C HAPTER VI

LAWS ON MINORITY AND GUARDIANSHIP

There are different stages of life a person has to come across during

his lifetime since birth. In the early part o f his life, a person is unable to take

care o f his person and property because o f his minority. He cannot manage

his own affairs. He even cannot understand what is good and what is bad. So,

he needs the help o f some other person to take care o f him. For the welfare of

those minors, the lawgivers have made certain laws which can give some

comfort and support to the lives o f the minors.

The modem laws on minority and guardianship is governed by the

Hindu Minority and Guardianship Act, 1956.

1

MEANING OF A MINOR

The dictionary meaning o f the term minor is a person who cannot

manage his own affairs.1 So, a minor is a person who is physically and

intellectually imperfect and immature and hence needs someone’s protection.

In ancient Hindu law it is stated that a person can be called a minor upto the

age o f 16 years. As soon as he attains that age, minority terminates. The

1. Aiyer, K. J., Judicial Dictionary: Butterworths India, New Delhi, 2001,

p. 455
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foundation of this rule is the text o f Narada. According to him a child is

compared to an embiyo upto his 8th year. A youth who has not attained the

age of 16 years is called as Poganda. Afterwards he is no longer a minor and

becomes independent if his parents are dead.2 Though the age o f minority is

fixed at the age of 16, it is not clear whether it is at the beginning or at the end

of that age. Kulluka is of the opinion that it should be at the beginning o f the

age.3This was held to be the law in Bengal. The latter view is stated to be the

role in Mithila and Benaras and also was followed in Southern India and

apparently in Bombay.4

Actually, the difference between the position o f an infant till his eighth

year and a minor above eighth year but below sixteen years in age is made for

the exemption o f the former from criminal liability. The later is exempted

from such only when he is incapable o f discriminating right ahd

2. ‘g arbhasthasadfso jneyafy astamad vatsarat sisuh.

bala asodasad varsatpoganda iti sasyate: ’
‘parato vyavaharajnah svatantrah pitarau bina.’
Ndradasmrtiiy,t35,3 6
i

3. ‘‘valya'nca $odasavarsaparyantam>Kulluka on Manusmrti’SJlll.21

4. Mayne, John. D., Hindu Law and Usage, Bharat Law house, New Delhi,
1991, p. 480
 191

wrong.5

The Hindu Minority and Guardianship Act, 1956 declares that minor

means a person who has not completed the age of 18 years.6 So minority

ceases at the completion o f 18 years under modem taw. <

MEANING OF A GUARDIAN

In Wharton’s Law Lexicon, the term guardian is defmed as one

appointed by the wisdom and policy o f the law to take care o f a person and his

affairs, who by reason of his imbecility and want o f understanding is

i

incapable of acting for his own interest.7

According to Section 4(b) o f Hindu Minority and Guardianship Act,

1956, a guardian means a person having the care of the person o f a minor or

of his property or of both his person and property.

In the four Vedas, specific provisions for guardianship are not

available. Yet the trace of it can be brought out in many ways. The Vedic

words are used in radical sense and all derivatives convey the root meaning in

some degree. Three words namely pita, pati and putra are derived from the

5. Ibid.

6. The Hindu Minority and Guardianship Act, 1956, Section 4(a).

7. Cited in Aiyer, K. J., Judicial Dictionary, Butterworths India, New Delhi,

2001, p. 455.
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root pa which means ‘to protect’. All these words carry with them the root

meaning o f protection. Even the divine protector is spoken of as pita and

sometimes as putra.s The Atharvaveda speaks o f the Brahmxmas the protector

and uses the word pad?

! The Dharmasastras also did not deal with the law o f minors in any

detail. The texts are very few and scanty. Very little is said about guardianship

o f person o f minors. In those days, the minor children mostly lived in the joint

family and were always under the protection of the karta that is the head of

the family. Even after the death of the father, the child was not without

protection. Again, if a child was outside the joint family, and if he belonged to

any one of the first three classes that is brahmana, ksatriya and vaisya then he

had to go to guru’s asrama for study and was under the protection o f the

guru.8910
!
For the above reasons, there was no specific mention of guardianship

o f the person o f a minor. Moreover, the society was not much complicated at

that time and so, the detailed study of guardianship of minor’s person was not

considered to be necessary. The texts speak o f protection to the property of

8. “...pariprajataii kratva vabhutha bhuvo devanam pita putrah san. ’

