Report No. 257

A. Amendments to the Hindu Minority and Guardians Act, 1956

6.3 The Law Commission recommends the following amendments to this Act:

1. Section 6(a): This section lists the natural guardians of a Hindu minor, in respect of the minor's person and property (excluding his or her undivided interest in joint family property). In the case of a boy or an unmarried girl, this section clearly states that the natural guardian of a Hindu minor is the father, and after him the mother. Even after the Supreme Court's judgement in Gita Hariharan v Reserve Bank of India, (1999) 2 SCC 228 the mother can become a natural guardian during the lifetime of the father only in exceptional circumstances. This is required to be changed to fulfil the principles of equality enshrined in Article 14 of the Constitution.

Accordingly, the Law Commission recommends that this superiority of one parent over the other should be removed, and that both the mother and the father should be regarded, simultaneously, as the natural guardians of a minor. This also follows from the recommendation of the Commission that the welfare of the minor must be the paramount consideration in every circumstance.

This concept of welfare being paramount is already captured in Section 13 of the 1956 Act. In recommending such an amendment to Section 6, the Commission reaffirms the recommendations of its 133rd report, to give equal rights to both the mother and father in respect of a minor and his/her property.152

It also reaffirms the recommendations of the 83rd report of the Law Commission, in intending the two provisions (Sections 6 and 13) to be read together.153 Such a reading will necessarily imply that neither the father nor the mother of a minor can, as of a right, claim to be appointed by the court as the guardian unless such an appointment is for the welfare of the minor.

152 Law Commission of India, 133rd Report, August (1989), ¶ 4.3, available at:
http://lawcommissionofindia.nic.in/101-169/Report133

153 Law Commission of India, 83rd Report, April 1980, ¶ 6.44, p. 30, available at
http://lawcommissionofindia.nic.in/51-100/Report83.pdf

The Guardians and Wards Act, 1890 has also undergone similar legislative changes, moving away from an absolute and natural right of a father to be the guardian. Venkata Narasiah v. Peddiraju, 1970 (1) ALT 25; Kumarswami Mudaliar v. Rajammal AIR 1957 Mad. 563. The 1890 law was enacted at a time when women had limited rights in law, and it was in need of reform. According to the older version of Section 19(b) of the 1890 Act, the court could not appoint a guardian of a minor (other than a married female), if the minor's father was living and not unfit to be the guardian.

The Personal Laws (Amendment) Act, 2010 amended this clause to refer also to the mother in the same vein as the father, thereby making the law more equitable.155 The recommendations of the Commission, in context of the changes to the 1890 Act, therefore, are merely removing anomalies in one law that have already been removed in another.

155 Personal Laws (Amendment) Act, No. 30 of 2010, chapter II.

The proviso to section 6(a) presently provides that the custody of a minor below 5 years of age will ordinarily be with the mother. The Commission believes that this position should be allowed flexibility in cases where the court decides to grant joint custody, and the text of the provision is amended accordingly.

2. Section 7: This section provides that 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. The language of this section is incongruous in that it refers only to the natural guardianship of an adopted son, and does not refer to an adopted daughter. The Hindu Minority and Guardianship Act, 1956 came into force at a time when the general Hindu law as administered by the courts did not recognise the adoption of a daughter.

Thus, at the time of passing of the Act, the adoption of daughters was only allowed under custom and not under codified law. This explains the reason why the drafters of the Act included the guardianship of only adopted sons and ignored the adoption of daughters.156 It was also enacted before the Hindu Adoptions and Maintenance Act, 1956, which corrected the legal position of adoption of a daughter statutorily.157

The effect of the later law is that the adoptive father and the adoptive mother would be regarded as the natural guardians of the adopted child.158 It follows that the Hindu Minority and Guardianship Act, 1956 should also include both an adopted son and an adopted daughter within the scope of natural guardianship. The Commission merely corrects this by amending the Hindu Minority and Guardianship Act, 1956 to be in consonance with the Hindu Adoptions and Maintenance Act, 1956.

Further, the Commission recommends that the natural guardians of an adopted child should include both the adoptive parents, in keeping with its recommendations to Section 6(a) provided above, and previous legislative changes such as the Personal Laws (Amendment) Act, 2010. Accordingly, the Commission recommends that Section 7 be amended to refer to the natural guardianship of an adopted child who is a minor, which will pass, upon adoption, to the adoptive mother and father.

156 Paras Diwan, Law Of Adoption, Minority, Guardianship & Custody, 3rd edn., 2000, p. 226.

157 Hindu Adoptions and Maintenance Act, No. 78 of 1956, § 10.

158 Mulla Hindu Law, ed. Satyajeet A. Desai, 21st edn., 2010, p 1258.70