HINDU MINONORITY AND
GUARDIANSHIP ACT, 1956
[32 of 1956,dt. 25 -8-1956]
An Act to amend and codify
certain parts of the law relating to minority and guardianship among Hindus
Be it enacted by Parliament in
the Seventh Year of the Republic of India as follows:
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Guardian not to be appointed for
minor's undivided interest in joint family property |
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HINDU MINONORITY AND
GUARDIANSHIP ACT, 1956
(1) This Act may be
called the Hindu Minority and Guardianship Act, 1956.
(2) It extends to the whole of India except the State of Jammu and
Kashmir and applies also to Hindus domiciled in the territories to which this
Act extends who are outside the said territories.
COMMENTS
The Hindus Minority and
Guardianship Act, 1956 is an Act to amend and codify the law relating to
minority and guardianship among Hindus. The objects and reasons for this
enactment read: “This is another instalment of the Hindu Code and deals with
the law relating the minority and guardianship. Under the Indian Majority Act,
1875, a person attains majority on his completing the age of 18
years but it before the completion of that age he has a guardian appointed by
the court, he attains majority on completing the age of 21 years. That Act
applies to all persons including Hindus but an exception is made with respect
to the capacity of any persons to act in the matter of marriage, dower, divorce
, and adoption . Marriage and divorce have already been dealt with so far as
Hindu are concerned and the definition
of minor in the Bill will ensure that
the age of majority of 18 years for all practical purposes.
Guardians may be divided into three classes, namely:
(1) natural
guardians,
(2) testamentary guardians, and
(3)
guardians
appointed under the Guardians and Wards Act, 1890.
and the present Bill is supplemental to the Guardian and Wards
Act, 1890, and deals with natural guardians and testamentary guardians
incidentally abolishing de facto guardians.
This Act does not codify the
entire Hindu Law relating to guardianship but only amends and codifies certain
parts of the law relating to minority among Hindus, and it is only in respect
of the points and matters specifically dealt within it that the law relating
minority and guardianship among Hindus is codified in this enactment, i.e., the
Hindu Minority and Guardianship Act, 1956. The enactment does not purport to
give the whole law on the subject guardianship. The Act is principally
intended to declare as to who are the
persons entitled to act as the natural guardians of a Hindu minor in respect
of the person and property of the minor
and to impose certain restrictions on the powers of such guardians. It is,
therefore, both a codifying and a supplement enactment and its provision must
be read in the context of the law laid down in the Guardians and Wards Act,
1890 - AIR 1986.Guj.116
This Act is intended to amend
and codify only certain parts of the law relating to minority and guardianship
among Hindus. The law relating to Hindu minors, in particular the law relating
to minority and guardianship is contained in the Smritis, and the commentaries
on them, as interpreted and applied by courts of law , and also the law
contained his statues relating to minors namely the Guardians and Wards Act,
1890 and the Indian Majority Act, 1875, section 2 expressly provides that this
Act is in addition to and not, save as
expressly provided in derogation of the Guardian and Wards Act, 1890. By reason
of section 5 of the present Act, any other law in force immediately before the
commencement of this Act shall cease to have any effect to the extent of
inconsistency with any provisions in this Act.. In other words, this Act
prevails over any other law in regard to matter provided by this Act. This is
not complete code relating to the Hindu Law on minority and guardianship.
Insofar as matter not covered by this Act are concerned, they are regulated by
the old Hindu Law as well as other statutes on the subject. However, in respect
of the subject- matter with which it deals it is a codifying
enactment.-Krishankant, In re AIR 1961 Guj 68
2 Act to be supplemental to Act VIII of 1890
The provisions of this Act
shall be in addition to, and not, save as hereinafter expressly provided, in
derogation of, the Guardians and Wards Act,1890.
COMMENTS
Hindu Minority and Guardianship
Act, 1956 does not codify the entire law of guardianship applicable to Hindus but
amends and codifies only certain parts of law relating to minority and
guardianship among Hindus. The provisions are to be read supplemental to the Guardians and Wards Act. The Act does
not apply to minors with court guardians. Provisions of the Act are
supplementary to that of Guardianship and Wards Act.- AIR 1981 Cal 206
(1) This Act
applies,-
(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 the Brahmo,
Prarthana or Arya Samaj,
(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 who is not a Muslim, Christian ,
Parsi or Jew by religion, unless it is proved 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 of any of the matters dealt with herein if this Act had not been passed.
