|
(b) to any person who is a Buddhist, jain or sikh by religion, and
(c) to any other 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, Buddhist, Jainas or Sikhs by religion;
(ii) any child, legitimate or illegitimate, one of whose parents
is a Hindu, Buddhist, Jainas or Sikhs 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 of re-convert to the Hindu,
Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in subsection (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 Gazatte, otherwise directs.
(3) The expression “Hindu” in any provision 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. Definition:- 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 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 contained 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 it
inconsistent with any of the provisions contained in this Act.
5. Natural guardians of a Hindu minor:- The natural
guardian 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 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 provision 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 expression “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. Power 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 subsection (2) is void able at
the instance of the minor or by any person claiming under him.
(4) No court shall grant permission to the natural guardian to do
any of the acts mentioned in subsection (2) except in the case of
necessity or for an evident advantage to the minor.
(5) The Guardian and Wards Act, 1890 ( 8 of 1890), shall apply to
and in respect of an application for obtaining permission of the
court under subsection (2) in all respect 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 subsection (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 subsection (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
Guardian and Wards Act, 1890 (8 of 1890), with in the local limit
of whose jurisdiction the immovable property in respect of which
the application in made is situate, and where the immovable
property is situate with in the jurisdiction of more than one such
court, means the court within the local limits of whose
jurisdiction any position 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 in section
12) or in respect of both.
(2) An appointment made under subsection (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 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
guardian of her 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 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 right of a natural
guardian under the 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 the 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 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 paramount
consideration.
(2) No person shall be entitled to the guardianship by virtue of
the provisions of this Act or any other law relating to
guardianship in marriage among Hindus, if the court is of the
opinion that his or her guardianship will not be for the welfare
of the minor.
|
