THE HINDU MINORITY AND

GUARDIASHIP ACT 1956

 The Dharmashastras did not deal with the law
of guardianship.
 During the British regime the law of
guardianship was developed by the courts.

 The Hindu law of guardianship of minor

children has been codified and reformed by the
Hindu Minority and Guardianship Act, 1956.
 Deals with law relating to minority &guardianship
 Mother :appted as natural guardian sec-9
 Natural G. of Adopted son
 Act forbids defacto guardians sec -11
 Disqualification-conversion,renounciation sec-6
 No alienation w/o permission sec-8
 Non-appt of undivided interest of minor
 Guardian’s power restricted
 HINDU MINORITY &GUARDIAN ACT-SEC -4(a)
A minor is a person who has not completed the age of eighteen years.

 MAJORITY ACT 1875 :SEC-3

Age of majority=18yrs in all cases except
adoption,marriage,dower,divorce
in case child is u/supervision=21yrs

 GUARDIAN AND WARDS ACT 1890: rules same as above

Appt of guardian under this Act
 GUARDIAN for minor ‘s undivided interest in Joint family
property
=sec12 Act inapplicable
Guardian: sec 4(b)
 A guardian is a person having the care of the person of a minor or
of his property or of both his person and property, and includes –
 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 :
(i) Guardianship of person of minors,
(ii) Guardianship of the property of minors, and
(iii) De facto guardians, and
(iv) guardians by affinity.
I- NATURAL GUARDIAN.
II-TESTAMENTORY GUARDIAN- appointed by
the will of the minor's father or mother.
III-A GUARDIAN APPOINTED OR DECLARED
BY A COURT.
IV-A person empowered to act as such by or
under any enactment relating to any Court of
Wards
 Legi. minor boy or a minor unmarried girl ----- father.
 On the event of death of the father---- mother
 the custody of children under the age of five years shall
be given to the mother and not to father.
 Illegi.boy& unmarried girl----mother
 Married girl-----husband

 a minor cannot be considered as the guardian of the

property of another minor
 Section 6 natural guardian forfeits ---
1. converts in another religion.
2. if a person becomes Sanyasin or opt for Vanaprastha, he
will lose his position as a natural guardian.
 Even if the father neglects to look after, or to discharge his
obligations towards, the minor, or refuses to act N. guardian, the
mother cannot be the 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 N. 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).

 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.

 vijayalakshmi v/s Inspec.of police AIR1991 Madras

Father converts and marries to muslim,cannot claim guardianship
 Makemalla sailoo v/s S.P. Nalgonda AIR 2006 A.P.-Minor married
girl allowed to go with her Husband
1. 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;
 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.
 Any disposal of immovable property by a natural guardian, in
contravention of sub-section (1) or sub-section(2), is voidable 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.
 Right to custody
 Right to control religion
 Right to control education
 Right to give in marriage
 Right to enter into contract
 Right to compromise
 Right to refer to arbitration
 Right to acknowledge debts
 Right to enter into family arrangement
 Right to alienation in neccessity
 Right to sue on behalf of minor
 APOSTASY-change of religion
 CIVIL DEATH-renounciation of world
 MINORITY-
 NOT IN WELFARE OF MINOR
 REMARRIAGE OF WIDOW-not ground of
disqualification
 Meaning
 the father or mother of a minor, by their will can
appoint a testamentary guardian
 if the father is dead and the mother is still alive,
she and not the testamentary guardian, is
considered as the legal guardian. Even if the
deceased father has appointed a testamentary
guardian in his will, the mother can still appoint a
separate testamentary guardian. In case of death of
the mother, the guardian appoined by her is given
preference over the testamentary guardian
appointed by the deceased father.
I-FATHER:N.G. appt by will(natural &adoptive)
 if the father is dead and the mother is still alive,
she and not the testamentary guardian, is
considered as the legal guardian.
 Even if the deceased father has appointed a
testamentary guardian in his will, the mother
can still appoint a separate testamentary
guardian
II-MOTHER: appt by will(natural &adoptive)
III-widowed mother
 Right to act after death of natural guardian
 Exercise right & power to such extent and subject to restriction in
Act & will
 Powers of N.G. &T.G are same except TG.deals with property
imposed by will.
2010 (3) CTC 618
Dr. Nithya Vidyaprakash Vs B. Suresh Babu
Hindu Minority and Guardianship Act, 1956(32 of 1956), Section 13- Guardian
and WardsAct, 1890 (8 of 1890), Section 19- Custody of Minor Child –
Visitation rights-Welfare of minor child is sole factor to be considered in
deciding custody of minor children -Law of guardianship no longer deals with
right of guardian but deals with responsibility of guardian – Paramount interest
is welfare of child – Change of circumstances brought out by father marrying
another women and having begotten child through second marriage and
mother proposing to remarry with promise of proposed step father to support
minor warrants rehearing of Application for appointment of guardian.
 Sec.39 Guardians and Wards Act
 Abuse of trust
 Fails to perform duties
 Incapacity to perform duties
 Ill-treatment /neglect to take care
 Disregard to Act
 Conviction of offence for defect of character
 Having adverse interest
 Ceasing to reside within local limits of
jurisdiction of court
 Insolvency or bankrupcy
 Court appt G.-if is for welfare of minor
 Orders u/Guardians &wards Act 1890
 Sec.13-welfare of M.shall be paramount
consideration.
 Age,sex,character of guardian,his nearness of
kins
 D.RAJALAL V/S DHAN PAL AIR 1986 MADRAS
HELD: welfare of minor is not to be measured in terms of money
and physical comforts.the word welfare include moral and ethical
welfare as well.
1.Person desirous claiming to be G.
2.Relative /friend of minor
3.Collector of district-a.minor resides
b.minor holds property
4.Minor belongs to class-collector of that class
POWERS:
CONTROL IMPOSED BY ACT (SAME AS N.G.)
 Appted u/order 32 C.P.C.
 Ad litem guardian-appted in an act in law suit
on behalf of minor
 Management is vested for the time being in
court of ward
 Guardian apped u/Court of Ward Act
 Means actual,in fact
 Self appointed guardian
 Who takes continuous interest in welfare of minor w/o
authority of law
 Neither N.G. nor T.G. nor appted by court but actually
manages property
 H.M.&G. Act 1956 does not recognize defacto G.
 Sec-11,no person shall be entitled to dispose/deal with
the property of minor on the ground of his /her being
defacto guardian .
 Madhegowda v/s Ankegowda AIR 2002 SC 215
Sec -11 had done away with authority of person as defacto
guardian .such alienation would be void ab initio