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“Law Master’s” Publication “Minority and Guardianship” Prof. Santosh D. Bhosale
(..4..)
Minority and Guardianship
QUESTION BANK
Q.1
Q.2
Explain provisions in relation to custody, maintenance and education of a child.
Define ‘Guardian' and discuss the powers of a natural guardian under the Hindu
Minority and Guardianship Act, 1956.
Q.3
Q.4
What are the provisions dealing with guardianship under the Muslim law?
In the appointment of a guardian, the welfare of the minor shall be given paramount
consideration- Discuss critically.
Q.5
Q.6
Explain the types of guardians under Hindu Law.
Who is the guardian? What are the different types of guardians under Hindu Law?
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“Law Master’s” Publication “Minority and Guardianship” Prof. Santosh D. Bhosale
Explain the rights of a natural guardian.
SHORT NOTES
1.
2.
3.
4.
5.
Custody under Muslim law.
Testamentary guardian.
De facto guardian.
Natural Guardian.
Custody.
SYNOPSIS
A. Guardianship under Hindu Law-
I. Introduction-
II. Definitions-
1) Minor (S. 4 (a))-
2) Guardian (S. 4 (b))-
III. Kinds of Guardian-
1. Natural Guardian-
a) Definition of “Natural Guardian” (S. 6)-
b) Guardianship of a ‘person’ meaning-
c) Guardianship of a ‘property’ meaning-
d) Disqualification to be a guardian-
e) No guardian for minor’s undivided interest in joint family (S. 12)-
f) Powers of Natural Guardian (S. 8)-
g) Limitations on the powers of Natural Guardian-
h) Personal covenant of guardian does not bind minor-
i) Previous permission of the court for alienation etc.-
2. Testamentary Guardian (S. 9)-
a) Father-
b) Widow-
c) Mother-
Since when can the guardian appointed by will act?
Powers or Rights of a testamentary guardian-
3) Guardian appointed by the Court (S. 13)-
a) Who can apply for appointment as a guardian?
b) Powers of Guardian appointed by the Court-
4) De facto Guardian (S. 11)-
B. Guardianship (Wilayat) under Muslim Law-
I. Introduction-
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“Law Master’s” Publication “Minority and Guardianship” Prof. Santosh D. Bhosale
II. Definitions-
1) Minor (S. 4 (1))-
2) Guardian (S. 4 (2))-
III. Kinds of Guardian-
1) Guardianship of the person of a minor (Hizanat)-
a) Right of mother-
b) Father or other male relations-
(i) Right of custody-
(ii) Disqualification affecting males –
2) Guardianship in Marriage (jabar)-
Persons who can act as a guardian (Wali) in marriage-
Right of minor on termination of minority/ Option of puberty-
3) Guardianship of Property of a minor-
a) Legal or Natural guardian-
Powers of legal guardians-
b) Guardian appointed by the Court or Certified Guardian-
Powers of the Guardian appointed by the Court-
c) De facto guardian-
d) Testamentary guardianship-
IV. Removal of Guardian-
A. Guardianship under Hindu Law-
I. Introduction-
Ancient Hindu law was not developed on the subject of minority and guardianship
because the minors were under the protection of Karta (head) of the family, even after his
father's death. Karta was duty-bound to protect the person and property of the children and
widows. Guru (the teacher) was a protector of minors when they were in school (Gurukuls).
Therefore, we find rare texts on minority and guardianship in ancient Hindu scriptures.
However, the Hindu Minority and Guardianship Act of 1956 is passed to protect the
persons and property of minors. The Act fulfils the need to protect minors in the present
day. In fact, the present Act amends and supplements earlier Acts passed in British rule on
the subject, i.e. the Guardians and Wards Act of 1890.
II. Definitions-
To better understand and precise the subject, some important terms are defined in
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the Act as follows-
1) Minor (S. 4 (a))-
“Minor” means a person who has not completed the age of eighteen.
2) Guardian (S. 4 (b))-
“Guardian” means a person having the care of the person of a minor or his
property or both his person and property and includes-
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor’s father or mother.
(iii) a guardian appointed or declared by a Court, and
(iv) a person empowered to act as such by or under any enactment relating to any
court of words.
