GUARDIANSHIP UNDER HINDU LAW Guided By: Prof. Dr. KAHKASHAN Y. DANYAL
SUBMITTED BY: MD. ABID HUS HUSSAIN SAIN ANSARI B.A. LL.B. (HONS.) 5TH SEMESTER
Acknowledgemen Firstly I !ould li"e to e#$ress %y $rofou&d se&se of 'r(titude to!(rds t)e (l%i')ty *ALLAH+ for $ro,idi&' %e !it) t)e (ut)e&ti- -ir-u%st(&-es !)i-) !ere %(&d(tory for t)e -o%$letio& of %y $roe-t. Se-o&dly I (% )i')ly i&de/ted to Prof. Prof. DR KAHKASHAN Y. DANYAL (t F(-ulty of L(! 0(%i( 1illi( Isl(%i( U&i,ersity Ne! Del)i for $ro,idi&' %e !it) -o&st(&t e&-our('e%e&t (&d 'uid(&-e t)rou')out t)e $re$(r(tio& of t)is $roe-t. 2)irdly I t)(&" t)e L(! li/r(ry st(3 !)o li(ised !it) us i& se(r-)i&' %(teri(l rel(ti&' to t)e $roe-t. 1y -(rdi&(l t)(&"s (re (lso for %y $(re&ts frie&ds (&d (ll te(-)ers of l(! de$(rt%e&t i& our -olle'e !)o )(,e (l!(ys /ee& t)e sour-e of %y i&s$ir(tio& (&d %oti,(tio& !it)out !)i-) I !ould )(,e &e,er /ee& (/le to u&(/rid'ed %y $roe-t. 1y f(t)er ( $rofessor !it) l(r'e (--ess to /oo"s of ,(lue )(s /ee& of 're(t )el$ to %e. Wit)out t)e -o&tri/utio& of t)e (/o,e s(id $eo$le I -ould )(,e &e,er -o%$leted t)is $roe-t.
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Introduction: Hindu Law Hindu Law
From thousands of year’s people living in the Indian subcontinent have been leading their lives by following the guidelines and concepts given in the Vedas. These guidelines have evolved into rules followed by the people and enforced by the rulers and have thus become de facto law. In these modern times the same laws have been retrofitted to suit present conditions and have been codified in the form of several acts of which the important ones are ! Hindu "arriage #ct $%&& Hindu #doption and "aintenance #ct $%&' Hindu "inority and (uardianship #ct $%&' and Hindu )uccession #ct $%&'.
Application of Hindu Law
# precise definition of Hinduism does not e*ist. Hence it is impossible to define fi*ed criteria for determining who is a Hindu. )o a negative definition of +who is not a Hindu+ is used. Further in this land several religions have been born and they they follow the same customs and practices. )o it cannot be said that Hindu Law can be applied only to people who are Hindus by religion. ,ue to these reasons in general the following people are considered to be Hindu with respect to application of Hindu Law.
•
Hindu by Religion ! # person who is Hindu -ain auddha or )i/h by religion.
In Shastri v. Muldas1 )0 has held that various sub sects of Hindus such as )waminarayan )atsangis #rya )ama1is are also Hindus by religion because they follow the same basic concept of Hindu 2hilosophy. 0onverts and 3econverts are also Hindus. )0 in the case of Peerumal v. Poonuswami2, has held that a person can be a Hindu if after e*pressing the intention of becoming a Hindu follows the customs of the caste tribe or community and the community accepts him. In Mohandas v. ewaswan board! 4erala H0 has held that a mere declaration and actions are •
enough for becoming a Hindu. Hindu by "irth ! # person who is born of Hindu parents. If only one parent is a Hindu the person can be a Hindu if he5she has been raised as a Hindu. In Sapna v. State of #erala, #erala H$ the son of Hindu father and 0hristian mother was held
• •
to be a 0hristian. 2ersons who are not "uslim 0hristian -ew or 2arsee by religion. 2ersons who are not governed by any other religious law will be governed by Hindu Law.
%rigins of Hindu Law
It is believed that Hindu law is a divine law. It was revealed to the people by (od through Vedas. Various saints and ascetics have elaborated and refined the abstract concepts of life e*plained in the Vedas.
