This article has been written by Niti Shah studying BLS/LLB from Pravin Gandhi College of Law, University of Mumbai.
In the Hindu Religion, nothing has been said about the guardianship of a child whose parents are dead. This was due to the concept of joint families where a child without parents is taken care of by the members of the joint family. Thus no specific laws were needed regarding guardianship.
According to section 4 of the Hindu minority and guardianship act, 1956.“guardian” means a person taking care of a minor or of his property or both person and property, which includes:
- natural guardian.
- the guardian appointed by the will of the minor’s parents.
- a guardian appointed by the court.
- a person empowered to act under any enactment relating to the Court of wards.
“Minor means a person who has not completed the age of eighteen years. As per the dictionary, “Minor is a person who is physically and mentally immature and hence needs someone’s protection to take his care.
Types of Guardian
Firstly, the guardian should be the nearest relative of the minor. So, no other person but the parents when they are alive are the child’s guardian. Between the father and mother, the first claim is given to the father. In the absence of the father, the mother has the next claim. If the parents are dead then the elder brother takes the place.
Hindu Minority and Guardianship Act, 1956 recognizes the natural guardians of the minor legitimate and illegitimate children, both sons, and daughters. The role of the mother as a natural guardian starts from then when the father is dead or otherwise is not capable of acting as a guardian.
Section 7: Natural Guardianship of Adopted Son
The natural guardianship of an adopted son who is a minor during adoption then the first responsibility is on the adoptive father and second responsibility is on the adoptive mother.
Rights of a Natural Guardian
The natural guardian has the following rights :
(a) Right to obtain custody
(b) Right to decide or determine the religion of children,
(c) Right to give proper education,
(d) Right to control the movement of the child
(e) Right to reasonable chastisement
In modem law, another kind of guardian has been recognized it is the testamentary guardian. If in the absence of the parents or natural guardian a minor is given at an improper hand then it becomes a matter of misfortune. So, modem lawgivers have made provisions of appointing a person as a guardian by the father or the mother during their lifetime. Such a guardian is to be appointed by a will. So, the testamentary guardians of a minor are those who are appointed by a will by the natural guardian, entitled to act as a guardian for the minor. A will becomes effective only after the death of the executor.
Guardian Appointed by the Court
When any guardian is appointed by the court, preference was given to relations on the paternal side over the maternal side. For the security of the child, such provisions were incorporated by the lawgivers. This power is currently exercised by the courts under the Guardians and Wards Act, 1890. The guardian appointed by the court is known as a certified guardian. According to Section 13 of the Hindu Minority and Guardianship Act, 1956, within the appointment of a person as guardian of a Hindu minor by a court, the welfare of the minor shall be the most important consideration.
Guardian by Affinity
In pre-1956 Hindu law, there existed a type of guardian called the guardian by affinity. The guardian by affinity means the guardian of a minor widow. The judicial pronouncements have also had the same effect. The guardianship by affinity was taken to its end by the High Court of Allahabad in Paras Ram v. State. During this case, the father-in-law of a minor widow forcibly took away the widow from her house and married her to some unsuitable person only for the sake of money this was also against her wishes. The question before the court was whether the father-in-law was guilty of forcing the girl for marriage and removing her from her house. The Allahabad High Court held that he wasn’t because he was the lawful guardian of the widow.
The question that has arisen before our courts, whether the nearest relative of the husband automatically becomes a guardian of the minor widow on the death of her husband or whether he is merely preferentially entitled to guardianship and thus he cannot act as guardian unless he is the one who has been appointed as such? Paras Ram seems to subscribe to the previous view, and the Madras and the Nagpur high Courts to the latter view. Under Section 13, Hindu Minority and Guardianship Act, in the appointment of ‘any person as guardian, the welfare of the child is a paramount consideration. The fact that under Hindu law father-in-law has preferential right to be appointed as guardian is merely a matter of secondary consideration.
It is very important that after the death of the husband the wife is safe and sound. According to the Hindu Minority and Guardianship Act,1956 t is ensured the wife is safe and sound.
De Facto Guardian
De Facto Guardian is a person who is not a legal guardian, who has no authority in law to act as such but he has assumed, the management of the property of the child and the child as if he were a guardian. De Facto Guardian is a person who takes a continuous vested interest in the life of the child even though he has not been appointed guardian by the court by he assumes himself to be the guardian. He is the one who takes a continuous interest in the welfare of the minor child or the management of the property.
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