THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956 [Act No.

32 of 1956]

[25th August 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:-

Analysis: The Act of 1956 came into force on 25th August, 1956. It purports to amend and
codify certain parts of the law relating to minority and guardianship among Hindus.

Section 1. 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 Kashmir and applies to Hindus
domiciled in the territories to which this Act extends who are outside the said territories.

Section 2. Act to be supplemental to Act 8 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 (8 of 1890).

Analysis:

Section 2 enacts that the provisions of this Act shall be in addition to the Guardians and Wards
Act and not in derogation of. But in view of the term, save as hereinafter expressly provided‖ the
provision of this Act, where express provision is made, have to be given effect to.

Section 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 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, Buddhists, 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 convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

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.

Analysis:

For explanation, recall the Section 2 of Hindu Marriage Act, 1955.

Section 4 . Definitions.-

In this Act,-

(a) "minor" means a person who has not completed the age of eighteen years; (b) "major"
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

Analysis:

This Section 4(c) refers to three classes of guardians viz., father, mother and in the case of a
married girl the husband. The father and mother therefore, are natural guardians in terms of the
provisions of Section 6 read with Section 4(c).

Section 5. Over-riding 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 in so far as it is inconsistent with any of the provisions contained in this Act.

Analysis:

Section 5 prescribes the overriding effect of this Act. Section 5 (b) lays down that ―save as
otherwise expressly provided in this Act‖, any other law in force immediately before the
commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the
provisions contained in this Act. It would thus be clear that the provisions of this Act of 1956
and of the Guardians and Wards Act are complementary. In case of repugnancy, the
provisions of the Act of 1956 would prevail.

Section 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 by becoming
a hermit (vanaprastha) or an ascetic (yati or sanyasi)

Explanation.- In this section, the expressions 'father' and 'mother' do not include a stepfather
and a step-mother.

Analysis:

Law is well settled that the paramount consideration for the appointment of a guardian of a minor
is the welfare of the minor. A natural guardian cannot be appointed as the guardian of the minor
if it is found that such appointment would be detrimental to the wel fare of the minor380. The
validity of Section 6 of the Hindu Minority and Guardianship Act of 1956 has been challenged in
Ms. Githa Hariharan & Anr vs Reserve Bank of India & Anr on the ground that dignity of
women is a right inherent under the Constitution which as a matter of fact stands negatived by
Section 6 of the Act of 1956. Answering to the question, the Hon‘ble Apex Court held as follows:

Kusa Parida And Anr. vs Baishnab Malik And Ors: AIR 1966 Ori 60. Even before the passing
of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956), the mother is the natural
guardian after the father.

The word `guardian' and the meaning attributed to it by the legislature under section 4(b) of the
Act cannot be said to be restrictive in any way and thus the same would mean and include both
the father and the mother and this is more so by reason of the meaning attributed to the word as
"a person having the care of the person of a minor or his property or of both his person and
property...." It is an axiomatic truth that both the mother and the father of a minor child are duty
bound to take due care of the person and the property of their child and thus having due regard to
the meaning attributed to the word `guardian' both the parents ought to be treated as guardians of
the minor. As a matter of fact the same was the situation as regards the law prior to the
codification by the Act of 1956381. The law therefore recognised that a minor has to be in the
custody of the person who can sub-serve his welfare in the best possible way - the interest of the
child being paramount consideration.

The word `guardian' in the definition section means and implies both the parents, the same
meaning ought to be attributed to the word appearing in section 6(a) and in that perspective
mother's right to act as the guardian does not stand obliterated during the lifetime of the father
and to read the same on the statute otherwise would tantamount to a violent departure from the
legislative intent. Section 6(a) itself recognizes that both the father and the mother ought to be
treated as natural guardians and the expression `after' therefore shall have to be read and
interpreted in a manner so as not to defeat the true intent of the legislature. the word `after' does
not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to
ascribe the meaning thereto as `in the absence of `- be it temporary or otherwise or total apathy of
the father towards the child or even inability of the father by reason of ailment or otherwise and it
is only in the event of such a meaning being ascribed to the word `after' as used in Section 6.

In ABC … Vs The State (NCT of Delhi) 2015 SCC OnLine SC 609 the Hon‘ble Apex Court had
clarified that ―in all situations where the father is not in actual charge of the affairs of the minor
either because of his indifference or because of an agreement between him and the mother of the
minor (oral or written) and the minor is in the exclusive care and custody of the mother or the
father for any other reason is unable to take care of the minor because of his physical and/or
mental incapacity, the mother can act as natural guardian of the minor and all her actions would
be valid even during the life time of the father who would be deemed to be ―absent‖ for the
purposes of Section 6(a) of the HMG Act and Section 19(b) of the GW Act.‖ This Court has
construed the word ‗after‘ in Section 6(a) of the Hindu Minority and Guardianship Act as
meaning ―in the absence of – be it temporary or otherwise or total apathy of the father towards
the child or even inability of the father by reason of ailment or otherwise. In Smt. Manju Tiwari
v. Dr. Rajendra Tiwari and Anr. AIR 1990 SC 1156 the Hon'ble Apex Court has directed
custody of child to be given to mother as the child was less than five years of age with liberty to
father to visit the child during week ends.

