Notes

FAMILY LAW – II
INTRODUCTION
Situation 1: Person X dies leaving behind self-acquired property. X is a Hindu and belongs
to the Mitakshara school. He leaves behind his mother, father, wife and son.
Solution: Irrespective of age, X’s son, wife and mother will get an equal share in X’s self-
acquired property. However, X’s father does not get the preferential right. The Hindu
Succession Act gives preference to females – although the mother and father share the same
degree of relationship with X, only the mother gets the preferential right.
Situation 2: X leaves behind ancestral property. X has a wife, three sons and a daughter.
Solution: X, in this situation, is merely a holder of the property. In such cases, various factors
must be taken into account in order to decide property devolution (Mitakshara/Dayabhaaga,
number of coparceners).
Due to lack of legal knowledge, families often enter into mutual agreements to divide
property. Then, a party who may be legally entitled to such property may approach the Court
in order to receive their share. This is called Reopening of Distribution of Property.
HINDU MINORITY AND GUARDIANSHIP ACT
- The mechanism of providing guardianship is one of the main purposes of the Act. In
addition, it not only clarifies some aspects of the Hindu Succession Act, but also issues
pertaining to the traditional legal schools.
- Guardianship can be divided as:
1. Guardianship for the purpose of child [education, marriage, etc.] – Personal Affairs
2. Guardianship for the purpose of property [when gift is given to a minor, for instance]
– Affairs relating to property
- Even the natural father does not have absolute right over the property of his minor child at
all times. In a Joint Hindu Family, for instance, the Karta acts as a competent person for
managing the property of a minor. The Karta may not be the natural father of the person.
- In this sense, a minor child may have dual guardianship (different guardians for different
properties).
SECTION 4(B) HINDU MINORITY AND GUARDIANSHIP ACT

A guardian includes:
- Natural Guardian
- Testamentary Guardian (appointed in the will of the minor’s father/mother)
- Guardian appointed and declared by Court
- Person empowered to act under any other enactment relating to court of wards (i.e.
under the Guardianship and Wards Act)
- Karta
- Guardian ad litem and de facto guardians (Note: Acts of de facto guardians are
voidable at the option of the minor)
NATURAL GUARDIAN
- Natural guardians are the most powerful among guardians. Section 6 of the HMGA
provides for who a natural guardian can be. Step relations, however, are not included.
- Section 6 provides for a hierarchy:
1. Boy or unmarried girl
Father > Mother > Age (since custody may remain with the mother up to 5 years)
2. Illegitimate boy or illegitimate unmarried girl
Mother > Father
3. Married minor girl
Husband
- Ordinarily, custody may be with the mother up to 5 years [Read: Section 26 of the Hindu
Marriage Act]. However, Courts are allowed to go beyond the statutory provisions if it is
in the interest of the welfare of the child.
- In case of a minor girl who is married to a minor boy, the minor husband continues to be
the guardian as per law. However, the minor husband is not competent to take decisions
for the minor wife. The guardian of the minor husband will act as the guardian of the
minor wife.
DISABILITIES TO BE A NATURAL GUARDIAN

1. Conversion [Proviso to Section 6(a)]
2. Civil death / renunciation of the world [Proviso to Section 6(b)]
3. Owing to minority [Section 10]
4. If guardianship is prejudicial to the welfare of the child [Section 13(2)]
(Here, courts have power to override statutory provisions)
If any of the disabilities are applicable, then the preferential right shifts to the next person.
Minor guardian for property: The minor husband of the minor wife has guardianship over
the wife in law. However, the minor husband is not a guardian for the property of the minor
wife. The minor husband’s guardian acts as the de facto guardian (whose actions are voidable
at the option of the minor wife).
RIGHTS AND POWERS OF NATURAL GUARDIANS – SECTION 8
The guiding principle is that the act must be necessary/ reasonable/ proper for the benefit
of the minor and minor’s property.
The rights and powers are:
1. Custody right
2. Education
3. Movement of child
4. Religion
5. Right of chastisement (punishment)
However, the guardian cannot bind the minor with any personal covenants.
Any part of the property of the minor can be dealt with the guardian by way of mortgage,
lease or charge. Generally, absolute transfer of the minor’s property is disallowed. For any
absolute transfer, the permission of the court must be obtained and it must be for the benefit
of the minor. Else, the minor can claim compensation.
Further, if the natural guardian of the child is the father, there is no need for the father to take
the consent of the mother (his wife) for any decision regarding the person or property.
In case of lease, the law is slightly different. Generally, lease may be given for 100 years.
This is temporary yet long, but the ownership continues with the minor. The law states that at
a given point in time, the lease cannot exceed 5 years. But in a situation where the years
remaining for the minor to attain majority is less than 5 years, then the above principle is not
applicable. The lease time is calculated as the time (in years) left for the minor to attain
majority plus one year. For instance, if a minor is 16 years, then the guardian can lease only
for three years.
TESTAMENTARY GUARDIAN – SECTION 9
- Testamentary guardian is a guardian who is appointed by a testamentary document.
- Such guardians are bound to abide by the instructions of the document.
- There is no conflict between a testamentary and natural guardian.

Notes

Uploaded by

Copyright:

Available Formats

Notes

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Notes

Uploaded by

Copyright:

Available Formats

FAMILY LAW – II

SECTION 4(B) HINDU MINORITY AND GUARDIANSHIP ACT

DISABILITIES TO BE A NATURAL GUARDIAN

You might also like