Rgveda, 1.69.1
9. ‘Brahmana evapatih....’Atharvaveda, V .17.9
* s

10. Derrett, J. Duncun M., Hindu Law Past and Present, A Mukheqee and Co.
Private Limited, Calcutta, 1957, p.127-128

0
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orphan minors but not o f minors whose parents are alive.11

The guardianship is studied in two parts. The first part contains

!
guardianship o f minor’s person. A minor as a person should be looked after by

his guardian. A guardian has to notice the matter regarding proper food,

education, etc. so that the minor can survive on earth as a true human being.

Again, the guardian has to deal with the property o f the minor also. As

the minor cannot look after himself so he is unable to look after his property

also. So, the guardian has the responsibility to look after the property o f the

minor.

Guardianship of the person of minor

For the lull physical and mental development o f the minor and to make

him secured from facing any danger, there must be someone who can take frill

care o f him.

Natural Guardian

At the first instance, the guardian must be the nearest

relation o f the minor. So, no other person but the parents when

they are alive is the guardians o f a minor. No other sage except

Narada mentions father and mother as guardians. Between the father

and mother also the father has the first claim. The cause is also shown
*
!
by him as male has got more importance than the female. In

11. ‘anathavalasvamikadhanam...'‘ Kulluka o n Manusmrti, VII.27

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the female. In absence of the father, the mother has the next claim. If both the

parents are dead then the elder brother takes the place. Regarding a girl, the

Sw ti writers are o f the opinion that the father is the protector of his unmarried

daughter.13

Hindu Minority and Guardianship Act, 1956 recognises the natural

guardians o f the minor legitimate and illegitimate children, both sons and

daughters. The father and after him the mother is the natural guardian in case

of a legitimate boy or a legitimate unmarried girl. The role of mother as the

natural guardian starts from then when the father is dead or otherwise is

incapable o f acting as a guardian. However, the custody o f a child below 5

years shall be with the mother.14 However, the mother and after her the father

is the natural guardian of an illegitimate boy or an illegitimate unmarried

girl.15

Earlier, in the days o f Smrtis, girls were given into marriage when she

was a minor. So, it is necessary to determine as to who would be the guardian

12. ‘tayorapipita sreyan bijapradhanya darsanat.

aJbhave bljino mdta tadabhdve tu purvajah: ’Naradasmrti, IV.1.37

13. ‘pita raksati kaumare....,Manusmrti, IX.3, and also Naradasmrti,

IV.13.31
14. The Hindu Minority and Guardianship Act, 1956, Section 6(a).
15. The Hindu Minority and Guardianship Act, 1956, Section 6(b).
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o f the girl after her marriage. The ancient lawgivers have made clear

statement in this regard. So, after the performance o f the marriage ceremony

the husband was to protect his minor wife.16 Under the Hindu Minority and

Guardianship Act, 1956 also, in case of a minor wife, it is the responsibility of

the husband to look after her as a guardian. The Act lays down that the

husband is the natural guardian of the person and property of the minor wife.17

Thus, both in ancient as well as modem laws the father has the first

claim to be the guardian of the minor. It is due to the nature of the society

which is patriarchal. The ancient law that after father the mother takes the

place as guardian has been also kept intact by the modern law. Actually, the

mother should have equal right to guardianship with the father at the present

circumstances, as the man and woman both are equal under the Constitution of

India. After marriage a husband becomes the guardian of his minor wife

according to both the laws o f ancient and modem times.

Testam entary G uardian

In the modem law another kind o f guardian is recognised. It is,the

testamentary guardian. If in absence o f the parents or natural guardian a

16. ‘....... bhartia raksatiyauvane.’ Mmusmrti, IX.3;

and also Naradasmrli, IV. 13.31; Yajnavalkyasmrli, 1.85

17. The Hindu Minority and Guardianship Act,1956, Section, 6(c)

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minor is given at an improper hand then it becomes a matter of misfortune.

So, modem lawgivers have made die provisions o f appointing a person as

guardian by the father or the mother in their lifetime. Such guardian is to be

appointed by a will. So, the testamentary guardians o f a minor are those

guardians who are appointed by a will of the natural guardian, entitled to act

as a guardian for the minor. A will becomes effective only after the death of
1K ‘
the executor.

