GUARDIANSHIP

INTRODUCTION
The Dharamshastras did not deal with the law of guardianship of minors according in any detail. The texts are few and scanty. The texts do speak of according protection to the property of orphan-minors but not of minors whose parents are alive. Very little is said about the guardianship of the person of the minor. The broad principle is recognized that the King is the supreme guardian (parens patrie) of all the minors within the realm. No other sage except Narada mentions father and mother as guardians. It seems that two facts were responsible for the lack of any developed law of guardianship. The minor children mostly lived in the joint family and were always under the protection of the Karta. Even after the death of the father, the child was not without protection; whosoever was the Karta protected the child. Even if a child was outside the pale of joint family, he, if he belonged to the first three classes, had to go to guru s ashrama for study and was under the protection of the guru. Thus, there was no need for the law of guardianship of the person. The question of guardianship of minor s property could have arisen in marginal cases only where the child had no parents and was not a member of any joint family. In respect of the property of such children, the general rule was laid down. The King as the supreme guardian protected all the children and their property within the realm.

During the British regime, the law of guardianship was developed by the courts. In the initial period of British administration of justice, the courts fell prey to the learning of M/s Strange and Mcnaughten who came out with the formulation that natural guardians of a Hindu minor are: father, mother, elder brother, and other paternal relations and then maternal relations. But later, when a reappraisal of texts was made, the courts held that the father is the natural guardian of the children and after his death the mother is the natural guardian, and no one else can be the natural guardian of minor children. On the analogy of English law, testamentary guardians were also introduced in Hindu law. It was also accepted that the supreme Guardianship of the minor children was vested in the King and was exercised by the courts.

The Guardians and Wards Act was passed in 1890 and conferred on the District Courts power of of appointing guardians of minor children belonging to any community.

The Hindu law of guardianship of minor children has been codified and reformed by the Hindu Minority and Guardianship Act, 1956.

GUARDIANSHIP OF THE PERSON

Guardianship as conceived originally was, in most systems, an extension of paternal power. But in modern law, it essentially implies an idea of protection. Under the Hindu Minority and Guardianship Act, 1956, Section 4(b) minor means a person who has not completed the age of eighteen years. A minor is considered to be a person who is physically and intellectually imperfect and immature and hence needs someone s protection. In modern laws of most countries, the childhood is accorded protection in multifarious ways. Guardian is a person having the care of the person of the minor or his property or of both person and property. It may be emphasised 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 of paramount consideration. Welfare includes both physical and moral well-being. Guardians may be of the following type: 1. Natural guardians 2. Testamentary guardians 3. Guardians appointed or declared by the court.
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Under the lunacy law also, guardians can be appointed by the court for lunatics or idiots even if they are majors. There are also guardians in litigation who are entrusted with the duty of protecting the interest of minor-plaintiff or minor-defendant. These guardians do not fall under the purview of this work.

There are two types of other guardians, existing under Hindu law, de facto guardians, i.e., self appointed guardians, and guardians by affinity i.e., guardians of a minor widow.

Hindu Minority and Guardianship Act, 1956, S. 4(b).

NATURAL GUARDIANS In Hindu law, only three persons are recognized as natural guardians, father, mother and husband

According to Section 6, Hindu Minority and Guardianship Act Father 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 now 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.2 Before 1956, the father, the father could prevent the mother from assuming the guardianship of her minor children even after his death by appointing a testamentary guardian. This cannot be done now. The Act lays down that if a father appoints a testamentary guardian and the mother survives him, the appointment of the testamentary guardian will be ineffective so long as the mother is alive. If the mother dies without appointing a testamentary guardian, the father s appointee will become the guardian. But, if the mother dies after appointing a testamentary guardian, the mother s appointee will take over the guardianship of the child and the father s appointment will be ineffective.3 The Act does not recognize the principle of joint guardians. The position of adopted children is at par with natural-born children.

Where the father is alive but he is non-functioning natural guardian, the mother can act as the natural guardian. Vaidyalingam, J. said that in the particular circumstances of this case, the mother could be considered as the natural guardian of her minor daughter. The particular circumstances of the case were: the father and mother of a minor child had fallen out and the mother was living separately from the father for over twenty years. The mother had been looking after the affairs of her minor daughter and managing her properties, the child was all along under her protection and care.4 Thus, it seems that where the father fails to function or refuses to function or is incapable or functioning as guardian, the mother will

Lilita v. Ganga, 1973 Raj. 93 Section 9(2) 4 Jijabai v. Pathan, 1971 S.C. 315 at 319
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be able to exercise all powers and functions of a natural guardian without being appointed guardian by the court.5

An inroad of sorts has been made by the Supreme Court in Githa Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya.6, where under certain circumstances the mother has been held as the natural guardian of the minor and the word after has been interpreted to mean in absence of rather than after the life time . It is further held that absence would mean absence of father from the care of minor s person or property for whatever reason.

