This article intends to explain the concept of Natural Guardians and their rights over the minor’s property. The understanding of what a Natural Guardian means has evolved since 1956 when the Hindu Minority and Guardianship Act came into effect and that is analyzed through a string of cases.
In a similar fashion, this article discusses what rights the guardian possesses over the property of a minor, and the responsibilities, limitations and authority that comes with it. This article also presents a comparative analysis between the Hindu Minority and Guardianship Act 1956 and the Guardian and Wards Act 1890 to understand the similarities and differences between a Guardian under the general Act and the Natural Guardian of a Hindu Minor.
Gender inequalities and patriarchal notions embedded in the HMGA 1956 are also addressed, while mentioning a hope for a more progressive law in the future.
Introduction – Natural Guardians and their Right over Minor’s Property
Classical Hindu law did not have regulations that specified matters of guardianship and custody of children. In the Hindu joint family, it was traditional for the Karta (the Patriarch) of the family to be responsible for the care and maintenance of all the family members and to look after all property matters. Hindu law did not see the need to standardize these familial equations, given the traditional nature and structure of the family where several generations lived together under one roof.
In an attempt to create a uniform structure for all Hindus, Hindu law was codified. The Hindu Minority and Guardianship Act 1956 stated that the father would be the natural guardian of the child, and after him, it would be the mother. In the case of the married minor girl, the guardian would be her husband. These patriarchal norms were deeply entrenched in the statutes, as the law was a reflection of the culture prevailing in society at the time.
I. ‘Natural Guardian’- A Critical Analysis of the concept
To understand the evolution of guardianship laws with changing times, we can have a look at the following series of cases.
(i). In the case of PT Chathu Chettiar v. V. K. K. Kanaran[1], it was held that if the father is alive and is not barred from any restrictions placed in the Act that may make him unfit to take up the role of a natural guardian, it is not acceptable for the mother to claim to be the guardian of the minor.
(ii). It was seen in the case of Rajalakshmi v. Ramachandran[2], that the Court stated that just because someone gives away their property to a minor and appoints themself the guardian of that property does not mean that you are a Guardian as understood in the context of the Act.
(iii). The Court reiterated the importance of the father as the natural guardian in the case of Essakkayal Nadder v. Sreedharan Babu[3]. As per the facts of this case, the children did not live with their father and the mother had passed away. The court stated that since the father was still alive and not disqualified from being a natural guardian on grounds of being unfit or no longer a Hindu etc, no one else besides the father could be the natural guardian of the minor children.
(iv). A new wave of gender equality was initiated by the Supreme Court in the case of Gita Hariharan v. Reserve Bank of India[4]. It addressed the problematic and patriarchal notion of the father being the natural guardian and the mother becoming the natural guardian only ‘after’ him. To understand the position of single mothers, we must once take a look at this case.
As per the facts of this case, an educated and financially independent single mother intended to make her son a nominee for her investments but was prevented from doing so unless she disclosed details about the father of the minor to comply with the paperwork obligations.
The lower courts stated that it was mandatory for her to give details of the father, as per Section 11 of the Guardians and Wards Act 1890. Upon appeal, the high court stated that even if she was a single mother, it was necessary to determine if the father has a potential interest in the child.
However, the Supreme Court did not uphold the judgments of the earlier courts and instead stated two essential principles to govern such cases in the future –
a. The most significant factor in determining any custody case is to see what the welfare of the child entails. If the circumstances are such that it is in the best interests of the child for the mother to be the natural guardian, then she is entitled to that.
b. In order to maintain her privacy, to which she has a fundamental right, the mother can refuse to disclose information about the father.
This case was a milestone, given that in Indian legal structure, all administrative work ranging from school forms, bank details, to official documents are in the father’s name.
(v). This progressive trend was upheld through the case of Jajabhai v. Pathankhan[5]. Here, the couple had separated and the minor was living with her mother. In these circumstances, the court felt it was acceptable for the mother to be seen as the natural guardian of the child.
(vi). Another progressive judgment was passed in the case of Bakshi Ram v. Shila Devi[6]. The court held that the mother’s remarriage is not a ground to restrict her rights as a natural guardian or put her position in question.