III. Kinds of Guardian-
There are the following kinds of guardians-
1. Natural Guardian-
S. (4) (c) mentions that “natural guardian’ means any of the guardians mentioned
in S. 6.
a) Definition of “Natural Guardian” (S. 6)-
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 the joint
family property), are-
(i) 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.
(ii) in the case of an illegitimate boy or an illegitimate unmarried girl, the mother, and
after her, the father;
(iii) in the case of a married girl, the husband;
Provided that no person shall be entitled to act as the natural guardian of a minor
under the provisions of 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)
Explanation- In this section, the expressions ‘father’ and ‘mother’ do not include a
stepfather and a stepmother.
The natural guardianship of an adopted son who is a minor passes, upon adoption, to
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the adoptive father after him to the adoptive mother (S. 7).
b) Guardianship of a ‘person’ meaning-
Guardianship of a person means the custody of a minor.
Facts- the mother, who claimed custody of a child below five years, had not visited the
child for about one and a half years at her husband’s house.
Court Held—The fact does not show that she was not attached to the child; hence,
custody is to be given to her.
c) Guardianship of a ‘property’ meaning-
Guardianship of a ‘property’ means the right to manage the property.
d) Disqualification to be a guardian-
A person will be disqualified from becoming a natural guardian if he ceases to be a
Hindu or becomes a hermit or ascetic. Similarly, a stepfather and a stepmother are also
disqualified from being natural guardians. Moreover, as per S. 10, a minor cannot be a
guardian of the property of another minor.
e) No guardian for the minor’s undivided interest in a joint family (S. 12)-
S. 6 does not provide for the appointment of a guardian for the miner’s undivided
interest in the joint family property. S. 12 elaborates the point further and provides that
where a minor has an undivided interest in joint family property and the property is under
the management of an adult family member, no guardian shall be appointed for the minor
in respect of such undivided interest. However, the High Court can appoint a guardian for
such interest.
Legislators may not appoint even natural guardians of minors for interest in
undivided property because they do not want to interfere with Karta’s right to look after
the joint family property. Usually, the father is the Karta (manager) of the family.
f) Powers of Natural Guardian (S. 8)-
The natural guardian of a Hindu minor has the power to do all necessary or
reasonable and proper acts for the benefit of the (person of) minor or the realisation,
protection or benefit of the minor’s estate.
Thus, the Act empowers a guardian to do all necessary or reasonable and proper acts
for the benefit of a person of the minor. It further empowers guardians to do all such
necessary acts for the realisation, protection or benefit of the minor’s estate. Thus, the act
makes provisions to protect the minor’s person and property. Thus, the powers of a natural
1 AIR 1971 Mys.l69
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“Law Master’s” Publication “Minority and Guardianship” Prof. Santosh D. Bhosale
guardian are similar to the powers of Karta in the joint Hindu Family.
g) Limitations on the powers of Natural Guardian-
S. 8 places limitations on the powers of natural guardian as follows-
h) Personal covenant of guardian does not bind minor-
The Natural guardian can, in no case, bind the minor by personal covenant. The
“personal covenant” means a covenant relating to real property that binds only upon the
originally contracting parties and not upon successors. In other words, the covenant may
be binding on the person personally but not upon the minor. Thus, a minor is exempted
from personal arrest and detention in executing a money decree; moreover, his estate
cannot be attached and sold for any agreement relating to property entered into by the
guardian on the minor’s behalf.
Facts- The Father agreed to sell the minor’s property and delivered actual possession.
The agreement does not bind Curt Held-Minor. Therefore, the agreement cannot be
executed against the minor.
Thus, a guardian of a Hindu minor has no authority to impose a personal obligation
upon the minor or his estate by an unconditional undertaking to pay a debt or loan, e.g. if
the guardian enters into a contract with a money-lender that “if he does not pay back the
debt(which is taken for the benefit of the minor), his son (who is minor) would pay it from
his property, else is liable for custody for execution”, the agreement cannot be enforced
against person or property of the minor.
i) Previous permission of the court for alienation, etc.-
The natural guardian shall not, without the previous permission of the (authorised)
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 extending more than
one year beyond the date on which the minor will attain majority.
No court shall grant permission to a natural guardian to do any of the acts mentioned
2 (1979) 81 Punj. LR 367
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“Law Master’s” Publication “Minority and Guardianship” Prof. Santosh D. Bhosale
above except for legal necessity or an evident advantage to the minor.