8 )0 #I3 $%'$ 9 #I3 $%6$ 7 #I3 $%6&
Sources of Hindu Law
)ources of Hindu Law can be divided into two parts ! #ncient and "odern. 1& Ancient Sources' efore the codification of Hindu Law the ancient literature was the
only source of the law. These sources can be divided into four categories: i&
Shruti )hruti means 7what is heard7. It is believed that the rishis and munis had reached the
height of spirituality where they were revealed the /nowledge of Vedas. Thus shrutis include the four vedas ! rig ya1ur sam and athrava along with their brahmanas. The brahmanas are li/e the apendices to the Vedas. Vedas primarily contain theories about sacrifices rituals and customs. )ome people believe that Vedas contain no specific laws while some believe that the laws have to be inferred from the complete te*t of the Vedas. Vedas do refer to certain rights and duties forms of marriage re8uirement of a son e*clusion of women from inheritance and partition but these are not very clear!cut laws. ,uring the vedic period the society was divided into varns and life was divided into ashramas. The concept of /arma came into e*istence during this time. # person will get rewarded as per his /arma. He can attain salvation through 7/nowledge7. ,uring this period the varna system became 8uite strong. )ince vedas had a divine origin the society was governed as per the theories given in vedas and they are considered to be the fundamental source of Hindu law. )hrutis basically describe the life of the Vedic people.
The vedic period is assumed to be between 9 to $ 0. ,uring this time several pre!smriti sutras and gathas were composed. However not much is /nown about them today. It is believed that various rishis and munis incorporated local customs into ,harma and thus multiple 7sha/has7 came into e*istence. ii&
Smruti
)mrit means 7what is remembered7. ;ith smrutis a systematic study and teaching of Vedas started. "any sages from time to time have written down the concepts given in Vedas. )o it can be said that )mrutis are a written memoir of the /nowledge of the sages. Immediately after the Vedic period a need for the regulation of the society arose. Thus the study of vedas and the incorporation of local culture and customs became important. It is believed that many smrutis were composed in this period and some were
reduced into writing however not all are /nown. The smrutis can be divided into two !
and later smritis =,harmashastras>. harmasutras
The ,harmansutras were written during ? to @ 0. They were mostly written in prose form but also contain verses. It is clear that they were meant to be training manuals of sages for teaching students. They incorporate the teachings of Vedas with local customs. They generally bear the names of their authors and sometime also indicate the sha/has to which they belong. )ome of the important sages whose dharmasutras are /nown are: (autama audhayan #pastamba Harita Vashistha and Vishnu. They e*plain the duties of men in various relationships. They do not pretend to be anything other than the wor/ of mortals based on the teachings of Vedas and the legal decisions given by those who were ac8uainted with Vedas and local customs. (autama ! He belonged to )am veda school and deals e*clusively with legal and religious matter. He tal/s about inheritance partition and stridhan. audhayan ! He belonged to the 4rishna Aa1urved )chool and was probably from #ndhra 2radesh. He tal/s about marriage sonship and inheritance. He also refers to various customs of his region such as marriage to maternal uncle+s daughter. #pastamba ! His sutra is most preserved. He also belonged to 4rishna Aa1urveda )chool from #ndhra 2radesh. His language is very clear and forceful. He re1ected pra1apatya marriage. Vashistha ! He was from Borth India and followed the 3igveda )chool. He recogniCed remarriage of virgin widows. harmashastras
,harmashastras were mostly in metrical verses and were based of ,harmasutras. However they were a lot more systematic and clear. They dealt with the sub1ect matter in three parts. #achara : This includes the theories of religious observances Vyavahar : This includes the civil law. 2rayaschitta : This deals with penance and e*piation. ;hile early smrutis deal mainly with #achara and 2rayaschitta later smrutis mainly dealt with Vyavahar. Dut of may dharmashastras three are most important.