(vii). As per Section 6 of the Hindu Minority and Guardianship Act, until the minor turns at least five years old they’re supposed to be under the care and protection of the mother. The Rajasthan High court rejected the application of the father who had sought the physical custody of his daughter, in the case of Smt. Dr. Snehalata Mathur v. Mahendra Narain[7]. The mother was granted the custody of the child.
II. Comparative Analysis between the HMGA 1956 and the GWA 1890
The Guardian and Wards 1890, unlike the Hindu Minority and Guardianship Act 1965, is a secular act that applies to all citizens and communities in India. The Hindu Minority and Guardianship Act 1965 is of course applicable to only Hindus, and subsets of Hindus such as Jains, Buddhists, Sikhs, Lingayat, Arya Samaj, Brahmo followers, Prarthana Samaj followers and Virashiva[8].
Other religious communities like Muslims, Parsis and Christians do not fall in the purview of this act[9]. This act works in addition to the Guardians and Wards Act 1860 and not as a replacement for the latter. As stated in the case of Narayan Laxman Gilankar v. Uday Kumar Kashinath Kaushik[10], Section 8 of the Hindu Minority and Guardianship Act is supposed to function pari materia with Section 29 of the Guardianship and Wards Act, 1890. The GWA 1890 covers the procedure on how to apply to courts to appoint a guardian.
III. The Types of a Guardian
To understand the powers of a Guardian, we must first look at the kinds of Guardians, there are.
Legal Guardians include:
- Natural Guardian
- Court-Appointed Guardian
- Testamentary Guardian
Hindu Law additionally permits:
- De facto guardians
- Guardians by affinity
IV. The Guardian’s right over minor’s property
The Powers of the natural guardian can be classified into two categories –
1. Rights with reference to the body of the minor,
2. Rights with reference to the property of the minor.
As per Section 8 of the Act, a guardian is permitted to act in the interest of the minor and take any reasonable action for the benefit of the minor, within the constraints mentioned in the act. The guardian is expected to act in accordance with the welfare of the minor, and take decisions regarding the minor’s property keeping the minor’s interest in mind.
The guardian does not have the power, under no conditions, to bind the minor through a personal covenant. The guardian has no authority to mortgage, sell, donate or transfer the immovable property belonging to the minor without seeking permission from the Court[11]. To receive this permission from the court, the guardian must be able to establish how this transaction of property benefits the minor.
The court will not give permission to sell the property unless absolutely necessary.[12] If a transaction of immovable property by the guardian violates any requirements stated by the Act, the minor has the authority to challenge the said transaction upon attaining majority age. It can be made voidable at the instance of the minor.[13]
Important Judgements
1. Narayan Laxman Gilankar v. Uday Kumar Kashinath Kaushik
In the case of Narayan Laxman Gilankar v. Uday Kumar Kashinath Kaushik, it was held that even if the property transaction occurred for the welfare of the minor but without taking permission from the court, the minor can question the validity of that transaction after attaining the age of majority.
It is also important to note that the guardian needs to seek permission from the court if they intend to lease any portion of the minor’s property for a longer duration than five years or for a duration extending a year beyond the date on which the minor attains the age of majority. This is encapsulated in Section 8(2)(b) of the Hindu Minority and Guardianship Act 1956.
2. Than Singh v. Barelal
In the case of Than Singh v. Barelal[14], the court held that in a situation where the guardian is acquiring property for the benefit of the minor, permission from the court is not required.
3. Radheshyam v. Kisan Bala
In the case of Radheshyam v. Kisan Bala[15], it was held that the court has the authority to enforce specific performance of a purchase agreement at the instance of the natural guardian, if the court believes that the transaction will advantage the minor.
The guardian that is appointed by will, after both the parents have passed away, has every right and authority that a natural guardian would have[16]. It is also key to note that a Hindu mother possesses the title of a natural guardian for her minor illegitimate children, but for her legitimate children, she can be considered a natural guardian only if the husband has passed away, renounced Hinduism, or is unfit and unable to carry the responsibilities of a guardian.
This dichotomy is prevalent through Provision 6 of the Act. In the case of a minor girl, upon marriage, the position of the natural guardian is passed onto her husband, as per the Hindu Minority and Guardianship Act. However, this was repealed indirectly through the provisions of Section 3 of the Prohibition of Child Marriage Act, 2006.
