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A STUDY OF ‘MINORITY’ UNDER HINDU PERSONAL LAWS — A COMPARATIVE ANALYSIS OF THE VARIOUS PERSONAL LAWS.
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A STUDY OF ‘MINORITY’ UNDER HINDU
PERSONAL LAWS — A COMPARATIVE ANALYSIS OF THE VARIOUS PERSONAL LAWS.
AUTHORED BY
- SARTHAK CHUGH
ABSTRACT:
A minor is not only below the age of
majority and consent, across all jurisdictions, but also someone who is
emotionally, physically and financially dependent on the adults around them to
ensure that their basic human rights and social welfare is well taken care of
and also maintained. In India, the laws dealing with the rights and
consequently, the safeguarding of the rights of the minors are manifold. These
are mostly divided on the fine line of religious personal laws.
The main aim of this paper is to inform
and inquire into the concept of ‘Minority’ as envisaged under the Hindu
Personal Laws— primarily the fundamental Hindu Minority and Guardianship Act of
1956. This legislation was a part of the Hindu Code Bill that aimed to legislate
the many unwritten laws of Hindu marriages, divorce, guardianship, adoption,
et. al. Minors need protection and safety and the ones who offer them this are
known as Guardians. These Guardians may be natural (i.e., the mother and father
of the child) or testamentary or appointed by the Court. In either of these
cases, the most pivotal consideration is that of the minor child’s welfare and
their safety to be kept in the highest regard.
No analytical study is ever complete
without comparison with its contemporary laws and this paper aims to do so by
introducing and analysing the processes and procedures of minors’ rights under
the Muslim and Christian personal laws, too, with an added comment on the need
to have a uniformity in personal laws.
Keywords: Minor, Dependent, Personal Laws, Minority and
Guardianship Act, welfare, uniformity.
1.
INTRODUCTION
·
AN UNDERSTANDING OF THE CONCEPT OF MINORITY
The Oxford Dictionary of Law[1] defines a minor (an infant) as a
child under the age of 18. Certain rights such as those of parental
responsibility, right to make a child a ward of the Court and the right to
withhold the consent to marriage only apply to such minors. These also have a
limited capacity to contract. Further, it defines minority[2] as the state of being a minor, i.e.,
up to the age of 18 years. A minor is thus any person who is yet to be of an
age of majority. This age is not an objective term rather a subjective one
which differs from one country to another.
In the realm of law, minority is concerned as much with the need for
protection as it is with the age as it is believed that a minor is someone who
is intellectually and physically dependent upon a guardian, a parent or any
other competent adult. This ubiquitous dependence laid the foundation for
several laws governing the rights of the minors and at the same time preventing
the ambit of certain provisions to apply to them.
The concept of minority has its roots
in the ancient times when the children were seen and considered as people who
needed protection from the State owing to their dependence. It was held that
the supreme guardianship of the minor shall be vested in the monarch under the
Doctrine of parens patriae[3]. This doctrine serves a two-fold
purpose. Firstly, it proclaims the monarch as the protector and guardian of all
citizens and especially the children and secondly it is extended to the current
democratic system to mean that all those children who are unable to take care
of themselves and have no one else to safeguard their body and rights, are
under the safety and protection of the State.
From the medieval era to the
Pre-Industrial Period in world history, the rights of children and minors has
been a subject of almost no concern and debate. Societies around the world
considered the children to be a product and a responsibility of their
biological parents without any concern toward the state or surroundings of such
dependants.[4]
It
was due to the technological and socioeconomic changes of the early 20th
century resulted in a change in the conceptualisation of childhood. Children
were considered to be endangered by conditions of immigration, industrialisation
and urbanisation in ways that would create undesirable behaviour and threaten
society. This brought about a new agenda in regard to children's status and led
to the emergence of the idea of protecting children and providing them rights.[5]
Owing
to the manifold, and rather abrupt, changes made in the early 20th century, the
the Wars did not do any favours to the cause of helping and uplifting the lives
of affected children and minors. After the War, the harrowing reports of
several minors enlisting themselves in the army and consequently losing their
lives made it more necessary and pertinent to have a stronger and stringent
guideline in place to regulate the rights of a minor.