Manusmriti
This is the earliest and most important of all. It is not only defined the way of life in India but is also well /nown in -ava ali and )umatra. The name of the real author is not /nown because the author has written it under the mythical name of "anu who is considered to the the first human. This was probably done to increase its importance due to divine origin. "anusmriti compiles all the laws that were scattered in pre!smriti sutras and gathas. He was a brahman protagonist and was particularly harsh on women and sudras. He holds local customs to be most important. He directs the /ing to obey the customs but tries to cloa/ the /ing with divinity. He gives importance to the principle of +danda+ which forces everybody to follow the law. "anusmriti was composed in @ 0. There have been several commentaries on this smruti. The main ones are: 4allu/a+s "anavarthmu/tavali "eghthithi+s "anubhashya and (ovindra1a+s "anuti/a. (a)na*al+ya Smriti
Though written after "anusmruti this is a very important smruti. Its language is very direct and clear. It is also a lot more logical. He also gives a lot of importance to customs but hold the /ing to be below the law. He considers law to be the /ing of /ings and the /ing to be only an enforcer of the law. He did not deal much with religion and morality but mostly with civil law. It includes most of the points given in "anusmriti but also differs on many points such as position of women and sudras. He was more liberal than "anu. This was composed in around 0. Vi1naneshwar+s commentary +"ita/shara+ on this smruti is the most important legal treatise followed almost everywhere in India e*cept in ;est engal and Drissa. arada Smriti
Barada was from Bepal and this smriti is well preserved and its complete te*t is available. This is the only smriti that does not deal with religion and morality at all but concentrates only on civil law. This is very logical and precise. In general it is based on "anusmriti and Aa1naval/ya smriti but differ on many points due to changes in social structure. He also gives a lot of importance to customs. This was composed in @ #,. iii&
$ommentaries and igest'
#fter @ #, most of the wor/ was done only on the e*isting material given in )mrutis. The wor/ done to e*plain a particular smriti is called a commentary. 0ommentaries were composed in the period immediately after @ #,. ,igests were mainly written after that and incorporated and e*plained material from all the smruitis. #s noted ealier some of the commentaries were manubhashya manuti/a and mita/shara. ;hile the most important digest is -imutvahan+s ,ayabhag that is applicable in the engal and Drissa area. "ita/shara literally means +Bew ;ord+ and is paramount source of law in all of India. It is also considered important in engal and orissa where it relents only where it differs from dayabhaga. It is a very e*haustive treaties of law and incorporates and irons out contradicts e*isting in smritis. The basic ob1ective of these te*ts was to gather the scattered material available in preceding te*ts and present a unified view for the benefit of the society. Thus digests were very logical and to the point in their approach. Various digests have been composed from 6 to $6 #,. iv.
$ustoms
"ost of the Hindu law is based on customs and practices followed by the people all across the country.
recogniCed as Hindu law. E. $aste and $ommunity $ustoms ! These are the customs that are followed by a particular cast or community. It is binding on the members of that community or caste. y far this is one of the most important sources of laws. For e*ample most of the law in 2un1ab belongs to this type. 0ustom to marry brother+s widow among the -ats is also of this type. 9. .uild $ustoms ! These are the customs that are followed by traders.
Re/uirements for a *alid custom
$. #ncient: Ideally a custom is valid if it has been followed from hundreds of years. There is no definition of ancientness however 9yrs has been determined to be a ancient enough. # custom cannot come into e*istence by agreement. It has to be e*isting from long before. Thus a new custom cannot be recogniCed. Therefore a new form of Hindu marriage was not recogniCed in Tamil Badu. In the case of Ra)othi v Selliah a )elf 3especter’s 0ult started a movement under which traditional ceremonies were substituted with simple ceremonies for marriage that did not involve )hastric rites. H0 held that in modern times no one is free to create a law or custom since that is a function of legislature. @. 0ontinuous: It is important that the custom is being followed continuously and has not been abandoned. Thus a custom may be 9 years old but once abandoned it cannot be revived. E. 0ertain: The custom should be very clear in terms of what it entails. #ny amount of vagueness will cause confusion and thus the custom will be invalid. The one alleging a custom must prove e*actly what it is. 9. 3easonable: There must be some reasonableness and fairness in the custom. Though what is reasonable depends on the current time and social values. &. Bot against morality: It should not be morally wrong or repugnant. For e*ample a custom to marry one+s granddaughter has been held invalid. In the case of $hitty v. $hitty0 a custom that permits divorce by mutual consent and by payment of e*penses of marriage by one party to another was held to be not immoral. In the case of .opi+rishna v& Mst agoo a custom that dissolves the marriage and permits a wife to remarry upon
abandonment and desertion of husband was held to be not immoral. '. Bot against public policy: If a custom is against the general good of the society it is held invalid. For e*ample adoption of girl child by nautch girls has been held invalid. In the case of Mathur v. 3sa a custom among dancing women permitting them to adopt one or more girls was held to be void because it was against public policy. = $?%9 6 $%E'
6. Bot against any law: If a custom is against any statutory law it is invalid. 0odification of Hindu law has abrogated most of the customs e*cept the ones that are e*pressly saved. In the case of Pra+ash v. Parmeshwari it was held that law mean statutory law. Proof of $ustom
The burden of proving a custom is on the person who alleges it. sually customs are proved by instances. In the case of Pra+ash v. Parmeshwari it was held that one instance does not prove a custom. However in the case of 4)agar v. eo it was held that if a custom has been brought
to
notice
of
the
court
repeated
no
further
proof
is
re8uired.
