Guardianship is a relationship between the person and the child/ward who is unsound mind or has been born with incapacities. There was no specific laws regarding the guardianship during the Hindu Dharamshastras due to the concept of joint families where a child without parents is taken care by the head of the joint family.

Therefore no specific laws were required. During the British regime the law of guardianship was developed by the courts. It established that the father is the natural guardian of children and after his death mother is the natural guardian of the children and no one else can be the natural guardian of minor children. But that concept of guardianship has changed, in modern times the Hindu Minority and Guardianship Act,1956 codifies the laws regarding minority and guardianship with welfare of the child.

Meaning or Guardian

Guardian is a person who takes care of the child until he is capable of making the decisions on his own. In the Hindu Minority and Guardianship Act 1956, a guardian is a person who takes care of the person of minor or of his property or both his person and property. And there are different types of guardians such as,

• Natural Guardian
• Guardian appointed by the will of the minor’s father or mother or appointed or declared by the court.
   

Natural Guardian under Hindu Law

Under section 6 of the Hindu Minority and Guardianship Act, 1956, the natural guardianship of legitimate child vests in the father. A mother can be natural guardian of her illegitimate children only after the father. Which means she is the natural guardian only after if the father is dead or otherwise is incapable of acting as Guardian.

But section 6 of Hindu minority Guardianship Act lays down that the custody of a minor who has not completed the age of five years shall be with the mother. So mother is entitled to the custody of the child below five years unless the welfare of the minor requires otherwise.

No outsider can become the guardian of minor except father or mother, because the guardianship of the minor is not about the legal right of the minor, but the welfare of the child is taken into consideration. Therefore it is stated that section 6 of Hindu Minority and Guardianship Act should be always be read with section 13 of the same. Cause section 13 is where welfare of the minor is stated.

Section 6 Clause (c) states that if a girl is married then the husband becomes the naturals guardian. If the minor girl is married then also the husband is the natural guardian.

In the explanation of Section 6 it is stated that the father and mother does not include step-father and step-mother. Section 7 of the Hindu Minority and Guardianship act states that the natural guardian of the adopted child is the adoptive father and adoptive mother.

The powers of Natural Guardian

The powers are lay down in Section 8 of Hindu Minority and Guardianship Act, 1956:

• Guardian can perform all function regarding care of the minor which are in his benefits.
• Guardian can do any act, subject to the provisions of section 8, that are necessary or are reasonable and proper for the benefit of the minor or the benefit of the minor’s estate. But the guardian, in no case, shall bind the minor by a personal covenant.
• The guardian cannot, without prior permission from the court,
  
  • Mortgage, charge or transfer the immovable property of the minor by the way of sale, gift, exchange or otherwise.
  • Lease the immovable property for a term more than 5 years or where the lease ends one year after the minor attains majority.
• Any sale of immovable property in violation of the above two points, is voidable at the insistence of the minor
• The court shall not give permission for sale of immovable property unless it is necessary in the benefit of the minor.

Rights of Natural Guardians

The natural guardians have the following rights in respect of minor children:

• Right to custody
• Right to determine the religion of children
• Right to education
• Right to control movement
• Right to reasonable chastisement

Each of these rights are subject to the welfare of the minor children.

Gender Discrimination In Minority And Guardianship Act, 1956
In early times, women were considered as secondary in the family arrangements without any say in the important issues.As I mentioned above mother can be natural guardian only after the father. That “after” made a lot of misunderstandings. Because both the parents being equal partners in parenthood, so they need to have an equal say in the matters of their child’s welfare.

Therefore section 6 violates Article 14 as it is confers natural guardianship on the child’s father over mother. So the concept of guardianship needs to be made gender neutral by giving the mother a preferential right to custody. In Indian society, men have a dominant position within the households due to which they have access to and control over all the resources. Law entitles women to custody, but when it comes to authority such as guardianship, men take precedence, this has to change.

In two landmark cases Gita Hariharan v. Reserve Bank of India[1] and Vandana Shiva v. Jayanta Bhandhopadhaya[2], the supreme court held that the mother can act as a natural guardian of the minor during certain circumstances even if the father is alive. The term ‘after’ used in section6(a) has been interpreted as ‘in absence of’ instead ‘after the life-time’.

Conclusion
In Hindu religion, there was no guardianship law as all the family members stayed together. So if the parents are not there, then the other members of the family would take the guardianship of the child. That’s why there was a need for a proper guardianship law in our country. Then the parliament enacted the Hindu Minority and Guardianship Act in 1956. As all the enactments this Acts was not perfect either, there were some gender discrimination problems in the acts.

As we are living in 21st century, there should not be any gender discrimination, and everybody should be treated equally in every law. Mothers have an undeniable and consequential role in the child’s upbringing. She cannot be treated as secondary to anyone, not even the child’s father.

And in a matter where the future of the child is of concern, the importance must be of the best interest of the child. Priority must not be given to the various religious or personal laws but a secular law and uniform law is the need of the hour, since adoption is legal affiliation of a child, it forms the subject of personal law.

End-Notes:

1. Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228
2. AIR 1999 SC 1149