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Types of Guardian

Types of Guardian
Types of Guardian



The law of guardianship is rooted in the legal recognition of the incapacity attributed to minors and individuals lacking mental capacity, such as lunatics. It is presumed that such individuals are unable to care for themselves, manage their property, or engage in contractual agreements. Consequently, the management of their affairs is entrusted to suitable guardians.

The legal framework governing guardianship is primarily outlined in the Guardians and Wards Act of 1890, applicable to all individuals in India, including Hindus. Additionally, the Hindu Minority and Guardianship Act of 1956 (HMGA), which came into effect on August 25, 1956, addresses guardianship within the Hindu community. 

Furthermore, the Hindu Marriage Act of 1955 designates certain individuals as guardians in the context of marriage, while the Karta of a Hindu Joint Family serves as a guardian for the minor members of the family.

It's important to note that Section 5 of the HMGA repeals any existing laws, enactments, customs, or ancient texts that are inconsistent with its provisions. However, the HMGA operates alongside the Guardians and Wards Act rather than replacing or derogating from it.

Consequently, if the HMGA does not address a specific issue, the provisions of the Guardians and Wards Act apply. In the event of a conflict, the provisions of the HMGA take precedence for Hindus.

Under the HMGA, a "minor" is defined as an individual who has not yet reached the age of 18 years. In contrast, according to the Indian Majority Act of 1865, applicable to individuals domiciled in India for all matters except marriage, dower, divorce, and adoption, majority is attained at the age of 18. 

However, if a guardian has been appointed by the court, or if the individual's property has been placed under the court's supervision before reaching the age of 18, they are considered to have attained majority upon reaching 21 years. This discrepancy between the HMGA and the Indian Majority Act pertains to the age of majority for individuals under guardianship.


Types of Guardian

The term "Guardian" is defined under the Hindu Minority and Guardianship Act (HMGA) as an individual responsible for the care of a minor's person, property, or both. This definition encompasses various categories of guardians, including:

(a) Natural guardians,

(b) Testamentary guardians, and

(c) Guardians appointed or declared by the court.

However, it's important to note that this definition provided by the HMGA is exhaustive. Therefore, two other types of guardians recognized under Hindu law are de facto guardians and guardians by affinity. Additionally, it's crucial to understand that the supreme guardianship of minor children is vested in the State as parens patriae and is exercised by the courts.

Natural Guardians

In Hindu law, natural guardianship is limited to three individuals: the father, mother, and husband. Section 6 of the Hindu Minority and Guardianship Act (HMGA) delineates the natural guardians of a person as follows:

1. In the case of a boy or an unmarried girl, the father holds primary guardianship, followed by the mother. However, custody of a minor under the age of 5 years typically rests with the mother.

2. For an illegitimate child, the mother assumes guardianship, followed by the (putative) father.

3. In the case of a minor married woman, the husband acts as the natural guardian.

Section 7 of the HMGA stipulates that upon adoption, the guardianship of a minor adopted son shifts from the natural parents to the adoptive parents. 

Notably, step-parents do not automatically gain guardianship rights unless appointed by the court. Furthermore, the Act does not recognize joint guardianship.

In instances where the father is unable, unwilling, or incapable of functioning as a guardian, the mother assumes all powers and functions of a natural guardian without requiring court appointment, as established in the case of Narayan v Sapurna (AIR 1968 Pat 318).

Similarly, in cases where the mother has been living separately for an extended period and effectively managing the affairs of her minor child, the Supreme Court ruled that she may be considered the natural guardian, even if the father is alive but uninvolved, as seen in the case of Jijabai v Pathan Khan (1970) 2 SCC 717.

The Apex Court further clarified that under certain circumstances, the mother can act as a natural guardian, interpreting the term "after" in Section 6 to mean "in the absence of" rather than "after the lifetime," as demonstrated in the case of Indrani Shiva v Jayanta Bandhopadheya (AIR 1999 SC 1149).

Section 6 also specifies that a person shall not be entitled to act as the natural guardian if they have ceased to be Hindu or have completely renounced the world. 

However, the mother's right to act as a natural guardian remains absolute and unconditional even after her conversion to another religion, provided she can provide a suitable home environment for the children.

Furthermore, a Hindu widow retains her preferential right of guardianship over her minor children from her deceased husband, even if she remarries.

Testamentary Guardian

Before the enactment of the Hindu Minority and Guardianship Act (HMGA), a Hindu father possessed the authority to nominate a guardian for his children, even to the extent of excluding the mother from guardianship. 

Even in situations where the father had passed away, the mother lacked the ability to appoint a testamentary guardian, that is, a guardian appointed through a will.