Children
are nation's wealth. Future of the nation depends on how its children grow and
develop. The great poet Milton put it admirably when he said, "Child shows
the man as morning shows the day". The child, by reason of his physical
and mental immaturity, needs special safeguards and care, including appropriate
legal protection, before as well as after birth, the need for such special
safeguards has been stated in the Geneva declaration of the rights of child of
1924, and recognised in the universal, declaration of human rights.[6]
·
THE
MEANING OF THE CONCEPT IN PRE-INDEPENDENT INDIA
India
has had a fair understanding of minority and the necessary safeguards required
by a minor regardless of their condition of being an orphan. Although the Hindu
religious texts did not mention the minors or the provisions for their
protection in great detail, it was first greatly expounded by the great sage
Narada that a minor must have the safety and protection that they require from
both the father and the mother. However, it would be amiss not to mention the variations
in the understanding and conceptualisation of minority amongst and within the
various religions in India. The Hindu personal laws are primarily what this paper aims to deal with but it shall be viewed in
the light of a comparison between the Hindu and Muslim personal laws on
minority and guardianship.
Under
the Hindu religious texts, the law of minority protection and guardianship
rights are vert few and far between. The broad principle is that the child
mostly lived in big joint-families and was always under the safety and
protection of the Karta even after the death of the father and the
mother. If the child was outside the warmth of the natural home, they received
abundant safety and protection at their Guru’s Ashrama for study and the
daily conducts of life.[7]
·
THE
HINDU CODE BILL AND THE LEGISLATION OF MINORITY PROTECTION RIGHTS COUPLED WITH
RIGHTS OF GUARDIANSHIP.
Post-Independent
India witnessed the rise of a written legitimisation of the Hindu Personal
Laws. For centuries and millennia before this, the only sources to adjudicate
the authenticity of marriages, adoption, guardianship, et. al. was possible
through the religious texts and no ordered legal process. This gave rise to the
Hindu Minority and Guardianship Act, 1956[8] and applied to all Hindus within the
territory of India.
It is under this Act that the
definition of minority is first explored. It[9] states that a person who has not
completed the age of 18 years is considered to be a minor. This statute solely
deals with those citizenries of the nation that identify as Hindus and must not
be misconstrued as a national legislation to protect and safeguard the rights
of all minors, irrespective of their religious identities. No study of minors
and their rights is ever complete without understanding the role of those who
are either inherently or empowered to protect and safeguard the aforementioned
rights. Such a person/set of people are called as guardians and are either the
birth parents, or any close relative of the child, or a court-appointed able
person, or failing all the State itself. In the modern context, the welfare of
the child is the most supreme and paramount consideration. The liberal
understanding of the statute has further proclaimed that welfare amounts to
both physical as well as mental welfare.
In the following pages of this paper,
the concept of minority will be understood and studied through the provisions
under the vide Act and later compared to the other systems existing in the
country, given its religious segregation. Finally, a comment on the importance
of regularisation of the rights of the minors shall conclude the paper.
2.
PROVISIONS OF THE HINDU MINORITY AND GUARDIANSHIP ACT WITH
ILLUSTRATED CASE LAWS.
·
THE RIGHTS OF THE MINOR WITH REGARDS TO THE DUTIES OF THE NATURAL
GUARDIAN.
Section 6 of the Act deals with
Natural Guardians, which is defined as:
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;
b) ????in the case
of an illegitimate boy or an illegitimate unmarried girl-the mother, and after
her, the father;
c) ????in the case
of a married girl—the husband
Provided
that no person shall be entitled to act as the natural guardian of a minor
under the provisions of this section-
i.
if he has ceased to be a Hindu, or
ii.
if he has completely and finally
renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or
sanyasi).
These interpretations are not set in
stone, as nothing usually can be fixated merely to the letter of the law in
familial and personal matters where the subject matter of the case is as
important as the intention of the legislator. In Githa Hariharan vs. Reserve
Bank of India,[10] it was held
that under certain circumstances, the mother can be considered to be the
natural guardian of the minor child. The word “after” as mentioned under
Section 6(a) must be interpreted as “in the absence of” and not necessarily as
“after the lifetime of” the father. It also held that ‘absence’ as understood
in the vide Section must refer to the instance where the father is incapable to
take care of the minor.
