Hindu Minority and Guardianship Act, 1956

Section 4(a) defines a minor as a person who has not completed the age of eighteen years. This is consistent with Section 3 of the Majority Act, 1875, under which a person domiciled in India generally attains majority on completing eighteen years.

A guardian is a person having the care of the person of a minor, or of the minor's property, or of both. The definition includes:

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

Exam correction: guardianship over property does not continue to age 21 merely because property is involved. The modern statutory age of majority is generally 18 years.

No person is entitled to act as natural guardian under Section 6 if that person has ceased to be Hindu or has completely and finally renounced the world by becoming a hermit or ascetic.

The statutory text of Section 7 provides that 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.

For adoption generally, this provision should be read with the Hindu Adoptions and Maintenance Act, 1956 and, where applicable, the Juvenile Justice adoption framework.

A natural guardian may, subject to Section 8, do acts necessary, reasonable and proper for the benefit of the minor or for realisation, protection or benefit of the minor's estate. The guardian cannot bind the minor by a personal covenant.

Without previous permission of the court, a natural guardian cannot:

• mortgage, charge, transfer by sale, gift, exchange or otherwise any part of the minor's immovable property; or
• lease any part of that 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.

A disposal of immovable property contrary to these restrictions is voidable at the instance of the minor or a person claiming under the minor.

The court may grant permission only in case of necessity or for an evident advantage to the minor. Section 8 applies the relevant Guardians and Wards Act procedure to such applications.

A testamentary guardian is one appointed by will in the circumstances permitted by Section 9. The provision distinguishes between legitimate and illegitimate children and between the testamentary powers of the father and mother.

• A Hindu father entitled to act as natural guardian of his minor legitimate children may appoint a testamentary guardian in respect of the child's person, property other than the undivided interest referred to in Section 12, or both.
• If the father predeceases the mother, his appointment has no effect while she survives, but may revive if she dies without appointing a guardian by will.
• A Hindu widow, or a mother who is entitled to act as natural guardian because the father is disentitled, may make the appointment permitted by Section 9.
• A mother entitled to act as natural guardian of her minor illegitimate children may appoint a testamentary guardian.

The testamentary guardian's powers are subject to the Act and any restrictions contained in the will. The statutory text also provides that, where the minor is a girl, the testamentary guardian's right ceases on her marriage.

A minor is incompetent to act as guardian of the property of any minor.

After commencement of the Act, no person is entitled to dispose of or deal with the property of a Hindu minor merely on the ground that he or she is the minor's de facto guardian.

Exam point: a person who has voluntarily taken care of a child may factually be acting in a guardian-like role, but Section 11 expressly denies authority to deal with the minor's property merely because of that de facto status.

Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall ordinarily be appointed for the minor in respect of that undivided interest.

The proviso preserves the jurisdiction of a High Court to appoint a guardian in respect of such interest.

In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor is the paramount consideration.

No person is entitled to guardianship merely because the Act or any Hindu guardianship law appears to confer such an entitlement if the court considers that the person's guardianship would not be for the welfare of the minor.

In Githa Hariharan v. Reserve Bank of India, decided on 17 February 1999, the Supreme Court considered a constitutional challenge to Section 6(a). To preserve the provision consistently with Articles 14 and 15, the Court held that "after" the father should be understood as "in the absence of" the father in relation to the care of the minor's person or property.

The case is important for examination purposes because it rejects the assumption that a mother can act as natural guardian only after the father's death.

• Section 1: short title and extent.
• Section 2: supplemental to Guardians and Wards Act, 1890.
• Section 3: application.
• Section 4: definitions.
• Section 5: overriding effect.
• Section 6: natural guardians of a Hindu minor.
• Section 7: natural guardianship of adopted son.
• Section 8: powers of natural guardian.
• Section 9: testamentary guardians and powers.
• Section 10: minor cannot act as guardian of property.
• Section 11: de facto guardian cannot deal with minor's property.
• Section 12: undivided interest in joint family property.
• Section 13: welfare of minor paramount.