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Guardian Under The Hindu Minority And Guardianship Act, 1956
A youngster is not intelligent enough to make significant life decisions in the early years of life. He doesn't know how he will care for himself or what is right or wrong for them, either. Because of this, he is offered the assistance of a sane person so that he may make choices that will improve the situation for that youngster.
For the benefit of the children, whom we refer to as minors, a law titled the Hindu Minority and Guardianships Act, 1956, came into force on this topic.
Who is Guardian under the Act, 1956?
According to Section 4(b) of the act, a "guardian" is a person who is responsible for the person of a minor, his property, or both.
The Guardian was described as follows under this law −
A natural Guardian
A guardian named in a minor's mother or father's will
A guardian that the court has assigned or declared
A person authorized to act on behalf of any court under any law
Historical Background of Guardianship
The concept of guardianship in the traditional regime has been associated with the concept of patriarchy, whereby the father was regarded as the sole guardian of the person and property of the child. The mother did not enjoy any independent legal status back then and had no authority over the child.
The Courts started to develop the concept of guardianship during the British era by drawing authority from Macnaghten and M. Strange and formulating a list of guardians consisting of father, mother, elder brother, other paternal relations, and maternal relations.
However, in the case of Purushottam v. Brundavan, the concept of "natural guardian" was explained, stating that the father is the natural guardian of the children, and after the death of the father, the mother will be the natural guardian of the children, and no one else could be the natural guardian of the child.
Types of Guardians
The following types of guardians recognized under the Hindu Minority and Guardianship Act, 1956 −
According to Section 6 of the HMGA, "the natural guardian of a Hindu minor, in respect of both the minor's person and his or her property (except his or her undivided participation in joint family property), are −
The father, and then the mother, in the case of a male or an unmarried girl.
It should be emphasized that the mother will typically have custody of a child under the age of five.
If the child is an illegitimate boy or girl who is not married, the mother will have custody first, followed by the father;
When a girl is married, her husband is responsible.
No one shall have the authority to act as a minor's natural guardian under the requirements of Section 6 of the HMGA.
If he no longer considers himself Hindu, or
If he has finally and fully abandoned the world by converting to (yati or sanyasi) ascetic or hermit (vanaprastha).
The Hindu Minority and Guardianship Act, 1956, Section 9, stipulates that a testamentary guardian may only be appointed by a will. The stated or implied guardianship must be given to the testamentary guardian in order to be valid. A testamentary guardian has the option to decline the appointment, but once appointed, he or she is unable to quit or decline to execute guardianship duties without the court's approval.
The Hindu Minority and Guardianship Act of 1956 grants both the mother and the father the testamentary right to choose a guardian. If the mother rejects the father's selected testamentary guardian, the guardian will be ineffective, and the mother will take over as the child's natural guardian. If the mother designates a testamentary guardian, that person will take over that role, and the father's appointment will be nullified. If the mother declines to select a guardian, the father's choice will take over as guardian. Even though he is permitted to act as their natural guardian, it would appear that a Hindu father cannot select a guardian for his minor illegitimate children.
Guardian Appointed by the Court
The "welfare" of the minor is explicitly stated as being of the utmost priority in Section 13 of the HMGA.
According to Section 13(1), the welfare of the minor shall be the predominant concern in the appointment or declaration of any individual as guardian of a Hindu minor by a court.
According to Section 13(2), no one shall be entitled to guardianship under the terms of this Act or under any law relating to guardianship in Hindu marriage if the court determines that the guardianship will not be in the best interests of the minor.
It is necessary for a minor to defend his property, which is why there is a guardian who will look after him and his belongings. Adopting a child by any guardian establishes a link between the child and the guardian and makes the guardian's care of the child a topic of personal law. We would want to express our gratitude to the legislators who came up with this legislation in order to safeguard the interests of widows, unmarried girls, and minors who own property. The property of anyone who is a minor cannot be stolen in this way.
In order to safeguard a minor's physical, mental, and emotional well-being and ensure their safety from any threats, guardianship is absolutely essential.
Frequently Asked Questions
Q1. Who cannot apply for guardianship under guardian and wards act 1890?
Ans. The law gives minors the authority to serve as guardians under Section 21. Neither minor may serve as the other's guardian. The exception to this rule is that a minor may act as a guardian for his wife, kid, or, if he is in charge of a Hindu undivided family, the wife or child of another family member who is also a minor.
Q2. Who should one appoint as guardian?
Ans. For the interest and nurturing, a minor essentially need a responsible guardian. Although you are entirely free to choose your guardian, it is likely to be a member of your family or a close friend. The ideal candidate would be someone who is already close with your kids.
Q3. What powers does the guardian have?
Ans. Generally speaking, the guardian may be given authority by the court to make choices regarding medical treatment, living arrangements, social settings, property management, and financial matters such as banking, investments, and expenses including rent, long-term care charges, and taxes.
Q4. Can grandfather be natural guardian?
Ans. Father or his executor or in his absence, the paternal grandfather, being the natural guardian, is in charge of the minor's person. On the opposite hand, 'custody of the child' simply means a physical possession (custody) of the child until a certain age.
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