INTRODUCTION

The ancient Hindu system had hardly developed a law on minority and guardianship. The minor children mostly lived in a joint family and were always under the protection of the karta. In the joint Hindu family, the karta was obliged to protect the minors and the women and maintain them, even after the death of the father or the husband, as the case may be. The modern law of Guardianship has been drafted in this country by the British during their rule here. The modern law of Guardianship has its basis in the incapacity which law attributes to minors and persons deficient in mental capacity in the matter of looking after themselves, their property or entering into contracts.1 This law provides for a lawful guardian, natural or testamentary or otherwise. This authority in the first instance was delegated to the father both as regards the person as well as separate property of the minor children. In the absence of the father, the mother became the next natural guardian. So far as the minor wife was concerned, the husband, whether himself an adult, or minor, was her natural guardian. The Hindu Minority and Guardianship Act, 1956 deals with the concept of Natural guardian under Hindu law. Sec 3 of the Act deals with the applicability of this Act whereas Sec 4 deals with definitons regarding minor, guardian and appointment of guardian. Sec 6 of the act deals with the Natural guardians of a Hindu minor. Sec 7 of the act deals with the Natural guardianship of an adopted son and Sec 8 discusses about the Powers of natural guardian. The most important provision of this Act is Sec 13 which deals with the principle that Welfare of minor shall be of paramount consideration. The term minor has been defined in clause (1) of Section 4 of the Guardians and Wards Act as minor means a person who, under the provisions of the Indian Majority Act 1875, is to be deemed not to have attained his majority. Under Section 3 of the Indian Majority Act:2 Subject as aforesaid, every other person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before. Obviously this will include both male and female persons.

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GUARDIANS
Clause (b) of the Hindu minority and Guardianship Act, 1956 deals with the concept of guardianship. Guardianship was originally conceived as an extension of paternal power. In modern law it essentially implies the notion of protection. However, the notion that guardians exist for the protection of the child and for its welfare is of much later development. It is with this notion that the idea of parent being considered as natural guardian emerged and this idea led to the concept that welfare of child should be of paramount consideration, in the welfare of the child a natural guardian, too, could be replaced. Section 13 of this Act expressly deals with this principle of welfare of minor. According to clause (1) of Section 13: In the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. And according to clause (2) of Section 13: No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor. As we have seen in our comments on the preamble of the Act, ancient texts on guardianship are few. Like English law, Hindu law vested supreme guardianship of all children within the realm of the King as parens patrie,3 of necessity, the guardianship was delegated by the King on the relations of the minor. Fathers uppermost claim over children was recognized. Mothers claim was recognized only after the father. Hindu law based as it was on a system of duties, recognized de facto guardians. If a person has assumed the charge of the person or property of a minor and has, in that capacity, done some acts, those acts were recognized provided they were done within the scope of the authority of a guardian : the acts of the guardian were always judged on the touchstone of legal necessity or interest of the minor. Since rights or power of guardians were never stressed, Hindu law did not make a clear distinction between de jure and de facto guardians. All guardians have duties, and if they discharged their duties properly, they were protected; it not they were liable both to the minor and to the third person whose interest was affected by

any transaction entered into by the guardian.4 Clause (b) defines the guardians as a person having the care of the person of a minor or of his property or both of his person and property, and then lists four of them, viz . , natural guardian, testamentary guardian, certificated guardian and guardian under court of wards. The main definition of guardian is contained in clause (2) of Section 4 of the Guardian and Wards Act. The case talks of the following four types of guardians: A. Natural guardians, B. Testamentary guardians, C. Cerificated guardians, D. Guardians under the Court of Wards Act. The Act does not directly mention two other types of guardians which have existed in Hindu law. These guardians would be covered by the definition contained in the clause. They are: 1. De facto guardians. 2. Guardians by affinity. The Chartered High Courts have also extraordinary jurisdiction to appoint guardians and custodians of children within its jurisdiction. Some of the non-chartered High Courts also have similar powers under the statutes creating them. Under the Code of Civil Procedure, guardians in litigation can also be appointed by the Court.5 Under the lunacy laws guardians can be appointed of lunatics and idiots, irrespective of the fact whether they are major or minor.

