Minors and guardians
N.C.S. RAGHAVAN
ARVIND RAGHAVAN
Let us deal with the issue of minors under The Hindu Minority
and Guardianship Act, 1956. The enactment carried out amendments and
codification of Hindu Law relating to Hindu minors and their guardians. The Act
is applicable to all Hindus domiciled in the whole of India except in the State
of Jammu and Kashmir. It applies to all persons who are Hindus by religion in
any of its forms or developments, including a Virashaiva, a Lingayat or a
follower of the Brahmo, Prarthana or Arya Samaj; to any person who is a
Buddhist, Jaina or Sikh by religion; and to any other person domiciled in the
territories to which this Act extends who is not a Muslim, Christian, Parsi or
Jew by religion, unless it is proved that any such person would have not have
been governed by the Hindu Law or by a custom or usage as part of that law in
respect of any of the matters dealt with herein if this Act had not been passed.
The following persons are deemed to be Hindus, Buddhists, Jaina or Sikhs by
religion, as the case may be: Any child, legitimate or illegitimate, both of
whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; any child,
legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or
Sikh by religion and who is brought up as a member of the tribe, community,
group or family to which such parent belongs or belonged; and any person who is
a covert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
According to Section 4(a) of the Act, "minor" means
a person who has not completed the age of 18 years. As per Section 4(b) of the
Act, "guardian" means a person having under his care a minor or his
property or both and includes: a natural guardian; a guardian appointed by the
will of the minor's father or mother; a guardian appointed or declared by court;
and a person empowered to act as such by or under any enactment relating to any
court of wards.
As per Section 4(c) of the Act, "natural guardian"
means any of the guardians mentioned in Section 6. This act overrides all the
prior laws relating to Hindu minors and any text, rule or interpretation of
Hindu Law or any custom or usage as part of that law in force immediately before
the commencement of this Act shall cease to have effect with respect of any
matter for which provision is made in this Act.
Any other law in force immediately before the commencement of
this Act shall cease to have effect in so far as it is inconsistent with any of
the provisions contained in this Act.
Natural
guardians
In the case of minor boy or a minor unmarried girl, the
father is the natural guardian. In the absence of father, it will be the mother.
However, in the case of a minor child who has not completed the age of five
years, the natural guardian will ordinarily be the mother.
In the case of an illegitimate minor boy or illegitimate
minor unmarried girl, the mother shall be the natural guardian and in her
absence the father. In the case of a minor married girl, the husband will be the
natural guardian. However, it is to be noted that the question of any minor girl
getting married during the age of minority may not arise here afterwards as no
girl under the age of 18 can marry under the provisions of the Hindu Marriage
Act, 1956.
The above natural guardians are prohibited to act as such in
the following circumstances: 1) When a natural guardian of a minor ceases to be
a Hindu, then such a person will also automatically cease to be the natural
guardian of the minor. 2) Similarly, when a natural guardian renounces the world
and becomes a hermit (vanaprastha) or an ascetic (yati or sanyasi), then such a
person will also cease to be a natural guardian. It is to be noted that the
terms "father" and "mother" used above do not include a
stepfather or a stepmother. The rights of a natural guardian in respect of a
Hindu minor extend to the minor's person as well as property. However, minor's
property in the form of an undivided interest in a Hindu Joint Family property
is excluded and in respect of such property, it is the Kartha of the Hindu Joint
Family who will have the right of management.
The natural guardianship of an adopted son who is a minor
passes to the adoptive father and after him to the adoptive mother.
(N.C.S. Raghavan is a chartered accountant and Arvind
Raghavan, an advocate)
Courtesy: Property Plus, The Hindu
http://www.hindu.com/pp/2007/04/08/stories/2007040800660400.htm