Although the Act only pertains to
Hindus, in a landmark ruling on the issue of whether the conversion of religion
of the mother to any other religion negates her claim as a natural guardian on
the minor in the absence or incapacity of the father, the Court ruled that in
the negative and opined that her right of guardianship is not lost on her
conversion to another religion so long as the mother is able to provide a
congenial, comfortable and happy home.[11]
However, the most contentious issue
has been that of the guardian of a married minor girl being her own husband.
This is not only immoral but also starkly violative of the provisions of the
Child Marriage Act[12] and delves not
bode well, especially in the current contemporary world. To this extent, the
Madras High Court surmised in Paragraph 35 of the ruling of T. Sivakumar vs.
Inspector of Police, Thrivaliur Town Police Station[13] that:
“A law cannot be interpreted so as
to make it either redundant or unworkable or to defeat the very object of the
Act. Thus, by committing an offence under Section 9 of the Act, the adult male cannot
acquire the legal status of natural guardian of female child. Section 6(c) of
the Hindu Minority and Guardianship Act must be held to have been repealed
impliedly by the Prohibition of the Child Marriage Act.
Therefore, an adult male who marries
a female child in violation of the Act shall not become the natural guardian of
the female child.”
Thus, it can be understood from the
aforementioned provisions and case laws that the most pivotal and primary right
of the minor is that of their welfare, due consideration and goodwill.
‘Welfare’, unless defined, remains a vague word and an even vaguer policy to
implement. However, it has been maintained that the education, social
awakening, health and hygiene and access to cleanliness are the basic
prerequisites which need to be provided by the guardian. The consideration of
the minor child will be placed above any other variable.
The Court had held that in
determining the nature of the natural guardianship of the minor child, the only
touchstone is that of the upcoming interest and welfare of the child and
nothing else. Convenience and pleasure of the parents is totally immaterial.
Courts can facilitate or pass any orders with regards to the welfare of the
child.[14]
·
THE RIGHTS OF THE MINOR WITH REGARDS TO THE DUTIES OF THE
TESTAMENTARY AND COURT-APPOINTED GUARDIANS
Section 9 of the Hindu Minority and
Guardianship Act deals with the concept of Testamentary Guardians. It says
thus:
1. A Hindu father entitled to act as the natural guardian
of his minor legitimate children may, by will appoint a guardian for any of
them in respect of the minor's person or in respect of the minor's property
(other than the undivided interest referred to in section 12) or in respect of
both.
2. ????An
appointment made under sub-section (1) shall have no effect if the father
predeceases the mother, but shall revive if the mother dies without appointing,
by will, any person as guardian.
3. ????A Hindu
widow entitled to act as the natural guardian of her minor legitimate children,
and a Hindu mother entitled to act as the natural guardian of her minor
legitimate children by reason of the fact that the father has become
disentitled to act as such, may, by will, appoint a guardian for any of them in
respect of the minor's person or in respect of the minor's property (other than
the undivided interest referred to in section 12) or in respect of both.
4. ????A Hindu
mother entitled to act as the natural guardian of her minor illegitimate
children may; by will, appoint a guardian for any of them in respect of the
minor's person or in respect of the minor's property or in respect of both.
5. ????The guardian
so appointed by will has the right to act as the minor's guardian after the
death of the minor's father or mother, as the case may be, and to exercise all
the rights of a natural guardian under this Act to such extent and subject to
such restrictions, if any, as are specified in this Act and in the will.
6.
The
right of the guardian so appointed by will shall, where the minor is a girl,
cease on her marriage.
The
rights of the minor in relation with the testamentary guardians is the same as
that of the natural guardians where the consideration and welfare of the minor
child is of the utmost importance. The most pertinent point of note is that a
testamentary guardian can only be appointed by the will of the natural guardian
and not in the lifetime of either of the natural guardians.