Explanation: The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-
(i) any child, legitimate or illegitimate, both of whose parents
are Hindus, Buddhists, Jainas or Sikhs by religion;
(ii)
any child,
legitimate, or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina
or Sikh religion and who is brought up
as a member of the tribe, community, group or family to which such parent belongs or belonged ; and
(iii)
any
persons who is a convert or re-convert to the Hindu, Buddhists, Jaina or Sikh
religion.
(2) Notwithstanding any thing contained in sub section (1), nothing
contained in this Act shall apply to the members of any Scheduled Tribe within
the meaning of clause (25) of article 366 of Constitution unless the Central Government, by notification in the
Official Gazette, otherwise directs.
(3) The expression ‘ Hindu’ in any portion of this Act shall be construed as if it included a person who,
though not a Hindu by religion, is nevertheless, a person to whom this Act
applies by virtue of the provisions contained in this section.
In this Act-
(a) ‘minor’ means a
person who has not completed the age of eighteen years
(b) ‘guardian’ means a person having the care of the person of a
minor or of his property, or of both his person and property and includes-
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor's father or
mother,
(iii) a guardian appointed or declared by a court, and
(iv) a person empowered to
act as such by or under any enactment relating to any Court of Wards;
(c) “natural
guardians” means any of the guardian
mentioned in section 6.
COMMENTS
“Minor” is defined as a person
who has not completed 18 years of age .Under .s 3 of the Indian Majority Act,
1875, it is provided that when a guardian is appointed by a court except under
Order 32 of the Civil Procedure Code, or in the case of ward under the Court of Wards, a person is deemed to have
attained majority on the completion of 21 years of age.Sec.3 of the Indian
Majority Act further gives overriding effect to that Act as against all other
enactments which are inconsistent with the provision of that Act. Section 5 of the this Act however gives overriding
effect to the provisions of the present Act against all other enactments which are inconsistent with any or
the provisions of the present Act.
A guardian is one who has the care of the person or the
person or the property of a minor or of both his person and property.
There are four categories of guardians specifically referred to in s.4, viz.,
the natural guardian, testamentary guardian appointed by and under a will of
the minor' s father or mother, a guardian appointed or declared
by a court, and a person empowered to act as guardian by or under any
enactment relating to court of wards.
Sec. 6 specifies who are the natural guardians and s. 8 deals with the power of
a natural guardian. Sec.7 provides that on adoption of a minor, the natural
guardianship passes to the adoptive father and after him to the adoptive
mother. Sec.9 deals with testamentary guardians and their powers. The
appointment of guardians by court and
their powers are dealt with under the Guardians and Wards Act and the fourth
category mentioned in the section is dealt with under Acts relating to court of
wards.
Apart from the above four
categories specifically referred to in section 4(b)(i) to (iv), under the old law, another category,
viz., a de facto guardian was recognised for certain purposes. Though a de
facto guardian is not one of the categories specifically mentioned in this sub
section it has been held in Ratan v. Bisan AIR 1978 Bom 190 that as the
definition is an inclusive definition there is no reason why a person who acts
as a de facto guardian should not within the definition of a guardian.
Save as otherwise
expressly provided in this Act.
(a) any text, rule or interpretation of Hindu law or any custom or
usage as part of that law in force immediately before the commencement of this
Act shall cease to have effect with respect to any matter for which provision
is made in this Act;
(b)
any
other law in force immediately before the commencement of this Act shall cease
to have effect insofar as it is inconsistent with any of the provisions
contained in this Act.
COMMENTS
The provisions of this Act have
to prevail over any law, statutory or otherwise, immediately in force before
the commencement of this Act, which is inconsistent
with any of the provisions contained in this Act to the extent of the
inconsistency. The expression “save as other wise expressly provided in this
Act” occurring the beginning of this section read with s.2 would however
exclude the Guardians and the Wards Act
from the operation of this section.
6 Natural guardians of a Hindu minor
The 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 undivided
interest in joint family property), are-
(a) in the case of a boy or unmarried girl- the father, and after
him, the mother, provided that the custody of a minor who has not completed
the age of five years shall
ordinarily be with the mother;
(b) in the case of illegitimate
boy or an illegitimate unmarried girl- the mother, and after her, the
father;
(c) in the case of
married girl -the husband:
PROVIDED that no persons shall be entitled to act as the natural
guardian of a minor under the provisions of this section-
(a) If he has ceased
to be a Hindu ,or
(b) If he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic
(yati or sanyasi)
Explanation In this section, the expression “father” and
“mother” do not include a step- father and a step-mother.
COMMENTS
If the minor is a boy or an unmarried girl, the
father and in his absence the mother is the natural guardian. In the case of
illegitimate children, however, the natural guardian is the mother and after
her, the father. The natural guardian of a married girl is her husband. The
section speaks of natural guardianship in respect of a minor’s person and also
of his property (excluding his or her undivided interest in joint family
property). A special right is conferred under the proviso to s.6(a) on the
mother, to have the custody of the person of the minor girl until she
completes the age of five years.