When a minor brings a suit against the father to set aside improper alienation, the mother can act as a guardian of minor even without seeking permission of the court.7

Mother 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 illegitimate children only if the father is dead or otherwise is incapable of acting as a guardian. Remarriage of the mother with a person of different faith cannot disqualify her to be a guardian of her minor child, especially when the child was being looked after extremely well by the mother. 8 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 shall ordinarily be with the mother. Thus, the mother is entitled to the custody of the child below five years, unless the welfare of the minor requires otherwise.9 But this does not mean that she is not entitled to custody thereafter.

Mother s right of guardianship is not lost on her conversion to another religion so long as she is able to provide a congenial, comfortable and happy home.10

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Narayan v. Sapurna, 1968 Pat. 318. AIR 1999 SC 1149 7 Rajendra Kumar v. Deepak Makwana, 2008 Del. 92. 8 Lekshmi v. Vasantha Kumari, 2005 Ker. 249. 9 Chandra v. Prem, 1969 Del 283. 10 Sheela V. Soli, 1981 Bom. 175.

The position of mother s guardianship of her adopted children is the same as that of her natural born children.

It is submitted that it would be a better proposition of law if it is laid down that parents are equal and co-ordinate guardians of their minor children.

Step parents are not entitled to guardianship, unless they are specifically appointed by the court.11 Once a child goes in adoption, natural parents cease to be natural guardians of the child. Natural parents could be guardians of the child only if so appointed by the adoptive parents or by the court.12

Husband In some systems of law, it is a curious development that husband is considered to be the natural guardian of his minor wife. This has been so under Hindu law. There is no direct textual authority for the proposition. The entire law has been developed from two texts, one of Manu and the other of the Narada. Manu s text is in general terms and holds that the father protects a woman during her maidenhood, her husband protects her during coverture, sons protect during widowhood; a woman is never free. Narada s text speaks of guardian of wife after death of her husband. Some support for the proposition was gathered from the principle of Hindu law that husband and wife are one in the eyes of law. From this material, the courts propounded the proposition that the husband is the natural guardian of the minor wife.13 Section 19 of the Guardians and Wards Act 1890, gave it statutory recognition by laying down that the court cannot appoint a guardian of a minor wife whose husband is not unfit. However, our courts, in interpreting this provision, have been subjected it to the welfare of the minor wife. It has been held that it is ordinarily not in the welfare of the immature wife to live in the custody of her husband.14

The Hindu Minority and Guardianship Act, 1956, also lays down that husband is the natural guardian person and property of the minor wife. It is submitted that it is open to the Courts not to give custody of a minor wife to a husband, if they are satisfied that it will not be for

A. Angurbala v. Debabrata, (1949) 8 Cal. 278. Kumarsu Manikayala Rao v. Kumarsu Nagabhushanam, 2001 AP 531. 13 Kateeram v. Dakanee, 23 W.R. 178.; in the matter of Dheranidhar Ghose, (1980) 19 Cal. 298. 14 Arumugo v. Viraraghava, (1901) 24 Mad. 255.
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the welfare of the minor wife. This is the import of Section 13 of the Act which lays down that welfare of the minor is of paramount consideration.

It is submitted that it would be in the interest of the minor wife if it is laid down that the guardianship of the person and property of the minor wife should continue to vest in the parents and the husband will not be entitled to have the custody of his minor wife so long as she is not physically fit to have marital intercourse.

Rights of the guardian of person The natural guardian has the following rights in respect of minor children: a. b. c. d. e. Right to custody Right to determine the religion of children Right to control education Right to control movement Right to reasonable chastisement

These rights are conferred on the guardians in the interest of the minor children and therefore exercise of each of these rights is subject to the welfare of the minor children.

Custody and Access Welfare of children It is a well established proposition of law that in all matters relating to children, including access and custody, the paramount consideration is the welfare of children. Better financial conditions, love for the child are relevant, but not the sole determining factors. In this case, child had been living with the father; the mother had left him when he was 3 years old. The child was studying in a good school and wanted to stay with the father. It was held that the custody will remain with the father.15

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Mausami Moitra Ganguli v. Jayanti Ganguli, 2008 S.C. 2262.