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Rights and Removal

Rights and Removal
Rights and Removal


Rights of Guardian

The natural guardian holds several rights concerning minor children:

(a) Right to custody,

(b) Right to determine the child's religion,

(c) Right to education,

(d) Right to control movement, and

(e) Right to reasonable chastisement.

In cases involving children of tender years, custody is typically granted to the mother. However, it's important to note that the issue of guardianship can be distinct from that of custody, with each case being evaluated based on its unique circumstances.

Even if the father remains the natural guardian, considerations regarding the welfare of the child may indicate that lawful custody with another friend or relative would better serve the child's interests, as established in the case of Athar Hussain v Syed Siraj Ahmed (AIR 2010 SC 1417).

Minor’s Property

Before the enactment of the Hindu Minority and Guardianship Act (HMGA), natural guardians of minors enjoyed broad rights over the minor's property. They could undertake actions like selling or mortgaging the minor's property without court sanction, as long as such actions were deemed to be in the minor's best interest. Section 8 of the Act clarifies that "the natural guardian has power to do all acts which are necessary or reasonable and proper for the minor's benefit or for the realisation, protection, or benefit of the minor's estate."

However, certain actions require court permission under the HMGA. These include mortgaging, charging, or transferring immovable property of the minor, as well as leasing for terms exceeding five years or beyond the minor's attainment of majority by more than one year.

The court may grant permission only in cases of necessity or evident advantage to the minor. Any disposal of property deemed unnecessary or unreasonable is voidable at the minor's instance. However, court permission is not required when the guardian acquires or purchases property for the minor's benefit.

Certain areas remain unaffected by Section 8, such as the alienation of movable property and contracts. 

However, a guardian cannot subject the minor to personal liabilities through contracts. While a guardian has the authority to enter into marriage or betrothal contracts, family arrangements, or apprenticeship contracts on behalf of the minor, they cannot bind the minor personally.

Furthermore, the guardian can incur debts on behalf of the minor for the supply of necessaries, and the minor's estate can be held liable for such debts. Contracts for the purchase of immovable property made by the guardian can also be specifically enforced.


Nature of Power

As fiduciaries, all guardians bear a legal responsibility and can be held personally liable for any breach of trust. They are obligated to manage the minor's properties, businesses, and affairs prudently, and are required to provide an account of all transactions.

The guardian possesses the right to represent the minor in all legal proceedings. 

Typically, they initiate legal action on behalf of the minor as the next friend, and if the minor is sued, the guardian is usually appointed as the guardian ad litem, although the court retains discretion in this matter.

Additionally, the guardian is entitled to reimbursement from the minor's property for any expenses incurred on behalf of the minor. After the termination of guardianship, the guardian retains the right to sue the minor for the recovery of such expenses.

Removal of Guardian

The court holds the authority to remove any guardian from their position if it deems it to be in the best interest of the minor. Section 6 of the Hindu Minority and Guardianship Act (HMGA) outlines four disqualifications that would prevent a person from serving as the natural guardian of a minor:

1. If the individual has ceased to be a Hindu.

2. If they have completely and finally renounced the world by adopting a sanyasi lifestyle, etc.

3. If they are the step-father.

4. If they are the step-mother.

It's noteworthy that the HMGA does not explicitly prohibit the father or mother from appointing a non-Hindu as a guardian through a will. 

Similarly, the Guardians and Wards Act does not impose any restriction on the court from appointing a non-Hindu as a guardian of a Hindu minor, although the court must consider the personal law of the minor in such cases. However, it's uncommon for a non-Hindu to be appointed as a guardian under ordinary circumstances.


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