As the section does not speak
about the custody or management of the property of a minor girl below 5 years,
it follows that the father, if alive,
who is the natural guardian shall have the custody and management of the
property of such minor girl.
Even if the father neglects to
look after, or to discharge his obligations towards, the minor, or refuses to
act natural guardian, the mother cannot be the natural guardian of the minor so
long as the father is alive .-Sundara Murthy
V. Shanmuga Nadar AIR 1980 Mad 207 and Ramachandra V.Annapoorni AIR 1964
Ker 269. Merely because the father is not residing with the family, he does not
cease to be the natural guardian. The natural guardian ceases to be so only
under the two ground mentioned in the
proviso to the 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 legal
proceedings and obtain appropriate
orders of the court to act as the guardian of the minor.- Narain Singh v.
Sapurna kher AIR 1968 Pat.318. In a case where the mother and father had
fallen out and were living separately
and the minor daughter was under the
care and protection of her mother (though her father was alive) the
Supreme Court held that the mother should be considered as the natural guardian
of the minor girl.-Jijabhai v.
Pathankhan AIR 1971 SC 315.
7 Natural
guardianship of adopted son
The
natural guardianship of an adopted son who is a minor passes, on adoption, to
the adoptive father and after him to the adoptive mother.
COMMENTS
From the moment the minor is
adopted by a person it is the adoptive father that becomes the natural guardian and the natural parents
cease to be the natural guardians. The comments under s.6 would equally apply
to the adoptive parents as natural guardians of the minor. In the case of death
of the adoptive parents, though the natural parents are alive, necessary
proceedings have to be taken under the Guardians and Wards Act, 1890 for the
appointment of the guardian.
Under
the Hindu Adoption and Maintenance Act, 1956 either a male or a female, though
not married, provided he or she is of sound mind and not a minor and who has
not completely and finally renounced the world or has ceased to be a Hindu, has
got the power to take a son or daughter in adoption. If one such unmarried male
or female validly adopts a boy or girl without violating the conditions imposed
under s.10 and 11 of the said Act, either the male or female adopter would be
the natural guardian of the adoptee minor boy or girl from the moment the
adoption takes place. Again, a married female also may adopt if her husband
renounces worldly affairs or is converted to another religion. Sec.7 of the
Hindu Minority and Guardianship Act does not deal with such a case.
(1) The
natural guardian of a Hindu minor has power, subject to the provisions of this
section, to do all acts which are necessary or reasonable and proper for the
benefit of the minor or for the realization, protection or benefit of the
minor's estate; but the guardian can in no case bind the minor by a personal
covenant.
(2) The natural guardian shall not, without
the previous permission of the court-
(a) mortgage or charge, or transfer by sale,
gift, exchange or otherwise, any part of
the immovable property of the minor, 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 the minor will attain
majority.
(3) Any
disposal of immovable property by a natural guardian, in contravention of
sub-section (1) or sub-section(2), is viodable at the instance of the minor or
any person claiming under him.
(4) No
court shall grant permission to the natural guardian to do any of the acts
mentioned in sub-section (2) except in case of necessity or for an evident
advantage to the minor.
(5) The
Guardians and Wards Act, 1890, shall apply to and in respect of an application
for obtaining the permission of the court under sub-section (2) in all respects
as if it were an application for obtaining the permission of the court under
section 29 of that Act, and in
particular-
(a) proceedings in
connection with the application shall be deemed to
be proceedings under that Act within the meaning of
section 4A
thereof;
(b) the
court shall observe the procedure and have the
powers specified in sub-sections (2),(3) and (4) of section 31 of that
Act; and
(c) an
appeal shall lie from an order of the court refusing permission to the natural
guardian to do any of the acts mentioned in sub-section (2) of this section to
the court to which appeals ordinarily lie from the decisions of that court.
(6) in this section, " court " means
the City Civil Court or a District Court or a court empowered under section 4A of the Guardians and Wards
Act, 1890, within the local limits of whose jurisdiction the immovable property
in respect of which the application is made is situate, and where the immovable
property is situate within the jurisdiction of more than one such court, means
the court within the local limits of
whose jurisdiction any portion of the property is situate.
