Who is a minor?
A minor is a person who has not completed the age of eighteen years. A minor is physically and mentally not matured, and hence he needs someone’s protection and guidance.
Father is the natural guardian
The Natural Guardians of a child are his/her parents. As per Section 6 of the Hindu Minority and Guardianship Act, 1956 (HMGA), the primary or principal natural guardian is the father. The mother comes as the natural guardian only after the father ceases to be one.
The father’s guardianship right can be removed or altered when he is incapable to take good care of his child.
In short, while the father is alive, the mother cannot claim the status of natural guardian.
Persons requiring care after they become major
Persons with autism, cerebral palsy, mental retardation and multiple disabilities are in a special situation as even after they have acquired 18 years of age, they may not always be capable of managing their own lives or taking legal decisions for their own betterment.
Therefore, they may require someone to represent their interests in the legal matters throughout their lives.
Who is a guardian?
A guardian is a person, who is assigned or appointed to look after the person or his property.
The guardian thus appointed assumes the care and protection of the person for whom he/she is appointed the guardian. The guardian takes all legal decisions on behalf of the person and the property of the minor ward as stipulated in the law.
Three categories of guardian
Guardians are of three types: natural guardian, testamentary guardian and guardian appointed by the court.
The laws applicable to guardianship
The Hindu Minority and Guardianship Act, 1956 (HMGA) and the Guardians and Ward Act, 1890 (GWA) are the two acts that deal with guardianship.
Both the acts define the rights, obligations, relations between adults and minors. The GWA applies to everyone regardless of caste, creed, or community and it includes the procedure on how to petition courts for the appointment of a guardian. The HMGA has an overriding effect in regard to all other laws relating to guardianship, as per Section 5 of the HMGA.
The HMGA is applicable to Hindus alone but not Muslims, Parsis and Christians. The HMGA rather provides better rights and protection for children than it acts as a mere substitute of the already prevailing GWA.
Welfare of the child is the prime moto
The welfare of the child is a top priority under the HMGA of 1956 and the GWA of 1890.
The Section 13 of the HMGA states that all measures taken by the guardian and any judgment rendered by the court must be for the welfare of the child.
Some important case laws
Mother cannot claim unless father is unfit
In PT Chathu Chettiar v VKK Kanaran [ AIR 1984 Ker 118 ], it was held that if the father is alive and he is not disqualified in any manner to act as natural guardian, then the mother is incompetent to act as the guardian of the minor.
No one other than father can be natural guardian
In Essakkayal Nadder v Sreedharan Babu the facts show that the children did not live with their father and the mother had expired. In this case the court held that no one other than the father himself could be the natural guardian of the minors. That is because the father was alive and he was not declared as unfit guardian for any other reason as per law.
Single mother can be the natural guardian
In the case of Gita Hariharan v Reserve Bank of India, the Supreme declared that the most important factor in determining child custody is the welfare of the child is. If the circumstances suggest in the child’s best interest the mother, such as that of single mother, can be the natural guardian. In To maintain her privacy, which is her fundamental right, the mother may refuse to disclose information about the father.
Mother was declared as child’s natural guardian
In Jajabhai v Pathankhan, the couple got separated and the youngest lived with her mother who was considered by the court as the child’s natural guardian.
Mother be the care giver for the children below five
As per Section 6 of the Hindu Minorities and Guardianship Act, until the minor reaches at least five years of age, the child is supposed to be under the care and protection of the mother.
Guardian should not transfer ward’s property
Guardian should not transfer ward’s property by sale, gift, mortgage, etc without prior permission from the court.
Such a transfer without prior permission of the court is void at the instance of the person thereby affected.
Court can permit selling of property
But the court can grant permission to the guardian to sell the property of the ward in case of necessity or for an evident advantage of the ward.
The order granting permission to sell the property shall recite the necessity or advantage of selling the property. The sale shall be made to the highest bidder by public auction before the court or a court appointed person at the time and place specified by the court.
When the guardian can be removed?
Section 13 of the Hindu Minorities and Guardianship Act, 1956 gives a right to the court to terminate the guardianship of any person if the appointment is not made for the welfare of the child.
The situations where a person fails to nurture the child is when the guardian has witnessed some unfortunate circumstances or when the guardianship was not for the welfare of the child. The factors which the judge considers before taking guardianship from a parent are:
- When the guardian of a child causes any harm to the child;
- When the guardian is not able to keep the child in a stable place ensuring mental growth;
- When the guardian doesn’t have a fixed source of income to support the education or provide sufficient means for the growth of the child;
- when the guardians is found not capable of being a guardian in the eyes of the court, or
- Once the child is of the age of 12 years, the decision of the child to stay with either of the parents is taken into consideration by the Court.
