The Hindu Minority And Guardianship Act, 1956
HINDU MINORITY AND
GUARDIANSHIP ACT, 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:-
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.
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).
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.
(2) 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.
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 6.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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