Under Hindu law, the concept of natural guardianship is primarily governed by the Hindu Minority and Guardianship Act (HMGA), 1956, which supplements the Guardians and Wards Act, 1890.
1. Natural Guardians and Order of Priority
According to Section 6 of the HMGA, the natural guardians of a Hindu minor (in respect of the minor's person and property) are:
A. For a Legitimate Boy or Unmarried Girl
The Father: He is the primary natural guardian.
The Mother: She is the guardian after the father.
Note: The Supreme Court in Githa Hariharan v. Reserve Bank of India (1999) interpreted the word "after" to mean "in the absence of," rather than only after the father's death. This includes situations where the father is indifferent, physically away, or mentally incapable.
Exception: The custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
B. For an Illegitimate Boy or Unmarried Girl
The Mother: She is the primary guardian.
The Father: He follows the mother.
C. For a Married Girl
The Husband: Upon marriage, the guardianship of a minor girl shifts to her husband.
2. Natural Guardian of an Adopted Child
According to Section 7 of the HMGA, the natural guardianship of an adopted son or daughter (who is a minor) passes to the adoptive father and, after him, to the adoptive mother.
Once a valid adoption takes place under the Hindu Adoptions and Maintenance Act (HAMA), 1956, all legal ties with the biological family are severed for the purpose of guardianship, and the adoptive parents assume the same priority as natural parents.
3. Powers of a Natural Guardian
Section 8 of the HMGA defines and limits the powers of a natural guardian. Their authority is divided into two categories:
A. General Powers
The guardian can do all acts which are necessary or reasonable and proper for:
The benefit of the minor.
The realization, protection, or benefit of the minor's estate.
B. Restrictions on Property (Legal Necessity)
A natural guardian cannot, without the previous permission of the court:
Mortgage, charge, sell, gift, or exchange any part of the immovable property of the minor.
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.
Legal Consequence: Any disposal of immovable property by a natural guardian in violation of these restrictions is voidable at the instance of the minor or any person claiming under them (Section 8(3)).
4. Disqualifications
Under Section 6, no person shall be entitled to act as a natural guardian if:
They have ceased to be a Hindu (Conversion).
They have completely and finally renounced the world (becoming a Sanyasi or hermit)
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