Review of Laws and Legislative Measures Affecting Women
by National Commission for Women (NCW)

No. 27: The Hindu Minority and Guardianship Act, 1956


Existing Provisions

Section 4 : Definitions - In this Act - a) 'minor' means a person who has not completed the age of eighteen years; b) 'guardian' means a person having the case of the person of minor or of his property or of both his person and property, and includes - i) a natural guardian, ii) a guardian appointed by 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; c) 'natural guardian' means any of the guardians mentioned in section 6.

Section 6 : Natural guardians of a Hindu minor - The natural guardian of a Hindu minor, 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 any unmarried girl - the father, and after him, the mother; provided that the custody of a minor who has not complete the age of five years shall ordinarily be with the mother; b) in 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 ceased to be Hindu or if he has completely and finally renounced the world by becoming a hermit or ascetic. Explanation - in the section the express father and mother do not include a step father and a step mother.

Section 7 : 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.

Section 8 : Powers of natural guardian - 1) .., 2).., a) a...., b).. 3).. 4)....., 5).... a)..., b)..., c)... 6) In this section 'Court' means the city civil court or a district court or a Court empowered under section 4A of the Guardian and Wards Act, 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 situated within the jurisdiction of more than one such court, means the Court within the local limits of whose jurisdiction any protection of the property is situated.

Section 9 : Testamentary guardians and their powers - 1) A Hindu faterh entitle 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 minor's person or in respect of the minor's property (other than the undivided interest referred in section 12) or in respect of both. 2) An appointment made under sub-section 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 guardian. 3) A Hindu widow entitled to act as the natural guardian or her minor legitimate children, and a Hindu mother entitled to act as the natural guardian or her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both. 4)A Hindu mother entitled to act as the 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 the minor's property or in respect of both. 5) The guardian so appointed by will has the right to act as the minor's guardian after the death of the minor's father or mother, as the case may be and to exercise all the rights of a natural guardian under this Act to such extent and to such restrictions, if any, as are specified in this Act and the will. 6) The right of the guardian so appointed by will shall where the minor is a girl, cease on her marriage.

Section 13 : Welfare of minor to be paramount consideration - 1) In the appointment or declaration of any person is guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. 2) No person shall be entitled to the guardianship by virtue of the provision of this act or 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.

Suggested Amendments by NCW

Section 4: Definition - For sub-clause ( ii ) of Clause (b) of Section 4 the following shall be substituted - ' a guardian appointed by the will of minor's last surviving parent'. After Clause ( c ) of Section 4 a new Clause ( d ) shall be inserted - 'Parent includes both mother and father or survivor. Section 6 : For Section 6 the following shall be substituted ' The natural guardian 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 both the parents; ie. Mother and father. Provided that no person shall be entitled to act as the nautral guardian of aminor under the provisions of this section a)if he ceased to be Hindu or if he has completely and finally renounced the world by becoming a hermit or ascetic. Explanation: in the section the expression parents do not include a step father and a step mother.

Section 7 : Natural guardianship of adopted son -For Section 7 following shall be substituted. - Natural Guardianship of adopted child. The natural guardianship of an adopted child passes, on adoption, to the adoptive parent/parents.

Section 8 : Powers of natural guardian - In sub-section 6 of Section 8 at the end after the words the property is situated, the words or where the minor normally resides shall be added -This will read as ' In this section 'Court ' means the city civil court or a district court or a Court empowered under section 4A of the Guardian and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the application is made in situated, and where the immovable property is situated 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 situated or where the minor normally reside.

Section 9 : Testimentary guardians and their powers - For sub-section 1) of Section 8 the following shall be substituted - ' A Hindu parent entitled to act as natural guardian of her/his minor children, may, by will, appoint a guardian of r any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred in section 12) or in respect both'. For sub section 2) of Section 9 the following shall be substituted ' An appointment made under sub-section (1) shall have no effect if there is a surviving parent dies without appointing by will, any person as guardian'. Section 9 (3) should be deleted. Section 9 (4) should be deleted. Section 9 (6) should be deleted.

Section 13 - Welfare of minor to be paramount consideration - After sub-section (2) of Section 13, a new sub-section (3) shall be added - 'Where the court seen the question of fitness of guardian to act as such regard may be had to the wishes of the person.'

Justification :

Section 4 - Definition - Consequential amendments in respect of the amendment suggested in sub-clause ii) of Clause b) of Section.

Section 6 : Natural guardians of a Hindu Minor - There is no clear cut categorical statement of law in the statute that the mother and father are both natural guardians of the child at all times and for all purposes.

Section 7 : Natural guardianship of adopted son - To remove the discriminatory provision against daughter.

Section 8 : Powers of natural guardian - In sub-section 6 of Section 8 - For the sake of convenience of the minor and his/her guardian.

Section 9 : Sub-section (1) of Section 8 - 'To give equal rights to both the parents to act as natural guardian. Sub-section (2) of Section 9 - ' Consequential amendment in respect to sub-section (1). Section 9 (3) ' Consequential amendment. Section 9 (4) - Consequential amendment Section 9 (6) - Consequential amendment.

 

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