According to section 4(b) of the Hindu Minority and Guardianship Act, 1956 a 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:
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(a) A natural guardian,
(b) A guardian appointed by the will of the minor’s father or mother,
(c) A guardian appointed or declared by a court, and
(d) A person empowered to act as such by or under any enactment relating to any court to wards.
Natural Guardians of minor:
As provided for in section 6 of the Act, the following are entitled to be 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)-
(a) In the case of a boy or an unmarried girl, the father and after him the mother. It is further provided that ordinarily the mother shall have the custody of a child who has not completed the age of five years;
(b) In the case of an illegitimate boy or an illegitimate girl- the mother and after her the father;
(c) In the case of a married girl-the husband.
Under Sec. 6 of the Hindu Minority and Guardianship Act, in case of a boy, his father is the natural guardian. It is only when the father is disqualified or is no more; the mother becomes the natural guardian. When the father is alive and is not disqualified to act as the guardian of the minor, it is incompetent for the mother to interpose herself as the guardian of the minor. (P.T. Chathu Chettiar v. K.K. Kanaran, A.I.R. 1984 Ker. 118).
The section further lies down that a person will be discen- titled to be the natural guardian of a minor-
(a) If the has cease to be a Hindu, or
(b) If he had completely renounced the world by becoming a hermit (Vanparsthi) or an ascetic (Yati or Sanyasi).
The explanation appended to section 6 clarifies that the expression “father” and “mother” do not include a “step-father” and a “step-mother”.
Thus Hindu Minority and Guardianship Act, 1956 has improved the status of the mother as the natural guardian.
Under the old Hindu Law, a mother could not act as a natural guardian of the child if the father has written any testament depriving her of the natural guardianship of the minor.
In a case where the mother had moved an application for handing over the custody of the minor daughter when she was only 5 months old and the father was, therefore, compelled to handover the girl to the mother, the Rajasthan High Court held that till the girl attained the age of 5 years it was not possible for the applicant’s father to have moved for the custody of the girl as contained in section 6 of the Act of 1956. Hence mother alone was entitled to the custody of the minor daughter, [Smt. Dr. Snehalata v. Mahendra Narain, A.I.R. 1979, and Raj. 29].
Section 7 refers to the guardianship of adopted son. According to this section 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.