Concept of Guardianship under Hindu Law
🧑‍⚖️ Concept of Guardianship under Hindu Law
Under Hindu law, guardianship refers to the legal authority and duty of a person to take care of a minor (a child below 18 years of age) and their person and/or property.
Guardianship is essential because minors are legally incapable of managing their personal affairs or property.
đź“š Legal Sources
Hindu Minority and Guardianship Act, 1956 (HMGA)
Personal laws, old customs, and judicial decisions (before codification)
Guardians and Wards Act, 1890 (applies to all religions, in matters not specifically covered under personal laws)
🧒 Types of Guardians under Hindu Law
Natural Guardians
Recognized under Section 6 of HMGA, 1956
These are the primary guardians by virtue of their relationship with the minor.
Testamentary Guardians
Appointed through a will by a natural guardian.
A father can appoint a guardian for his minor child by will (including property matters).
After the father’s death, the mother can also appoint a guardian by will.
Guardian Appointed by Court
Under the Guardians and Wards Act, 1890, the District Court can appoint a guardian if:
There is no natural/testamentary guardian
The welfare of the child demands it
The court considers:
Welfare of the child (paramount consideration)
Age, sex, wishes of the child (if mature)
Relationship, character, capacity of the guardian
De Facto Guardian (Not Recognized Legally Now)
A person (usually a relative) who takes care of a minor without legal authority.
Hindu law earlier recognized this, but HMGA, 1956 has abolished this concept — a de facto guardian cannot deal with a minor’s property.
🛡️ Duties and Powers of a Guardian
Maintain and educate the minor
Act in the best interest of the minor
Manage the minor’s property prudently
Cannot mortgage, sell, or transfer immovable property without court permission
⚖️ Key Legal Principles
Welfare of the Minor is Paramount – This overrides all other considerations (custody, control, etc.)
Mother’s Role – Though second to the father legally under Section 6, courts often give custody to mothers, especially of younger children
Court’s Discretion – Courts can override personal law if it conflicts with the child’s best interests
đź“ť Summary Table
| Type of Guardian | Appointed By | Key Features |
|---|---|---|
| Natural Guardian | By law (Section 6 HMGA) | Father first, then mother |
| Testamentary Guardian | Through a Will | Appointed by father/mother |
| Guardian by Court | Appointed under GWA, 1890 | Based on child’s welfare |
| De Facto Guardian | Not legally recognized now | Cannot dispose of property or act as guardian |
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