By Legum Pacific Editorial ·
Imagine parents separate and a question arises about who will care for a child. Or a relative asks a court to be declared guardian of a minor. These are common situations where two Acts apply: the Hindu Minority and Guardianship Act, 1956 (for Hindus and certain others) and the Guardians and Wards Act, 1890 (which governs court appointments and administration).
What does the law say?
The Hindu Minority and Guardianship Act, 1956 defines a “minor” as a person who has not completed eighteen years (section 4). It sets out who are the natural guardians and what powers they have (sections 6–9). The Act says it is supplemental to the Guardians and Wards Act, 1890 (section 2).
The Guardians and Wards Act, 1890 gives the court power to appoint or declare guardians. The court must be guided by what appears, consistently with the law applicable to the minor, to be for the welfare of the minor (section 17). The Guardians and Wards Act also describes duties of guardians, limits on their powers over property, and how courts supervise guardians (selected provisions in chapters and sections quoted below).
Who are natural and testamentary guardians?
The Hindu Act lists natural guardians for Hindu minors (section 6). For a boy or an unmarried girl, the order is the father and after him the mother. The custody of a child under five years is said to be ordinarily with the mother (section 6). For illegitimate children, the mother is first and then the father. For a married girl, the husband is the natural guardian (section 6). The Act also says natural guardianship of an adopted son passes to the adoptive father and then adoptive mother (section 7).
A father or mother can appoint a guardian by will. A guardian appointed by the father takes effect after the father’s death, subject to conditions stated in section 9 of the Hindu Act. The right of a guardian appointed by will ceases, for a girl, on her marriage (section 9).
The Hindu Act also says a minor cannot act as guardian of the property of another minor (section 10), and that a de facto guardian (one acting informally, without legal appointment) is not entitled to deal with a Hindu minor’s property merely because of that informal role (section 11). Where a minor has an undivided interest in joint family property under an adult manager, no guardian shall be appointed for that undivided interest (section 12).
How do courts decide who gets custody?
The Guardians and Wards Act requires the court to be guided by the child’s welfare when appointing a guardian (section 17). In deciding what is for the child’s welfare, the court must have regard to the child’s age, sex and religion; the character and capacity of the proposed guardian and his nearness of kin; the wishes, if any, of a deceased parent; and any existing or previous relations between the proposed guardian and the child or the child’s property (section 17). If the child is old enough to form an intelligent preference, the court may consider that preference (section 17). The court shall not appoint any person as guardian against that person’s will (section 17).
The court can appoint more than one guardian, and it may appoint separate guardians of the person and of the property (section 15). Where the court appoints a guardian for property situated outside its local jurisdiction, the court having jurisdiction where the property is situated must accept the certified order and give effect to it (section 16).
If a ward leaves or is removed from the custody of a guardian, and the court thinks it is for the child’s welfare to return, the court may order the child’s return and may cause the child to be arrested and delivered into the guardian’s custody (section 25).
What limits and duties apply to guardians over property and person?
A guardian is in a fiduciary relation to the ward and must not make any profit out of the office, except as provided by the instrument of appointment (Guardians and Wards Act, section 20). A guardian of the person must look to the child’s custody, support, health and education (section 24).
A guardian of the property must deal with the ward’s property as a prudent person would deal with his own (section 27). A guardian appointed by the court (other than a Collector or a testamentary guardian) may not, without previous permission of the court, mortgage, charge, transfer by sale, gift, exchange or otherwise any immovable property of the ward. Nor may such a guardian lease immovable property for more than five years or for any term extending beyond the ward’s majority by more than one year (section 29). Disposals in contravention of these restrictions are voidable by any person affected (section 30).
The court will grant permission under section 29 only in cases of necessity or evident advantage to the ward. The order granting permission must state the necessity or advantage, describe the property, and may attach conditions such as sale by public auction, payment of proceeds into court, or court sanction for completion of sale (section 31). The court may hear any person who appears in opposition before granting permission (section 31).
The court may from time to time define, restrict or extend a guardian’s powers as it considers for the advantage of the ward and consistent with the law applicable to the ward (section 32). A guardian may apply to the appointing court for its opinion or direction on present questions relating to management or administration of the ward’s property (section 33).
What does this mean for ordinary people?
If you are a natural guardian, the Hindu Act lists who you are and sets limits when you deal with immovable property (sections 6 and 8). If you wish to be a court-appointed guardian, the Guardians and Wards Act explains how the court must decide, giving highest priority to the child’s welfare (section 17). Guardians have duties to care for the child’s person and to manage property prudently. Transfers that break statutory limits can be set aside (sections 8(2)–(4); 29–31).
Key points
- The court must put the child’s welfare first when appointing a guardian (Guardians and Wards Act, section 17; Hindu Act, section 13).
- A “minor” is under eighteen years (Hindu Act, section 4). Custody of a child under five is ordinarily with the mother (Hindu Act, section 6).
- Natural guardians and their order are set out in the Hindu Act (section 6); testamentary guardians are governed by section 9 of the Hindu Act.
- Guardians are fiduciaries and must not profit from their office (Guardians and Wards Act, section 20). Guardians of property must act prudently (section 27).
- A guardian needs prior court permission for major dealings in immovable property; unlawful disposals are voidable (Hindu Act, section 8(2)–(4); Guardians and Wards Act, sections 29–31).
Laws referred to
- Guardians and Wards Act, 1890 — sections 15, 16, 17, 20, 24, 25, 26, 27, 29, 30, 31, 32, 33
- Hindu Minority and Guardianship Act, 1956 — sections 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13
Official sources
This guide explains what the law itself says. Court rulings interpreting these provisions can also affect how they apply in a particular case. It states the position under the official texts listed above, as at 31 October 2026.