NATURAL GUARDIAN
MEANING: A natural guardian 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 natural guardian of the minor, although law does not restrict the list of guardians. The present Act, however gives list of natural guardians.

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Section 6 of the Hindu Minority and Guardianship Act, runs as follows : The natural guardians of a Hindu minor, in respect of the minors person as well as in respect of the minors property (excluding his or her undivided interest in jointfamily 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 mother, (b) in the case of an illegitimate boy or an illegitimate unmarried girl the mother, and after her, the father;

Provided that no person shall be entitled to act as the natural guardian of a minor under the provision 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 step father and a step-mother. FATHER AS A NATURAL GUARDIAN 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 is found unfit. The effect of this provision has now 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 fathers right of guardianship is subordinate to the welfare of the child.6 Before 1956, the father could prevent mother from assuming the guardianship of her minor children even after his death by appointing a testamentary children. This cannot be done now. The Act lays down that if father appoints a testamentary guardian and mother survives him, the appointment of testamentary guardian will be ineffective so long as the mother is alive. If mother dies without appointing a testamentary guardian, the fathers
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appointee will become the guardian. But if mother dies after appointing a testamentary guardian, the mothers appointee will take over the guardianship of the child and the fathers appointment will be ineffective.7 The Act does not recognize the principle of joint guardians. The position of adopted children is at par with natural-born children. Recently, an argument has been advanced before our courts : suppose the father is alive but he is a non-functioning natural guardian, can the mother, act as the natural guardian? This argument has prevailed before the Supreme Court. Vaidyalingam J., said that in the particular circumstance of this case the mother could be considered as the natural guardian of her minor daughter. The particular circumstances of the case were : the father and mother of minor child had fallen out and the mother was living separately from the father for over twenty years. The mother had been looking after the affairs of her minor daughter and managing her properties. The child was all along under her protection and care.8 Thus, it seems that where the father fails to function or refuses to function or is incapable of functioning as guardian, the mother will be able to exercise all powers and functions of a natural guardian without being appointed as guardian by the court.9 MOTHER AS A NATURAL GUARDIAN 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 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.10 Mothers right of guardianship is not lost on her conversion to another religion so long as she is able to provide a congenial, comfortable and happy home.11 The position of mothers guardianship of her adopted children is the same as that of her natural born children.

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It is submitted that it would be a better proposition of law if it is laid down that parents are equal and co-ordinate guardians of their minor children. Step-parents are not entitled to guardianship, unless they are specifically appointed by the court.12 HUSBAND AS A NATURAL GUARDIAN In some systems of law, it is a curious development that husband is considered to be the natural guardian of his minor wife. This was so under the old Hindu law and this is so under the modern Hindu law. There is no direct textual authority for the position. The entire law has been developed from two texts, one of Manu and the other of Narada. Manus text is in general terms and holds that the father protects a woman during her maidenhood, her husband protects her during coverture, sons protect her during widowhood : a woman is never free.13 Narads text speaks of guardian of wife after the death of her husband.14 Some support for the proposition was gathered from the principle of Hindu law that husband and wife are one in the eyes of law. From this material the courts propounded the proposition that the husband is the natural guardian of his minor wife15, Section 19 of the Guardians and Wards Act 1890, gave it statutory recognition by laying down that the court cannot appoint the guardian of a minor wife whose husband is not unfit. However, courts, in interpreting this provision, have subjected it to the welfare of the minor wife. It has been held that it is ordinarily not in the welfare of an immature minor wife to live in custody of her husband.16 The Hindu Minority and Guardianship Act 1956, also lays down that husband is the natural guardian of the person and property of the minor wife. It is submitted that it is open to the courts not to give custody of the minor wife to a husband, if they are satisfied that it will not be to the welfare of the minor wife. This is the import of Section 13 of the Act which lays down that welfare of the minor is paramount consideration. Despite the Child Marriage Restraint (Amendment) Act, 1978, the marriages of minors still take place. It is submitted that it would be in the interest of the minor wife if it is laid down that the guardianship of the person and property of the minor wife should continue

