Subject -:Family Law-I

Topic of Assignment -:Kinds And Power of Guardian

Under H.M.A.

Class -: LL.B. (Hons.) 2 Year (III) Semester

Submitted to –Miss. Shreyasi Sahay

Submitted by – Rajshekhar Mishra

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my Family Law Teacher

Miss. Shreyasi Sahay who gave me the golden opportunity to do this wonderful project on
the topic Kinds And Power of Guardian Under H.M.A ,which also helped me in doing a lot of
Research and I came to know about so many new things I am really thankful to them.

Secondly I would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited time frame.

Rajshekhar Mishra
Table of Contents

Kinds And Power of Guardian Under Hindu Marriage Act ........................................................ 4

Introduction ................................................................................................................................. 4
Meaning of Guardian - ................................................................................................................ 4
Kinds of Guardians - ..................................................................Error! Bookmark not defined.
Natural Guardian:-....................................................................................................................... 5
The guardianship can be terminated in the following situations:- .............................................. 7
The power of Natural Guardian .................................................................................................. 6
These powers also include the following:-.................................................................................. 6
Testamentary Guardian (Sec 9) ................................................................................................... 8
Powers ......................................................................................................................................... 8
(iii) Guardian Appointed or declared by Court ........................................................................... 9
Powers of Guardian appointed by the Court ..................................................................... 9
v) A person empowered to act as such by or under any enactment relating to any Court of
Wards. ......................................................................................................................................... 9
Guardianship by Affinity ............................................................................................................ 9
De Facto Guardian .................................................................................................................... 10
Ad Hoc Guardian ...................................................................................................................... 10
vii) A Guardian ad litem - ......................................................................................................... 10
Kinds And Power of Guardian Under H.M.A.

Introduction

In the Hindu Dharamshastras, not much has been said about the guardianship. This was due to
the concept of joint families where a child without parents is taken care of by the head of the
joint family. Thus no specific laws were required regarding the guardianship. In modern times
the concept of guardianship has changed from the paternal power to the idea of protection and
the Hindu Minority and Guardianship Act, 1956 codifies the laws regarding minority and
guardianship with the welfare of the child at the core.

Meaning of Guardian -

The law of guardianship is based on the incapacity which the law attributes to minors
and to persons who are deficient in mental capacity. The guardian occupies a fiduciary
position and is bound, for instance, to manage the property of the minor with the same here
and prudence with which he would manage own property. Under Hindu Law, a guardian
means, a person having the care of the person of another or his property or both, this was
so because under Hindu law the husband was the natural guardian of his wife as also of his
minor child. there are four Kinds prescribed under the Hindu Minority and Guardianship
Act 1956.

Under the Hindu Minority and Guardianship Act, 1956 a person who is a minor that is below
the age of Eighteen years who is incapable of taking care of himself or of handling his
affairs and thus requires help, support and protection. Then, under such a situation a
guardian has been appointed for the care of his body and his property.
According to Section 4 of HMG Act, 1956 Guardian And Its
Kinds-

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 Guardian:-

Under Section 4 (c) of the Hindu Minority and Guardianship Act, 1956 the expression natural
guardian refers to the father and after him the mother of the Minor. The natural guardian of wife
is her husband. Section 6 of Act provides that the natural guardian consists of the three types of
person:-

(i) Father

(ii) Mother

(iii) Husband

Thus the natural guardian can only be father, mother and husband and according to it:-

In case of a boy or unmarried girl firstly the father and later mother is the guardian of a minor.
Provided that upto age of five year mother is generally the natural guardian of a child. The
guardian of illegitimate boy or illegitimate unmarried girl shall be firstly the mother and later the
father. The guardian of married girl is her husband.
The power of Natural Guardian

The power of Natural Guardian can be kept under two heading:-

1. Right regarding the body of Minor

2. Right regarding the property of Minor.

Keeping in the view of the importance of above lines the body of minor under Section 8 (i) that
the natural guardian can perform all the function regarding care of the minor which are in his
benefits.

The Power of Natural Guardian Property of Minor – Section 8 of HMGA 1956 describes the
powers of a natural guardian as follows:

 A guardian can do any act, subject to provisions of this section, 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,

o Mortgage, charge, or transfer the immovable property of the minor by way of

sale, gift, exchange, or otherwise.

o 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
or clearly in the benefit of the minor.

