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Hindu minority

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Hindu minority

  1. 1. HINDU MINONORITY AND GUARDIANSHIP ACT, 1956HINDU MINONORITY AND GUARDIANSHIP ACT, 1956 Guardianship Under Hindu LawGuardianship Under Hindu Law The Dharmashastras did not deal with the law of guardianship. During theThe Dharmashastras did not deal with the law of guardianship. During the British regime the law of guardianship was developed by the courts. It came toBritish regime the law of guardianship was developed by the courts. It came to be established that thebe established that the father is the natural guardianfather is the natural guardian of the children andof the children and after his death, mother is the natural guardianafter his death, mother is the natural guardian of the children and noneof the children and none else can be the natural guardian of minor children.else can be the natural guardian of minor children. Testamentary guardiansTestamentary guardians were also introduced in Hindu law:were also introduced in Hindu law: It was also accepted that the supreme guardianship of the minor childrenIt was also accepted that the supreme guardianship of the minor children vested in thevested in the State as parens patrieState as parens patrie and was exercised by the courts.and was exercised by the courts. In the modern law of most countries the childhood is accorded protection inIn the modern law of most countries the childhood is accorded protection in multifarious ways.multifarious ways. Guardian is "a person having the care of the person ofGuardian is "a person having the care of the person of the minor or of his property or both person and property."the minor or of his property or both person and property." It may beIt may be emphasized that in the modern law guardians exist essentially for theemphasized that in the modern law guardians exist essentially for the protection and care of the child and to look after its welfare.protection and care of the child and to look after its welfare. This is expressed by saying that welfare of the child is paramountThis is expressed by saying that welfare of the child is paramount consideration. Welfare includes both physical and moral well-beingconsideration. Welfare includes both physical and moral well-being
  2. 2.  The Hindu law of guardianship of minor childrenThe Hindu law of guardianship of minor children has been codified and reformed by thehas been codified and reformed by the HinduHindu Minority and Guardianship Act, 1956.Minority and Guardianship Act, 1956.  The Act is principally intended to declare as to who are theThe Act is principally intended to declare as to who are the persons entitled to act as the natural guardians of a Hindupersons entitled to act as the natural guardians of a Hindu minor in respect of the person and property of the minor andminor in respect of the person and property of the minor and to impose certain restrictions on the powers of such guardians.to impose certain restrictions on the powers of such guardians. It is, therefore, both a codifying and a supplement enactmentIt is, therefore, both a codifying and a supplement enactment and its provision must be read in the context of the law laidand its provision must be read in the context of the law laid down in the Guardians and Wards Act, 1890down in the Guardians and Wards Act, 1890  The subject may be discussed under the followingThe subject may be discussed under the following heads :heads :  ((i) Guardianship of person of minors,i) Guardianship of person of minors,  (ii) Guardianship of the property of minors,(ii) Guardianship of the property of minors,  (iii) De facto guardians, and(iii) De facto guardians, and  (iv) Guardians by affinity.(iv) Guardians by affinity.
  3. 3.  Hindu Minority and Guardianship Act, 1956 does not codify the entireHindu Minority and Guardianship Act, 1956 does not codify the entire law of guardianship applicable to Hindus but amends and codifieslaw of guardianship applicable to Hindus but amends and codifies only certain parts of law relating to minority and guardianship amongonly certain parts of law relating to minority and guardianship among Hindus. The provisions are to be read supplemental to the GuardiansHindus. The provisions are to be read supplemental to the Guardians and Wards Act. The Act does not apply to minors with courtand Wards Act. The Act does not apply to minors with court guardians. Provisions of the Act are supplementary to that ofguardians. Provisions of the Act are supplementary to that of Guardianship and Wards Act.Guardianship and Wards Act.  Section 3:------------Section 3:------------ Application of ActApplication of Act  (1) This Act applies,-(1) This Act applies,-  (a) to any person who is a Hindu by religion in any of its forms or(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva a Lingayat or a follower of thedevelopments, including a Virashaiva a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,Brahmo, Prarthana or Arya Samaj,  (b) to any person who is a Buddhist, Jaina or Sikh by religion and(b) to any person who is a Buddhist, Jaina or Sikh by religion and  (c) to any person domiciled in the territories to which this Act extends(c) to any person domiciled in the territories to which this Act extends who is not a Muslim, Christian , Parsi or Jew by religion, unless it iswho is not a Muslim, Christian , Parsi or Jew by religion, unless it is proved that any such person would not have been governed by theproved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect ofHindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.any of the matters dealt with herein if this Act had not been passed.
