In Hindu dharmashastras, not much has been said about guardianship. During the
British regime the law of guardianship was developed by the courts. It came to
be established that the father is the natural guardian of the children and after
his death, mother is the natural guardian of the children and none else can be
the natural guardian of minor children. Testamentary guardians were also
introduced in Hindu law: It was also accepted that the supreme guardianship of
the minor children vested in the State as parens patrie and was exercised by the
courts. The concept of guardianship has changed from paternal power to the idea
of protection in modern times and the HMG Act 1956 codifies the laws regarding
minority and guardianship with the welfare of the child at the core. 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:
- Guardianship of person of minors
- Guardianship of the property of minors, and
- De facto guardians, and
- guardians by affinity.
Guardian is "a person having the care of the person of the minor or of his
property or both person and property." It may be emphasized that in the modern
law guardians exist essentially for the protection and care of the child and to
look after its welfare. This is expressed by saying that welfare of the child is
paramount consideration. Welfare includes both physical and moral well-being.
Guardians may be of the following types:
- Natural guardians,
- Testamentary guardians, and
- Guardians appointed or declared by the court.
There are two other types of guardians, existing under Hindu law, de facto
guardians, and guardians by affinity.
Definition as per Section 4 of HMG 1956 Guardian means A person having the care of a person of a minor or of his property or of both
the person and his property.
- natural guardian
- guardian appointed by the will of a natural guardian (testamentary
- a guardian appointed or declared by court
- a person empowered to act as such by the order of Court of Wards.
Natural Guardians Section 6 of HMG Act 1956 defines only three natural
- For a legitimate boy or a girl, the father, and after father, the
mother, provided that the custody of a child less than 5 yrs of age will be
with the mother
- For an illegitimate boy or a girl, the mother, and after mother, the
- For a married woman, the husband. It further states that no person shall
be entitled to be a natural guardian of a minor if:
- he ceases to be a Hindu or
- he renounces the world completely by becoming a sanyasi.
Here, by father and mother, natural father and mother are meant. Step father or
step mother do not have any right to guardianship unless appointed by court. In
Hindu law only three persons are recognized as natural guardians- father, mother
and husband. “Father is the natural guardian of his minor legitimate children,
sons and daughters."
Section 19 of the Guardians and Wards Act, 1890, lays down that a father cannot
be deprived of the natural guardianship of his minor children unless he has been
found unfit. The effect of this provision has been considerably whittled down by
judicial decisions and by Section 13 of the Hindu Minority and Guardianship Act
which lays down that welfare of the minor is of paramount consideration and
father's right of guardianship is subordinate to the welfare of the child.
Act does not recognize the principle of joint guardians. The position of adopted
children is at par with natural-born children. The mother is the natural
guardian of the minor illegitimate children even if the father is alive.
However, she is the natural guardian of her minor legitimate children only if
the father is dead or otherwise is incapable of acting as guardian. Proviso to
clause (a) of Section 6, Hindu Minority and Guardianship Act lays down that the
custody of a minor who has not completed the age of five years shall ordinarily
be with the mother. Thus, mother is entitled to the custody of the child below
five years, unless the welfare of the minor requires otherwise.
Removal of a guardian Court has the power to remove any guardian in accordance
to section 13
- Ceases to be a Hindu
- Becomes hermit or ascetic.
- Court can remove if it finds that it is not in the best interest of the
When, during the British period, testamentary powers were conferred on Hindus,
the testamentary guardians also came into existence. It was father's prerogative
to appoint testamentary guardians. By appointing a testamentary guardian the
father could exclude the mother from her natural guardianship of the children
after his death. Under the Hindu Minority and Guardianship Act, 1956,
testamentary power of appointing a guardian has now been conferred on both
The father may appoint a testamentary guardian but if mother survives
him, his testamentary appointment will be ineffective and the mother will be the
natural guardian. If mother appoints testamentary guardian, her appointee will
become the testamentary guardian and father's appointment will continue to be
ineffective. If mother does not appoint, father's appointee will become the
It seems that a Hindu father cannot appoint a guardian of his minor
illegitimate children even when he is entitled to act as their natural guardian,
as Section 9(1) confers testamentary power on him in respect of legitimate
children. In respect of illegitimate children, Section 9(4) confers such power
on the mother alone. Under Section 9, Hindu Minority and Guardianship Act,
testamentary guardian can be appointed only by a will.
The guardian of a minor
girl will cease to be the guardian of her person on her marriage, and the
guardianship cannot revive even if she becomes a widow while a minor. It is
necessary for the testamentary guardian to accept 'the guardianship. Acceptance
may be express or implied. A testamentary guardian may refuse to accept the
appointment or may disclaim it, but once he accepts, he cannot refuse to act or
resign except with the permission of the court.
Removal of guardian Section 39 of the Guardians and Wards Act, 1890
prescribes a provision for the Removal of guardian. As The Hindu Minority and
Guardianship Act is silent on this issue, Section 39 of the Guardians and Wards
Act, 1890 is applicable to Hindus. The court may, on the application of any
person interested, or of its own motion, remove a guardian appointed or declared
by the court, or a guardian appointed by will or other instrument, for any of
the following causes, namely:
- For abuse of his trust
- For continued failure to perform the duties of his trust;
- For incapacity to perform the duties of his trust;
- For ill-treatment, or neglect to take proper care, of his ward;
- For contumacious disregard of any provision of this Act or of any order
of the court;
- For conviction of an offence implying, in the opinion of the court, a
defect of character which unfits him to be guardian of his ward;
- For having an interest adverse to the faithful performance of his duties
- For ceasing to reside within the local limits of the jurisdiction of the
- In the case of a guardian of the property, of bankruptcy or insolvency;
- By reason of the guardianship of the guardian ceasing, or being liable
to cease, under the law to which the minor is subject:
PROVIDED that a guardian appointed by will or other instrument, whether he has
been declared under this Act or not, shall not be removed- (a) For the cause
mentioned in clause (g) unless the adverse interest accrued after the death of
the person who appointed him, or it is shown that the person made and maintained
the appointment in ignorance of the existence of the adverse interest, or (b)
For the cause mentioned in clause (h) unless such guardian has taken up such a
residence as, in the opinion of the court, renders it impracticable for him to
discharge the functions of guardian.Award Winning Article Is Written By: Mr.Suraj Das V -
BBA LLB Student
Authentication No: MA113441586533-14-0521