The Hindu Minority and Guardianship Act, 1956
ACT NO.32 OF 1956
An
Act to amend and codify certain parts of the law relating to
minority and guardianship among Hindus.
[25th August,
1956]
Be it enacted by Parliament in the Seventh Year of the
Republic of India as follows:—
1.Short title and extent.-
(1) This Act may be called the Hindu Minority and Guardianship Act,
1956.
(2) It extends to the whole of India except the State
of Jammu Kashmir and applies to Hindus domiciled in the territories
to which this Act extends who are outside the said
territories.
2.Act to
be supplemental to Act 8 of 1890.- The provisions of this Act
shall be in addition to, and not, save as hereinafter expressly
provided, in derogation of, the Guardians and Wards Act, 1890 (8 of
1890).
3.Application
of Act.- (1) This Act applies—
(a) to 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.
(2) Notwithstanding anything
contained in sub-section (1), nothing contained in this Act shall
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.
4.Definitions.- In this
Act,—
(a) "minor" means a person who has not completed the
age of eighteen years;
(b) "major" means a person having the
care of the person of a minor or of his property or of both his
person and property, and includes—
(i) a natural
guardian,
(ii) a guardian appointed by the will of the
minor's father or mother,
(iii) a guardian appointed or
declared by a court, and
(iv) a person empowered to act as
such by or under any enactment relating to any court of
wards;
(c) "natural guardian" means any of the guardians
mentioned in section 6.
5.Over-riding effect of
Act.- Save as otherwise expressly provided in this
Act,—
(a) any text, rule or interpretation of Hindu law or
any custom or usage as part of that law in force immediately before
the commencement of this Act shall cease to have effect with respect
to any matter for which provision is made in this Act;
(b)
any other law in force immediately before the commencement of this
Act shall cease to have effect in so far as it is inconsistent with
any of the provisions contained in this Act.
6.Natural guardians of a Hindu
minor.- 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 step-father and a
step-mother.
Comment: Mother can act as
natural guardian of minor even when father is alive : Ms. Githa Hariharan v. Reserve
Bank of India AIR 1999 SUPREME COURT 1149
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.
8.Powers of natural
guardian.- (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 sub-section (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.
10.Incapacity of minor to act
as guardian of property.- A minor shall be incompetent to act as
guardian of the property of any minor.
11.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.
12.Guardian not to be appointed
for minors undivided interest in joint family property.- Where a
minor has an undivided interest in joint family property and the
property is under the management of an adult member of the family,
no guardian shall be appointed for the minor in respect of such
undivided interest:
Provided that nothing in this section
shall be deemed to affect the jurisdiction of a High Court the
welfare of the minor shall be the paramount consideration.
13.Welfare of minor to be
paramount consideration.- (1) In the appointment of declaration
of any person as guardian of a Hindu minor by a court, the welfare
of the minor shall be the paramount consideration.
(2) No
person shall be entitled to the guardianship by virtue of the
provisions of this Act or of any law relating to guardianship in
marriage among Hindus, if the court is of opinion that his or her
guardianship will not be for the welfare of the minor.