The Central Government enacted the Hindu Minority and Guardianship Act in 1956, a division of the Hindu Bill Code which aimed at the codification of Hindu laws. The Act is an extension of the Guardians and Wards Act, 1890 but not a substitution. The primary object behind the central legislation is to define the relationship between the guardian and the minor and to standardize the law guardianship under Hindu law.
The Act applies to Hindus by religion, Jainas, Sikhs, Budhists and any child whose parents or either of whose parents are Hindus irrespective of the legitimacy of the child. But the application of the Act does not extend to Muslims, Christians, Parsi or Jew who is not governed by the Hindu Law. According to the Act, the person who has not attained the age of eighteen years is a ‘minor’. The Act overrides all the acts, rules, regulations and any law that was applicable before the initiation of the Act and also any law inconsistent with the present legislation shall cease to function.
The natural guardian of a minor boy or unmarried girl shall be the father followed by the mother. But where the child is less than five years, the custody falls with the mother. If the minor is illegitimate, the natural guardian is the mother and afterwards the father. Where the minor is married, guardianship rests on the husband. However, a person shall not be permitted to proceed as the natural guardian of a minor, if he converts to another religion or he happened to be a Sanyasi by renouncing the pleasures of the world. In case of adoption, the guardianship of the minor shall be with the adoptive father followed by mother.
The Act confers certain powers to the natural guardian to do certain activities beneficial to the minor and take care of the properties of the minor. But the Act restrains the mortgage, transfer, exchange, lease, sale or gift and does such other transactions with the properties of a minor. Any such transaction with the property of the minor shall be voidable at the option of the minor or any person related to him. In addition, certain provisions of the Guardians and Wards Act, 1890 shall apply regarding the powers of guardian of the minor. The procedure and the power of the Court shall be as mentioned under the 1890 Act. The Act empowers the Civil Court or the District Court to hear disputes related to transaction of property of minor by the natural guardian.
The father of the legitimate child shall appoint another guardian to care for the minor and his properties and such guardian shall act as the testamentary guardian of the minor under the conditions specified by the natural guardian and as the law permits. The minor shall not act as the natural guardian of another minor or his property. The de facto guardian of a minor shall not deal with or dispose of the property of a minor after the initiation of the Act. The welfare and interests of the minor shall be given primary concern when appointing a guardian by the Court. A guardian shall not be appointed by the Court, if the minor has an interest in the property of a joint family or the property is controlled by an adult in the family.
Hence, the Minority and Guardianship Act is a comprehensive legislation that outlines the principles and guidelines dealing with minorities and guardianship under the personal law of Hindus. The Personal Laws (Amendment) Act, 2010 has amended certain provisions of the 1956 Act with other legislation and Section 8 (c) now provides that the married women shall have similar rights as that of men to adopt a child.