Hindu Minority and Guardianship Act, 1956

Historical Background of HMGA 1956

One important piece of Indian legislation of minors' guardianship rights within the Hindu minority is the Hindu Minority and Guardianship Act, of 1956. Here is a quick synopsis and historical background:

• Before India's independence: A number of communities, including Hindus, were ruled by personal laws. The old Hindu legal system mostly controlled the notion of guardianship and minors; nevertheless, this legal system was inconsistent and varied from place to place.

• Post-Independence Reforms: To remove inequality and promote consistency, personal law reform was pushed for after India attained independence in 1947. The Hindu Code Bills aim to modernise Hindu personal law, encompassing guardianship, succession, marriage, and divorce.

Meaning of the word 'Minor' and 'Guardian'

The meanings of several phrases that are used throughout the Hindu Minority and Guardianship Act are covered in Section 4. The meanings of the phrases "minor" and "guardian" are the most crucial ones. Below are the explanations for these definitional clauses:

Section 4(a): Definition of Minor

• A minor is defined as a person who is under the age of eighteen (18) in accordance with Section 4(a) of the Act.

• A person becomes a majority under the Indian Majority Act, of 1875, when they turn eighteen. Until then, the court appoints a guardian to care for the minor until he becomes twenty-one.

Section 4(b): Definition of Guardian

• According to Section 4(b) of the Act, the guardian is tasked with looking after the minor's person or property and is considered a major, having reached the age of 18.

• A minor lack the capacity to care for themselves or manage their affairs on their own, necessitating the appointment of a guardian who will assist, support, and safeguard the minor's best interests.

A guardian is defined by Section 4(b) of the Act as an individual who is responsible for the person, property, or both of a minor's person and property. This 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.

• A person empowered to act as such by or under any enactment relating to any court of wards.

Types of Guardians

It is crucial to deal with the in-depth descriptions of the many guardian kinds, which are listed below, in order to comprehend the idea of guardianship:

Section 6: Natural guardian

The natural guardians of a Hindu minor are mentioned in Section 6 of the Hindu minority and guardianship Act as follows:

Concerning the minor's person and property (apart from his or her undivided stake in joint family property), the natural guardians are:

• The father, followed by the mother, in the event of an unmarried girl or boy; nevertheless, the mother will typically have custody of a youngster who has not yet reached the age of five.

• The mother, followed by the father, in the event of an illegitimate boy or girl who is not married.

• The spouse in the instance of a married girl.

With the caveat that no one will be qualified to serve as a minor's natural guardian under the terms of this section if they have either:

• Ceased to be a Hindu or

• Totally and utterly given up on life by becoming an ascetic or hermit (vanaprastha) (Yati or sanyasi).

• The terms "father" and "mother" in this section do not refer to stepfathers or stepmothers.

Note

In the case of Roxann Sharma vs. Arun Sharma (2015), the Supreme Court ruled that in cases where parents who are legally separated disagree over custody of a child under five years old, the mother would continue to have custody of the kid. When a kid falls short of turning five, the mother is seen to be the most suitable parent to raise and care for them, and the father's status as the child's guardian is irrelevant.

In the case of Githa Hariharan vs. Reserve Bank of India (1999), the Supreme Court addressed the issue of a mother's natural guardianship over her child even in the event that the father is still alive. The petitioner, in this case, contested the legality of Section 6 of the Hindu Minority and Guardianship Act, 1956, arguing that it violated her Indian Constitution-guaranteed rights. The Court rendered a decision in the petitioner's favour by interpreting Section 6 broadly, holding that the term "after" in the clause refers to both the father's death and any other circumstance in which the petitioner is unable to care for and protect the child.

Section 8: Powers of Natural Guardian

• The guardian is free to take whatever required action on behalf of and in the best interests of the minor.

• The minor's real estate cannot be sold, gifted, mortgaged, charged, or traded by the guardian. He is only able to do this with the court's approval.

• If necessary, the guardian may lease any portion of the property for a maximum of five years. The court's approval is necessary if the lease is to be extended beyond five years.

• The minor or any other person claiming on the minor's behalf may nullify the immovable property if the guardian disregards the regulation and disposes of it.

• The natural guardian cannot be allowed by a court to behave in a way that is not in the best interests of the child.

• The guardian may only lease or transfer the property if the court determines that doing so is in the minor's best interests.

