Guardian
Also called: Guardian of a minor
A person having the care of the person of a minor, or of his property, or of both. Defined in Section 4(b) of the HMGA and Section 4(2) of the Guardians and Wards Act.
Explained
Section 4(b) of the Hindu Minority and Guardianship Act, 1956 defines guardian as a person having the care of the person of a minor or of his property or of both, and includes a natural guardian, a guardian appointed by the will of the minor's father or mother, a guardian appointed or declared by a court, and a person empowered to act under any enactment relating to a Court of Wards. Section 4(2) of the Guardians and Wards Act, 1890, which applies to all communities, uses the same core meaning. A minor under the HMGA is a person who has not completed eighteen years.
Natural guardians are fixed by Section 6 of the HMGA for the person and property of a Hindu minor, excluding his undivided interest in joint family property. For a boy or an unmarried girl it is the father, and after him the mother, but custody of a child below five ordinarily lies with the mother. For an illegitimate child it is the mother, and after her the father, and for a married girl it is the husband. A person ceases to be entitled if he ceases to be a Hindu or renounces the world, and step-parents are excluded.
In Githa Hariharan v. Reserve Bank of India (1999), the Supreme Court read "after" in Section 6(a) as "in the absence of", so that the mother can act as natural guardian during the father's lifetime where he is absent from the care of the minor for any reason. Under Section 8 a natural guardian may do all acts necessary or reasonable and proper for the minor's benefit, but cannot bind him by a personal covenant and cannot, without the court's previous permission, alienate the minor's immovable property.
Under Section 13 of the HMGA and Section 17 of the Guardians and Wards Act, the welfare of the minor is the paramount consideration when a court appoints or declares a guardian. In procedure, Order XXXII of the CPC provides for a guardian for the suit of a minor defendant. Examiners test the categories, the order of natural guardians, Githa Hariharan and the limits on the natural guardian's powers.
What the law says
(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;
Clause (b) defines guardian
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;
Natural guardians of a Hindu minor
(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
Powers of natural guardian
(1) In the appointment of 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.
Welfare of minor paramount
Section 4, Guardians and Wards Act
(2) “guardian” mean’s a person having the care of the person of a minor or of his property, or of both is person and property:
Clause (2) defines guardian for all communities
Section 17, Guardians and Wards Act
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
Matters guiding the court in appointing a guardian
For the exam
- HMGA Section 4(b): care of the person, the property, or both; includes testamentary and court guardians.
- Section 6: father and after him mother; custody of a child under five ordinarily with the mother.
- Githa Hariharan (1999): 'after' means 'in the absence of' the father.
- Section 8: no alienation of the minor's immovable property without court permission.
- Welfare of the minor is paramount (HMGA Section 13, GWA Section 17).
399 questions in the Law Maker question bank use this term. Practise Hindu Law questions
Judgments
Related terms
- Natural guardianUnder Section 4(c) of the Hindu Minority and Guardianship Act, 1956, any of the guardians named in Section 6: the father, then the mother; the mother for illegitimate children; the husband for a married girl.
- MinorA person who has not attained majority, which in India is ordinarily the completion of eighteen years. A minor cannot contract, and his agreement is void.
- AdoptionThe process by which a child is permanently separated from the biological parents and becomes the lawful child of the adoptive parents. Section 2(2), JJ Act; for Hindus, the HAMA, 1956.
- MaintenanceProvision for food, clothing, residence, education and medical attendance, and for an unmarried daughter her marriage expenses (Section 3(b) HAMA). Claimable under personal law and under Section 144 BNSS.
- ChildUnder Section 2(3) of the BNS a child is any person below eighteen years of age. Special statutes use the same age with small variations, and child marriage law sets twenty one for males.
Further reading
Checked 6 November 2026. Statutory text is quoted from the Bare Acts library, taken from India Code. See the full glossary.