The Disabilities to act as a guardian are as follows:
According to Section 6 of the Act, the disabilities to act as a natural guardian may arise from the following reasons—
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ADVERTISEMENTS:
(i) Disabilities arising from apostacy,
(ii) Disabilities arising from civil death
(iii) Disabilities owing to minority,
(iv) Where the guardianship is prejudicial to the welfare of the minor.
(1) Apostacy:
ADVERTISEMENTS:
Before the passing of the present Act the right of guardianship did not cease on the change of religion. The fact that a father had changed his religion was of itself no reason for depriving him of the custody of his child. But if at the time of conversion, the fatter voluntarily abandoned his right of natural guardianship and entrusted the custody of the child to another person the court would not restore back the custody of the child to the father if such a course is detrimental to the interest of the child.
In view of the changes brought about by the present Hindu Minority and Guardianship Act, 1956, the Madras High Court in Vijaya Laxmi v. Inspector of Police, held that where the father converted to Islam and married to a Muslim girl, he ceases to be natural guardian as a matter of legal right. It would not be in the interest of child that such convert should continue as a natural guardian and exercise the powers as such.”
(2) Civil Death:
Any person who has completely and finally renounced the world by becoming a hermit or ascetic forfeits his right to continue as the natural guardian of his minor child. The renunciation must be complete and final. In order to establish this fact, in the words of Mayne, “the person desiring to enter the order must perform his death ceremony and the eight shradhas, the last of which is his own Shradha, reserving enough for Homam.
He would then take leave of his sons and standing in the water recites a mantra three times to the effect that he has given up his desire for sons, wealth, world and everything. He does not become Sanyasi till the Mantra is pronounced.”
(3) Minority:
ADVERTISEMENTS:
Section 10 of the Act provides that a minor cannot be a guardian of the property of the minor. But this does not apply to joint family property. In a joint family even a minor may be a karta and there is no prohibition in Hindu law against it.
(4) Minor’s Welfare:
The court would not permit a person to act as a minor’s guardians, if in its opinion; his or her guardianship is not for the welfare of the minor. The custody of the minor cannot be entrusted to the father, simply because he is a natural guardian, if it is detrimental to his interest. If the custody of the father cannot promote the welfare of the minor equally or better than the custody of the mother then he cannot claim indefeasible right to the minor’s custody.
Effect of Remarriage by Widow:
A Hindu widow does not by her remarriage, lose her preferential rights of guardianship over her minor children by the deceased husband whether such marriage is permitted by customs or not. The right of natural guardianship of the mother is absolute after the father.
Where a natural guardian has been wrongfully deprived of the custody of his or her child, the same could be restored through the writ of habeas corpus.
Natural Guardian of an Adopted Son:
Section 7 of the Hindu Minority and Guardianship Act, 1956 lays down that natural guardian of an adopted son, who is a minor passes on adoption to the adoptive father and after him to the adoptive mother. The father and mother of the original family lose every right of guardianship after adoption.
The terms ‘adoptive father’ and ‘adoptive mother’ do not include any step-adoptive father or step-adoptive mother and thus none of them can exercise the right of natural guardianship with respect to a step-adopted son. In case of a minor adopted daughter, although the present section is silent, the natural guardianship shall be determined according to the provisions of Section 12 of the Hindu Adoption and Maintenance Act, 1956.
According to the section, the adoptive father and the adoptive mother would become the natural guardian of the minor adopted daughter also. In case of adoption of a minor child by an unmarried Hindu female the right of natural guardian shall vest in the adoptive mother only.
It will not shift to anyone else even after her marriage, similarly where a bachelor makes an adoption and subsequently marries, the wife of the adoptive father cannot be the natural guardian of the adopted boy after his death. Her position would be only that of step-mother.