  4. 4.  Section 3:------------Section 3:------------ Application of ActApplication of Act  Explanation:Explanation: The following persons are Hindus, Buddhists, JainasThe following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-or Sikhs by religion, as the case may be:-  (i)(i)any child, legitimate or illegitimate, both of whose parents areany child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;Hindus, Buddhists, Jainas or Sikhs by religion;  (ii) any child, legitimate, or illegitimate, one of whose parents is a(ii) any child, legitimate, or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh religion and who is brought up asHindu, Buddhist, Jaina or Sikh religion and who is brought up as a member of the tribe, community, group or family to which sucha member of the tribe, community, group or family to which such parent belongs or belonged ; andparent belongs or belonged ; and  (iii) any persons who is a convert or re-convert to the Hindu,(iii) any persons who is a convert or re-convert to the Hindu, Buddhists, Jaina or Sikh religion.Buddhists, Jaina or Sikh religion.  (2) Notwithstanding any thing contained in sub section (1),(2) Notwithstanding any thing contained in sub section (1), nothing contained in this Act shall apply to the members of anynothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 ofScheduled Tribe within the meaning of clause (25) of article 366 of Constitution unless the Central Government, by notification in theConstitution unless the Central Government, by notification in the Official Gazette, otherwise directs.Official Gazette, otherwise directs.  (3) The expression ‘ Hindu’ in any portion of this Act shall be(3) The expression ‘ Hindu’ in any portion of this Act shall be construed as if it included a person who, though not a Hindu byconstrued as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act applies byreligion, is nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.virtue of the provisions contained in this section.
  5. 5.  Section 4 :--------------Section 4 :-------------- DefinitionsDefinitions  In this Act-In this Act-  (a) ‘minor’ means a person who has not completed the(a) ‘minor’ means a person who has not completed the age of eighteen yearsage of eighteen years  r/wr/w  THE INDIAN MAJORITY ACT, 1875THE INDIAN MAJORITY ACT, 1875  Section 3.:------ Age of majority of personsSection 3.:------ Age of majority of persons domiciled in India.domiciled in India. -Subject as aforesaid, every minor-Subject as aforesaid, every minor of whose person or property, or both, a guardian, otherof whose person or property, or both, a guardian, other than a guardian for a suit within the meaning of [Orderthan a guardian for a suit within the meaning of [Order XXXIIof the Code of Civil Procedure], has been or shall beXXXIIof the Code of Civil Procedure], has been or shall be appointed or declared by any Court as Justice before theappointed or declared by any Court as Justice before the minor has attained theminor has attained the age of eighteen yearsage of eighteen years, and every, and every minor of whose property the superintendence has beenminor of whose property the superintendence has been or shall be assumed by any Court of Wards before theor shall be assumed by any Court of Wards before the minor has attained that age shall, notwithstandingminor has attained that age shall, notwithstanding anything contained in the Indian Succession Act or in anyanything contained in the Indian Succession Act or in any other enactment, be deemed to have attained his majorityother enactment, be deemed to have attained his majority when he shall have completed hiswhen he shall have completed his age of twenty-oneage of twenty-one yearsyears and not before.and not before.
  6. 6.  Section 4 :--------------Section 4 :-------------- DefinitionsDefinitions  (b) ‘(b) ‘guardian’guardian’ means a person having the care ofmeans a person having the care of the person of a minor or of his property, or ofthe person of a minor or of his property, or of both his person and property and includes-both his person and property and includes-  (i)(i) a natural guardian, (Section 6,7,8)a natural guardian, (Section 6,7,8)  (ii) a guardian appointed by the will of the minor's(ii) a guardian appointed by the will of the minor's father or mother ,i.e.father or mother ,i.e. testamentary guardiantestamentary guardian (Section .9)(Section .9)  (iii) a(iii) a guardian appointed or declared by a courtguardian appointed or declared by a court,, and (and (Guardians and Wards Act, 1890Guardians and Wards Act, 1890 ))  (iv) a person empowered to act as such by or(iv) a person empowered to act as such by or under any enactment relating to any Court ofunder any enactment relating to any Court of Wards;Wards;  (c)(c) “natural guardians”“natural guardians” means any of themeans any of the guardian mentioned in section 6.andguardian mentioned in section 6.and  De facto guardianDe facto guardian under the old lawunder the old law
  7. 7.  Section 6:-----------Natural guardians of a Hindu minorSection 6:-----------Natural guardians of a Hindu minor  The natural guardian of a Hindu minor, in respect of the minor’s person asThe natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undividedwell as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are-interest in joint family property), are-  (a(a) in the case of a boy or unmarried girl-) in the case of a boy or unmarried girl- the father, and after him, thethe father, and after him, the mother, provided that the custody of a minor who has not completed themother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;age of five years shall ordinarily be with the mother;  (b)(b) in the case of illegitimate boy or an illegitimate unmarried girl-in the case of illegitimate boy or an illegitimate unmarried girl- thethe mother, and after her, the father;mother, and after her, the father;  (c)(c) in the case of married girlin the case of married girl -the husband:-the husband:  PROVIDED that no persons shall be entitled to act as the natural guardianPROVIDED that no persons shall be entitled to act as the natural guardian of a minor under the provisions of this section-of a minor under the provisions of this section-  (a) If he has ceased to be a Hindu ,or(a) If he has ceased to be a Hindu ,or  (b) If he has completely and finally renounced the world becoming a hermit(b) If he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)(vanaprastha) or an ascetic (yati or sanyasi)  Explanation In this section, the expressionExplanation In this section, the expression ““father” and “mother” do notfather” and “mother” do not include a step- father and a step-mother.include a step- father and a step-mother.