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to vest in the parents and the husband will not be entitled to have the custody of his minor wife so long as she is not physically fit to have marital intercourse.17 Step-parents are still not recognized as guardians. However, they can be appointed as guardians by the court. A minor cannot be the natural guardian of the property of a minor, though he may be of the person.18

NATURAL GUARDIANSHIP OF AN ADOPTED SON

Section 7 of the Act lays down that the natural guardian of an adopted son, who is a minor, passes on adoption to the adoptive father and after him to the adoptive mother. The natural father and natural mother do not have any right after adoption. The term adoptive father or adoptive mother do not include step-adoptive father or step-adoptive mother and, therefore, they cannot be the natural guardians of step-adopted son. This Act only deals with the guardianship of an adopted son. By the passing of the Hindu Adoptions and Maintenance Act, 1956, a Hindu can take in adoption either son or daughter according to his choice. So the question naturally arises as to what will be the position of a minor adopted daughter in the matter of guardianship? On the principle of Section 12 of the Hindu Adoptions and Maintenance Act that with effect from the date of adoption, the adopted child shall be deemed to be the adopted child of his or her adoptive father or mother, it should be held that adoptive father or adoptive mother shall be the natural guardian of their adopted daughter also. A case may arise when a girl might have been adopted by a women prior to her marriage, in such a case the husband whom the adoptive mother marries cannot be the father of adopted girl, and the only natural guardian for such a girl will be mother. The same principle applies to the case of an adoption of a boy made by woman prior to her marriage. If a bachelor makes an adoption and subsequently marries, the wife of the adoptive father cannot be the natural guardian of the adopted boy after the adoptive fathers death. Her position is only that of step-mother. The proposition may be framed like this : if at the time of
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an adoption of a minor boy or minor girl by a woman, she had no husband, then she can be natural guardian of the adopted boy or girl. Similarly, in the case of an adoption of a boy or girl by a man who had no wife at the time of adoption, then he alone can be the natural guardian of the adopted child and the woman whom he subsequently marries cannot be the natural guardian of the adopted child after the adoptive fathers death. NATURAL GUARDIAN AFTER ADOPTION After adoption the natural guardianship of the adopted child passes from his natural father to his adoptive father. Natural father after adoption can only be regarded as a de facto guardian.19 Where, however, there are frequent quarrels between the adoptive father and the natural father due to which the relationship between the parties becomes very precarious and the child according to his natural inclination wants to live with his natural father, the court, acting upon the principle that the welfare of the minor is of paramount consideration, may deliver the custody of the child to the natural father.20

POWERS OF NATURAL GUARDIAN

Section 8 of the Act deals with powers of a natural guardian with respect to minors person or property. Section 8 runs as follows :(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minors estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not without the previous permission of the Court,(a) mortgage or charge or transfer by sale, gift, exchange or otherwise any part of immovable property of the minor, or (b) lease any part of such 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. (3) Any disposal of immovable property by a natural guardian, in contravention of subsection (1) or sub-section (2) is voidable at the instance of the minor or any other person claiming under him.
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(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardian and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court under section 29 of that Act, and in particular(a) Proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4-A thereof; (b) the Court shall observe the procedure and have the powers specified in subsections (2), (3) and (4) of section 31 of that Act; and an appeal shall lie from an order of the Court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the Court to which appeals ordinarily lie from the decisions of that Court. (6) In this section, Court means the City Civil Court or a District Court or a Court empowered under section 4-A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such Court, means the Court within the local limits of whose jurisdiction any portion of the property is situate.