How to Identify Types of Guardians under Hindu Law

The Hindu Minority and Guardianship Act, 1956, regulate the laws pertaining to minority and guardianship among Hindus. It extends to whole of India except for the state of Jammu and Kashmir. Few important definitions under the Act are:

Minor

A minor is a person who has not completed the age of eighteen years.

Guardian

A guardian is a person having the care of the person of a minor or of his property or of both his person and property, and includes –

• A natural guardian.
• A guardian appointed by the will of the minor's father or mother.
• A guardian appointed or declared by a court.
• A person empowered to act as such by or under any enactment relating to any   Court of Wards.

Hindu Law: Types of Guardians

The Act provides for two main types of legal guardians:

Natural Guardians

The natural guardian of a minor male or a minor unmarried female is the father. On the event of death of the father, the mother is considered the natural guardian. As per the Section 6, of the Act, the natural guardian forfeits his position, in case he converts in another religion. Under the provisions of the Act, if a person becomes Sanyasin or opt for Vanaprastha, he will lose his position as a natural guardian.

Unlike the old Hindu Law, the Hindu Minority and Guardianship Act, 1956, provides that the custody of children under the age of five years shall be given to the mother and not to father.

As per the provisions of the Act, a minor cannot be considered as the guardian of the property of another minor. Therefore, a husband under the age of 18 years is not entitled to claim the position of legal guardian of a minor wife.

Testamentary Guardians

Under the provisions of the Act, the father or mother of a minor, by their will can appoint a testamentary guardian. As per the old Hindu Law in case of death the father the, even if the mother was alive, the testamentary guardian was considered as the legal functioning guardian of a minor. However, under the provisions of the Hindu Minority and Guardianship Act, 1956, if the father is dead and the mother is still alive, she and not the testamentary guardian, is considered as the legal guardian. Even if the deceased father has appointed a testamentary guardian in his will, the mother can still appoint a separate testamentary guardian. In case of death of the mother, the guardian appointed by her is given preference over the testamentary guardian appointed by the deceased father.