  8. 8.  Even if the father neglects to look after, or to discharge hisEven if the father neglects to look after, or to discharge his obligations towards, the minor, or refuses to act natural guardian,obligations towards, the minor, or refuses to act natural guardian, the mother cannot be the natural guardian of the minor so long asthe mother cannot be the natural guardian of the minor so long as the father is alive .-Sundara Murthy V. Shanmuga Nadar AIR 1980the father is alive .-Sundara Murthy V. Shanmuga Nadar AIR 1980 Mad 207 and Ramachandra V.Annapoorni AIR 1964 Ker 269.Mad 207 and Ramachandra V.Annapoorni AIR 1964 Ker 269.  Merely because the father is not residing with the family, he doesMerely because the father is not residing with the family, he does not cease to be the natural guardian. The natural guardian ceases tonot cease to be the natural guardian. The natural guardian ceases to be so only under the two ground mentioned in the proviso to thebe so only under the two ground mentioned in the proviso to the section.- Michayel Nadar v. Sreedharan Babu 1992 (2) HLR 17 (Ker).section.- Michayel Nadar v. Sreedharan Babu 1992 (2) HLR 17 (Ker).  In such an event, the only course open to the mother is to take legalIn such an event, the only course open to the mother is to take legal proceedings and obtain appropriate orders of the court to act as theproceedings and obtain appropriate orders of the court to act as the guardian of the minor.- Narain Singh v. Sapurna kher AIR 1968guardian of the minor.- Narain Singh v. Sapurna kher AIR 1968 Pat.318.Pat.318.  In a case where the mother and father had fallen out and were livingIn a case where the mother and father had fallen out and were living separately and the minor daughter was under the care andseparately and the minor daughter was under the care and protection of her mother (though her father was alive) the Supremeprotection of her mother (though her father was alive) the Supreme Court held that the mother should be considered as the naturalCourt held that the mother should be considered as the natural guardian of the minor girl.-Jijabhai v. Pathankhan AIR 1971 SC 315.guardian of the minor girl.-Jijabhai v. Pathankhan AIR 1971 SC 315.
  9. 9.  Section 7……Section 7…… Natural guardianship ofNatural guardianship of adopted sonadopted son  The natural guardianship of an adopted son who is aThe natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father andminor passes, on adoption, to the adoptive father and after him to the adoptive mother.after him to the adoptive mother.  From the moment the minor is adopted by a person it isFrom the moment the minor is adopted by a person it is the adoptive father that becomes the natural guardianthe adoptive father that becomes the natural guardian and the natural parents cease to be the natural guardians.and the natural parents cease to be the natural guardians.  The comments under s.6 would equally apply to theThe comments under s.6 would equally apply to the adoptive parents as natural guardians of the minor. In theadoptive parents as natural guardians of the minor. In the case of death of the adoptive parents, though the naturalcase of death of the adoptive parents, though the natural parents are alive, necessary proceedings have to beparents are alive, necessary proceedings have to be taken under the Guardians and Wards Act, 1890 for thetaken under the Guardians and Wards Act, 1890 for the appointment of the guardian.appointment of the guardian.
  10. 10.  Rights of guardian of personRights of guardian of person. -The natural guardian has the following. -The natural guardian has the following rights in respect of minor children:rights in respect of minor children: (a) Right to custody, .(a) Right to custody, . (b) Right to determine the religion of children,(b) Right to determine the religion of children, (c) Right to education,(c) Right to education, (d) Right to control movement, and(d) Right to control movement, and (e) Right to reasonable chastisement(e) Right to reasonable chastisement  These rights are conferred on the guardians in the interest of theThese rights are conferred on the guardians in the interest of the minor children and therefore of each- of these rights is subject to theminor children and therefore of each- of these rights is subject to the welfare of the minor children. The natural guardians have also thewelfare of the minor children. The natural guardians have also the obligation to maintain their minor children.obligation to maintain their minor children.  Section 8……..Section 8…….. Powers of natural guardianPowers of natural guardian  (1) The natural guardian of a Hindu minor has power, subject to the(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary orprovisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for thereasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but therealization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.guardian can in no case bind the minor by a personal covenant.  (2) The natural guardian shall not, without the previous permission of(2) The natural guardian shall not, without the previous permission of the court-the court-  (a) mortgage or charge, or transfer by sale, gift, exchange or(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, orotherwise, any part of the immovable property of the minor, or  (b) lease any part of such property for a term exceeding five years or(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which thefor a term extending more than one year beyond the date on which the minor will attain majority.minor will attain majority.