2. Testamentary Guardian (S. 9)-
A testamentary guardian is a guardian who is appointed by a will.
Who may appoint a guardian by will?
The following persons may appoint a guardian by will, viz.
a) Father-
A Hindu father who is 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 in respect of the minor’s property (other than the undivided interest in joint Hindu
property) or respect of both.
If the father, during the lifetime of his wife, excites a will appointing any person as
guardian of the minor and dies before his wife (mother of a minor), the appointment is of
no effect, and the mother will become the natural guardian of the minor. In case the
widowed mother dies without making a will appointing any person as a guardian of the
minor, the appointment made by the father shall be revived.
b) Widow-
A Hindu widow who is entitled to act as the natural guardian of her minor legitimate
children may, by will, appoint a guardian for any of them in respect of the minor’s person
or respect of the minor’s separate property (except undivided interest in joint Hindu
property) or in respect of both.
c) Mother-
A Hindu mother who is entitled to act as a natural guardian of her minor legitimate
children by reason of the fact that the father has become disentitled to act as a natural
guardian may, by will, appoint a guardian for any of them in respect of the minor’s person
or respect of the minors separate property (except undivided interest in joint Hindu
property) or in respect of both.
Even though the father is a natural guardian, he may become disentitled to appoint
a guardian by will if he is disqualified by S. 6.
A Hindu mother who is entitled to act as a natural guardian of her illegitimate
children may, by will, appoint a guardian for any of them in respect of the minor’s person
or in respect of the minor’s property or respect of both.
From when will the guardian appointed by will act?
The guardian appointed by a will acts as a minor’s guardian after the death of the
minor’s father or mother, as the case may be.
Powers or Rights of testamentary guardian-
Regarding the rights and limitations of such rights, the testamentary guardian steps
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into the shoes of the natural guardian. Thus, he enjoys the same rights and is under the
same restrictions as a natural guardian.
However, the right of such a guardian ceases on the marriage of a minor girl because
her husband becomes her guardian.
3) Guardian appointed by the Court (S. 13)-
Where the court is satisfied that it is for the welfare of a minor that an order should
be made appointing a guardian of his person or property or both, the court may make an
order appointing a guardian. The court can appoint such a guardian under S. 7 of the
enables the court to appoint such a guardian. It provides that, in the appointment or
declaration of any person as a guardian of a Hindu minor by a court, the welfare of the
minor shall be the paramount consideration. It further provides that no person shall be
entitled to guardianship by the provisions of this Act or any law relating to guardianship in
marriage among Hindus if the court thinks that his or her guardianship will not be for the
welfare of the minor.
a) Who can apply for an appointment as a guardian?
As per the Guardianship and Wards Act 1890, the court can consider the
appointment of a guardian on an application of the following, viz.-
(i) the person desirous of being or claiming to be the guardian of the minor; or
(ii) any relative or friend of the minor; or
(iii) the collector of the district or other local area in which-
(a) the minor ordinarily resides;
(b) the minor hold property or
(iv) If the minor belongs to a class, the Collector has authority with respect to that class.
b) Powers of Guardian appointed by the Court-
The court-appointed guardian enjoys the same rights but is under the same
restrictions as the natural guardian.
4) De facto Guardian (S. 11)-
A ‘De facto’ guardian is a person who is neither a natural guardian nor a
testamentary guardian or a guardian appointed by the court but who manages the property
of a minor and actually looks after his person. For example, an Uncle, elder brother,
maternal uncle, stepmother, etc., may act as a De facto guardian.
Under the old law, such a de facto guardian was somehow recognised. However,
3 As we know the Guardianship and Wards Act 1890 supplements Hindu Minority and Guardianship Act 1956 on
matters not inconsistent and not covered under the Act.
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under the present Act, he is not recognised.
S. 11 provides that, after the commencement of this Act, no person shall be entitled to
dispose of or deal with the property of a Hindu minor merely on the ground that he or she
is the de facto guardian of the minor.
Thus, this Act does not recognise De facto guardians. Accordingly, any alienation
by such guardians is void.
B. Guardianship (Wilayat) under Muslim Law-
I. Introduction-
The Quran is the basis of law relating to guardianship in Muslims. However, the
term ‘guardianship’ is not defined under Muslim law. Therefore, the definition of
guardianship provided under the Minority and Guardianship Act 1890 is read even under
Muslim law.
