Guardianship of Minors Under Hindu Law and the Guardians and Wards Act

Guardianship of a Hindu minor is governed by two statutes read together: the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956), which says who the natural and testamentary guardians are and what they may do, and the Guardians and Wards Act, 1890, which sets out how a court appoints or declares a guardian. Under both, the welfare of the minor is the paramount consideration, and since Githa Hariharan v. Reserve Bank of India (1999) a mother can act as natural guardian even while the father is alive.

This explainer is for B.A. LL.B. and LL.B. students preparing for family law papers, and for parents and relatives who need to sign for a child, sell a child's share in land, or settle a custody dispute. The rules decide everyday questions, such as who can sign a bank form for a ten year old in Nagercoil or whether a widowed mother in Madurai can sell her son's share of a house.

How do the two Acts fit together?

The 1956 Act applies to Hindus (including Buddhists, Jains and Sikhs). As the Supreme Court noted in Githa Hariharan, it operates in addition to, and not in derogation of, the Guardians and Wards Act, 1890. So the 1956 Act gives the substantive Hindu rules, and the 1890 Act supplies the court machinery that applies across communities.

Section 4(b) of the 1956 Act defines a guardian as a person having the care of the person of a minor or of his property, and lists four kinds:

• a natural guardian;
• a guardian appointed by the will of the minor's father or mother (a testamentary guardian);
• a guardian appointed or declared by a court; and
• a person authorised to act as guardian under any enactment relating to a court of wards.

Who is the natural guardian under section 6?

Section 6 names the natural guardians of a Hindu minor, for both person and property:

1. Boy or unmarried girl: the father, and after him, the mother. Custody of a child under five years shall ordinarily be with the mother.
2. Illegitimate boy or unmarried girl: the mother, and after her, the father.
3. Married girl: the husband.

A person cannot act as natural guardian if he has ceased to be a Hindu or has completely and finally renounced the world by becoming a hermit or an ascetic. The Explanation adds that "father" and "mother" do not include a step-father or step-mother.

What did the Supreme Court decide in Githa Hariharan?

Read literally, "the father, and after him, the mother" suggests the mother becomes guardian only after the father dies. In Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228, decided on 17 February 1999, the Supreme Court refused that reading. It held that "after" does not necessarily mean after the death of the father. It means "in the absence of" the father, whether the absence is temporary or otherwise, and covers his total apathy towards the child or his inability through illness or other reasons.

The Court chose to read the provision this way rather than strike it down, because a literal reading would offend the constitutional guarantee of gender equality. It relied on the welfare principle throughout, observing that the whole tenor of the 1956 Act is to protect the welfare of the child. The judgment also discussed an earlier decision, J.V. Gajre v. Pathankhan, (1970) 2 SCC 717, but noted that it had been decided on its own facts without settling what "after" means, so it gave limited help on the question.

What can a natural guardian do with the minor's property?

Section 8 is where most real disputes start, because families often sell or mortgage land with a child's share in it:

• A natural guardian may do all acts that are necessary, reasonable and proper for the minor's benefit or for protecting or realising the minor's estate, but cannot bind the minor by a personal covenant.
• Without the previous permission of the court, the guardian cannot mortgage, charge, sell, gift or exchange any part of the minor's immovable property, or lease it for more than five years or for a term ending more than one year after the minor attains majority.
• A disposal in breach of these rules is voidable at the instance of the minor or any person claiming under him.
• The court grants permission only in a case of necessity or for an evident advantage to the minor, following the Guardians and Wards Act procedure as if the application were under section 29 of that Act.

Two related rules complete the picture. Section 11 bars a de facto guardian (a relative who simply looks after the child) from dealing with the minor's property. Section 12 says no guardian shall be appointed for a minor's undivided interest in joint family property managed by an adult member of the family.

The Madras High Court applied the permission rule in J. Sukumar v. K.S.P. Pandian (S.A. No. 862 of 2017, decided 7 December 2023, S. Sounthar J.). A natural guardian had signed an agreement to sell the minors' shares in a house without the court's permission. The Court held that the agreement was not specifically enforceable against those shares, and the buyers could not fall back on benefit to the minors because they had never pleaded legal necessity or benefit.

When and how does a court appoint a guardian?

Under the Guardians and Wards Act, 1890:

1. Section 7: the court may appoint or declare a guardian of the person, property or both, where it is satisfied that the order is for the welfare of the minor.
2. Section 9: an application for guardianship of the person goes to the District Court where the minor ordinarily resides. For property, it may also go to a District Court where the property is situated.
3. Section 17: the court considers the minor's age, sex and religion, the character, capacity and nearness of kin of the proposed guardian, the wishes of a deceased parent, and existing relations with the minor. If the minor can form an intelligent preference, the court may consider it.
4. Section 19: the court cannot appoint a guardian of the person of a married minor girl whose husband is not unfit, or, under clause (b), of a minor whose living parent is not unfit. Clause (b) has been amended since 1890, so quote it from the current official text.
5. Section 25: if a ward leaves or is removed from the custody of a guardian of the person, the court may order the ward's return if that is for the ward's welfare.
6. Section 29: a court-appointed guardian of property needs the court's previous permission to sell, mortgage or lease the ward's immovable property beyond the limits stated.

Section 9 of the 1956 Act separately allows a Hindu father, and in stated cases the mother, to appoint a testamentary guardian by will. Section 13 then ties everything to one test: in appointing or declaring any guardian, the welfare of the minor is the paramount consideration, and no person is entitled to guardianship if the court thinks it will not be for the minor's welfare.

Where does criminal law come in?

Guardianship also matters in criminal law. Section 137(1)(b) of the Bharatiya Nyaya Sanhita, 2023, which replaced the IPC from 1 July 2024, defines kidnapping from lawful guardianship as taking or enticing a child or a person of unsound mind out of the keeping of the lawful guardian without the guardian's consent. Its Explanation says "lawful guardian" includes any person lawfully entrusted with the care or custody of the child, so the term is wider than the guardians named in the 1956 Act. Under section 137(2), the offence carries imprisonment of up to seven years and a fine. An Exception protects a person who in good faith believes he is the father of an illegitimate child, or is entitled to its lawful custody, unless he acts for an immoral or unlawful purpose.

How should you write this in an exam?

1. Begin with the two Acts and their relationship, then quote the four kinds of guardian in section 4(b).
2. Set out section 6 with its proviso and Explanation.
3. Explain Githa Hariharan (1999) and the reading of "after" as "in the absence of".
4. Deal with property: section 8, then sections 11 and 12, with J. Sukumar (2023) as a Madras High Court example.
5. Close with section 13 and section 17 of the 1890 Act on welfare.

For a real family problem, the college legal aid clinic can help a reader find the right forum and paperwork.

Sources

• India Code: The Hindu Minority and Guardianship Act, 1956: official record of Act 32 of 1956, enacted 25 August 1956.
• AdvocateKhoj: Section 8, Hindu Minority and Guardianship Act: bare text on the powers of a natural guardian.
• AdvocateKhoj: Section 17, Guardians and Wards Act, 1890: matters the court considers when appointing a guardian.
• Githa Hariharan v. Reserve Bank of India (1999): Supreme Court judgment on the mother as natural guardian.
• J. Sukumar v. K.S.P. Pandian, Madras High Court (2023): sale agreement by a guardian without court permission.
• AdvocateKhoj: Section 137, Bharatiya Nyaya Sanhita: kidnapping from lawful guardianship.