  11. 11.  (3) Any disposal of immovable property by a natural(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-guardian, in contravention of sub-section (1) or sub- section(2), is viodable at the instance of the minor orsection(2), is viodable at the instance of the minor or any person claiming under him.any person claiming under him.  (4) No court shall grant permission to the natural(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-sectionguardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident(2) except in case of necessity or for an evident advantage to the minor.advantage to the minor.  (5) The Guardians and Wards Act, 1890, shall apply to(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining theand in respect of an application for obtaining the permission of the court under sub-section (2) in allpermission of the court under sub-section (2) in all respects as if it were an application for obtaining therespects as if it were an application for obtaining the permission of the court under section 29 of that Act,permission of the court under section 29 of that Act, and in particular-and in particular-  (a) proceedings in connection with the application shall(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within thebe deemed to be proceedings under that Act within the meaning of section 4A thereof;meaning of section 4A thereof;
  12. 12.  (b) the court shall observe the procedure and have the(b) the court shall observe the procedure and have the powers specified in sub-sections (2),(3) and (4) of sectionpowers specified in sub-sections (2),(3) and (4) of section 31 of that Act; and31 of that Act; and  (c) an appeal shall lie from an order of the court refusing(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the actspermission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the courtmentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of thatto which appeals ordinarily lie from the decisions of that court.court.  (6) in this section, " court " means the City Civil Court or(6) in this section, " court " means the City Civil Court or a District Court or a court empowered under section 4Aa District Court or a court empowered under section 4A of the Guardians and Wards Act, 1890, within the localof the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property inlimits of whose jurisdiction the immovable property in respect of which the application is made is situate, andrespect of which the application is made is situate, and where the immovable property is situate within thewhere the immovable property is situate within the jurisdiction of more than one such court, means the courtjurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portionwithin the local limits of whose jurisdiction any portion of the property is situate.of the property is situate. 
  13. 13.  Section 9….Testamentary guardians and theirSection 9….Testamentary guardians and their powerspowers   (1) A Hindu father entitled to act as the natural guardian of his minor(1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will, appoint a guardian for any of them inlegitimate children may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's propertyrespect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) or in(other than the undivided interest referred to in section 12) or in respect of both.respect of both.  (2) An appointment made under sub-section (1) shall have no effect if(2) An appointment made under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother diesthe father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.without appointing, by will, any person as guardian.  (3) A Hindu widow entitled to act as the natural guardian of her minor(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children and Hindu mother entitled to act as the naturallegitimate children and Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact thatguardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will,the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor's personappoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undividedor in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both.interest referred to in section 12) or in respect of both.
  14. 14.  (4)(4) A Hindu mother entitled to act as the naturalA Hindu mother entitled to act as the natural guardian of her minor illegitimate children may,guardian of her minor illegitimate children may, by will, appoint a guardian for any of them inby will, appoint a guardian for any of them in respect of the minor's person or in respect of therespect of the minor's person or in respect of the minor's property or in respect of both.minor's property or in respect of both.  (5)(5) The guardian so appointed by will has theThe guardian so appointed by will has the right to act as minor's guardian after the death ofright to act as minor's guardian after the death of the minor's father or mother, as the case may be,the minor's father or mother, as the case may be, and to exercise all the rights of a naturaland to exercise all the rights of a natural guardian under this Act to such extent andguardian under this Act to such extent and subject to such restrictions, if any, as aresubject to such restrictions, if any, as are specified in this Act and in the will.specified in this Act and in the will.  (6)(6) The right of the guardian so appointed by willThe right of the guardian so appointed by will shall, where the minor is girl, cease on hershall, where the minor is girl, cease on her marriage.marriage.