COMMENTS
Sec. 8
statutorily recognises some of the powers which used to be enjoyed by the
natural guardian under the old Hindu
law and imposes two important restrictions on him in dealing with the property
of the minor. The first restriction is that the guardian can in no case bind
the minor by a personal covenant. The second restriction is that he shall not
mortgage or create a charge or transfer by sale, gift, exchange or otherwise or
even lease out the property for a term exceeding five years or for a term
extending more than a year beyond the date on which the minor will attain
majority, without the previous permission of the court. These restrictions on
the natural guardian in relation to the property of the minor apply only to the
separate or absolute property of the minor. Though the expression used is"minor estate" it cannot include the minor's undivided
share in the joint family property as under s.6 there cannot be a natural
guardian in respect of such property which is specifically excluded.- Miriyalu
v. Bodireddi Subbayamma 1966 (1) An WR 368, Sri Narayan Bal v. Sri Sridhar
Sutar 1996 (1) HLR 174 (SC)
Under
s.12 in regard to the undivided interest of the minor in joint family property
no guardian can be appointed. Courts have consistently held that under the
Guardians and Wards Act, no legal guardian can be appointed for the undivided
interest of the minor in joint family property governed by the Mitakshara law
unless the minor is the sole surviving coparcener or unless all the coparceners
are minors. Under the old Hindu Law, the manager or the karta of the family of
the minor can alienate the minor's undivided interest in the joint family
property without the permission of the court, where the alienation is for legal
necessity or for the benefit of the minor and
this right is left untouched by this Act.-Krishnakant, In re AIR 1961
Guj 68
On the
other hand , this is recognised by the present Act by providing in section 12
that when the joint family property is under the management of an adult member
of the family, no guardian shall be appointed for the undivided interest of the
minor in the joint family property.
9 Testamentary
guardians and their powers
(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 in respect 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 respect of both.
(2)
An
appointment made under sub-section (1) shall have no effect if the father
predeceases the mother, but shall revive if the mother dies without appointing,
by will, any person as guardian.
(3) A Hindu widow entitled to act as the
natural guardian of her minor
legitimate children and Hindu mother entitled to act as the natural
guardian of her minor legitimate children by reason of the fact that 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 person or in respect of the minor's property (other than the undivided
interest referred to in section 12) or in respect of both.
(4) A Hindu mother entitled to act as the
natural guardian of her minor illegitimate 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 property or in respect of both.
(5) The guardian so appointed by will has the
right to act as minor's guardian after the death of the minor's father or
mother, as the case may be, and to exercise all the rights of a natural
guardian under this Act to such extent and subject to such restrictions, if
any, as are specified in this Act and in the will.
(6) The right of the guardian so appointed by
will shall, where the minor is girl,
cease on her marriage.
COMMENTS
Under
the old Hindu law, a Hindu father alone and no other had the power to appoint a
testamentary guardian of his minor children. A husband had no power to appoint
his minor wife's father as her testamentary guardian under his Will.-Kapila
Annapumamma v. Ramanujeya Ratnam AIR 1959 AP 40. A father was entitled to
appoint by will a guardian of the person of his minor children even to the
exclusion of thier mother.-Alagappa v. Mangatrai IL 40 Mad 672
A Hindu
mother cannot appoint by Will a guardian even for the person of a minor. Under
Mitakshara law, the management of the whole property including the minor's
share in joint family property would be vested not in the mother but in the
eldest male member. It would be otherwise where the family is divided or where
the minor has separate property.-Anusitavathi v. Siromani 1938 ILR 40 (Mad) A
Hindu father or other senior coparcener of a Mitakshara family has no power to
appoint, by will or otherwise , testamentary guardians for the coparcenary
property of the minor-Chidambaram Pillai v.Rangaswami AIR 1941 Mad 561
The
present Act preserves the old law insofar as it excludes the undivided interest
of the minor in joint family property from the operation of s.9. A father
cannot appoint a testamentary gurardian in respect of the undivided interest of
a minor in joint family property- Pattayee v. Subbaraya 1980 HLR 500 (Mad).
10 Incapacity of
minor to act as guardian of property.
A minor shall be incompetent to act as guardian of the
property of any minor.
COMMENTS
Under the old Hindu Law, so
long as the members of the family remain undivided, as a general rule, the
father if alive or in his absence the senior member of the family who is the Karta
or manager is entitled to and is presumed to manage the joint family property.
He is entitled to possession of the joint family property and has absolute
powers of the
management.-Bhaktavatsaludu v. Narasimharao ILR (1940) Mad 752 and Bhaskaran v.
Bhaskaran AIR 1931 Mad 318
11 De facto
guardian not to deal with minor's property
After the commencement of this
Act, no person shall be entitled to dispose 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.
COMMENTS
For all acts of a person who is
not a natural or testamentary guardian or a guardian appointed by the court, s.
