Class Notes on Family Law I – Unit V (1st Sem / 3 year LL.B)

Study Notes on Hindu Law – UNIT V

Law Relating to Hindu Minority and Guardianship

This unit covers the legal framework governing Hindu minority and guardianship, including the roles and responsibilities of guardians, and the relevant statutes such as the Hindu Minority and Guardianship Act, 1956.

1. Kinds of Guardians

Guardianship under Hindu law can be categorized into several types, each with distinct roles and responsibilities:

• Natural Guardians:
  • Parents of the minor, typically the father and, in his absence, the mother.
• Testamentary Guardians:
  • Appointed by the minor’s father or mother through a will.
• De Facto Guardians:
  • Persons who act as guardians without legal appointment, usually out of necessity or practical circumstances.
• Court Appointed Guardians:
  • Appointed by the court to manage the affairs of a minor when natural guardians are not available or suitable.

2. Minority and Guardianship

Minority refers to the period during which a person is legally recognized as a minor, usually under the age of 18. During this time, guardianship is required to manage the minor’s affairs.

3. The Hindu Minority and Guardianship Act, 1956

1. Act to be Supplemental to Act 8 of 1890

• Supplementary Role:
  • The Hindu Minority and Guardianship Act, 1956, supplements the earlier Act (Act 8 of 1890) by providing more detailed provisions related to the guardianship of Hindu minors.

2. Application of Act

• Scope:
  • The Act applies to all Hindus, including Buddhists, Jains, and Sikhs, and covers issues related to the guardianship of Hindu minors.

3. Definitions

• Minor:
  • A person under the age of 18 years.
• Guardian:
  • A person appointed by law or a court to manage the minor’s affairs.
• Natural Guardian:
  • A guardian by virtue of birth or relation, such as a parent.

4. Overriding Effect of Act

• Supremacy:
  • The provisions of the Act have an overriding effect on any other laws relating to guardianship that may conflict with it.

4. Natural Guardians of a Hindu Minor

Natural guardians are primarily responsible for the minor’s welfare and management of their property.

• Father:
  • The father is the primary natural guardian of a Hindu minor.
• Mother:
  • In the absence of the father, the mother becomes the natural guardian.
• Guardianship of a Married Minor:
  • The husband of a married minor can also be considered a natural guardian.

5. Natural Guardianship of Adopted Son

Adopted Son:

• Adoptive Father:
  • The adoptive father assumes the role of the natural guardian of the adopted son.
• Rights and Duties:
  • The adoptive father has similar rights and responsibilities as a biological father in terms of guardianship.

6. Powers of Natural Guardian

• Management of Property:
  • Natural guardians can manage the minor’s property but must do so with care and prudence.
• Legal Capacity:
  • They may enter into legal contracts on behalf of the minor, such as agreements for the minor’s education or welfare.
• Investment:
  • Guardians are allowed to invest the minor’s property in safe and prudent investments.

7. Testamentary Guardians and Their Powers

Testamentary Guardians:

• Appointment:
  • A guardian appointed through a will by the minor’s father or mother.
• Powers:
  • Testamentary guardians have similar powers to natural guardians but only within the scope defined in the will.
• Limitations:
  • Their powers are subject to review and approval by the court.

8. Incapacity of Minor to Act as Guardian of Property

• Legal Restrictions:
  • A minor cannot act as a guardian of property, as they are not legally competent to manage property affairs.
• Court’s Role:
  • The court may appoint a suitable guardian if a minor is left in charge of property.

9. De Facto Guardian Not to Deal with Minor’s Property

De Facto Guardians:

• Restrictions:
  • A de facto guardian cannot deal with the minor’s property in a manner that binds the minor legally.
• Legal Validity:
  • Transactions carried out by a de facto guardian without proper legal authority may not be valid.

10. Guardian Not to Be Appointed for Minor’s Undivided Interest in Joint Family Property

• Joint Family Property:
  • A guardian cannot be appointed for a minor’s undivided share in a joint family property.
• Family Management:
  • Management of joint family property is generally handled by the family as a whole, rather than by a specific guardian.

11. Welfare

Welfare of the Minor:

• Principle:
  • The primary consideration in guardianship decisions is the welfare of the minor.
• Court’s Focus:
  • Courts prioritize the minor’s physical, emotional, and educational needs when making guardianship decisions.

Duties and Powers of Guardians

• Duties:
  • Care and Maintenance: Providing for the minor’s needs and welfare.
  • Education: Ensuring the minor receives appropriate education.
  • Financial Management: Managing the minor’s property prudently and in their best interest.
• Powers:
  • Property Management: Administering and investing the minor’s property.
  • Legal Representation: Acting on behalf of the minor in legal matters.

