The Hindu Minority and Guardianship Act, 1956

What it does

The Act (Act No. 32 of 1956) names the natural guardians of a Hindu minor and fixes what they may do. Section 6 says that the natural guardian of a Hindu boy or an unmarried girl, in respect of the minor's person and property, is the father, and after him the mother. A proviso says that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. For an illegitimate child the mother comes first, and then the father. The guardianship of a married girl lies with her husband.

Section 8 states the powers of a natural guardian. The guardian may do all acts necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate, but may not bind the minor by a personal covenant. Without the previous permission of the court, the guardian may not mortgage, charge, transfer by sale, gift, exchange or otherwise any part of the minor's immovable property, nor lease it for more than five years or for a term extending more than one year beyond the minor's attaining majority. A transaction made in breach of that rule is voidable at the instance of the minor.

The Act also deals with testamentary guardians, with the position of a person who looks after a minor's property without being appointed, and with the guardian's duty to the minor's welfare.

Who it binds

Hindus, a term that for this Act includes Buddhists, Jains and Sikhs, and a minor who is a Hindu by birth or conversion and the persons who act as the minor's guardian. It applies to the minor's person and to the minor's property other than undivided interest in joint family property, which the Act leaves alone.

What has changed, and when

The Act has stayed in its 1956 form on the central points, but the Supreme Court has changed how section 6 is read. In Githa Hariharan v. Reserve Bank of India, decided in 1999, the Court read the word "after" in section 6(a) to mean "in the absence of", so that the mother can act as natural guardian where the father is not in charge of the child. The firm's note on matrimonial and child custody records that decision, and the point that welfare remains the paramount consideration.

What turns on it in practice

The practice area on this site for matrimonial and family matters advises on custody proceedings, and the firm's note on matrimonial and child custody in India sets out how the Act sits within them. Two uses of the Act are common. In a custody dispute between parents, the Act supplies the starting point on guardianship and the preference for the mother as custodian of a child under five, but the court's decision turns on the welfare of the child, and the Supreme Court has repeatedly held that no statutory presumption overrides it.

In a property transaction, the Act decides whether a guardian can sell a minor's immovable property. The court's permission under section 8 is required, and a buyer who relies on a parent's signature alone takes a sale that the minor may later avoid. A purchaser's counsel checks for the permission, the order of the court and its terms, and whether the sale was for the minor's necessity or evident advantage.

Where the parties are not Hindus, the Guardians and Wards Act, 1890 governs, and the Act on this page does not apply.