In Kumar V. Jahgirdar v. Chethana Ramatheertha (2004). the Hon'ble Apex Court has ordered
custody of child to mother with visitation rights granted to the natural father. In Poonam Datta v.
Kirshanlal Datta and Ors. AIR 1989 SC 401, the Hon'ble Supreme Court directed that minor
child will live with his mother. In Rajesh K. Gupta v. Ram Gopal Agarwala and Ors. (2005)
order granting custody of minor child to her mother is not interfered with by the Hon'ble
Supreme Court.

In Smt. Mohini v. Virender Kumar AIR 1977 SC 1359, Hon'ble Apex Court has held that
welfare of minor to be paramount consideration and mother declared entitled to guardianship and
custody of a child385. In Mrs. Wlizabeth Dinshaw v. Arvand M. Dinshaw and Anr. 1987 SCR
(1) 175 Hon'ble Supreme Court held that interest and welfare of minor is predominant criterion.
Welfare of child must be taken into consideration and on the sole and predominant criterion of
what would be best serve the interest and welfare of the minor.

Hon'ble Supreme Court in the case of Ms. Gita Hariharan v. Reserve Bank of India AIR 1999,
2 SCC 228, has held that if the father and mother are staying separately and the minor daughter
was under the care and protection of her mother (though her father was alive) the mother should
be considered as the natural guardian of the minor girl. In all situations where the father is not in
actual charge of the affairs of the minor either because of his indifference or because of an
agreement between him and the mother of the minor and the minor is in the exclusive care and
custody of the mother or the father for any other reason is unable to take care of the minor
because of his physical and or mental incapacity, the mother can act as a natural guardian of the
minor and all her action would be valid even during the life time of the father, who would be
deemed to be 'absent' for the purpose of Section 6(a) of the act.

If the custody of the minor child be handed over to the mother from the custody of father, the
same will be in the interest of welfare of the minor child particularly in view of Section 6(a) and
Section 13 of the Act. The father will have the right to visit the minor child either on Saturday or
Sunday or any other public holidays after prior intimation to the mother and her relatives. As
soon as the child attains the age of five years it will be open for the parties to approach the Court
for passing appropriate orders because this Court has passed the order in view of Section 6(a)
read with Section 13 of the Hindu Minority and Guardianship Act.

Conversion to another religion:

It has been held that even conversion to different faith cannot be regarded as a disqualification
for the custody of the minor so long as the guardian is capable of providing a happy home for the
minor388. In another case it has been held that ―A father who is converting to Islam and
marrying a Muslin girl would cease to be a natural guardian as a matter of legal right389‖.

Section 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. Section 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 subsection

(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 (8 of 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 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 (8 of 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.
Analysis:

The Apex Court in Vishwambhar v. Laxminarayana, MANU/SC/0374/2001 had an occasion to

consider the scope of Section 8 of the Act 1956 and found that the mother as a natural guardian
cannot sell the property of the minors' share in the joint family property without permission of
the court. If it is so sold, it could be avoided by the minors by filing a suit to set aside the sale
executed by the mother within the period contemplated under Article 60 of the Limitation Act,
that is, within three years from the date when they attained majority. In Pattayi Pasdayachi v.
Subbaraya
Padayachi 1980 (93) L.W. 369. The court held that ―even in the absence of father, mother
cannot be the natural guardian and so the alienation of the minors' interest in the joint family
property has to be held as void, and so the suit can be sustained within 12 years from the date of
such alienation as contemplated under Article 65 of the Limitation Act.

Mother can act not only as a guardian but also such a transfer of interest of minors in the joint
family property will come under Section 8 of the Act 1956 and so such a sale without permission
of the court is voidable." In V.V.V Ramaraju Vs. K.Malleswara Rao, 1999 (1) ALT 828 the court
held that section 8 of the Act deals with the powers of natural guardian relating to the minor‘s
property, but this section does not apply to his interest in the joint family property. Hence
provisions of section 8 of the Act, 1956 are not applicable to sale deeds executed by the father
including share of son in the joint family property.

Section 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 not 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 a 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 the 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.

Analysis:

According to this section, so long as mother is alive, she alone can be the guardian, and even if
the father has the power to appoint a testamentary guardian, the same would not have any effect.
Without the prior permission of the Court, the testamentary guardian cannot sell the property.

Section 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.