11 would apply if he deals with the minor's property in any manner.-Rajalakshmi
v. Ramachandra AIR 1967 Mad 113.If any de facto guardian issues notice on
behalf of the minor, to the tenants in respect of the rents payable it cannot
be said that he was dealing with the property of the minor.-Janardan Prasad v.
Girija Prasad AIR 1981 All 86. During the lifetime of a natural or testamentary
guardian or a guardian appointed by the court, any person who gifts the
property to 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 as guardian
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 AIR 1967 Pat 8 and Danial v.
Raghu AIR 1967 Ori 68.
12 Guardian not to be appointed for minor's undivided
interest in joint family property
Where a minor has an undivided
interest in joint family property and the property is under the management of
an adult member of the family, no guardian shall be appointed for the minor in
respect of such undivided interest:
PROVIDED
that nothing in this section shall be deemed to affect the jurisdiction of a
High Court to appoint a guardian in respect of such interest.
COMMENTS
Where a
Hindu father dies leaving behind his sons who are coparceners and also
daughters and the widow, by applying the fiction of partition on the date of
death of the father, the female heirs along with the sons have the right to an
equal share in the father's share of the property. Having such an individual share
in the joint family property there is a chance for an adult female member of
the family to be in management of the joint family property. According to the
present provision, it can be said in such cases also that no guardian can be
appointed for the undivided interest of the minor in the joint family property
as it applies to a case where the property is under the management of any adult
member and not necessarily an adult male member. There may be a case where
there is an adult member of the family but he or she may not be in management
of the joint family property for some reason. In such a case, this provision is
not applicable. This provision does not indicate that the adult member in
management of the joint family property should be the senior adult member.
According to the notions of Hindu Law, in the absence of the father, the eldest
male member is to be the manager of the joint family property, though it is
permissible for a junior member to become the manager with the consent of the
other members of the family.-Ramakrishna v. Manikka 1937 (1) MLJ 587. But under
s.12 of the Act, it is sufficient if any adult member is in management of the
joint family property in order to attract the prohibition contained in this
section.
13 Welfare of minor
to be paramount consideration
(1) In
the appointment or declaration of any person as guardian of a Hindu minor by a
court, the welfare of the minor shall be the paramount consideration.
(2) No
person shall be entitled to the guardianship by virtue of the provisions of
this Act or of any law relating to guardianship in marriage among Hindus, if
the court is of opinion that his or her guardianship will not be for the
welfare of the minor.
COMMENTS
The
word "welfare" has the widest amplitude, it is to be understood so as
to cover the material and physical well being, education, health, happiness and
moral welfare of the child-Rosy Jacob v. Jacob Charamakkal AIR 1973 SC 2090 and
Reddy (CS) v. Yamma Reddy AIR 1975 Kant 134 What constitutes the welfare of the
minor has to be determined by the court after a careful consideration of the
facts and circumstances of the case, as the Act does not lay down any tests or
guidelines to determine what is for the welfare of the minor.
The court
has to take into account all relevant facts on record and to decide whether
father or mother should be appointed as a guardian of the minor. While arriving
at this conclusion, the welfare of the minor alone will be supreme
consideration. It is not necessary for the court to appoint father alone as a
guardian in preference to mother under 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 as a guardian if it is
the opinion of the court that such appointment was not in the interest of the
minor.-(1985) 1 HLR 690 (Bom).
By
virtue of s.2 the courts are obliged to read together and harmonise the
provisions of s.19 of the Guardians and Wards Act and s.13 of the Hindu
Minority and Guardianship Act,construing them together, the rigour of the
prohibition contained in cl. (b) of s.19 of the Guardians and Wards Act must be
considered to have been relaxed to a great extent in the interest of the
minor's welfare as laid down in s. 13 of the
Hindu Minority and Guardianship Act. If the circumstances so warrant,
the father's prayer under s.25 of the Guardian and Wards Act can legitimately
be disallowed in the better interests of the minor's welfare-AIR 1961 Punj 51.
The
expression "welfare" is wide enough to include material as well as
spiritual welfare. The court has to consider as to what order would be best for
securing the welfare and happiness of the minors. The welfare of the children
cannot at the same time be confined to either physical comfort or the comfort
that money can secure. The children have to be properly brought up, educated in
healthy surroundings in order to enable them to have the benefits of educations
and also to secure a footing in life later on. Where mother of minor children
aged above 5 years, was unable to maintain herself or her children while father
was earning substantial amount and as a position to look after the children and
educate them, held, the welfare of the children compels that they should be
allowed to remain with the father, rather than with the mother-AIR 1983 Mad 9.