A very unique query I came across a query, “ Can there be an Agreement between Hindu parents of a minor girl child assigning Guardianship Rights to mother?”
The guardian-de-jure or assignment of parenting rights is not a new concept in India. It dates back to more than 3000 years ago in the epic period of Mahabharata. Krishna was born to Vasudev and Devki but was handed over to Nandji and was brought up by Jashodaji.
This is very amazing query. The reason of handing over parenting right is not so easy, as it involves ups and downs of emotions. The reason may be couple going abroad for employment, divorce or understanding between couple if husband is having second wife to avoid court proceedings, wife consents silently to Second marriage and allows adultery or Bigamy for sake of child and custody given to her absolutely. In India we have seen in public life with a very prominent Bollywood couple.
Any act of adoption, matrimonial settlement, custody affects the child’s right to succession. It is therefore very much necessary to understand various provisions of law.
Government of India had set up a Commission in order to emphasize the “welfare of the child” as the paramount consideration in adjudicating custody and guardianship matters, the Law Commission of India decided to study the issue of adopting a shared parenting system in India of a Single Retired Judge Shri A.P.Shah. Commission after several rounds of discussions and deliberations, the views of the Commission centered around (i) strengthening the welfare principle in the Guardians and Wards Act, 1890 and emphasize its relevance in each aspect of guardianship and custody related decision-making; (ii) providing for equal legal status of both parents with respect to guardianship and custody; (iii) providing detailed guidelines to help decision-makers assess what custodial and guardianship arrangement serves the welfare of the child in specific situations; and (iv) providing for the option of awarding joint custody to both parents, in certain circumstances conducive to the welfare of the child.
This report of the Law Commission reviewed the current laws dealing with custody and guardianship, namely, the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, and recommends legislative amendments to achieve the following objectives:
- Strengthen the welfare principle in the Guardians and Wards Act, 1890 and emphasize its relevance in each aspect of guardianship and custody related decision-making
- Provide for equal legal status of both parents with respect to guardianship and custody
- Provide detailed guidelines to help decision makers assess what custodial and guardianship arrangement serves the welfare of the child in specific situations.
- Provide for the option of awarding joint custody to both parents, in certain circumstances conducive to the welfare of the child.
What is not covered in this report is when child becomes orphan due to accident or any other reason child’s custody whom to be given. Who can give away child in adoption in such cases? As the same is governed by Guardian and Wards Act,1890. In India Hindu children are govern by the Hindu Minority and Guardianship Act, 1956. It is an Act to amend and codify certain parts of the law relating to minority and guardianship among Hindus.
Section 3 of the said Act provides for its applicability It says that :
- any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
(b) to any person who is a Buddhist, Jaina or Sikh by religion and
(c) to any person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi, or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:- (i) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (ii) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhists, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and (iii) any person who is convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. This Act shall not apply to the members of any scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. (3) The expression ‘Hindu’ in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act, applies by virtue of the provisions contained in this section.
The term Natural Guardian is explained in Section 6 of the said Act. It provides that, The natural guardians of a Hindu, minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father; (c) in the case of a married girl-the husband; Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section- (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi) Explanation.- In this section, the expressions ‘father’ and ‘mother’ do not include a stepfather and a step-mother. Under Section 7. Natural guardianship of adopted son.– The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.
Following provisions coin powers of natural guardians and De factor Guardians. They are :
Under Section 8 Powers of natural guardian is provided – (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court,- (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of subsection (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular- (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof. (b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and (c) an appeal lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.
(6) In this section, “Court” means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.
9 . Testamentary guardians and their powers.– (1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section (12) or in respect of both.
(2) An appointment made under sub-section (1) shall have not effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.
(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section (12) or in respect of both.
(4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property or in respect of both.
(5) The guardian so appointed by will has the right to act as the minor’s guardian after the death of the minor’s father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.
(6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.
- Incapacity of minor to act as guardian of property.- A minor shall be incompetent to act as guardian of the property of any minor.
- De facto guardian not to deal with minors property.- After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.
With this background of law let us now understand differences in guardianships.
A guardian-de- facto implying thereby one who has taken upon himself the guardianship of a minor-whereas the guardian de-jure is a legal guardian who has a legal right to guardianship of a person or the property or both as the case may be. This concept of legal guardian includes a natural guardian: a testamentary guardian or a guardian of a Hindu minor appointed or declared by Court of law under the general law of British India.
How to appoint Guardian of a Ward? Can it be by way of an Agreement duly registered?
The Guardians and Wards Act, 1890 defines term Minor, and Ward as under:
In this Act, unless there is something repugnant in the subject or context,—
(1) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his majority;
(2) “guardian” means a person having the care of the person of a minor or of his property or of both his person and property;
(3) “ward” means a minor for whose person or property or both there is a guardian;
Under Section 7 of the said Guardian and Wards Act it is the Court who is empowered to decide and pass orders regarding guardianship.
Power of the Court to make order as to guardianship.—
(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made—
(a) appointing a guardian of his person or property or both, or
(b) declaring a person to be such a guardian the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.
Section 8 of the said Act provides who can apply for guardianship?
Persons entitled to apply for order.—
An order shall not be made under the last foregoing section except on the application of—
(a) the person desirous of being, or claiming to be, the guardian of the minor; or
(b) any relative or friend of the minor; or
(c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has property; or
(d) the Collector having authority with respect to the class to which the minor belongs.
How the Guardianship appointed by Court is terminated?
Cessation of authority of guardian.—
(1) The powers of a guardian of the person cease—
(a) by his death, removal or discharge;
(b) by the Court of Wards assuming superintendence of the person of the ward;
(c) by the ward ceasing to be a minor;
(d) in the case of a female ward, by her marriage to a husband who is not unfit to be guardian of her person or, if the guardian was appointed or declared by the Court, by her marriage to a husband who is not, in the opinion of the Court, so unfit; or
(e) in the case of a ward whose father was unfit to be guardian of the person of the ward, by the father ceasing to be so or, if the father was deemed by the Court to be so unfit, by his ceasing to be so in the opinion of the Court.
(2) The powers of a guardian of the property cease—
(a) by his death, removal or discharge;
(b) by the Court of Wards assuming superintendence of the property of the ward; or
(c) by the ward ceasing to be a minor.
(3) When for any cause the powers of a guardian cease, the Court may require him or, if he is dead, his representative to deliver as it directs any property in his possession or control belonging to the ward or any accounts in his possession or control relating to any past or present property of the ward.
(4) When he has delivered the property or accounts as required by the Court, the Court may declare him to be discharged from his liabilities save as regards any fraud which may subsequently be discovered.
How to appoint Guardian of a Ward? Can it be by way of an Agreement duly registered?
Conclusion and Answer to the Query:
Answer: is in Negative You cannot appoint Guardian of a minor by an Agreement. You need to have an order of Court. Such Agreements have no locus in the eyes of law. Moreover such Agreements may affect right of minor in the property of his father or ancestor.