<*istence of a custom can also be proved through documentary evidence such as in 3iwaC!i! am. )everal treaties e*ist that detail customary laws of 2un1ab. 4sage and $ustom
The term custom and usage is commonly used in commercial law but 7custom7 and 7usage7 can be distinguished. # usage is a repetition of acts whereas custom is the law or general rule that arises from such repetition. # usage may e*ist without a custom but a custom cannot arise without a usage accompanying it or preceding it. sage derives its authority from the assent of the parties to a transaction and is applicable only to consensual arrangements. 0ustom derives its authority from its adoption into the law and is binding regardless of any acts of assent by the parties. In modern law however the two principles are often merged into one by the courts. Modern Sources
Hindu law has been greatly influenced by the ritish rule. ;hile it might seem that the ritish brought with them the modern concepts of e8uity and 1ustice these concepts e*isted even in dharamashastras albeit in a different form. Barada and 4atyayana have mentioned the importance of dharma =righteousness> in delivering 1ustice. However we did not have a practice of recording the cases and 1udgments delivered. )o it was not possible to apply stare decisis. This process started from the ritish rule. The following are the modern sources of Hindu law: 1& 3/uity, ustice, and .ood conscience
<8uity means fairness in dealing. "odern 1udicial systems greatly rely on being impartial. True 1ustice can only be delivered through e8uity and good conscience. In a situation where no rule is given a sense of +reasonableness+ must prevail. #ccording to (autama in such situation the decision should be given that is acceptable to at least ten people who are /nowledgeable in shastras. Aagyaval/ya has said that where ever there are conflicting rules the decision must be based on +Byaya+. This principle has been followed by the 2rivy 0ouncil while deciding cases. @. Precedent The doctrine of stare decisis started in India from the ritish rule. #ll cases are now recorded and new cases are decided based on e*isting case laws.Today the 1udgment of )0 is binding on all courts across India and the 1udgment of H0 is binding on all courts in that state. E. Legislation In modern society this is the only way to bring in new laws. The parliament in accordance with the needs society constitutes new laws. For e*ample a new way of performing Hindu marriages in Tamil Badu that got rid of rituals and priests was re1ected by the )0 on the basis that new customs cannot be invented. However TB later passed an act that recogniCed these marriages. #lso most of the Hindu laws have now been codified as mentioned in the beginning.
.uardianship under Hindu Law
The ,harmashastras did not deal with the law of guardianship. ,uring the ritish regime the law of guardianship was developed by the courts. It came to be established that the father is the natural guardian of the children and after his death mother is the natural guardian of the children and none else can be the natural guardian of minor children. Testamentary guardians were also introduced in Hindu law: It was also accepted that the supreme guardianship of the minor children vested in the )tate as parens patrie and was e*ercised by the courts. The Hindu law of guardianship of minor children has been codified and reformed by the Hindu "inority and (uardianship #ct $%&'. The sub1ect may be discussed under the following heads: $. (uardianship of person of minors
@. (uardianship of the property of minors E. ,e facto guardians and 9. (uardians by affinity.
