The Hindu Minority and Guardianship Act, 1956

What the law governs

The Hindu Minority and Guardianship Act, 1956 applies alongside the Guardians and Wards Act, 1890. It covers Hindus, Buddhists, Jains and Sikhs, as well as certain other persons who would have been governed by Hindu law. It generally does not apply to members of a Scheduled Tribe unless the Central Government directs otherwise, or to Renoncants of the Union Territory of Pondicherry.

A minor is a person who has not completed eighteen years. A guardian may care for the minor, the minor’s property, or both.

Who may act as natural guardian

The Hindu Minority and Guardianship Act, 1956 identifies natural guardians as follows:

• For a boy or unmarried girl, the father, followed by the mother. Custody of a child below five years should ordinarily be with the mother.
• For an illegitimate boy or illegitimate unmarried girl, the mother, followed by the father.
• For a married girl, the husband.
• For an adopted minor son, the adoptive father, followed by the adoptive mother.

A person cannot act as natural guardian after ceasing to be Hindu or completely and finally renouncing the world as described in the Act. The terms father and mother do not include step-parents.

Dealings with a minor’s property

The Hindu Minority and Guardianship Act, 1956 allows a natural guardian to take necessary, reasonable and proper steps for the minor’s benefit or estate. Important restrictions include:

• Prior court permission is required to sell, gift, exchange, mortgage, charge or otherwise transfer the minor’s immovable property.
• Prior permission is required for a lease exceeding five years or extending more than one year beyond the minor reaching majority.
• Permission may be granted only for necessity or an evident advantage to the minor.
• A disposal made contrary to these restrictions is voidable at the instance of the minor or a person claiming under the minor.
• A person cannot deal with the minor’s property merely because that person acts as a de facto guardian.
• A minor cannot serve as guardian of another minor’s property.

Joint family property and welfare

The Hindu Minority and Guardianship Act, 1956 generally prevents appointment of a guardian for a minor’s undivided interest in joint family property when an adult family member manages that property. This does not remove the High Court’s jurisdiction to appoint a guardian for that interest.

When a court appoints or declares a guardian, the minor’s welfare is the paramount consideration. No person is entitled to guardianship if the court considers that arrangement contrary to the minor’s welfare.