The Hindu Minority and Guardianship Act, 1956, recognises the right

of the father, the mother and the widowed mother to appoint guardian o f the

person and separate property o f a Hindu minor.I9(l)

Will was completely unknown to ancient Hindu law. Moreover, the

idea of offering responsibility to one by the minor’s parents before their death

was also not considered to be necessary in those days. Nowadays, as the

families are mostly nuclear so it is necessary to think o f the security o f the life

of the minor after his parent’s death.

18. Agarwala, R. K., Hindu Law, Central Law Agency, Allahabad, 1996,

p.l 94

19 (i). The Hindu Minority and Guardianship Act, 1956, Section 9.

t
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G uardian appointed by the court

In the days o f Smrtis the supreme jurisdiction in respect of children

was vested upon the king. The king had the power to appoint nearest relations

of the minor as guardian. However, preference was given to relations on

paternal side over maternal side.1900 Thus, for the security o f the child such

provision was incorporated by the ancient lawgivers. Now this power is

exercised by the courts under the Guardians and Wards Act, 1890. The

guardian appointed by the court is known as a certificated guardian.

According to Section 13 o f the Hindu Minority and Guardianship Act, 1956,

in the appointment o f any person as guardian o f a Hindu minor by a court, the

welfare of the minor shall be the paramount consideration.

Thus, in both the ancient and modem times the king or the court also

has been given the responsibility to appoint a guardian for the security o f a

minor.

G uardian o f a minor widow

Earlier in the days of the Smrtis child marriage was very common.

After the marriage ceremony the husband became the guardian o f that girl.

But if a girl’s husband died then that minor widow did not have to become

19(ii) Diwan Paras, Modern Hindu Law, Allahabad Law Agency, Haryana,

2003, p. 246.
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insecure.

According to Narada when a girl becomes a widow then her husband’s

relation has to protect and maintain that girl. However, in absence of any

relation o f the husband the relation o f her father has the responsibility to

protect her.20

Before 1956 there existed a guardian called guardianship by affinity. It

was the guardian o f a minor widow. It was provided by the Guardianship and

Wards Act, 1850.

No section of the Hindu Minority and Guardianship Act, 1956,

provides anything specifically regarding the guardianship of a minor widow.

As child marriage is neither void nor voidable under modem law,21 there is a

need of such provision which can provide security to a minor widow.

GUARDIANSHIP OF MINOR’S PROPERTY

A minor though is o f tender age may acquire some property by way of

inheritance, gift etc. Because of his tender age it is not possible for him to take
J

care of that property.

The Smftis are of the opinion that the king has to protect the property

of the minor. In this regard Manu states that the king’ should guard an

inheritance received by a child till his study is completed or till he has passed

20. Naradasmrti,
o 7
IV .l3.28,7 29
21. The Hindu Marriage Act, 1955, Sections 11 and 12
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beyond the age o f childhood.22 Vasistha expresses that the king shall protect

the property o f persons unfit to transact business, but when a minor comes of

age, his property must be made over to him 23(l). Visnu is o f the opinion that

the king shall protect the property o f infants, o f people without protectors and
l

ofw om en23(ii)

Under the present law, in the normal circumstances, the natural

guardian of the person o f the child is also the guardian o f minor’s property.

The same applies to testamentary guardian and certificated guardian who owe

their appointment, in the former case to the natural guardian, and in the latter

the court. They will be guardian ortly o f the property in respect of which they

are appointed and if some property is excluded from their guardianship they

cannot claim to be guardian of the property.

22.'valadayadikam riklham tavadrajanupalayet.

_ _ _ / / ?
yavat sa syat samavrttoyavaccatTiasaisavah: Manusmrti,V]ll.27

23(i). ‘sampannam ca raksayedrajabaladharianyapraptavyavahardnam...’

VasisthadharmasutrajC/lM -9

23(ii). Jha Ganganath, Manusmrli, Notes, Part III, Comparative, University

o f Calcutta, 1929, p.551

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Both the ancient and modem lawmakers are concerned with the

security o f the person and property of the minor. However, various new rifles

have been incorporated in the modem Act to cope up with the changing need

of the society.