The Hindu Minority and Guardianship Act: Natural and Testamentary Guardians

"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:

• a natural guardian;
• a guardian appointed by the will of the minor's father or mother, that is, a testamentary guardian;
• a guardian appointed or declared by a court; and
• a person empowered to act as such by or under any enactment relating to any Court of Wards.

"Natural guardian" means any of the guardians mentioned in section 6.

The four classes in the definition of "guardian" are the standard classification of guardians under Hindu law and are worth reproducing as such: natural, testamentary, certificated (that is, appointed or declared by a court), and Court of Wards. To them the older books add the de facto guardian, whom section 11 declines to recognise for dealings with property, and the ad hoc or de jure distinctions the classical law drew. The reasoning in Githa Hariharan turned on this definition, because a definition that speaks of "a person having the care of the person of a minor" cannot be read as excluding a mother.

Section 5: the overriding effect

Save as otherwise expressly provided, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement shall cease to have effect with respect to any matter for which provision is made in this Act; and any other law in force before the commencement ceases to have effect in so far as it is inconsistent with the Act.

So the classical law of guardianship survives only where the Act is silent, and section 2 keeps the Guardians and Wards Act alive alongside it.

Section 6: the natural guardians

The natural guardians 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 an 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 an illegitimate boy or an illegitimate unmarried girl, the mother, and after her, the father;

(c) in the case of a married girl, the husband.

The proviso to the section: no person shall be entitled to act as the natural guardian of a minor under this section:

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

The Explanation: in this section the expressions "father" and "mother" do not include a step-father and a step-mother.

The five things section 6 actually says

The guardianship is of the person and of the property, but not of the undivided interest. The parenthesis excludes the minor's undivided interest in joint family property, which is managed by the karta and is the subject of section 12.

A legitimate child: the father, and after him the mother. The meaning of "after" is in Githa Hariharan, below.

An illegitimate child: the mother first. Clause (b) reverses the order, and it is a real and deliberate preference. The mother of an illegitimate child is its natural guardian even though the father is alive and known.

A married minor girl: the husband. The clause survives on the statute book because a marriage in breach of the minimum age is not void, a contradiction taken in [Child Marriage, and the Prohibition of Child Marriage Act 2006].

The custody of a child under five is ordinarily with the mother. Note the two soft words. It is custody, not guardianship, so it does not make her the natural guardian; and it is "ordinarily", so it yields to the welfare of the child under section 13.

The disqualifications, which is MU's own question

February 2023 Q1.4 asks exactly this, and the answer is the proviso and nothing else. A person is disqualified from acting as a natural guardian if he has ceased to be a Hindu by conversion, or if he has completely and finally renounced the world by becoming a vanaprastha, yati or sanyasi.

Two additions complete the answer. By the Explanation, a step-father or step-mother is not a "father" or "mother" for the section at all, so a step-parent is never a natural guardian under it. And by section 13(2), no person is entitled to guardianship if the court is of opinion that his guardianship will not be for the welfare of the minor, which operates as a further and general disqualification.

Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149, and the word "after"

Facts. Two writ petitions under Article 32 were heard together. In the first, a mother applied to the Reserve Bank of India for 9 per cent Relief Bonds to be held in the name of her minor son, stating that she, being the mother, would act as his natural guardian for the investment. The Bank returned the application and required either the father's signature or a certificate of guardianship from a competent authority. In the second, a mother with a divorce proceeding pending sought custody of her minor son, the father having repeatedly asserted that he alone was the natural guardian and that no decision could be taken without his permission, while, on her case, showing total apathy towards the child. Both petitions challenged section 6(a) as violative of Articles 14 and 15.

Held. The Court did not strike the section down. It read the word "after" down instead. "Guardian" in section 4(b) means and includes both parents, and the same meaning must be carried into section 6(a), so the mother's right to act as guardian is not obliterated during the father's lifetime. In the Court's own words, the word "after" does not necessarily mean after the death of the father; it depicts an intent to be read as "in the absence of", be it temporary or otherwise, or total apathy of the father towards the child, or even inability of the father by reason of ailment or otherwise. Any other reading would run counter to the constitutional mandate of gender equality and would render the statute void, a result the Court said should be avoided. The Reserve Bank was directed to formulate an appropriate methodology in the light of those observations, and the pending custody proceeding was to be decided accordingly. The judgment was delivered by Banerjee J. on 17 February 1999.