  15. 15.  The father may appoint a testamentary guardian but ifThe father may appoint a testamentary guardian but if mother survives him, his testamentary appointment willmother survives him, his testamentary appointment will be ineffective and the mother will be the natural guardian.be ineffective and the mother will be the natural guardian. If mother appoints testamentary guardian, her appointeeIf mother appoints testamentary guardian, her appointee will become the testamentary guardian and father'swill become the testamentary guardian and father's appointment will continue to be ineffective. If motherappointment will continue to be ineffective. If mother does not appoint, father's appointee will become thedoes not appoint, father's appointee will become the guardian.guardian.  It seems that a Hindu father cannot appoint a guardian.It seems that a Hindu father cannot appoint a guardian. of his minor illegitimate children even when he is entitledof his minor illegitimate children even when he is entitled to act as their natural. guardian, as S. 9(1) confersto act as their natural. guardian, as S. 9(1) confers testamentary power on him in respect of legitimatetestamentary power on him in respect of legitimate children. In respect of illegitimate children, Section 9(4)children. In respect of illegitimate children, Section 9(4) confers such power on the mother alone.confers such power on the mother alone.  The guardian of a minor girl will cease to be the guardianThe guardian of a minor girl will cease to be the guardian of her person on her marriage, and the guardianshipof her person on her marriage, and the guardianship cannot revive even if she becomes a widow while acannot revive even if she becomes a widow while a minor. It is necessary for the testamentary guardian tominor. It is necessary for the testamentary guardian to accept 'the guardianshipaccept 'the guardianship
  16. 16.  Section 10….Incapacity of minor to act as guardian ofSection 10….Incapacity of minor to act as guardian of property.property.  A minor shall be incompetent to act as guardian of the property ofA minor shall be incompetent to act as guardian of the property of any minor.any minor.  Section 11…..De facto guardian not to deal with minor'sSection 11…..De facto guardian not to deal with minor's propertyproperty  After the commencement of this Act, no person shall be entitled toAfter the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on thedispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.ground of his or her being the de facto guardian of the minor.   During the lifetime of a natural or testamentary guardian or aDuring the lifetime of a natural or testamentary guardian or a guardian appointed by the court, any person who gifts the propertyguardian appointed by the court, any person who gifts the property to the minor, cannot appoint some other person in the gift deed, asto the minor, cannot appoint some other person in the gift deed, as the guardian. It would be of no avail and such person can not act asthe guardian. It would be of no avail and such person can not act as guardian of the property gifted. But any person as a next friend of theguardian of the property gifted. But any person as a next friend of the minor can file a suit on behalf of the minor.-Girdhari v. Anand AIRminor can file a suit on behalf of the minor.-Girdhari v. Anand AIR 1967 Pat 8 and Danial v. Raghu AIR 1967 Ori 68.1967 Pat 8 and Danial v. Raghu AIR 1967 Ori 68.
  17. 17.  Section 12…….Guardian not to be appointed for minor'sSection 12…….Guardian not to be appointed for minor's undivided interest in joint family propertyundivided interest in joint family property  Where a minor has an undivided interest in joint familyWhere a minor has an undivided interest in joint family property and the property is under the management of anproperty and the property is under the management of an adult member of the family, no guardian shall beadult member of the family, no guardian shall be appointed for the minor in respect of such undividedappointed for the minor in respect of such undivided interest:interest:  PROVIDED that nothing in this section shall be deemedPROVIDED that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint ato affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.guardian in respect of such interest.  Section 13……Welfare of minor to be paramountSection 13……Welfare of minor to be paramount considerationconsideration  (1) In the appointment or declaration of any person as(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of theguardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.minor shall be the paramount consideration.  (2) No person shall be entitled to the guardianship by(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relatingvirtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court isto guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for theof opinion that his or her guardianship will not be for the welfare of the minor.welfare of the minor.
  18. 18.  What constitutes the welfare of the minor has to be determined byWhat constitutes the welfare of the minor has to be determined by the court after a careful consideration of the facts and circumstancesthe court after a careful consideration of the facts and circumstances of the case, as the Act does not lay down any tests or guidelines toof the case, as the Act does not lay down any tests or guidelines to determine what is for the welfare of the minor.determine what is for the welfare of the minor.  The court has to take into account all relevant facts on record and toThe court has to take into account all relevant facts on record and to decide whether father or mother should be appointed as a guardiandecide whether father or mother should be appointed as a guardian of the minor. While arriving at this conclusion, the welfare of theof the minor. While arriving at this conclusion, the welfare of the minor alone will be supreme consideration. It is not necessary for theminor alone will be supreme consideration. It is not necessary for the court to appoint father alone as a guardian in preference to mothercourt to appoint father alone as a guardian in preference to mother under s.6. That section is further controlled by s.13 (2) which givesunder s.6. That section is further controlled by s.13 (2) which gives ample power and jurisdiction to the court not to appoint a person asample power and jurisdiction to the court not to appoint a person as a guardian if it is the opinion of the court that such appointment wasa guardian if it is the opinion of the court that such appointment was not in the interest of the minor.not in the interest of the minor. The expression "welfare" is wideThe expression "welfare" is wide enough to include material as well as spiritual welfare. The court hasenough to include material as well as spiritual welfare. The court has to consider as to what order would be best for securing the welfareto consider as to what order would be best for securing the