II. Definitions-
The Guardians and Wards Act of 1890 defines some important terms which are
read under Muslim law as follows-
1) Minor (S. 4 (1))-
“Minor’ means a person who has not attained majority.
However, the age of majority for marriage, dower and divorce is different. As per Muslim
law, the person becomes major upon attaining puberty (the age of having sex)Therefore, a
person is presumed to attain puberty at age 15. Thus, the age of majority for marriage,
divorce, and dower is 15.
Muslim personal law applies to Muslims regarding marriage, dower and divorce.
However, in other respects, the age of majority is 18 years as per the Indian Majority Act
1875. Further, the age of majority is 21 years when the court appoints a guardian or if the
minor is under the Court of Wards.
Thus, we may say that the general age of majority for Muslims is 18 years as per
the Indian Majority Act 1875; however, in two exceptional cases, the rule does not apply,
viz.
(i) The age of majority (puberty) is 15 years for marriage, dower and divorce.
(ii) the age of majority is 21 years when the court appoints a guardian or if the minor is
under the court of Wards.
2) Guardian (S. 4 (2))-
“Guardian” means a person having the care of the person of a minor or his property
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or both his person and property.
Along with person and property, Muslim law requires guardianship at marriage.
III. Kinds of Guardians-
There are the following kinds of guardians under Muslim law, viz.
1) Guardianship of the person of a minor (Hizanat)-
a) Right of mother-
Under Sunni Law, the mother is entitled to the custody of a male child for up to
seven years and a female child till she attains puberty.
Under Sunni law, if the mother fails, the custody of a boy up to seven years and a
girl up to puberty goes to the following female relatives as per the following order-
(i) Mother’s mother, however high-soever;
(ii) Father’s mother, however high-soever;
(iii) Full sister;
(iv) Uterine sister;
(v) Consanguine sister;
(vi) Full sister’s daughter
(vii) Uterine sister’s daughter;
(viii) Consanguine sister’s daughter;
(ix) Maternal aunt, in like order as sisters;
(x) Paternal aunt, in like order as sisters
Under Shia law, she gets custody of a male child till the age of two years and a female
child till the age of seven years. She is the de facto guardian of the person of a minor during
that specified years of age.
Under Shia law, the custody goes to the mother, failing her to the father and failing him
to the father’s father.
The custody of an illegitimate child goes to the mother.
Mother or other females’ disqualification for custody-
The rights of the mother or any other female discussed above cease in the
following cases, viz.
(i) if she leads an immoral life, or
(ii) if she neglects to take proper care of the child; or
(iii) if she marries a person not related to the child within a prohibited degree;
(iv) if, during the subsistence of the marriage, she goes and resides at a distance from the
father’s place.
Under Sunni law, the father is entitled to custody of a boy over seven years and an
unmarried girl who has attained puberty. Under Shia law, the father is entitled to the
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custody of a male child for over two years and an unmarried girl for over seven years.
b) Father or other male relations-
(i) Right of custody-
In default of mother and female relatives, the custody of a minor goes to the following:
(i) Father;
(ii) Paternal grandfather (nearest )
(iii) Full brother;
(iv) Consanguine brother;
(v) Full brother’s son
(vi) Consanguine brother’s son;
(vii) Full brother of the father;
(viii) Consanguine brother of the father;
(ix) Son of father’s full brother;
(x) Son of father’s consanguine brother
(ii) Disqualification affecting males –
As per the general principle in Sunni law, no male is entitled to the custody of a
female minor unless he is related to her by consanguinity within the prohibited degrees.
However, this is not an absolute rule in Shias. There are some other disqualifications, viz.
(1) Apostasy,
(2) If he becomes unfit in character and conduct.
(3) if he waives his right,
(4) if he agrees to the contrary,
(5) if he intends to go abroad.
2) Guardianship in Marriage (Jabar)-
Since Muslim marriage is considered a contract, the marriage must be performed by
the person with the capacity to perform it. Attaining the majority, i.e. puberty, is the essence
of Muslim marriage. However, marriage through a guardian of the minor (who has not
attained puberty) can be performed. The consenting party on behalf of the minor is his
minor and with the forced consent of the guardian.