Two mistakes to avoid. The section was not held unconstitutional, and the Court expressly preferred retaining the legislation to scrapping it. And the decision does not make the mother a guardian in preference to the father; it makes her one when he is absent, apathetic or unable.

The practical effect is the one the first petition shows. A bank, a registrar or a school can no longer insist on the father's signature merely because he is alive.

Section 7: the 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.

The section is the guardianship counterpart of section 12 of the Hindu Adoptions and Maintenance Act, in [The Effects of an Adoption]: the transplant into the adoptive family carries guardianship with it, and it does so on adoption, not later.

The section speaks only of an adopted son. Since 1956 a daughter may be adopted, and for her the general words of section 6(a), read with section 12 of that Act, do the work.

Section 9: testamentary guardians

This is MU's essay question of February 2023, and the section answers both halves of it.

Who may appoint

Sub-section (1): the father. 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 the minor's property other than the undivided interest referred to in section 12, or both.

Sub-section (2): the appointment may lapse and revive. An appointment by the father 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.

Sub-section (3): a widow, and a mother entitled to act. A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as such because the father has become disentitled, may by will appoint a guardian on the same terms.

Sub-section (4): the mother of an illegitimate child. A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may by will appoint a guardian in respect of the person or the property or both. Note that her power is not cut down by the exclusion of the undivided interest, because an illegitimate child has no such interest to exclude.

The powers of the guardian so appointed

Sub-section (5). The guardian appointed by will has the right to act as the 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 as are specified in this Act and in the will.

Sub-section (6). The right of a guardian so appointed shall, where the minor is a girl, cease on her marriage.

How to answer the essay

Four points, in this order.

Who may appoint, and the condition attached to each. Only a person entitled to act as the natural guardian may appoint. A father who has ceased to be a Hindu, or who has renounced the world, is not entitled under the proviso to section 6 and therefore cannot appoint at all.

The lapse and revival in sub-section (2), which is the trick in the section. The father's appointment is displaced by the surviving mother, and comes back to life only if she dies without having appointed anybody herself.

The powers. All the rights of a natural guardian, which means the powers in section 8, subject to two limits: the restrictions in the Act, and any restrictions in the will itself. So the testamentary guardian is in the same position as a natural guardian for section 8(2), and needs the previous permission of the court to mortgage, charge or transfer the minor's immovable property, or to lease it beyond the limits there.

The two ceilings. The appointment cannot extend to the undivided interest in joint family property, by sub-sections (1) and (3); and the guardianship of a girl ends on her marriage, by sub-section (6).

A worked example

June 2023 Q3 asks: Mohan and Kavita are married under the Hindu Marriage Act. They have a daughter, Sonu. Mohan has no job and frequently beats his wife and daughter. Because of the fights Kavita leaves home with Sonu. Who will be the guardian of Sonu, and why?

Start with section 6(a). Sonu is an unmarried girl, so the natural guardian is the father, and after him the mother.

Then read "after" as Githa Hariharan reads it. It means "in the absence of", including the father's total apathy towards the child and his inability. A father who beats the child and contributes nothing to her keep is on any view not exercising the office, and the mother is accordingly entitled to act as natural guardian.

Then section 13. In appointing or declaring a guardian the welfare of the minor is the paramount consideration, and by sub-section (2) no person is entitled to guardianship if the court is of opinion that it will not be for the minor's welfare. On these facts a court would not hold Mohan's guardianship to be for Sonu's welfare.

And if the child is under five, the proviso to section 6(a) puts custody ordinarily with the mother in any event.

The answer is therefore that Kavita will be the guardian, and the reason is the three steps together: the reading of "after" in Githa Hariharan, the paramountcy of welfare in section 13, and, if Sonu is under five, the proviso to section 6(a). Kavita's own remedies against Mohan are a separate limb of the question and are in [Restitution of Conjugal Rights and Judicial Separation] and [The Five Orders the Magistrate Can Pass].

