[No.32 of 1956][25th August, 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 maybe
called the Hindu Minority and Guardianship Act, 1956.
(2) It extends to the whole of India except the State of Jammu and Kashmir and
applies also 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.
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 other person domiciled in 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, Buddhist, 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 a
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.(2-A) Notwithstanding
anything contained in sub-section (1), nothing contained in this Act shall apply
to the Renoncants of the Union territory of Pondicherry.(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) "guardian" 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 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. Overriding 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 step-father 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 sub-section (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 evidence
advantage to the minor.
(5) The Guardians and Wards Act, 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 4-A thereof;(b) the court shall observe the
procedure and have the power specified in sub-sections (2), (3) and (4) of
Section 31 of that Act; and(c) an appeal shall 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 4-A of the
Guardians and Wards Act, 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 no 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 minor's property (other
than 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 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 minor's 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 minor's 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 to appoint a guardian in
respect of such interest.
13. Welfare of minor to be paramount consideration-
(1) In the appointment or 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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