Types of Guardian under Hindu Minority and Guardianship Act, 1956

The term guardian means the person who is concerned with the care of a minor, both his person
and property. In simple words, a person who takes care of a minor and protects its wealth and
property can be termed as a guardian.

Section 4(b) of the Hindu Minority and Guardianship Act states: “a natural guardian, a guardian
appointed by the will of the minor’s father or mother, a guardian appointed or declared by a
court, a person empowered to act as such by or under any enactment relating to any court of
wards.”

Before the enactment of the Hindu Minority and Guardianship Act, 1956, the provisions
regarding “guardian” and “minor” was mentioned in the Guardians and Wards Act, 1890.

Under Section 4 of the act, a guardian is defined as “a person having the care of the person of a
minor or of his property or of both his person and property.” The act mentions the following
types of guardians: 

 a natural guardian.

 a guardian appointed by the will of the minor’s father or mother.

 a guardian appointed or declared by a court.

 a person empowered to act as such by or under any enactment relating to any Court of
wards.

The above-mentioned kinds are not exhaustive. Besides them, there are two more types of
guardians namely: de facto and Ad hoc guardian. While de facto guardianship finds mention in
the Act, the latter does not find any place.

Natural Guardian 

Section 6 states the natural guardian of a Hindu minor. As the per section, a natural guardian will
be in respect to the minor person as well as the minor’s property, excluding their undivided
interest in the joint family property. It is a person who takes care of the person and property of
the minor by virtue of his nearness in the blood relationship. Section 6 of the Act covers the
provisions for the natural guardians. The expression refers to the father and mother of the
guardian and in the case of a married girl, her husband assumes to be her guardian.

A natural guardian can be classified into three cases:

1. In the case of a minor girl or boy: the natural guardian of a minor child is with the
father, and the mother of the minor will be categorized as the natural guardian after the
father. However, in case the minor is less than five years of age, the custody shall
ordinarily vest with the mother. 
2. In the case of an illegitimate minor boy or girl: if the minor child is an illegitimate
child, then, in that case, the mother will be the first natural guardian. After the mother,
the father is the natural guardian. 
3. In the case of a married girl: the act states that the husband of the minor married girl is
the lawful natural guardian. 

Further, section 6 doesn’t recognize step-father or step-mother in the category of “father” and
“mother”. However, in the case of adoption, the adoptive father is deemed to be a natural
guardian, after him, the adoptive mother. In the case of an illegitimate child, the first natural
guardian is the mother and then the father. In the case of Suresh Babu v Madhu (1984) it was
held that if the minor has not completed five years of age, the custody of the minor shall
ordinarily be with the mother, but the father would still continue as guardian of the child. But
welfare and best interest of the child is the supreme consideration and therefore, custody and
guardianship can change according to facts and circumstances of the case.

Powers: A natural guardian (“NG”) has the power to perform any necessary act for the benefit
and welfare of the minor. This allows the NG to exercise any necessary control over the health,
upbringing and education of the minor. The NG can also transfer any portion of the minor’s
property by mortgage or sale in case of necessity or benefit of the estate. This sufficiently
protects the minor’s interest by undertaking all those acts which are reasonable and proper in the
best interest of the minor. Through this right, a NG is protected under this section for all the acts
that they have done in good faith considering the minor’s benefit and welfare. However, in case
of transfer of property, the guardian needs to obtain the previous sanction of the court.
Testamentary Guardian

Section 9 of the Hindu Minority and Guardianship Act, 1956 defines a testamentary guardian
and its powers. A testamentary guardian is a person who is appointed by Will of the Natural
Guardian. A testamentary guardian will take over as the minor’s guardian after the death of the
minor’s natural guardian. However, if the father of the minor dies before the mother of the
minor, in that case, such an appointment will have no effect and shall come into effect if the
mother of the minor dies without appointing a guardian. Further, a mother of an illegitimate child
can also appoint a testamentary guardian. 

According to Section 9 (5), a testamentary guardian is entitled to the same rights, limitation and
powers as a natural guardian up to an extent under the Hindu Minority and Guardianship Act.

Legal Guardian/Guardian Appointed by the Court

A legal Guardian is a person appointed by the Court for the Welfare of the minor, both of person
and property. The court may make an order under the Guardian and Wards Act, 1890 appointing
a guardian. Such an order must be after Court’s due satisfaction. The welfare of the minor is of
paramount importance while declaring a person as Guardian. In the absence of the first two kinds
of guardian, the guardian appointed by the court comes into play. In this instance, the Hindu
Minority and Guardianship Act is supplementary to the Guardians and Wards Act. Section 13
states that the welfare of the minor should be a “paramount consideration” while appointing a
minor. Hence, the welfare of the minor is taken into account a paramount consideration while
appointing a guardian. 

Powers: The Guardians and Wards Act, 1980 provides for the rights and liabilities of a legal
guardian. A legal guardian is supposed to perform any necessary act with the knowledge and
approval of the court. Although a legal guardian enjoys the same powers as a natural or a
testamentary guardian, the legal guardian is still under the supervision of the court.
De facto Guardian

On the absence of a natural, testamentary or legal guardian, any near relation who takes the
responsibility of the minor and the minor’s property will become a de facto guardian for the
management of the minor. A de facto guardian has no authority to dispose the property unless
there is an emergency. Section 11 of the Hindu Minority and Guardianship Act, 1956 provides
for a de facto guardianship.

Powers: Section 11 of the Hindu Minority and Guardianship Act, 1956 prohibits a de facto
guardian to deal with the minor’s property. According to Section 11 of the Act, “no person shall
be entitled to dispose of, or deal with, the property of Hindu minor merely on the ground of his
or her being the de facto guardian of the minor.” Now it has been well settled that de facto
guardian is not equipped with the right to assume debt, or to gift a minor’s property, or to make
any reference to arbitration.

Ad-hoc Guardian

Ad-hoc means temporary. When a person acts as a guardian of the minor for certain particular
purposes, he would be known as an ad-hoc guardian. Such a kind of guardian does not find any
place in the Act.

Powers: Since they are not recognized by the Act, any alienation of the minor’s property by him
would be void. In the case of Sri Aurobindo Society, Pondicherry v. Ramadoss Naidu 1980, the
Madras High Court held that “the position in law of Ad hoc guardians is that their acts are null
and void and cannot bind the minor, although they are purported to be effected in minor’s
interest, for Ad hoc guardians are neither de jure nor de facto guardians”.