Natural Guardians:
The natural guardian of a minor boy or minor unmarried girl is the father. On the death of the father the mother becomes the natural guardian. Under the old law a natural guardian did not cease to be such by ceasing to be a Hindu and becoming a convert to some other religion.
Under s. 6 of the Hindu Minority and Guardianship Act, 1956 the natural guardian forfeits his position as a result of conversion. Further, under the Act of 1956 renunciation of the world by becoming Vanaprastha or Sanyasin also results in loss of natural guardianship.
Under the old law the father as natural guardian could claim the custody of his children irrespective of their age. Under the Act of 1956 the custody of children under five years of age should be with the mother ordinarily. Under the old law the husband was the guardian of his minor wife.
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ADVERTISEMENTS:
This could be so even if the husband himself was a minor. Under the Act of 1956 no minor can himself be a guardian of the property of another minor. So a minor husband cannot now claim guardianship over the property of his minor wife. Both the bride and bridegroom should be majors under the present law (see Hindu Marriage Act, s. 5).
The powers of the natural guardians were governed by the rule in Hanuman Prasad’s case (See Note 8.5). They could alienate the property of the minor in cases of legal necessity and in cases of benefit to the estate of the minor. These powers have now been drastically curtailed.
Section 8 of the Act requires the consent of the court to be obtained before any such alienation is made. The only exception is a lease for a term of less than 5 years and in any case not extending beyond one year from the date of the minor attaining the age of majority. Leases for a longer term now require the proper sanction of the court.
Testamentary Guardians:
ADVERTISEMENTS:
Under the old law only the father by his will could appoint a testamentary guardian. Under the Act of 1956 even the mother can do so. Under the old law the testamentary guardian appointed by the father could function on the death of the testator even if the minor’s mother was still alive.
Now under the Act if the mother of the minor survives the father, it is she and not the testamentary guardian appointed by the father that can function as guardian. Further she can herself appoint a testamentary guardian for her children even if the father had himself left his will appointing a testamentary guardian. Her will has preference in such a case and it is only if she has not appointed a testamentary guardian for the child that the appointment made by the father would revive on her death.
Further, so far as illegitimate children are concerned it is only the mother that can appoint a testamentary guardian. Under the old law no testamentary guardian could be appointed for illegitimate children.
The powers of the testamentary guardians are not higher than those of a natural guardian. They are subject to the limitations imposed by the will. This was so under the old law also. But under the new law the testamentary guardian’s powers are statutorily curtailed just like the power of the natural guardians. That is, the prior permission of the court is required for alienations as in the case of natural guardians.
De Facto Guardians:
ADVERTISEMENTS:
The old law recognised a de facto guardian. In regard to alienations of property his powers were those of natural guardians. Under the new law the concept of de facto guardian has been abolished.
These are the principal changes made by the legislation of 1956 in the law of guardianship.