.uardianship of the person Minor $hildren
nder the Hindu "inority and (uardianship #ct $%&' ). 9=b> minor means a person who has not completed the age of eighteen years. # minor is considered to be a person who is physically and intellectually imperfect and immature and hence needs someone+s protection. In the modern law of most countries the childhood is accorded protection in multifarious ways. (uardian is 7a person having the care of the person of the minor or of his property or both person and property.7 It may be emphasiCed that in the modern law guardians e*ist essentially for the protection and care of the child and to loo/ after its welfare. This is e*pressed by saying that welfare of the child is paramount consideration. ;elfare includes both physical and moral well!being. (uardians may be of the following types: i. ii. iii.
Batural guardians Testamentary guardians and (uardians appointed or declared by the court.
There are two other types of guardians e*isting under Hindu law de facto guardians and guardians by affinity. atural .uardians
In Hindu law only three persons are recogniCed as natural guardian’s father mother and husband Father. GFather is the natural guardian of his minor legitimate children sons and daughters.7 )ection $% of the (uardians and ;ards #ct $?% lies down that a father cannot be deprived of the natural guardianship of his minor children unless he has been found unfit. "e effect of Lh$s provision has been considerably whittled down by 1udicial decisions and by )ection $E of the Hindu "inority and (uardianship #ct which lays down that welfare of the minor is of paramount consideration and father+s right of guardianship is &ubordinate to the welfare of the child. The #ct does not recogniCe the principle of 1oint guardians. The position of adopted children is at par with natural!born children. The mother is the natural guardian of the minor illegitimate children even if the father is alive. However she is the natural guardian of her minor legitimate children only if the father is dead or otherwise is incapable of acting as guardian. 2roviso to clause =a> of )ection ' Hindu "inority and (uardianship #ct lays down that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Thus mother is entitled to the custody of the child below five years unless the welfare of the minor re8uires otherwise. In Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya, the )upreme 0ourt has held that under certain circumstances even when the father is alive mother can act as a natural guardian. The term +after+ used in )ection '=a> has been interpreted as +in absence of+ instead +after the life!time+. !
3ights of guardian of person !The natural guardian has the following rights in respect of minor children: a> b> c> d> e>
3ight to custody 3ight to determine the religion of children 3ight to education 3ight to control movement and 3ight to reasonable chastisement
These rights are conferred on the guardians in the interest of the minor children and therefore of each! of these rights is sub1ect to the welfare of the minor children. The natural guardians have also the obligation to maintain their minor children. 5estamentary .uardians
;hen during the ritish period testamentary powers were conferred on Hindus the testamentary guardians also came into e*istence. It was father+s prerogative to appoint testamentary guardians. y appointing a testamentary guardian the father could e*clude the mother from her natural guardianship of the children after his death. nder the Hindu "inority and (uardianship #ct $%&' testamentary power of appointing a guardian has now been conferred on both parents.+ The father may appoint a testamentary guardian but if mother survives him his testamentary appointment will be ineffective and the mother will be the natural guardian. If mother appoints testamentary guardian her appointee will become the testamentary guardian and father+s appointment will continue to be ineffective. If mother does not appoint father+s appointee will become the guardian. It seems that a Hindu father cannot appoint a guardian of his minor illegitimate children even when he is entitled to act as their natural. (uardian as ). %=$> confers testamentary power on him in respect of legitimate children. In respect of illegitimate children )ection %=9> confers such power on the mother alone. nder )ection % Hindu "inority and (uardianship #ct testamentary guardian can be appointed only by a will. The guardian of a minor girl will cease to be the guardian of her person on her marriage and the guardianship cannot revive even if she becomes a widow while a minor. It is necessary for the testamentary guardian to accept +the guardianship. #cceptance may be e*press or implied. # testamentary guardian may refuse to accept the appointment or may disclaim it but once he accepts he cannot refuse to act or resign e*cept with the permission of the court. .uardians Appointed by the $ourt
The courts are empowered to appoint guardians under the (uardians and ;ards #ct $?%. The High 0ourts also have inherent 1urisdiction to appoint guardians but this power is e*ercised sparingly. The Hindu "inority and (uardianship #ct is supplementary to and not in derogation to (uardians and ;ards #ct. nder the (uardians and ;ards #ct $?% the 1urisdiction is conferred on the ,istrict 0ourt: The ,istrict 0ourt may appoint or declare any person as the guardian whenever it considers it necessary in the welfare of the child.+ In appointing a7 guardian the court ta/es into consideration various factors including the age
