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then that person shall not be entitled to act as a natural guardian under the provisions of this section.

In Jijabai Vitthalrao Gajra Vs. Pathan Khan, the Supreme Court held that the law under section 6 of the Act is that normally when the father is alive, he is the natural guardian of the minor and thereafter his mother is his guardian. And where the father is alive, the minor is separated from the daughter’s mother and does not take care of the interests of the minor, then the father shall be deemed to be not alive.

And the mother will be considered as the natural guardian of the minor’s body and property and she has the right to bind the minor’s property by lease. In this way, where the father fails to perform the duties of the guardian or is heedless or becomes incapable, then the mother gets all the rights and duties of the natural guardian without being declared by the court.

In Sobhadei v. Bhima et al., the Orissa High Court has held that the father of the minor is his natural guardian. A minor who is more than five years of age and has been with the mother, shall be deemed to be in the guardianship of the father. His mother cannot represent him as his next friend. Only the father has the right to represent him in any suit. The first right of guardianship is given to the father.

Explanation- In this section the expression father and mother does not include step father and step mother.

Nothing is said under this section as to the natural guardianship of an adopted son or adopted daughter, but as in adoption the son or daughter passes from the natural family to the adoptive family, the adoptive father and his Thereafter the adoptive mother shall be deemed to be his natural guardian. This is clarified in section 7.

So long as the father is alive, the mother cannot be the natural guardian of the minor and if the father refuses to be the guardian or neglects to discharge the duties as the natural guardian, the mother shall have the power to be the guardian of the minor. Legal proceedings may be adopted to do so.

This was supported by the High Court of Kerala in P. T. Chathu Chettiar vs. Kariyat Kunnumal Kanaran. According to the court, the natural guardian of the minor shall be his father if he is alive. The mother gets the right of natural guardianship only if the father has become disabled or is dead. In the lifetime of the father, if he is not a victim of any kind of disability, then the mother would not have the capacity to interfere with the authority of the father. The alienation of the minor’s property by the mother during the lifetime of the father is unauthorized and void.


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The property of the minor in respect of which the father and mother would have got the right of guardianship

1. A.I.R. 1971 S.C. 3151

2. Panni Lal Vs. Rajinder Singh, (1993) 4 S. C. C. P. 38: See Narayan Bagh Sampoorna, 1968 Patna 318.

3. A.I.R. 1975 Orissa 1801

4. Narayan Singh Vs. Sampoorn Kaur, 1968 Patna 318: See Ruchi Maju Vs. I.R. 2011, S.C. 15521

5. A.I.R. 1984 Kerala 1181

It is the separate property of the minor or the property over which he has complete control. The guardian cannot be appointed in respect of the share of the minor in the joint family property.

Under this section, after the father, the mother is the guardian of the minor’s property and body, her remarriage does not disqualify the right of guardianship.

Disqualifications to be a guardian – According to section 6 of the Act, a person becomes disqualified to be a guardian in the following cases:

(1) Disqualification arising out of conversion.

(2) Disqualification arising out of civil death.’

(3) Disqualification arising out of minority.’

(4) When the guardianship is not for the welfare of the minor.

(1) Conversion – Before the passing of this present Act, the rights of the patron were not affected by the conversion of religion. The fact that the father had converted, did not take away his right to custody of the son. But if at the time of conversion the father has voluntarily renounced such paternal right and has entrusted the custody of the son to another, the Court cannot give the custody of the son to the father, if he contrary to the interests of the son. But where a Hindu mother has converted her religion, the Court may remove the son from the custody of the mother and put the son under a Hindu guardian, if it is in the interests of the minor. Similarly, where the wife has divorced her and marries with another religion, the right to keep her son in her custody does not cease to exist.

The present Act has brought about significant changes in this regard. Any natural guardian prescribed by the Act, i.e. father, mother or husband ceases to be a Hindu, and ceases to be entitled to be a guardian. In the case of Vijaya Lakshmi v Police Inspector, the Madras High Court held that where the father converts to Islam and marries a Muslim woman, he ceases to be a legal right to be a natural guardian.

(2) Civil death—Any person who has renounced the world completely or has become an ordained or ascetic, ceases to be entitled to be the natural guardian of a minor. A person does not become a sannyasin or a yeti just by calling him a sannyasin or a yeti. The renunciation of the world in reality must be completely final.

“A person who aspires to be a sannyasin or a yati should perform his death rites and shraadhs properly and divide all his wealth among his sons and brahmins. After that, by performing the action of Homa etc., standing in the water, the mantra for this purpose

1. Bakshi Ram Ladharam Vs. M. Sheela Devi, A.I.R. 1960 Punjab 3041

2. Section A, Section 61

3. Clause B, proviso to section 6.

4. Section 101

5. Section 13(2).

6. Maqand v. Nahudi, 25 Calcutta 8811

7. Main: Hindu Law, p. 867.

8. A.I.R. 1991 Madras.

It should be read thrice that he has renounced all the things of the world, sons and property etc.

(3) Section 10 of the Minority Act prescribes that a minor is disqualified to be a guardian in respect of the property of a minor.

(4) Prejudicial to the welfare of the minor – No person can become a guardian whose guardianship, in the eyes of the court, would be prejudicial to the welfare of the minor. Under Section 13, the welfare of the minor has been given paramount importance. Therefore, the guardianship of the minor will be done on the basis of favorable to his welfare. In the case of Mrs. Gangabai vs. Bherulal, the Rajasthan High Court held that the father is a natural guardian in law and he cannot ordinarily be deprived of his natural right to keep the son with him. But there are some situations like this. That the court has to hold a different view whereas the father being a natural guardian cannot be given to a minor under his guardianship. If the welfare of the child appears to be in danger under the guardianship of the father and his welfare appears to be in equal or greater extent under the guardianship of the mother, then the father cannot necessarily claim guardianship.

