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.

📚 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)

đź§’ 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

📝 Summary Table

Type of GuardianAppointed ByKey Features
Natural GuardianBy law (Section 6 HMGA)Father first, then mother
Testamentary GuardianThrough a WillAppointed by father/mother
Guardian by CourtAppointed under GWA, 1890Based on child’s welfare
De Facto GuardianNot legally recognized nowCannot dispose of property or act as guardian

 

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