Analysis:

This section states that a minor is incompetent to act as guardian for the property of
another minor. It is vividly clear that under this section a minor can act as a guardian of
any minor person as this section deals only with incompetence of the minor to act as a
guardian of the property of the minor. Under Section 21 of the Guardians and Wards Act, a
minor can act as a guardian of his minor wife. In Anchal Sagar And Another vs State Of
Punjab And
Others (2011) the Punjab and Haryana High Court held that ―a minor is incompetent to act as a
guardian of any minor except his own wife. Put differently, a minor husband is not incompetent,
in law, to act as guardian of his minor wife." Section 11.

De facto guardian not to deal with minors 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.

Analysis:

The de-facto guardian can neither be guardian appointed by a Court of law, nor the testamentary
guardian. As per Section 11 of the Hindu Minority and Guardianship Act, he is not entitled to
dispose of or deal with the property of a Hindu minor, merely on the ground of himself being the
de-facto guardian of the minor. Sec.11 includes all types of properties of a minor. No exception is
provided in the Section.

Section 21. Capacity of minors to act as guardians. (Guardians and Wards Act, 1890)

A minor is incompetent to act as guardian of any minor except his own wife or child or, where he
is the managing member of an undivided Hindu family, the wife or child of another minor
member of that family."

A Division Bench of the Madras High Court in the case of Dhanasekaran v. Manoranjithammal
and others, (A.I.R. 1992 Mad. 214), construing Sec.11 of the Act, held that the property of a
Hindu minor referred to in Sec.11 will include all his properties; including his undivided interest
in the joint family property and consequently that the sale by the de facto guardian of the minor's
interest in the joint family property was void ab initio.

Alienation by a defacto guardian will be governed by the provision contained in section 11 of the
Act, 1956. In the present case the alienation being against statutory prohibition, it would be void
ab initio and hence the question of any title to the property does not arise
Section 12. Guardian not to be appointed for minors 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
the welfare of the minor shall be the paramount consideration.

Section 13. Welfare of minor to be paramount consideration.-

(1) In the appointment of 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.

Analysis:

The Hon'ble Apex Court in Rosy Jacob v. Jacob A. Chakramakkal 1973 AIR 2090, has held that
paramount consideration governing the custody of the children is the welfare of the children and
not the right of their parents. Section 13 thereof provides that in the appointment of any person as
guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount
consideration. Sub-section (2) issues an injunction that no person shall be entitled to the
guardianship by virtue of the provisions of this Act, if the Court is of opinion that his or her
guardianship will not be for the welfare of the minor. Section 13 thus makes a clear provision
that no guardian can be appointed, if such appointment will not be for the welfare of the minor. It
also covers the case of natural guardian. Section 13 thus gives a clear statutory recognition to the
preexisting position of law that even a natural guardian cannot claim to be appointed as a
guardian as of right unless such appointment is for the welfare of the minor in the opinion of the
Court.
In Surinder Kaur v. Harbax Singh reported in 1984 SC 1224 Hon'ble Supreme Court held as
follows: ―Section 6 of the Hindu Minority and Guardianship Act, 1956, constitutes the father as
the natural guardian of a minor son. But that provision cannot supersede the paramount
consideration as to what is conducive to the welfare of the minor‖. The word 'welfare' has the
widest amplitude. It is to be understood in its widest sense so as to cover the material and
physical well being, education, health, happiness and moral welfare of the child. Welfare of
minor child how to be ascertained? Lindley, L.J. In Re v. Megrath (Infants) 1893 (1) Ch. 143,
stated that: ... the welfare of the child is not to be measured by money alone nor by physical
comfort only. The word 'welfare' must be taken in its widest sense. The moral and religious
welfare must be considered as well as its physical well being. Nor can ties of a affection be
disregarded'. `Welfare' is an all encompashing word which includes material welfare, both in the
sense of adequacy of resources to provide a pleasant home and comfortable standard of living
and in the sense of an adequacy of care to ensure that good health and due personal pride are
maintained. More important, as pointed out by the Supreme Court in Dhanwanti Joshi v. Madhav
are the stability and the security, the loving and understanding care and guidance, the warm and
compassionate relationships, that are essential for the full development of the child's own
character, personality and talents. Therefore, it would be erroneous to give sole or more
importance to the superior financial capacity of a party.

Ruchirkumar Gajanandbhai Suthar ... vs Amitaben D/O Hasmukhlal ... on 5 December, 2006
In this case, the female child is below five years, custody of child should ordinarily be with the
mother unless the welfare of the child demands otherwise. Such a child needs most a tender
affection, the caressing hand and the company of his natural mother. This Court is of the view
that neither the father nor his female relations, however, close, well-meaning and affectionate
towards the minor, can appropriately serve as a proper substitute for the minor's natural mother.
In this connection the mother is rightly endowed with a preferential claim in regard to the child's
custody.
The interest of the minor will be well served by keeping him with his mother.