Introduction
Guardian is a person who formally appointed to look after a child's interest on the death of child's parents. Appointment can be made either by the Courts during family proceedings, if it is considered necessary for the child's welfare, or privately by any parent with parental responsibility. Section 4(c) of the Hindu minority and guardianship Act 1956 defines "Natural guardian', Section 6 of the Hindu Adoption and Maintenance Act deals with the Natural guardian and Section 8 Lays down the powers of the natural guardian.
Meaning of Guardian
According to Section 4 (b) of the Hindu Minority and Guardianship Act 1956 def "Guardian" means a person having the care of the person of a minor or of his property or of 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 wards.
Kinds of Guardians
There are four kinds of Guardians are as follows -
(1) a natural guardian,
(2) a guardian appointed by the will of the minor’s father or mother,
(3) a guardian appointed or declared by a court, and
(4) a person empowered to act as such by or under any enactment relating to any court of wards.
See in Detail - Kinds of Guardians
Natural Guardian
A natural guardian is one who becomes so by reason of 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 both, by virtue of his natural relationship with the minor. The natural guardian of a minor boy or minor unmarried girl is the father. On the death of the father, the mother becomes the natural guardian.
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 joint family 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 the minor;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father;
(c) 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 step-father and a step-mother.
Natural guardianship of adopted son -
The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.
Powers of Natural Guardian
(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 minor’s 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 the 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 sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(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 Guardians 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 4A thereof. (b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and (c) an appeal 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 4A 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.
Guardian is a person who formally appointed to look after a child's interest on the death of child's parents. Appointment can be made either by the Courts during family proceedings, if it is considered necessary for the child's welfare, or privately by any parent with parental responsibility. Section 4(c) of the Hindu minority and guardianship Act 1956 defines "Natural guardian', Section 6 of the Hindu Adoption and Maintenance Act deals with the Natural guardian and Section 8 Lays down the powers of the natural guardian.
Meaning of Guardian
According to Section 4 (b) of the Hindu Minority and Guardianship Act 1956 def "Guardian" means a person having the care of the person of a minor or of his property or of 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 wards.
Kinds of Guardians
There are four kinds of Guardians are as follows -
(1) a natural guardian,
(2) a guardian appointed by the will of the minor’s father or mother,
(3) a guardian appointed or declared by a court, and
(4) a person empowered to act as such by or under any enactment relating to any court of wards.
See in Detail - Kinds of Guardians
Natural Guardian
A natural guardian is one who becomes so by reason of 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 both, by virtue of his natural relationship with the minor. The natural guardian of a minor boy or minor unmarried girl is the father. On the death of the father, the mother becomes the natural guardian.
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 joint family 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 the minor;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father;
(c) 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 step-father and a step-mother.
Natural guardianship of adopted son -
The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.
Powers of Natural Guardian
(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 minor’s 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 the 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 sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(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 Guardians 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 4A thereof. (b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and (c) an appeal 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 4A 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.
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