a solution out of two difficult situations: one, when a
Hindu child has no legal guardian, there would be no one who would handle
and manage his estate in law and thus without a guardian the child would not
receive any income for his property and secondly, a person having no title could
not be permitted to intermeddle with the child's estate so as to cause loss to him.
The Hindu law found a solution to this problem by according legal status to de
facto guardians.
A mere intermeddler is not a de facto guardian. An isolated or fugitive act of a
person in regard to child's property does not make him a de facto guardian. To
HINDU LAW

17

JAMIA MILLIA ISLAMIA

make a person a de facto guardian some continuous course of conduct is

necessary on his part. In other words, a de facto guardian is a person who is not
a legal guardian, who has no authority in law to act as such but nonetheless he
himself has assumed, the management of the property of the child as though he
were a guardian. De facto guardianship is a concept where past acts result in
present status. The term literally means 'from that which has been done.'
The de facto guardian was recognised in Hindu law as early as 1856. The Privy
Council in Hanuman said that 'under Hindu law, the right of a bona fide
encumbrance, who has taken a de facto guardian a charge of land, created
honestly, for the purpose of saving the estate, or for the benefit of the estate, is
not affected by the want of union of the de facto with the de jure title.

HINDU LAW

18

JAMIA MILLIA ISLAMIA

GUARDIANSHIP BY
AFFINITY
In pre-1956 Hindu law there existed a guardian called guardian by affinity. The
guardian by affinity is the guardian of a minor widow. Mayne said that "the
husband's relation, if there exists any, within the degree of sapinda, are the
guardians of a minor widow in preference to her father and his relations." The
judicial pronouncements have also been to the same effect. The guardianship by
affinity was taken to its logical end by the High Court in Paras Ram v. State, in
this case the father-in-law of a minor widow forcibly took away the widow from
her mother's house and married her for money to an unsuitable person against
her wishes. The question before the court was whether the father-in-law was
guilty of removing the girl forcibly. The Allahabad High Court held that he was
not, since he was the lawful guardian of the widow.
A question has come before our courts; whether the nearest sapinda of the
husband automatically becomes a guardian of the minor widow on the death of
her husband or whether he is merely preferentially entitled to guardianship and
therefore he cannot act as guardian unless he is appointed as such? Paras Ram
seems to subscribe to the former view, and the Madras and the N agpur high
Courts to the latter view. Under Section 13, Hindu Minority and Guardianship
Act, in the appointment of 'any person as guardian, the welfare of the child is
paramount consideration. The fact that under Hindu law father-in-law has
HINDU LAW

19

JAMIA MILLIA ISLAMIA

preferential right to be appointed as guardian is only a matter of secondary

consideration.
In our submission, it would be a better law if the guardianship of the minor
wife, both of her person and property, continues to vest in the parents. We do
not have much of textual guidance or case law on the powers of the guardians
by affinity. Probably his powers may be taken to be at par with those of the
natural guardian.

HINDU LAW

20

JAMIA MILLIA ISLAMIA

WOMEN GET EQUAL

RIGHTS IN
GUARDIANSHIP &
ADOPTION
The President has assented to the Personal Laws (Amendment) Act, 2010. The
Act has amended the Guardians and Wards Act, 1890 and the Hindu Adoptions
and Maintenance Act, 1956.
The PIB reports that the Act aims at bringing gender equality, in the matter of
guardianship under the Guardians and Wards Act, 1890 and in the matter of
giving in or taking in adoption of a son or a daughter by father or mother under
the Hindu Adoptions and Maintenance Act, 1956.
Speaking with Bar & Bench, Senior Advocate Geeta Luthra said, Its an
amendment which is begging the issue. Earlier the law provided that a man can
adopt with the consent of his wife. This is saying a woman can adopt if she is
going through divorce proceedings, but then she should not need the consent of
the husband.
Consent of husband cant be required if you are going through divorce
proceedings. Husband is not going to give his consent. The moment you ask for
HINDU LAW

21

JAMIA MILLIA ISLAMIA

your husbands consent, you are begging the issue. If you are going through
these proceedings for one year or six months to show there is some seriousness
in the proceedings, then a women who wants to go for adoption should be
allowed to do so on her own, because if you get back together then that child
becomes your legal child and would have rights to both of the parents estate.
Therefore, one has to look at the repercussions. In case the couple is childless,
the women should be allowed to adopt and she need not take the consent of her
husband. Therefore, consent of husband should not be required and in case a
moratorium was required by the law to make sure that nobody can file a
frivolous petition and thereby take a child in adoption. You could put a sixmonth moratorium that proceeding for divorce has been pending for sixmonths, to show that there is something in the matter, but consent should not be
required from the husband.

