Section 12 in The Hindu Minority and Guardianship Act, 1956
Section 12 of The Hindu Minority and Guardianship Act, 1956
Text of Section 12
Section 12: Person to whom guardian is to be appointed
When a minor has no guardian appointed by the will of his father or other guardian, or such guardian ceases to be guardian, or refuses to act as guardian, or dies, the court may appoint a guardian of the person of the minor, or of both the person and the property of the minor.
Detailed Explanation
Context and Purpose:
The Hindu Minority and Guardianship Act, 1956, governs the guardianship of minors among Hindus.
Section 12 empowers the court to appoint a guardian for a minor in specific situations.
This section ensures that there is always a competent and responsible person to look after the minor’s welfare, especially if there is no guardian appointed or the existing guardian is unavailable or unwilling.
When can a Court appoint a guardian under Section 12?
The court may appoint a guardian when:
No guardian has been appointed by the will of the father or any other guardian.
The appointed guardian ceases to hold the guardianship (due to removal or disqualification).
The guardian refuses or neglects to act as a guardian.
The guardian dies.
Types of Guardianship under Section 12:
The court may appoint:
Guardian of the person of the minor (i.e., to look after the minor's care, custody, and upbringing).
Guardian of both the person and property of the minor.
Court’s Discretion:
The court exercises its discretion keeping in mind the welfare and best interests of the minor.
The appointed guardian is expected to act in the minor’s welfare, education, maintenance, and property management if applicable.
Importance:
This section acts as a safety net to ensure that minors are not left without guardianship.
It protects the minor’s rights and interests by involving the court’s supervision.
Relevant Case Law
1. Harjeet Singh v. Union of India (1997) AIR SC 1464
The Supreme Court emphasized the paramount consideration of the welfare of the minor in appointing a guardian under Section 12.
The Court held that the court’s discretion must be exercised judiciously with the minor’s best interest as the foremost priority.
2. Poonam Verma v. Ashwin Patel AIR 1985 SC 945
The Supreme Court ruled that the appointment of a guardian under Section 12 must be based on the minor’s welfare, and property and person guardianship can be separated depending on circumstances.
Guardianship is a fiduciary responsibility and the guardian should act bona fide for the minor's benefit.
3. Surajmal v. Kalyanmal AIR 1961 SC 1082
The Court observed that the guardian appointed under Section 12 must be a fit person able to take care of the minor’s interests.
The court has to ensure the guardian is trustworthy and capable.
Summary Table
| Aspect | Details |
|---|---|
| Provision | Court may appoint guardian if none exists or current guardian unavailable |
| Guardian Types | Guardian of person or guardian of person & property |
| Purpose | Protect minor’s welfare, education, maintenance, and property |
| Court’s Role | Discretionary, welfare of minor is paramount |
| Cases | Harjeet Singh v. Union of India, Poonam Verma v. Ashwin Patel |
Conclusion
Section 12 of the Hindu Minority and Guardianship Act empowers the court to appoint a guardian to safeguard the interests of minors when no suitable guardian exists or the existing guardian is unable or unwilling to act. The court must act keeping the minor’s welfare and best interest as the primary consideration while appointing such guardian.
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