Essay on the Testamentary Guardian (Hindu Marriage Act)

(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 (minor) married woman, the husband.

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It may also be noted that there cannot be a natural guardian of a Hindu minor, whether a boy or a girl, of his or her undivided interest in the joint family property. (See Section 12.)

Clause (a) of Section 6 (above) affirms the well-established rule of Hindu Law that the father is the natural guardian of the person and the property of a minor son and minor unmarried daughter, and that after him, the mother is the natural guardian of such a person.

The Section also recognises the well-established principle that in the case of guardianship, the paramount consideration is the welfare of the minor, and therefore, it provides that the custody of a child who is under five should be with the mother.

This would be so, unless there are serious considerations which require that the mother should not have the custody of the child. This rule of Hindu Law should not be interpreted as meaning that as soon as a child completes five years, it should be taken away from the mother and immediately handed over to the father. In fact, the sole consideration in any such case would be the welfare of the minor.

It is interesting to note that if a Hindu widow remarries, she does not lose her preferential right of guardianship over her minor children by the deceased husband. The right of the mother to act as the natural guardian of her children after the father is absolute and unconditional.

Clause (b) of Section 6 also affirms the rule of Hindu Law that, in the case of illegitimate children, the mother is the lawful guardian.

Clause (c) above also lays down the well-established rule of Hindu Law that the husband is the lawful guardian of his minor wife.

Section 6 also provides four disqualifications, which would prevent a person from acting as a natural guardian of a Hindu minor, namely:

1. If such a person has ceased to be a Hindu.

2. If he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

3. If such person is the step-father.

4. If such person is the step-mother.

It may be noted that under the Act, if a person ceases to be a Hindu, he cannot act as a natural guardian. The same was the position under the uncodified Hindu Law also. However, in 1850, this bar to act as the guardian was removed by the Caste Disability Removal Act. It is interesting to note that this disqualification is now reimposed by Section 6 of the Act.

Section 7 of the Act lays down the rule of Hindu Law, that guardianship of an adopted son, who is a minor, passes on his adoption, from the natural father and mother to the adoptive father and mother.

This section speaks only of an adopted son, but makes no mention of an adopted daughter. The uncodified Hindu Law also did not recognise the adoption of a daughter. However, it may be noted that the Act came into force before the passing of the Hindu Adoptions and Maintenance Act, 1956, which now recognises adoption of a daughter also, and confers that right both upon a male and female Hindu. S. 12 of that Act provides that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. The effect of this Section would be that the adoptive father and mother would be regarded as the natural guardians of the adopted child, in keeping with the rules relating to the law of adoption laid down in that Act.