welfare and happiness of the minors. The welfare of the children cannot atand happiness of the minors. The welfare of the children cannot at the same time be confined to either physical comfort or the comfortthe same time be confined to either physical comfort or the comfort that money can secure. The children have to be properly brought up,that money can secure. The children have to be properly brought up, educated in healthy surroundings in order to enable them to have theeducated in healthy surroundings in order to enable them to have the benefits of educations and also to secure a footing in life later on.benefits of educations and also to secure a footing in life later on. Where mother of minor children aged above 5 years, was unable toWhere mother of minor children aged above 5 years, was unable to maintain herself or her children while father was earning substantialmaintain herself or her children while father was earning substantial amount and as a position to look after the children and educateamount and as a position to look after the children and educate them, held, the welfare of the children compels that they should bethem, held, the welfare of the children compels that they should be allowed to remain with the father, rather than with the motherallowed to remain with the father, rather than with the mother
  19. 19.  Guardians Appointed by the CourtGuardians Appointed by the Court  The courts are empowered to appoint guardians underThe courts are empowered to appoint guardians under the Guardians and Wards Act, 1890. The High Courts alsothe Guardians and Wards Act, 1890. The High Courts also have inherent jurisdiction to appoint guardians but thishave inherent jurisdiction to appoint guardians but this power is exercised sparingly. The Hindu Minority andpower is exercised sparingly. The Hindu Minority and Guardianship Act is supplementary to and not inGuardianship Act is supplementary to and not in derogation to Guardians and Wards Act. Under thederogation to Guardians and Wards Act. Under the Guardians and Wards Act, 1890, the jurisdiction isGuardians and Wards Act, 1890, the jurisdiction is conferred on the District Court: The District Court mayconferred on the District Court: The District Court may appoint or declare any person as the guardian wheneverappoint or declare any person as the guardian whenever it considers it necessary in the welfare of the child.' Init considers it necessary in the welfare of the child.' In appointing ,,a" guardian, the court takes intoappointing ,,a" guardian, the court takes into consideration various factors, including the age, sex,consideration various factors, including the age, sex, wishes of the parents and the personal law of the child.wishes of the parents and the personal law of the child. The welfare of the children is of paramountThe welfare of the children is of paramount consideration.consideration.
  20. 20.  The District Court has the power to appoint or declare aThe District Court has the power to appoint or declare a guardian in respect of the person as well as separateguardian in respect of the person as well as separate property of the minor. The chartered High Courts haveproperty of the minor. The chartered High Courts have inherent jurisdiction to appoint guardians of the- personinherent jurisdiction to appoint guardians of the- person as well as the property of minor children. This poweras well as the property of minor children. This power extends to the undivided interest of a coparcenerextends to the undivided interest of a coparcener  The guardian appointed by the court is known asThe guardian appointed by the court is known as certificated guardian. Powers of Certificated guardians.certificated guardian. Powers of Certificated guardians. Powers of certificated guardians are controlled by thePowers of certificated guardians are controlled by the Guardians and Wards Act, 1890. There are a very few actsGuardians and Wards Act, 1890. There are a very few acts which he can perform without the prior permission of thewhich he can perform without the prior permission of the court. In the ultimate analysis his powers are co-extensivecourt. In the ultimate analysis his powers are co-extensive with the powers of the sovereign and he may do all thosewith the powers of the sovereign and he may do all those things (though with the permission of the court) which thethings (though with the permission of the court) which the sovereign has power to do. A certificated guardian fromsovereign has power to do. A certificated guardian from the date of his appointment is under the supervision,the date of his appointment is under the supervision, guidance and control of the court.guidance and control of the court.
  21. 21.  De Facto GuardianDe Facto Guardian  AA de facto guardian is a person who takes continuous interest in thede facto guardian is a person who takes continuous interest in the welfare of the minor's person or in the management andwelfare of the minor's person or in the management and administration of his property without any authority of law. Hinduadministration of his property without any authority of law. Hindu jurisprudence has all along recognized the principle that if liability isjurisprudence has all along recognized the principle that if liability is incurred by one on behalf of another in a case where it is justified,incurred by one on behalf of another in a case where it is justified, then the person, on whose behalf the liability is incurred or, at least,then the person, on whose behalf the liability is incurred or, at least, his property, is liable, notwithstanding the fact that no authorizationhis property, is liable, notwithstanding the fact that no authorization was made for incurring the liability.‘was made for incurring the liability.‘  A mere intermeddler is not a de facto guardian. An isolated orA mere intermeddler is not a de facto guardian. An isolated or fugitive act of a person in regard to child's property does not makefugitive act of a person in regard to child's property does not make him a de facto guardian.him a de facto guardian.  To make a person a de facto guardian some continuous course ofTo make a person a de facto guardian some continuous course of conduct is necessary on his part. In other words, a de facto guardianconduct is necessary on his part. In other words, a de facto guardian is a person who is not a legal guardian, who has no authority in lawis a person who is not a legal guardian, who has no authority in law to act as such but nonetheless he himself has assumed, theto act as such but nonetheless he himself has assumed, the management of the property of the child as though he were amanagement of the property of the child as though he were a guardian.guardian.  De facto guardianship is a concept where past acts result in presentDe facto guardianship is a concept where past acts result in present status. The term literally means 'from that which has been done.'status. The term literally means 'from that which has been done.'