4. Manik Chand v. Ramchandra
In the case of Manik Chand v. Ramchandra[17], the court stated that the meaning of ‘necessity’ and ‘advantage’ of a minor have a broad interpretation. It held that judges have the power to broaden the ambit of these terms, depending on the facts and circumstances of each case, when contemplating giving permission to the guardian for selling the minor’s property.
Section 12 encapsulates that no guardian can be appointed for the undivided interest in the joint property of the minor. However, courts reserve the authority to delegate a guardian for the entire joint family, if need be.
5. Surta Singh v. Pritam Singh
In the case of Surta Singh v. Pritam Singh[18] the question of law before the court was whether a sale of immovable property by a natural guardian, that violated Section 8 (1) and (2) of the Hindu Minority and Guardianship Act, 1956 can be challenged through a suit by the minor more than three years after attaining majority under Act. Does the minor lose the grounds of questioning that transfer of property simply because he did not initiate a legal proceeding during the time designated by Article 60 of the Indian Limitation Act 1963?
It is understood that the aim of Section 8 of the Hindu Minority and Guardianship Act 1956 was to grant the natural guardian of a Hindu minor the same rights and powers that a guardian would have under the Guardian and Ward Act of 1890.
It should, therefore, be understood that with regard to sale of immovable property, in the absence of permission of the Court, the legal predicament and consequences for the certificated guardian and the natural guardian of the Hindu minor are precisely the same. This is due to Section 8 (2) and (3) of the Hindu Minority and Guardianship Act, and Section 29 and 30 of the Guardian and Wards Act 1890.
The Court finally held that a former minor can only challenge the validity of the transfer of an immovable property done by his natural guardian, only in the prescribed duration – which is three years since he attains majority. If he has not brought a suit seeking possession of that property in the duration specified by Article 60 of the Indian Limitation Act 1963, then he loses the right to make that transfer voidable at his instance. This judgment upheld the ratio of the Pran Nath v. Bal Kishan case[19].
Conclusion
At the end of the day, after taking into account all the facts and circumstances of every case, the Court has to make a decision based on only one significant question – What is in the best interest of the minor?
Section 13 of the Hindu Minority and Guardianship Act 1956 perfectly captures the essence and the objective of the Act – every action taken by the Guardian, and every judgment passed by the Court should be for the welfare of the child.
In every scenario where the Court has opted for a broader interpretation of the legal language of the statute, or chosen to vary from previous precedents, one can observe, it has been done in order to further the interests of the minor and grant them more protection. The powers, limitations, responsibilities of the Guardian are regulated in such a way that they do not harm the minor. The welfare of the child is of utmost priority as per the HMGA 1956 as well as the GWA 1890.
[1] PT Chathu Chettiar v. V. K. K. Kanaran AIR1984Ker118
[2] Rajalakshmi v. Ramachandran MANU/TN/0270/1967
[3] Essakkayal Nadder v. Sreedharan Babu AIR 1992 Ker 200
[4] Ms Githa Hariharan v. Reserve Bank of India AIR1999SC1149
[5] Jajabhai v. Pathankhan AIR 1970 SC 315
[6] Bakshi Ram v. Shila Devi, AIR 1960 Punj 304
[7] Snehalata Mathur v. Mahendra Narain AIR 1979 Raj 29
[8] Section 3(1)(a) and (b) of the Hindu Minority and Guardianship Act 1956
[9] Section 3(a)(c) of the Hindu Minority and Guardianship Act 1956
[10] Narayan Laxman Gilankar v. Uday Kumar Kashinath Kaushik, AIR 1994 Bom 152
[11] Section 8 (2)(a) of the Hindu Minority and Guardianship Act 1956
[12] Section 8 (4) of the Hindu Minority and Guardianship Act 1956
[13] Section 8(3) of the Hindu Minority and Guardianship Act 1956
[14] Than Singh v. Barelal, AIR 1974 MP24
[15] Radheshyam v. Kisan Bala AIR 1971 Cal. 241
[16] Section (9)(5) of the Hindu Minority and Guardianship Act 1956
[17] Manik Chand v. Ramchandra AIR 1981 SC 519
[18] Surta Singh v. Pritam Singh AIR 1983
[19] Pran Nath v. Bal Kishan, AIR 1959