Guardian: Meaning and Definition
The term Guardians under Hindu law has been defined under the Guardians and Wards Act, 1890. The law of Guardianship is based on the incapacity which the attributes of minors and to persons who are deficient in mental capacity.
Guardians under Hindu Law means, a person having the care of the person of another or his property or both, this was so because under Hindu Law the husband was the natural guardian of his wife as also of his minor child.
The term Guardian has been defined under the Guardians and Wards Act, 1890 as follow-
A person having the care of the person of a minor or of his property or of both, his person and property.
Section 4(b) of Minority and Guardianship Act, 1956 define, “guardian” means a person having care of the person of a minor or his property or both, his person and property.
Kinds of guardians under Hindu Law
According to Section 4 of the Hindu Minority and Guardianship Act, 1956 there are seven kinds of guardians, namely;
A guardians under Hindu Law is one who becomes so by reason of the natural relationship with the minor. In other words, a natural guardian is a person having the care of the person of a minor or of his property or of both, by virtue of his natural relationship with the minor. Every relation of the minor cannot be the natural guardian of the minor, although the law does not restrict the list of guardians
Under Section 4(c) of the Hindu Minority and Guardianship Act, 1956, natural guardian means any of the guardian mentioned in Section 6, Section 6 of the Act states that 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 Hindu family property.
Testamentary Guardian (Section 9)
Section 9 of the Act deals with testamentary guardian as-
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 miner’s person or in respect of the minor’s property (other than the undivided interest referred to in Section 13) or in respect of both.
An appointment made under subsection (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing by will, any person as the guardian.
A Hindu mother entitled to act as a natural guardian of her minor illegitimate children may, by will, appoint a guardian for any of them in respect of the minor’s person or in respect of minor’s property or in respect of both.
The guardians under Hindu Law so appointed by will has the power to act as the minor’s garden after the death of the minor’s father or mother, as the case may be, and to exercise all the power of a natural guardian under this Act to such extent and subject to such restrictions if any, are specified in this Act and the well.
The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.
Guardians under Hindu Law declared/appointed by the court
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 under the Guardians and Wards Act, 1890, appointing a guardian.
In appointing or declaring a person as the guardian of a minor the welfare of the minor shall be the paramount consideration. This has been laid down in Section 13 of the Hindu Minority and Guardianship Act, 1956 and Section 17 of the Guardians and Wards Act, 1890.
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Guardians under any other enactment
Under order 32 of Civil Procedure Code, a guardian ad litem may be appointed or removed or where the management of the estate is vested, for the time being, in a Court of Wards, a guardian of the minor whose estate is so vested may be appointed under the provisions of the Court of Wards Act.
De facto Guardian (section 11)
The term ‘de facto guardian’ is a misnomer for the de facto manager of a minor’s property. When a minor has no legal guardian, usually his near relation would look after his/her person and property.
Such person may apply under the Guardians and Wards Act, 1890 for appointment as a guardians under Hindu Law by the Court. If he does not apply for the appointment as a garden and straight away takes the position and manage the property of a minor, he is called the “de facto manager or de facto guardian”.
Ad hoc Guardian
When a person acts as a guardian of the minor for a temporary period or for a single transaction, he is called ‘Guardians ad hoc’. He is not recognised as a de jure (natural) guardian. He is Similar to de facto guardian. An ad hoc guardian does not find any place in the Act and any alienation of minor’s property by him would be void.
In Sri Aurobindo Society, Pondicherry vs. Ramadass Naidu AIR 1980, it was observed that ‘the position in law of ad hoc guardian is that, there acts or null and void and cannot bind the minor, although they are purported to be affected in the minor’s interest, for ad hoc guardian are neither de jure nor de facto guardian.
A guardian ad litem
A person is called ‘a guardian ad litem’ who is appointed to defend an action or other proceeding on behalf of minor or person under a disability. He is not a de jure or de facto guardian.
Right/Power of natural Guardians under Hindu Law
Section 6 of the Hindu Adoption and Maintenance Act deals with the Natural Guardian and Section 8 lays down the power of a Natural Guardian. It runs as follows-
“The natural guardian of 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-
In the case of a boy or an unmarried girl- a father, and after him, the mother- provided that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the minor.
In case of an illegitimate boy or an illegitimate unmarried girl- the mother, and after her, the father
In the case of a married girl the husband.
Provided that no person shall be entitled to act as a natural guardian of minor under the provision of this section
If he has ceased to be a Hindu, or
If he has completely and finally renounced the world by becoming a hermit or (vanaprastha) or ascetic (yati or sanyasi)
Sundara murthy vs. Shanmugandar (1980)
It was held that mother cannot be a natural guardian so as long as the father is alive. She can act as a guardian with the permission of the Court if the father neglect or refuses to act as a guardian.
In Varalakshmi vs Kanak Durga Prasad (1989)
It was held that the father cannot be given custody though the child was less than 5 years where the minor was already living happily with father and it was not wise to disturb the existing state of affairs.
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Rights/Powers of Testamentary Guardian
Testamentary guardian has all the powers rights and obligations of a natural guardian so far as they are not limited by the will, though his obligation to provide maintenance is not personal and exists only to the extent that there are properties of the minor. In this regard subsection (5) of section 9 provides-
The guardian so appointed by will has the right to act as a minor’s guardian after the death of the minor’s father or mother as the case may be, and to exercise all rights of a natural guardian under this Act, to such extent and subject to such restriction, if any, as are specified in this Act and in the will.
The right of guardian so appointed by will shall, where the minor is a girl, cease on her marriage.
Therefore, the powers of testamentary guardian regarding to a minor’s property or person are the same as vested in the natural guardian. But the powers maybe limited by the natural guardian by providing limitation in the will by which he has been appointed as a guardian.
Liabilities of Guardians
The legal position of all guardians being fiduciary, the guardians of all types are liable personally for breach of trust. No guardian is entitled to remuneration unless permitted under the will or under the provision of the Guardians and Wards Act.
The guardian’s legal position being fiduciary, he cannot take possession of minor’s property adversely to the minor, no matter how long he may be in its possession.
The law lays down and requires from the guardian that he will manage prudently the properties, business and affairs of the minor. Prudent management does not mean that he is bound to consent in every possible claim against the minus or to litigate on behalf of a minor, irrespective of the chance of success.
Whatever pecuniary advantages are received out of minor’s estate, the guardian is bound to hold them of minor’s benefit. This will include not merely the actual profit received out of the use of minor’s property but also all those profits which would have been received but for the gross and wilful neglect. However, if the minor, after attaining majority, discharge the guardian after full knowledge of facts, the guardian’s liability for his acts of omissions comes to the end.
Guardian’s fiduciary position also makes the guardian label to render all account. However, once the minor, on attaining majority, reaches a settlement of account with the guardian, he can get them re-opened only if he established fraud against the guardian.
Removal of Guardian
The Court has power to remove any guardian from the guardianship, if it comes to the conclusion that to do so will be in the interest of a minor. Section 6 of Hindu Minority and Guardianship Act, specially lays down that no person shall be entitled to act as the natural guardian of the minor
If the guardian has cease to be a Hindu, or
If the guardian has completely and finally renounced to world.