Who are the guardians under the Hindu law? Discuss their powers and functions with special reference to their power of alienation.

Question: Who are the guardians under the Hindu law? Discuss their powers and functions with special reference to their power of alienation. [BJS 2021]

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Answer

Guardianship under Hindu law includes the care, custody and management of the person and property of a minor. There are two legislations primarily regulating the duties and powers associated with guardianship. First is the Hindu Minority and Guardianship Act, 1956 (HMGA), and the Guardians and Wards Act, 1890 (GWA). Both the Act talks about different types of guardians and their specific role in protecting and managing the welfare and assets of minors.

Types of Guardian

Natural Guardian: Father is the first natural guardian of a minor boy or an unmarried girl in Hindu Law. If the father is deceased or deemed incapable, then the mother becomes the natural guardian of such child.

However, as far as illegitimate children are concerned, the mother is the primary guardian, followed by the father. These roles are fundamental and arise from traditional and legal principles enshrined in Hindu law.

Testamentary Guardian: As the name suggests, these guardians are appointed through a will. Section 9 of HMGA governs the appointment of a testamentary guardian by a natural guardian through a testament or will.

The appointment of the father by will is effective if the mother does not survive him; otherwise, the appointment of the mother by will takes precedence. This type of guardianship ensures that a guardian is appointed by the wishes of the natural guardian through a statutory will.

De facto Guardian: De facto guardians mean guardian by fact. These are persons who assume the role of a guardian due to certain circumstances, usually without a formal legal appointment, such as extended family members who stand in for a minor. Although traditionally recognized, de facto guardians have limited legal powers under the HMGA and often must be called upon by the court to make important decisions on behalf of or for the minor.

Court-appointed Guardian: If there is no natural or testamentary guardian, or if one is deemed unfit, a court may appoint a guardian under the provisions of the Guardian and Wardship Act. Court-appointed guardians work under the supervision and at the direction of the court and ensure that the minor's interests are legally protected and appropriately managed.

Powers and Functions of Guardian

Care and guardianship: Guardians are entrusted with the welfare, upbringing and maintenance of the minor. They are responsible for ensuring the health, safety and general well-being of the minor. In this role, they make decisions that affect the minor’s daily life and provide a stable and supportive environment.

Property management: Guardians are responsible for the management and protection of the minor’s property. They must act in the best interests of the minor, avoid speculative or risky investments and ensure that the assets are used and maintained effectively. This task requires prudent financial management and protection of the minor’s assets.

Power of alienation: In general, guardians do not have the unrestricted power to alienate the property of a minor. Natural guardians can only dispose of property with prior court authorization unless there are exigent or unavoidable circumstances justifying the sale, such as legal necessity or benefit to the minor’s estate.

Testamentary guardians are subject to similar restrictions and must obtain court approval for the sale unless the will expressly authorises them to do otherwise. De facto guardians generally do not have the legal authority to dispose of property and must obtain court approval for such actions. Court-appointed guardians act within the terms set by the court and must obtain authorization for a disposition to ensure the court’s supervision and protection of the minor’s interests.

Legal necessity and benefit to the estate: The concept of legal necessity includes cases such as the payment of debts, medical expenses or marriage costs. Benefits to the estate include the sale of property to avoid losses or to obtain a better deal. These situations justify a sale only if they are in the best interests of the minor and are necessary to preserve or increase the minor’s assets.

The role of the court: The courts play a crucial role in supervising and approving transactions involving the minor’s property. They ensure that any disposition is truly necessary or beneficial to the minor to prevent exploitation or mismanagement. This oversight serves as a safeguard to maintain a balance between the authority of the guardian and the protection of the minor.

Special reference to alienation: Section 8 of the HMGA emphasizes the limits and need for court approval before a minor’s immovable property may be alienated. This provision ensures that any major decision involving the minor’s property is reviewed and approved by the court to protect the minor’s interests.

Similarly, Section 11 of the GWA emphasizes the role of the court in supervising and regulating the guardian’s handling of the minor’s assets, thereby underscoring the need for judicial oversight in matters of asset management and disposal.

The landmark judgment of Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149, has upheld that a mother can act as a natural guardian even during the lifetime of the father if the father is unfit or of unsound mind, thereby broadening the understanding of the role of the natural guardian.