Section 9 of the HMGA bestows the power of appointing a testamentary guardian upon both parents. While the father can indeed appoint such a guardian, if the mother survives him, his testamentary appointment becomes ineffective, as the mother automatically assumes the role of natural guardian.

Consequently, the mother then has the authority to appoint a testamentary guardian of her choice. Failure to appoint a guardian by the mother results in the father's appointee assuming the guardianship role.

Similarly, the mother holds the right to act as the natural guardian of her minor illegitimate children and can, through a will, designate a guardian for such children. Conversely, the father of such children lacks this right until the mother's demise.

Upon marriage, the guardian of a minor girl ceases to hold guardianship over her person, and this guardianship cannot be revived even if she becomes a widow while still a minor.

A testamentary guardian is entitled to exercise only the rights of a natural guardian, subject to the constraints outlined in Section 8 of the HMGA, as well as any limitations specified in the will appointing them as guardian.

Guardian Appointed by Court

The appointment of guardians by the court is a significant aspect governed by the Guardians and Wards Act, with District Courts holding the authority to make such appointments. In making these decisions, the court considers various factors including the age, sex, wishes of deceased parents, character and capacity of the guardian, existing relations between the minor and the proposed guardian, personal law of the child, and the child's preference if of sufficient maturity. Throughout this process, the welfare of the child remains of paramount importance.

Section 13(1) of the Hindu Minority and Guardianship Act (HMGA) reinforces this principle, emphasising that the welfare of the minor must be the primary consideration in appointing a guardian. This rule, affirmed in cases like Shyamrao Maroti Korwate v Deepak Kisanrao Tekam (2010) 10 SCC 314 and Sumana Bhasin v Neeraj Bhasin (AIR 2010 SC 1777), forms the cornerstone of the law in this domain.

The term "welfare" encompasses not only the physical and material well-being of the minor but also their moral, religious, educational, and upbringing needs. Therefore, the court's decision is not solely based on financial or physical comfort considerations.

A guardian appointed by the court is referred to as a "certificated guardian" and operates under the supervision, guidance, and control of the court from the date of appointment. Additionally, the High Court possesses inherent jurisdiction to appoint guardians.

Furthermore, Section 13(2) of the HMGA empowers the court to deny guardianship to a person if it deems their appointment not to be in the minor's best interest, even if they are otherwise entitled to guardianship under the Act or any related law.

The wide-ranging powers conferred upon the court by Section 13 of the HMGA allow it to supersede other provisions of the Act as well as those of the Guardians and Wards Act. This includes disregarding Section 19 of the Guardians and Wards Act, which stipulates that the father or husband cannot be displaced from guardianship unless deemed unfit. This underscores that guardianship is not an absolute right; rather, parental rights are subordinate to the welfare of the child.

In cases such as Vishnu v Jaya (AIR 2010 SC 2092), the Supreme Court has considered the wishes of children in custody matters. The court's decision in this case emphasised the importance of considering the children's preferences and the potential emotional impact of custody arrangements on their well-being.

De Facto Guardians

A de facto guardian is an individual who takes consistent interest in the welfare of a minor's person or in the management and administration of their property without any legal authority. This category encompasses relatives or friends who are genuinely concerned about the minor's well-being due to their affection or attachment to them.

It's important to note that simply meddling in the minor's affairs does not qualify someone as a de facto guardian. An isolated or sporadic act concerning the minor's property does not confer de facto guardianship.

The concept of de facto guardianship has been acknowledged in Hindu law. In Hanuman Prasad Pandey's Case (1856) 6 M.A. 393, the Privy Council affirmed that a de facto guardian holds the same authority as a natural guardian regarding the alienation of the minor's property.

However, Section 11 of the Hindu Minority and Guardianship Act (HMGA) has nullified the authority of any individual to deal with or dispose of a minor's property merely on the grounds of being a de facto guardian. It's worth noting that de facto guardianship has been recognized under the Hindu Adoptions and Maintenance Act.

A controversy persists among the High Courts regarding whether an alienation by a de facto guardian is void or voidable. Section 11 does not explicitly declare alienation by a de facto guardian as null and void; it primarily restricts their power of alienation.


Guardians by Affinity

Guardians by affinity, particularly in the context of a minor widow, were recognized under pre-1956 law. According to Mayne, the husband's relatives within the degree of sapindas were considered the guardians of a minor widow, given preference over her father and his relatives.

A question arises regarding whether the nearest sapinda of the husband automatically assumes guardianship of the minor widow upon the death of her husband, or if they are simply entitled to preferential guardianship and must be formally appointed as such.

There exists a conflict of judicial opinion on this matter. The notion that the father-in-law holds a preferential right to guardianship under Hindu law is considered a secondary consideration. This is particularly relevant in light of the paramount importance placed on the welfare of the minor in the appointment of a guardian.

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