Geeta Luthra added regarding the second part of the amendment, which makes
both parents as guardians, there is a judgment of the Supreme Court in Githa
Hariharan case, which says that when a man has abandoned his wife and
where a man is not taking care of his child then the mother is deemed to be the
legal guardian, but its nice that its being codified. Although law laid down by
the Supreme Court is the law of the land, next is the legislation, which says both
parents are equal as guardians.

Neena Deshmukh had challenged in the Supreme Court that once Article 14
and Article 15 are there, you cant discriminate against a person on the ground
that shes a woman, then the Guardian and Wards Act cannot make the father
HINDU LAW

22

JAMIA MILLIA ISLAMIA

the natural guardian. It should be the parent. It is bringing into force what the
constitution envisages, she said.

She added on to say, My only feeling is that it should not only be for
Buddhists, Jains, Hindus and Sikhs, but it should be across the board for all.
This is a time and period when the country cannot distinguish laws pertaining
to human beings on the basis of personal laws. The time has come when we
should slowly try and make the laws, without taking into account any religion,
as long as you are not hurting the religious sentiments. The legislation today in
2010 has to be progressive, you cant distinguish between religions in India.

Under the Guardians and Wards Act, 1890 Section 19 (b) a mother was not
included as a guardian along with the father. The Law Commission of India in
its 83rd Report on the Guardians and Wards Act, 1890 and certain provisions of
the Hindu Minority and Guardianship Act, 1956, had inter alia recommended
amendments in clause (b) of Section 19 of the said Act to include mother along
with the father for the purpose of removing the gender inequality.

By amending the 120 year-old Guardians and Wards Act, allows the mother
along with the father can be appointed as a guardian, making the entire adoption
process gender neutral. The Act provides for the mother to be appointed as a
guardian along with the father so that the courts do not appoint anyone else in
case the father dies. Also, in the Hindu Adoption Maintenance Act, the new
amendment would allow a married woman separated from her husband to adopt
with the consent of her husband even during the time of divorce proceedings.
HINDU LAW

23

JAMIA MILLIA ISLAMIA

However, if he changes his religion or is declared to be of unsound mind, no

consent from the estranged husband will be required.

The Asian Age also, reports that the Personal Laws Amendment Bill, 2010 introduced in the Rajya Sabha on April 22, 2010 by Minister of Law and
Justice Veerappa Moily. The Bill was referred to the Parliamentary Standing
Committee on Law and Justice for eliciting public opinion. In its Report tabled
before the Parliament, the committee recommended that the Personal Laws
(Amendment) Bill, 2010 be passed in the same form. The Committee report
said, The committee is of the view that the amendments proposed in the Bill
would place the mother on an equal footing with the father with respect to the
right of guardianship and the right to adopt".

HINDU LAW

24

JAMIA MILLIA ISLAMIA

CONCLUSION
Child custody and guardianship are legal terms which are sometimes used to
describe the legal and practical relationship between a parent and his or her
child, such as the right of the parent to make decisions for the child, and the
parent's duty to care for the child. The religion-based distinction of the personal
laws is an evident and accepted fact. These laws are zealously guarded, fiercely
HINDU LAW

25

JAMIA MILLIA ISLAMIA

protected and justified by the various religious communities. Before the advent
of the British rule, the major laws of inheritance in India had either their roots in
the respective religion or were deeply influenced by the personal laws, owing
their allegiance to religion. The Hindu law of guardianship has been codified
and reformed by the Hindu Minority and guardianship Act, 1956. With the help
of the provisions of the act, it will be convenient to discuss the subject matter
under suitable sub-headings.
(a) Guardianship of person of minor
(b) Guardianship of the property of minors.
(c) De-facto guardians
(d) Guardians by affinity
Guardianship of person of minor:- Under the Hindu Minority and Guardianship
Act,1956, minor means a person who has not completed the age of eighteen
years. A minor is considered to be a person who is physically and intellectually
imperfect and immature and hence need someones protection.
Guardians may be of the following 3 types:
(a) Natural guardians
(b) Testamentary guardians
(c) Guardians appointed or declared by the court.
Other than the types mentioned, the two other types of guardians, existing under
Hindu Law are de-facto guardians and guardians by affinity.
Guardianship Of Minors Property:- The natural guardian of the person of a child
is also the guardian of the property of the concerned child. But a natural
guardian is not the guardian of the minors undivided interest in the joint family
property. Neither the natural guardian not the court can appoint a guardian of
the minors undivided interest in the joint property.
HINDU LAW

26

JAMIA MILLIA ISLAMIA

De-Facto Guardian:-A de-facto guardian is a person who takes continuous

interest in the welfare of the minors person or in the management and
administration of his property without any authority of law. Hindu jurisprudence
has all along recognized the principle that if liability is incurred by one on
behalf of another in a case where it is justified, then the person, on whose behalf
the liability is incurred or, at least, his property, is liable, notwithstanding the
fact that no authorization was made for incurring the liability.

HINDU LAW