The Bombay High Court refused to allow the father to visit his minor child. The father, despite the order of the court, was not providing an amount of four thousand rupees per month to his minor child who lived with the mother. The court said that unless the father does not comply with the order of the court, he cannot be allowed to reach his child.

In the case of K. Venkat Reddy & Ors. Vs. Chinippa Reddy Vishwanath Reddy, the father of the minor was employed in some engineering college post, who wrote many books, and his financial condition was very sound. His first wife died after the birth of a son. After some time he completed his second marriage with his associate woman. After marriage, the husband and wife made an agreement that they would not give birth to any other child and that they would continue to take good care of the child of the first wife. After some time the parents of his first wife applied in the court that their daughter’s son should be given in their custody as that son was not being brought up properly, which was not necessary for the welfare of the minor. was unfavourable. In the above case, the court observed on the basis of facts that the maintenance and protection of the son of the first wife was not being done properly. Therefore, the court held that the right to protect such a son should be given to his maternal grandparents as the interest of the letter was not favourable.

Effect of Remarriage by Widow No Hindu widow loses the preferential right of guardianship in respect of her minor child on her remarriage. The rights of the mother as the natural guardian after the death of the father are limitless. This point is completely clear from the explanation given under section 6 of the Act.

Natural guardian of adopted son – According to section 7 of the Act, the natural guardianship of the minor passes to the adoptive father. Guardianship after the death of the adoptive father

1. Sheela Vs. Jeevan Lal, A. I. R. 1988 A. P. 2751

2. A.I.R. 1976 Raj. 1531

3. Vinod Chand Vs. Smt. Anupama, A.I.R. 1993 Ba. 250

4. AIR 2009 Andhra Pradesh 011

The adoptee becomes vested in the mother.

The natural father and mother of the adopted son have no right over him.

rights of natural or natural guardian

Section 8 of the Act deals with the rights of the natural guardian in relation to the body and property of the minor.

Section 8 reads as follows-

(1) The natural guardian of a Hindu minor may, subject to the provisions of this section, do all such acts as are necessary, reasonable and proper for the benefit of the minor or for the raising, defense or profit of his estate. The guardian cannot bind a minor under any personal contract.

(2) Without the previous permission of the Natural Guardian Court

(a) mortgage or charge or by sale, gift, exchange or otherwise transfer any part of the immovable property of the minor, or

(b) let out any part of such property for a period exceeding five years or for a period exceeding one year from the date on which the minor attains majority.

(3) Any disposal of immovable property by the natural guardian in contravention of sub-section (1) or (2) shall be voidable at the instance of the minor or any person claiming under him.

(4) No court shall permit a natural guardian to perform any of the functions mentioned in sub-section (2) for necessity or in any case other than in the case of the obvious benefit of the minor.

(5) The application for and in relation to the permission of the Court under sub-section (2) of the Guardian and Wards Act, 1809 shall, in all cases, apply as follows. as if it were an application for the leave of the court under section 29 of that Act and in particular

(a) the proceedings relating to the application shall be deemed to be proceedings under that Act within the meaning of section 4-A thereof.

(b) the Court shall follow the procedure referred to in sub-sections (2), (3) and (4) of section 31 of that Act and shall be empowered. (c) an appeal from an order of a court refusing permission to a natural guardian to do any of the acts mentioned in sub-section (2) of this section shall lie in such court ordinarily the decision of that court. appeals to. In this section, court means a city-dealing court or district-court or court empowered under section 4 of the Guardian and Wards Act, within the local limits of whose jurisdiction the immovable property in respect of which the application is made and where the immovable property is The property is subject to the jurisdiction of more than one such court. there means the court whose jurisdiction is within the local limits

in which any division of that property is situated. Under the earlier Hindu law, the guardian had very wide rights. Regarding the property rights of the minor, of the natural guardian, the Privy Council had decided in an important case in which it has been clearly stated that in case of need, the natural guardian can mortgage, sell the property of the minor. may create a charge on it and discharge it otherwise, though such rights are not limited. The basic intention of this suit was that the natural guardian can alienate the property of the minor in case of absolute necessity and for the benefit of his estate. Thus, alienation was considered to be the prerogative of the natural guardian only.

The Bombay High Court propounded the principle that the custody of a minor under the authority of the natural guardian is generally granted to the natural guardian only. But in special circumstances, a person other than the natural guardian can be appointed in the same situation when the natural guardian is incapable of his duties or there is a clear conflict of interest between the natural guardian and the minor or any other exceptional circumstance has arisen such as Misbehavior of minor due to father’s remarriage, stepmother and step-siblings etc. Keeping in view the above circumstances, an exceptional person protecting the interests of the minor can be appointed as his guardian.

The Madras High Court, in Gopalkrishna Shah v. Krishna Shah, considered this question and held that where the mother sold her such house. On which the burden of mortgage debt was there and there was no possibility of its discharge, it would be considered a legal necessity. The alienation of any property can be done by the guardian in case of need or for the benefit of the estate. The need for other transition will have to be proved by the buyer of the house. The legal requirement was decided in each case according to the different circumstances. Maintenance of minor, repair of his property, funeral of his father and repayment of father’s debts, etc. were covered under legal requirement, for which the guardian would give other rights to the minor’s property.