Section 9: Testamentary Guardians

• 'Testamentary guardians' and their authority are defined in Section 9 of the Hindu minority and guardianship act.

• According to Section 9(1), a Hindu father who is also the natural guardian of his minor legitimate children may designate a guardian for any of them by "will" with regard to either the minor's person, property (apart from the undivided interest mentioned in Section 12), or both.

• According to Section 9(2), an appointment made under Subsection (1) will remain in effect if the father predeceases the mother, but it will come back into force if the mother passes away without designating a guardian by will.

• According to Section 9(3), a Hindu widow is entitled to act as the natural guardian of her minor legitimate children and a Hindu mother is entitled to act as the natural guardian of her minor legitimate children because the father is no longer eligible to do so may designate in their will a guardian for any of the minors with regard to their person, their property (apart from the undivided interest mentioned in Section 12), or both.

• According to Section 9(4), a Hindu mother who is qualified to serve as her minor legitimate child's natural guardian may designate in her will a guardian for any of her children, either for the minor's person, property, or both.

• According to Section 9(5), the guardian designated by will is entitled to act as the minor's guardian following the death of the minor's parent(s), and to exercise all the rights of a natural guardian under this Act, subject to the limitations, if any, that are outlined in both the will and this Act.

• According to Section 9(6), in the event that the minor is a girl, the guardian's rights will end upon her marriage.

Section 13: Guardian appointed by the court

• The 'welfare' of the minor is the primary concern, as stated explicitly in Section 13 of the HMGA.

• According to Section 13 (1), the welfare of the juvenile must come first when a court appoints or declares someone as the guardian of a Hindu minor.

• According to Section 13(2), if the court determines that a person's guardianship would not be for the minor's welfare, that person will not be entitled to guardianship under the terms of this Act or any other legislation pertaining to guardianship in Hindu marriages.

Removal of a Guardian Court

• According to Section 13 of the Hindu Minorities and Guardianship Act, 1956, the court has the authority to revoke a person's guardianship if it is not appointed with the child's best interests in mind.

• Guardianship may terminate if the court determines that the guardianship was not in the child's best interests, or if the guardian has seen an unforeseen event.

Grounds of Removal of a Guardian

The following list of grounds must be taken into consideration prior to the guardian's removal:

• when he makes personal use of a minor's property.

• when he turns into a Sanyasi and gives up on the world.

• when his Hindu identity ends.

• In the event that the court determines that his removal is not in the child's best interest, it may do so.

De-facto guardian

• A self-appointed guardian is known as a de facto guardian.

• He is a person who in actuality takes on the role of a child's guardian. Anybody who looks after the child's needs and well-being after the death of the natural guardians assumes the role of de facto guardian.

• He is someone who, in the absence of legal authority, shows ongoing concern for the well-being of minors or for the management or administration of their property.

• Any property that a de facto guardian alienates without the court's approval is null and void.

• According to section 11 of the Hindu minority and guardianship act the de facto guardian is not permitted to deal with or dispose of the minor's property, nor is it permitted to assume any debt.
  
  

Note:

In the case of Amanat Hussain and Anr. v. Sahida Begum and Ors (2015), The Gauhati High Court held that in accordance with Hindu law, property transfers carried out by de facto guardians are comparable to those carried out by de jure guardians. Such transfers are voidable and subject to challenge if there is insufficient basis for them.

Other key Provisions

Section 10 of the Hindu minority and guardianship act

A minor is incapable of serving as a guardian for another minor's property, according to Section 10 of the Act. It also illustrates the fact that a juvenile can watch after another minor's person but not his belongings.

Section 12 of the Hindu minority and guardianship act

The Act states that no court, other than the High Court, may designate a guardian to look after joint family property in which the child has an undivided interest and is managed by a senior family member.

Conclusion

In reality, overseeing minors' property and affairs, as well as offering them safety and welfare, is made possible by the system of guardianship. When a youngster is too young to make decisions for themselves, guardianship laws are intended to protect their rights and best interests. A youngster under the age of 18 is deemed incapable of taking care of himself or his belongings on their own, which is why the minor's welfare is taken into account. At this point, the idea of guardianship becomes relevant. In terms of Hindu personal laws, the current Act addresses guardianship and minority issues. Under this Act, specific guardian types are assigned the duty of looking after the minor's person and belongings.