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HINDU MINORITY AND
GUARDIANSHIP ACT, 1956
An Act to amend and codify certain parts
of the law relating to minority and guardianship among Hindus. Be it
enacted by Parliament in the Seventh Year of the Republic of India
as follows: -
l. 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 and Kashmir and applies also to Hindus domiciled in the
territories to which this Act extends who are outside the said
territories.
2. Act to be supplemental to Act VIII 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.
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 other 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, Buddhist, 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 a 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) "guardian" 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 Overriding 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
insofar 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 becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi).
Explanation:
In this section, the expression "father" and "mother" do not include
step-father and a step-mother.
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, 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 shall 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, 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 no 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 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 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 minor’s 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 minor’s 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 to appoint a guardian in respect of such
interest.
13. Welfare of minor to be paramount
consideration
(1) In the appointment or 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.
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