The Hindu Minority and Guardianship Act: Natural and Testamentary Guardians

In one line

The father and after him the mother are the natural guardians of a legitimate Hindu minor, the mother and after her the father of an illegitimate one, and a father or a widowed or entitled mother may appoint a testamentary guardian by will.

Sections 1 to 3: what the Act is and whom it binds

Section 1. The Act extends to the whole of India and applies also to Hindus domiciled in the territories to which it extends who are outside those territories. The words excluding Jammu and Kashmir were omitted with effect from 31 October 2019.

Section 2: the Act is supplemental. 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.

Section 2 governs the relationship between the two statutes and it is the first thing to say in any guardianship answer. This Act is a Hindu law about who the guardian is; the Guardians and Wards Act 1890, taken in [The Guardians and Wards Act: Appointment of a Guardian], is the secular procedural law under which a court appoints one. They work together, and where they conflict this Act prevails only where it expressly says so.

Section 3: application. The same formula as every other Act of 1956: 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; to any Buddhist, Jain or Sikh by religion; and to any other person domiciled in the territories who is not a Muslim, Christian, Parsi or Jew unless it is proved that he would not have been governed by Hindu law had the Act not been passed.

The Explanation treats as a Hindu, Buddhist, Jain or Sikh any child, legitimate or illegitimate, both of whose parents are of that religion; any such child one of whose parents is and who is brought up as a member of that parent's community; and any convert or re-convert.

Sub-section (2) excludes Scheduled Tribes unless the Central Government otherwise directs; sub-section (2A) excludes the Renoncants of the Union Territory of Pondicherry; and sub-section (3) provides that "Hindu" in any provision includes a person who, though not a Hindu by religion, is one to whom the Act applies by virtue of the section.

The full treatment of this formula, and of why the Act defines a Hindu negatively, is in [The Hindu Marriage Act: Application, and Who is a Hindu].

Section 4: three definitions

"Minor" means a person who has not completed the age of eighteen years. Note the difference from the Hindu Adoptions and Maintenance Act, where the age that matters for adoption is fifteen.