  22. 22.  MUSLIM LAWMUSLIM LAW  There are two types of guardianship over aThere are two types of guardianship over a minor: -minor: - 1.1. WilayahWilayah or guardianship of the property andor guardianship of the property and education and marriage of the wardeducation and marriage of the ward 2.2. HizanahHizanah or guardianship over the rearingor guardianship over the rearing and bringing up of the child.and bringing up of the child.  Guardians are appointed in the followingGuardians are appointed in the following manner: -manner: - 1. by natural right, or1. by natural right, or 2. by testament, or2. by testament, or 3. by appointment by a judge3. by appointment by a judge
  23. 23.  Guardianship for purposes of marriageGuardianship for purposes of marriage  Guardianship extends to the father and grandfather and other relations inGuardianship extends to the father and grandfather and other relations in their absence. But when a minor is given in marriage by a guardian, othertheir absence. But when a minor is given in marriage by a guardian, other than the father or the grandfather, he or she can, in exercise of what is calledthan the father or the grandfather, he or she can, in exercise of what is called the option of puberty, refuse to be bound by the marriage and ask the courtthe option of puberty, refuse to be bound by the marriage and ask the court to annul the marriage.to annul the marriage.  Other male relations entitled to hizanat are:Other male relations entitled to hizanat are: 1. nearest paternal grandfather1. nearest paternal grandfather 2. full brother2. full brother 3. consanguine brother3. consanguine brother 4. full brother’s son4. full brother’s son 5. consanguine brother’s father5. consanguine brother’s father 6. full brother of the father6. full brother of the father 7. consanguine brother of the father7. consanguine brother of the father 8. father’s full brother’s son8. father’s full brother’s son 9. father’s consanguine brother’s son9. father’s consanguine brother’s son
  24. 24.  Among the Shias hizanat belongs to the grandfather in the absenceAmong the Shias hizanat belongs to the grandfather in the absence of the father.of the father.  When Right if Hizanat may be lost by Hazina or Hazin. All the schoolsWhen Right if Hizanat may be lost by Hazina or Hazin. All the schools of Muslim law agree that a hazina should be:of Muslim law agree that a hazina should be: i) of sound mindi) of sound mind ii) good moral characterii) good moral character iii) living at such a place where there is no risk, morally or physicallyiii) living at such a place where there is no risk, morally or physically to the childto the child iv) of such a age which would qualify her to bestow on the child theiv) of such a age which would qualify her to bestow on the child the care it may need (not applicable to the mother)care it may need (not applicable to the mother)  The Shia law is very categorical and lays down that a person whoThe Shia law is very categorical and lays down that a person who has ceased to be muslim is not entitled to the cutody of the child.has ceased to be muslim is not entitled to the cutody of the child. Also hazina who marries a person not related to the child within theAlso hazina who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of hizanat. Thedegrees of prohibited relationship forfeits her right of hizanat. The cardinal principal of hizanat in muslim law is the “welfare of thecardinal principal of hizanat in muslim law is the “welfare of the child”.child”.
  25. 25.  Guardianship for purposes of management andGuardianship for purposes of management and preservation of propertypreservation of property  The guardianship of a minor for the management andThe guardianship of a minor for the management and preservation of his property devolvespreservation of his property devolves  (1) first on his or her father,(1) first on his or her father,  (2) then on the father's executor,(2) then on the father's executor,  (3) next on the paternal grandfather,(3) next on the paternal grandfather,  (4) then on his executor,(4) then on his executor,  (5) then on the executors of such executors,(5) then on the executors of such executors,  (6) finally on the ruling power or his representative -- a(6) finally on the ruling power or his representative -- a Qazi or judge.Qazi or judge.  Ultimately it rests upon the Qazi to appoint a guardian forUltimately it rests upon the Qazi to appoint a guardian for an infant's property when there is no near guardian Inan infant's property when there is no near guardian In case of default of the mother as well as the paternalcase of default of the mother as well as the paternal kindred of a minor, the minor's maternal relationskindred of a minor, the minor's maternal relations (according to proximity) are entitled to guardianship for(according to proximity) are entitled to guardianship for the purposes of education and marriage, and notthe purposes of education and marriage, and not management of the ward's property, unless appointed inmanagement of the ward's property, unless appointed in the late owner's Will or by the Qazi.the late owner's Will or by the Qazi.