These powers also include the following:-

 right in education

 right to determine religion

  right to custody

 right to control movement

 right to chastisement

In the case of Manik Chandra v. Ram Chandra AIR 1981

SC has held that the meaning of “necessity” and “advantage” of a minor are quite wide and the
courts have the power to widen their scope as per the case facts before giving the permission. As
per section 12, no guardian can be appointed for the undivided interest in the joint property of the
minor. However, the court may appoint a guardian for the complete joint family if required.
Minor cannot the guardian of another minor: – As described in Section 10 of the Act that no
minor cannot be guardian of another minor. In the case of Ibrahim v. Ibrahim, 1916, it was
held the minor can be the guardian of his wife but cannot be guardian of her property.

The guardianship can be terminated in the following

situations:-

(i) When such guardian is no more Hindu.

(ii) When he has renounced the world.

In case of E.M. Nadar v. Shri Haran, 1992, it was held by the court that the father is guardian
of minor even if living separately.

In case of Vijaylakshmi v. Police Inspector, 1991, it was held that when father converts to be
non-Hindu then mother shall be natural guardian.

In case of Chandra v. Prem Nath, 1969, it was held that the guardian below the age of 5 years
is mother.
But in several decision, it has been considered that if the father is unable and do not have
sufficient fund then the natural guardian shall be mother as described by the court in the
following cases:-

(i) R. Venkat Subaiya v. M. Kamalamma, 1992

(ii) Smt. Geeta Hariharan v. Reserve Bank of India, 1999.

Testamentary Guardian (Sec 9) – a person who becomes a guardian due to the

will of a natural guardian is called a testamentary guardian. Section 9 defines a testamentary
guardian and his powers.

 For a legitimate boy or a girl, the father, who is a natural guardian, may appoint any
person to act as the guardian of the child after the death of the father. However, if the
mother is alive, she will automatically become the natural guardian and after her death, if
she has not named any guardian, the person appointed by the father will become the
guardian.

 A widow mother who is a natural guardian, or a mother who is a natural guardian

because the father is not eligible to be a natural guardian, is entitled to appoint a person to
act as a guardian after her death.

 For an illegitimate child, the power of appointing a testamentary guardian lies only with
the mother.

Powers
A testamentary guardian assumes all powers of a natural guardian subject to limitations
described in this act and to the limitations contained in the will. A testamentary guardian is not
liable personally for the expenses and he can ask the guardian of the property of the minor to
meet the expenses through the property. The rights of the guardian appointed by will cease upon
the marriage of the girl.
Guardian Appointed or declared by Court

Where the court is satisfied that it is for the Welfare of minor that an order should
be made appointing a Guardian of his person or property or both, the court may make an order
under the Guardians and Wards Act, 1890 appointing a guardian. In appointing or declaring a
person as the Guardian of a minor Welfare of the minor shall be the Paramount consideration.

Powers of Guardian appointed by the Court

Powers of the guardian appointed by the Court are the same as that of a Natural
Guardian or Testamentary Guardian

A person empowered to act as such by or under any

enactment relating to any Court of Wards.

Under order 32 of the Civil Procedure Code, a guardian ad litem may be appointed or
removed or where the management of an estate is vested, for the time being in a court of wards,
Guardian of the minor whose estate is so wasted may be appointed under the provisions of the
Court of Wards Act.

Guardianship by Affinity

In Paras Nath v. State, Allahabad HC 1960, held that the father-in-law is the rightful guardian
of a minor widow. However, this view has not been adopted by Nagpur HC. Madras HC also
did not hold this view and held that the welfare of the child is to be considered first before
anything else.
De Facto Guardian

Section 11 says that a de facto guardian is not entitled to dispose or deal with the property of the
minor merely on the ground of his being the de facto guardian. There is controversy regarding
the status of a de facto guardian. Some HC consider that alienation by de facto guardian is void
while alienation by de jure guardian is voidable (Ashwini Kr v. Fulkumari, Cal HC 1983),
while some HC have held that both are voidable (Sriramulu’ case 1949). It is now well settled
that de facto guardian does not have the right to assume debt, or to gift a minor’s property, or to
make reference to arbitration.

Ad Hoc Guardian

One who acts as a Guardian of the minor for the temporary period or for a single
transaction, he is called 'Guardian ad hoc'.

A Guardian ad litem –

A person who is appointed to defend an action or other proceedings on behalf of minor

or person under a disability is called 'a Guardian ad litem' a Guardian ad litem is not De
facto or De jure guardian.