A Detailed Study of Hindu Adoption and Maintenance Act, 1956

1. Adoption

• Legality of Adoption:
  • The Hindu Adoption and Maintenance Act governs the legal process and requirements for adoption among Hindus.
• Requirements:
  • Capacity to Adopt: The adopting parent must meet the legal criteria for adopting a child.
  • Consent: Consent must be obtained from the biological parents if they are alive.
• Effects of Adoption:
  • The adopted child is treated as a natural child in terms of rights and obligations.

2. Maintenance

• Maintenance Obligation:
  • The Act outlines the responsibilities for providing maintenance to dependents, including children, spouses, and parents.
• Scope:
  • Maintenance includes provision for food, clothing, shelter, and education.
• Claims:
  • Dependents can claim maintenance through legal channels if not adequately provided for.

Conclusion

Understanding Hindu minority and guardianship laws is crucial for managing the legal aspects related to the welfare and rights of minors in Hindu law. The Hindu Minority and Guardianship Act, 1956, along with the Hindu Adoption and Maintenance Act, 1956, provides a comprehensive framework for guardianship, adoption, and maintenance, ensuring the protection and welfare of minors under Hindu law.

Case Laws:

• Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228

Maintenance: Traditional Rights and Rights under Hindu Adoption & Maintenance Act 1956.

ADOPTION AND MAINTENANCE

The Hindu Adoption and Maintenance Act, 1956

2 Application of Act
3 Definitions
4 Overriding effect of Act
5 Adoption to be regulated by this Chapter

6 Requisites of a valid adoption. – No adoption shall be valid unless –

• (i) the person adopting has the capacity, and also the right, to take in adoption;
• (ii) the person giving in adoption has the capacity to do so;
• (iii) the person adopted is capable of being taken in adoption; and
• (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.

7 Capacity of male Hindu to take in adoption

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption: Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

Explanation. – If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.

Ram Sundar v Kali Narain – it was observed that mere weakness of mind is not sufficient, what is necessary to be proved is that infirmity of mind has been such as to disable him from understanding what he was doing.

In Ambarish Kumar v Hatu Prasad, it was held that a person who is deaf and dumb but is in a position to express himself to signs and gestures though not clearly, cannot be called a person of unsound mind.

8 Capacity of a female Hindu to take in adoption. – Any female Hindu

(a) who is of sound mind, (b) who is not a minor, and (c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption.

If she is not married

• Earlier, an unmarried female as well as a widow had no power to adopt except under the authority
• Post amendment of the act, an unmarried woman who completes the age of eighteen can adopt a child.
• Now possible for a unmarried woman to have a legitimiate adopted son

If she be married

• A married woman whose husband is living has no capacity to adopt even with the consent of her husband
• A woman can take adoption if
  • marriage is dissolved
  • dead of the husband
• A married woman can adopt –
  • husband has ceased to be a Hindu
  • completely renounced the world
  • husband has been declared by a court as an unsound mind

9 Persons capable of giving in adoption –

1. No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
2. Subject to the provisions of 1[ sub- section (3) and sub- section (4)], the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
3. The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
4. Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.
5. Before granting, permission to a guardian under sub- section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received Or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.

Explanation. For the purposes of this section-

• (i) the expressions” father” and” mother” do not include an adoptive father and an adoptive mother;
• (ia) ” guardian” means a person having the care of the person of a child or of both his person and property and includes-
  • (a) a guardian appointed by the will of the child’ s father or mother, and
  • (b) a guardian appointed or declared by a court; and
• (ii) ” court” means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.

10 Persons who may be adopted – conditions

1. He or she is a Hindu
2. He or she has not already been adopted
3. He or she has not been married unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption
4. He or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption

11 Other conditions for a valid adoption

12 Effects of adoption

• the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth
• any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations if any attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth
• the adopted child shall not divest any person or any estate which vested in him or her before the adoption

13 Right to adoptive parents to dispose of their properties

14 Determination of adoptive mother in certain cases

15 Valid adoption not to be cancelled

16 Presumption as to registered documents relating to adoption

17 Prohibition of certain payments

18 Maintenance of wife

19 Maintenance of widowed daughter-in-law

20 Maintenance of children and aged parents

21 Dependants defined

22 Maintenance of dependants

23 Amount of maintenance

24 Claimant to maintenance should be a Hindu

25 Amount of maintenance may be altered on change of circumstances

26 Debts to have priority

27 Maintenance when to be a charge

28 Effect of transfer of property on right to maintenance

29 Repeals

30 Savings

Case Laws:

• Brijendra v. State of M.P., AIR 2008 SC 1058