Jabar's rights lie with the father and noted guardians and not with the court. Hence,
the court cannot appoint a guardian for marriage. Nor can a father appoint a guardian for
marriage by will. A testamentary guardian is not recognised for marriage.
Persons who can act as a guardian (Wali) in marriage-
The following persons are entitled, in enumerated order, to act as a guardian in the
4 Force consent
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marriage-
(i) father,
(ii) the father’s father, how high-so-ever.
(iii) full brother and other male relations on the father’s side, in order of inheritance given
under residuary.
(iv) mother,
(v) Maternal relations within prohibited degrees.
(vi) the Qazi or the Court.
However, Shia law recognises only the father and father’s father how-high-so as a guardian
of a minor in marriage.
Marriage performed with the consent of a remote relation, without the consent of a
proper legal guardian, is void.
Right of minor on termination of minority/ Option of puberty-
A married minor, on attaining a majority, can repudiate marriage. This option of
repudiating marriage is called the ‘option of puberty’. However, such a person should also
prove that the marriage was not consumed during that period.
The Muslim Marriage Dissolution Act of 1939 provides limitations on repudiating
marriage. The option is available to the wife only.
3) Guardianship of Property of a minor-
The guardianship of the property of a minor is classified as follows-
a) Legal or Natural guardian-
As per Sunni law, the lawful guardians of a minor’s property are the following
persons in order of preference: (i) the father, (ii) the executor appointed by a will of the
father, (iii) the father’s father and (iv) the executor by will appointed by the father’s father.
Shia law makes little difference; if the father’s father is alive, he gets preference
over the executor appointed by the father by will.
It must be noted that Muslim law does not recognise any other relative, such as a
mother, uncle, or brother, as a legal or natural guardian.
Powers of legal guardians-
A legal guardian has no power to alienate by sale or mortgage immovable property
of the minor except for (i) absolute necessity or (ii) for the minor’s benefit.
b) Guardian appointed by the Court or Certified Guardian-
Without legal guardians, the Court has to appoint a guardian to preserve and protect
the minor’s property. The Guardians and Wards Act 1890 applies to such appointments.
The Court considers the minor's welfare when appointing a guardian. Therefore, the
welfare of the minor is a paramount consideration for the Court. If the Court thinks it is in
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the minor's best interest, it may appoint the mother or brother as a guardian even though
they are not mentioned as natural guardians under Mohammedan law.
Powers of the Guardian appointed by the Court-
A guardian appointed by the Court acts under the direction and control of the Court.
Such a guardian cannot charge, mortgage, sell, gift, or exchange immovable property of
the minor. In addition, he cannot lease immovable property for a term exceeding five years
or for any term extending more than one year beyond the date at which the ward ceases to
be a minor.
Any contrary transaction without the court's permission makes the transaction
voidable at the option of the minor or any other person affected. While granting permission
for the abovementioned transaction, the court must ascertain that the transaction is for a
minor's necessity and evident advantage.
The guardian should deal carefully with the movable property of the minor as if a
man of ordinary prudence would deal with his own property.
c) De facto guardian-
A de facto guardian is a “person who has charge of the person or property of a minor
without being his legal guardian”. Usually, the mother, brother, uncle, etc., acts as a de
facto guardian even though they are not prescribed to be guardians under Muslim law.
However, such a person may apply to be appointed a guardian by the court.
A de facto guardian is a mere custodian of the minor’s person and property but has
no right over either. Therefore, alienating a minor’s immovable property without the court's
authority by a de facto guardian is void.
d) Testamentary guardianship-
Testamentary guardianship for the property of a minor is permissible by
Mohammedan law. The father and the father’s father can appoint a testamentary guardian
for the minor’s property.
IV. Removal of Guardian-
On the application of any person interested or in its own motion, the court may
remove a guardian above discussed, except a natural guardian, for the following reasons:
viz.
a) If he abuses his trust.
b) for continued failure to perform his duties as a guardian.
c) for his incapacity to be a guardian.
d) for continuous disregard of any provisions of the Guardians and Wards Act or of the
order of the Court.
e) for conviction of an offence, which, in the court's opinion, shows a defect in the character
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of the guardian, which makes him unfit to be the guardian of the Wards.
f) for setting adverse interests in the ward's interest, etc.
*****