se* wishes of the parents and the personal law of the child. The welfare of the children is of paramount consideration. The ,istrict 0ourt has the power to appoint or declare a guardian in respect of the person as well as separate property of the minor. The chartered High 0ourts have inherent 1urisdiction to appoint guardians of the! person as well as the property of minor children. This power e*tends to the undivided interest of a coparcener The guardian appointed by the court is /nown as certificated guardian. 2owers of 0ertificated guardians. 2owers of certificated guardians are controlled by the (uardians and ;ards #ct $?%. There are a very few acts which he can perform without the prior permission of the court. In the ultimate analysis his powers are co!e*tensive with the powers of the sovereign and he may do all those things =though with the permission of the court> which the sovereign has power to do. # certificated guardian from the date of his appointment is under the supervision guidance and control of the court. .uardianship by affinity
In pre!$%&' Hindu law there e*isted a guardian called guardian by affinity. The guardian by affinity is the guardian of a minor widow. "ayne said that 7the husband+s relation if there e*ists any within the degree of sapinda are the guardians of a minor widow in preference to her father and his relations.7+ The 1udicial pronouncements have also been to the same effect '. The guardianship by affinity was ta/en to its logical end by the High 0ourt in Paras Ram v. State7 In this case the father!in!law of a minor widow forcibly too/ away the widow from her mother+s house and married her for money to an unsuitable person against her wishes. The 8uestion before the court was whether the father!in!law was guilty of removing the girl forcibly. The #llahabad High 0ourt held that he was not since he was the lawful guardian of the widow. # 8uestion has come before our courts whether the nearest sapinda of the husband automatically becomes a guardian of the minor widow on the death of her husband or whether he is merely preferentially entitled to guardianship and therefore he cannot act as guardian unless he is appointed as such 2aras 3am seems to subscribe to the former view and the "adras and the B agpur high 0ourts to the latter view. nder )ection $E Hindu "inority and (uardianship #ct in the appointment of +any person as guardian the welfare of the child is paramount consideration. The fact that under Hindu law father!in!law has preferential right to be appointed as guardian is only a matter of secondary consideration. In our submission it would be a better law if the guardianship of the minor wife both of her person and property continues to vest in the parents. ;e do not have much of te*tual > 0hinna v Vinayaghathammal #I3 $%@% "ad $$ at $$@ #slCwani 4umar v Ful/urnari 66 0;B E9%.
#I3 $%' #ll 96%.
guidance or case law on the powers of the guardians by affinity. 2robably his powers may be ta/en to be at par with those of the natural guardian. e -acto .uardian
# de facto guardian is a person who ta/es continuous interest in the welfare of the minor+s person or in the management and administration of his property without any authority of law. Hindu 1urisprudence has all along recogniCed the principle that if liability is incurred by one on behalf of another in a case where it is 1ustified then the person on whose behalf the liability is incurred or at least his property is liable notwithstanding the fact that no authoriCation was made for incurring the liability.+ The term +de facto guardian+ as such is not mentioned in any of the te*ts but his e*istence has never been denied in Hindu law. In Sriramulu, Kanta . said that Hindu law tried to find a solution out of two difficult situations: •
one when a Hindu child has no legal guardian there would be no one who would
•
handle and manage his estate in law and thus without a guardian the child would not receive any income for his property and secondly a person having no title could not be permitted to intermeddle with the child+s estate so as to cause loss to him. The Hindu law found a solution to this problem by according legal status to de facto guardians.
# mere intermeddler is not a de facto guardian. #n isolated or fugitive act of a person in regard to child+s property does not ma/e him a de facto guardian. To ma/e a person a de facto guardian some continuous course of conduct is necessary on his part. In other words a de facto guardian is a person who is not a legal guardian who has no authority in law to act as such but nonetheless he himself has assumed the management of the property of the child as though he were a guardian. ,e facto guardianship is a concept where past acts result in present status. The term literally means +from that which has been done.+ The de facto guardian was recognised in Hindu law as early as $?&'. The 2rivy 0ouncil in Hanuman Pd .% said that +under Hindu law the right of a bona fide incumbrancer who has ta/en a de facto guardian a charge of land created honestly for the purpose of saving the estate or for the benefit of the estate is not affected by the want of union of the de facto with the de 1ure title.
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