What it does NOT mean

"After him" in section 6(a) does not mean "after his death". Githa Hariharan reads it as "in the absence of", which includes the father's temporary absence, his total apathy towards the child, and his inability through illness.

Githa Hariharan did not strike the section down. The Court expressly preferred retaining the legislation and read the word down to save it.

It did not put the mother ahead of the father either. It made her a natural guardian when he is absent, apathetic or unable.

The proviso to section 6(a) is about custody, not guardianship. Custody of a child under five is ordinarily with the mother, and "ordinarily" yields to welfare under section 13.

Section 6 does not reach the undivided interest. The parenthesis excludes the minor's undivided interest in joint family property, which is section 12's subject.

A step-parent is never a natural guardian. The Explanation to section 6 excludes a step-father and a step-mother from the words "father" and "mother".

A testamentary guardian's appointment is not indefeasible. By section 9(2) the father's appointment has no effect if he predeceases the mother, and revives only if she dies without appointing anybody.

Section 9 does not let just anybody appoint. Only a person entitled to act as the natural guardian may appoint, so a father disqualified under the proviso to section 6 cannot appoint at all.

Quick revision

• s.2: the Act is supplemental to, and not in derogation of, the Guardians and Wards Act 1890.
• s.4: a minor is under eighteen; "guardian" is a person having the care of the person or property or both, and includes a natural guardian, a testamentary guardian, one appointed or declared by a court, and a Court of Wards appointee.
• s.6: natural guardians of the person and property, excluding the undivided interest in joint family property. A boy or unmarried girl: the father, and after him the mother, with custody of a child under five ordinarily with the mother. An illegitimate boy or unmarried girl: the mother, and after her the father. A married girl: the husband.
• The proviso: nobody may act who has ceased to be a Hindu or has completely and finally renounced the world as a hermit or ascetic. The Explanation: "father" and "mother" exclude a step-parent.
• Githa Hariharan, AIR 1999 SC 1149: "after" means "in the absence of", temporary or otherwise, total apathy, or inability through ailment. The section was not struck down.
• s.7: guardianship of an adopted son passes on adoption to the adoptive father and after him the adoptive mother.
• s.9: a father, a widow, a mother entitled because the father is disentitled, and the mother of an illegitimate child may appoint a guardian by will, over the person or property or both, but never the undivided interest. The appointment lapses if the father predeceases the mother and revives if she dies without appointing. The guardian has all the rights of a natural guardian, subject to the Act and to the will, and his right over a girl ceases on her marriage.

Test yourself

1. Who is the natural guardian of a minor child under the Act? For a boy or an unmarried girl, the father, and after him the mother, with custody of a child under five ordinarily with the mother. For an illegitimate boy or unmarried girl, the mother, and after her the father. For a married girl, her husband. In each case the guardianship is of the person and of the property, but not of the minor's undivided interest in joint family property.

2. When does a person become disqualified from acting as a natural guardian? Under the proviso to section 6, if he has ceased to be a Hindu, or if he has completely and finally renounced the world by becoming a hermit or an ascetic. A step-parent is outside the section altogether by the Explanation, and section 13(2) disqualifies anyone whose guardianship the court thinks would not be for the minor's welfare.

3. What did Githa Hariharan decide about the word "after"? That it does not necessarily mean after the death of the father, but means "in the absence of", whether temporary or otherwise, or total apathy of the father towards the child, or even inability of the father by reason of ailment or otherwise. The section was upheld and read down, not struck down.

4. Who may appoint a testamentary guardian, and what are his powers? A Hindu father entitled to act as natural guardian of his minor legitimate children; a Hindu widow so entitled; a Hindu mother so entitled because the father has become disentitled; and a Hindu mother of minor illegitimate children. The guardian appointed acts after the death of the parent concerned and exercises all the rights of a natural guardian under the Act, subject to the restrictions in the Act and in the will; his right ceases on the marriage of a girl ward. A father's appointment has no effect if he predeceases the mother, but revives if she dies without appointing anyone.