  26. 26.  Guardianship (custody) for purposes of bringing upGuardianship (custody) for purposes of bringing up children (education etc.)children (education etc.)  The mother is the most entitled to the custody (The mother is the most entitled to the custody (Hizanah)Hizanah) of herof her infant child during marriage and after separation from her husband,infant child during marriage and after separation from her husband, unlessunless  she: 1) has become an apostate, orshe: 1) has become an apostate, or  2) is wicked, or2) is wicked, or  3) is unworthy to be trusted3) is unworthy to be trusted  Following females are entitled to custody in the absence of mother:Following females are entitled to custody in the absence of mother: 1. maternal grandmother1. maternal grandmother 2. maternal great grandmother2. maternal great grandmother 3. maternal aunt and great aunt3. maternal aunt and great aunt 4. full sister4. full sister 5. uterine sister5. uterine sister 6. consanguine sister6. consanguine sister 7. paternal aunt7. paternal aunt
  27. 27.  The woman's custody of a boy terminates when he is 7-The woman's custody of a boy terminates when he is 7- years old, whereas the custody of a girl terminates whenyears old, whereas the custody of a girl terminates when she reaches puberty.she reaches puberty.  The man's custody continues until puberty for a boy, andThe man's custody continues until puberty for a boy, and not just until puberty for a girl, but until she can safely benot just until puberty for a girl, but until she can safely be left to herself and trusted to take care of herself.left to herself and trusted to take care of herself.  It is important to always bear in mind that under MuslimIt is important to always bear in mind that under Muslim Law,Law, personalpersonal emancipation does not necessarily lead toemancipation does not necessarily lead to an emancipation ofan emancipation of propertyproperty..  As a matter of fact, the Islamic system recognizes twoAs a matter of fact, the Islamic system recognizes two distinct periods of majority:distinct periods of majority:  1) One has reference to the emancipation of the person1) One has reference to the emancipation of the person of the minors from theof the minors from the patria protestas (bulughyet),patria protestas (bulughyet),  2) The other to the assumption by them of the2) The other to the assumption by them of the management and direction of their propertymanagement and direction of their property (rushd)(rushd)..
  28. 28.  "Puberty. Arabic"Puberty. Arabic bulugh, bulughiyatbulugh, bulughiyat. The puberty. The puberty of a boy is established as soon as the usual signsof a boy is established as soon as the usual signs of manhood are known to exist; but if none ofof manhood are known to exist; but if none of these signs exist, his puberty is not clearlythese signs exist, his puberty is not clearly established until he has completed his eighteenthestablished until he has completed his eighteenth year. The puberty of a girl is established in theyear. The puberty of a girl is established in the same way; but if the usual signs of womanhoodsame way; but if the usual signs of womanhood are known not to exist, her puberty is notare known not to exist, her puberty is not established until her seventeenth year has beenestablished until her seventeenth year has been completed.completed.  When a boy or girl approaches the age of pubertyWhen a boy or girl approaches the age of puberty and they declare themselves adults, theirand they declare themselves adults, their declaration must be credited, and they thendeclaration must be credited, and they then become subject to all the laws affecting adults,become subject to all the laws affecting adults, and must observe all the ordinances of the Muslimand must observe all the ordinances of the Muslim faith.faith.
  29. 29.  Syed Ameer Ali says: "The validity of marriagesSyed Ameer Ali says: "The validity of marriages contracted for minors by any guardian other than thecontracted for minors by any guardian other than the father or the grandfather, is not established until ratifiedfather or the grandfather, is not established until ratified by the parties on arriving at puberty. Such ratification inby the parties on arriving at puberty. Such ratification in the case of males must be express, and in the case ofthe case of males must be express, and in the case of females, may be either express or implied on arriving atfemales, may be either express or implied on arriving at either ratifying the contract entered into during theireither ratifying the contract entered into during their minority or of canceling it.minority or of canceling it.  According to the Sunnis, in order to effect a dissolutionAccording to the Sunnis, in order to effect a dissolution of the matrimonial tie, in exercise of the right of optionof the matrimonial tie, in exercise of the right of option reserved to the parties, it is necessary that there shouldreserved to the parties, it is necessary that there should be a decree of the judge; and until such decree is made,be a decree of the judge; and until such decree is made, the marriage remains intact. If before a decree has beenthe marriage remains intact. If before a decree has been obtained one of the parties should die, the survivor wouldobtained one of the parties should die, the survivor would be entitled to inherit from the deceased.be entitled to inherit from the deceased.
  30. 30.  The Shi'ahs differ materially from the Sunnis onThe Shi'ahs differ materially from the Sunnis on this. They hold that a marriage contracted onthis. They hold that a marriage contracted on behalf of minors by any unauthorized personbehalf of minors by any unauthorized person (fazuli(fazuli), i.e. any person other than a father or a), i.e. any person other than a father or a grandfather, remains in absolute suspension orgrandfather, remains in absolute suspension or abeyance until assented to by the parties onabeyance until assented to by the parties on arriving at puberty; that, in fact, no legal effectarriving at puberty; that, in fact, no legal effect arises from it until such ratification, and if in thearises from it until such ratification, and if in the interval previous to ratification, one of the partiesinterval previous to ratification, one of the parties should die, the contract would fall to the groundshould die, the contract would fall to the ground and there would be no right of inheritance in theand there would be no right of inheritance in the survivor."survivor." (Personal Law of the(Personal Law of the Mahommedans,Mahommedans,).")."

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