In Hindu dharmashastras, not much has been said about guardianship. During the British regime the law of guardianship was developed by the courts. It came to be established that the father is the natural guardian of the children and after his death, mother is the natural guardian of the children and none else can be the natural guardian of minor children. Testamentary guardians were also introduced in Hindu law: It was also accepted that the supreme guardianship of the minor children vested in the State as parens patrie and was exercised by the courts. The concept of guardianship has changed from paternal power to the idea of protection in modern times and the HMG Act 1956 codifies the laws regarding minority and guardianship with the welfare of the child at the core. The Hindu law of guardianship of minor children has been codified and reformed by the Hindu Minority and Guardianship Act, 1956.

The subject may be discussed under the following heads:

1. Guardianship of person of minors
2. Guardianship of the property of minors, and
3. De facto guardians, and
4. guardians by affinity.

Guardian

Guardian is "a person having the care of the person of the minor or of his property or both person and property." It may be emphasized that in the modern law guardians exist essentially for the protection and care of the child and to look after its welfare. This is expressed by saying that welfare of the child is paramount consideration. Welfare includes both physical and moral well-being. Guardians may be of the following types:

1. Natural guardians,
2. Testamentary guardians, and
3. Guardians appointed or declared by the court.

There are two other types of guardians, existing under Hindu law, de facto guardians, and guardians by affinity.

Definition as per Section 4 of HMG 1956 Guardian means A person having the care of a person of a minor or of his property or of both the person and his property.
This includes:

• natural guardian
• guardian appointed by the will of a natural guardian (testamentary guardian)
• a guardian appointed or declared by court
• a person empowered to act as such by the order of Court of Wards.

Natural Guardians Section 6 of HMG Act 1956 defines only three natural guardians:

• For a legitimate boy or a girl, the father, and after father, the mother, provided that the custody of a child less than 5 yrs of age will be with the mother
• For an illegitimate boy or a girl, the mother, and after mother, the father.
• For a married woman, the husband. It further states that no person shall be entitled to be a natural guardian of a minor if:
  
  1. he ceases to be a Hindu or
  2. he renounces the world completely by becoming a sanyasi.

Here, by father and mother, natural father and mother are meant. Step father or step mother do not have any right to guardianship unless appointed by court. In Hindu law only three persons are recognized as natural guardians- father, mother and husband. “Father is the natural guardian of his minor legitimate children, sons and daughters."

Section 19 of the Guardians and Wards Act, 1890, lays down that a father cannot be deprived of the natural guardianship of his minor children unless he has been found unfit. The effect of this provision has been considerably whittled down by judicial decisions and by Section 13 of the Hindu Minority and Guardianship Act which lays down that welfare of the minor is of paramount consideration and father's right of guardianship is subordinate to the welfare of the child.

The Act does not recognize the principle of joint guardians. The position of adopted children is at par with natural-born children. The mother is the natural guardian of the minor illegitimate children even if the father is alive. However, she is the natural guardian of her minor legitimate children only if the father is dead or otherwise is incapable of acting as guardian. Proviso to clause (a) of Section 6, Hindu Minority and Guardianship Act lays down that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Thus, mother is entitled to the custody of the child below five years, unless the welfare of the minor requires otherwise.

Removal of a guardian Court has the power to remove any guardian in accordance to section 13

• Ceases to be a Hindu
• Becomes hermit or ascetic.
• Court can remove if it finds that it is not in the best interest of the child.

Testamentary Guardians

When, during the British period, testamentary powers were conferred on Hindus, the testamentary guardians also came into existence. It was father's prerogative to appoint testamentary guardians. By appointing a testamentary guardian the father could exclude the mother from her natural guardianship of the children after his death. Under the Hindu Minority and Guardianship Act, 1956, testamentary power of appointing a guardian has now been conferred on both parents.'

The father may appoint a testamentary guardian but if mother survives him, his testamentary appointment will be ineffective and the mother will be the natural guardian. If mother appoints testamentary guardian, her appointee will become the testamentary guardian and father's appointment will continue to be ineffective. If mother does not appoint, father's appointee will become the guardian.

It seems that a Hindu father cannot appoint a guardian of his minor illegitimate children even when he is entitled to act as their natural guardian, as Section 9(1) confers testamentary power on him in respect of legitimate children. In respect of illegitimate children, Section 9(4) confers such power on the mother alone. Under Section 9, Hindu Minority and Guardianship Act, testamentary guardian can be appointed only by a will.

The guardian of a minor girl will cease to be the guardian of her person on her marriage, and the guardianship cannot revive even if she becomes a widow while a minor. It is necessary for the testamentary guardian to accept 'the guardianship. Acceptance may be express or implied. A testamentary guardian may refuse to accept the appointment or may disclaim it, but once he accepts, he cannot refuse to act or resign except with the permission of the court.

Removal of guardian Section 39 of the Guardians and Wards Act, 1890

prescribes a provision for the Removal of guardian. As The Hindu Minority and Guardianship Act is silent on this issue, Section 39 of the Guardians and Wards Act, 1890 is applicable to Hindus. The court may, on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the court, or a guardian appointed by will or other instrument, for any of the following causes, namely:

1. For abuse of his trust
2. For continued failure to perform the duties of his trust;
3. For incapacity to perform the duties of his trust;
4. For ill-treatment, or neglect to take proper care, of his ward;
5. For contumacious disregard of any provision of this Act or of any order of the court;
6. For conviction of an offence implying, in the opinion of the court, a defect of character which unfits him to be guardian of his ward;
7. For having an interest adverse to the faithful performance of his duties
8. For ceasing to reside within the local limits of the jurisdiction of the court;
9. In the case of a guardian of the property, of bankruptcy or insolvency;
10. By reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject:

PROVIDED that a guardian appointed by will or other instrument, whether he has been declared under this Act or not, shall not be removed- (a) For the cause mentioned in clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that the person made and maintained the appointment in ignorance of the existence of the adverse interest, or (b) For the cause mentioned in clause (h) unless such guardian has taken up such a residence as, in the opinion of the court, renders it impracticable for him to discharge the functions of guardian.

Award Winning Article Is Written By: Mr.Suraj Das V - BBA LLB Student

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