It
is with regards to the procedures and processes of the appointment of a
guardian by the Court of Law that the rights of the minor become much more
crucial. This is still regulated by the old legislation[15] having the provisions for a scenario where there is no
natural or testamentary guardian present or able enough to protect and
safeguard the rights of the minor child.
The
Guardians and Wards Act of 1890 forms the pivotal statute of conferring the
rights of the minor child upon the District Court to appoint a fit and able
person to safeguard the minor child. This Act basically authorises the district
court and high court in exercising their original and inherent jurisdiction upon
guardian or the minor child if the natural guardian or guardian by will are
unable to work for the welfare of child or his property. While appointing the
guardian under section 7 of the act court has to take into consideration some
factors as stated under section 17 of the act which are necessary for the
welfare of child.[16]
Lastly,
there is a process of ensuring the protection of minor’s rights by Guardianship
of Affinity or Guardian of Widow. This is a novel concept in the statute and
arises from the much divisive clause of assigning a guardian to a minor married
woman.
In
early times the concept of child marriage was prevailing and before the
marriage girl was under the guardianship of his natural parents but after her
marriage husband was assumed to be her natural guardian. But if the situation
arise that his husband died then the minor widow will be maintained by
relatives of her husband Before 1956 there was the existence of guardian of
minor widow called guardian by affinity. The guardianship of minor girl is same
as that of guardianship of minor wife, the only difference is that on marriage
guardianship of parents passes to husband and she gets the name and Gotra of
her husband. If she becomes minor widow, then the eldest among nearest
relatives of the husband becomes her guardian.[17]
In
the case of Paras Ram vs. State[18] where the minor girl was aggressively taken by her father-in-law
and was married with man who was not fit for the sake of money. The question
which came before the court was that whether father-in-law was guilty of
removing the girl by force? The court held that he was not guilty of separating
the girl from her house as father is her natural guardian.
A
question came before the court that whether the nearest blood relatives of the
husband become a natural guardian of a widow or whether he is merely
preferentially entitled to guardianship and therefore he cannot perform as guardian
unless he is appointed? The Ratio seems to subscribe to former view.
3.
COMPARATIVE
ANALYSIS OF ‘MINOR’ UNDER THE VARIOUS PERSONAL LAWS IN INDIA
·
‘MINOR’
AS PERCEIVED AND UNDERSTOOD BY THE MUSLIM PERSONAL LAW IN COMPARISON WITH THE
HINDU MINORITY AND GUARDIANSHIP ACT
The
Muslim Personal Law is a big mix of different schools of thought but almost all
the schools and sub-schools hold that the father must be the sole natural
guardian of the minor child. The leading case law on this regard is that of Imambandi
vs. Mustaddi[19]
which propounded that until the father is alive, he shall remain the sole and
absolute guardian of the minor child. The mother, even after the death of the
father, does not get any right to become the guardian. Rather, it passes on to
the grandfather or to the executor as mentioned in the will of the deceased
father. The mother may have the custody but will not be the guardian.
The
person entitled to be the guardian of the property of the minor are father,
executor appointed by father's will, father's father, executor appointed by the
will of father's father. The guardian has the power to sell immovable property
of the minor, and it is required for maintenance. The legal guardian can deal
with the minor's property in the following conditions-
1. ????When there
are debts of the deceased and no other means of paying and the sale is
absolutely necessary for livelihood and maintenance
2. ????When double
the price of the property can be obtained, expenses exceed the income, property
falls into decay
3.
????Where property has been usurped and
the guardian has reason to fear that there exists no chance of fair
restitution.
The question that begets is whether
the mother can be the guardian of a minor and ensure the safeguarding of the
rights of the minor in the event of incapacity on the part of the father, or
grandfather or the executrix? The Court answered in the negative in its ratio
on the landmark ruling.[20]
·
‘MINOR’
AS PERCEIVED AND UNDERSTOOD BY THE CHRISTIAN PERSONAL LAW IN COMPARISON WITH
THE HINDU MINORITY AND GUARDIANSHIP ACT
The Guardians and Wards Act, 1890,
being a secular Act applies to all those who recognise as Christians within the
country. The welfare of the child is considered to be paramount, under Section
17 of the Act and no action can be taken by a natural guardian, which can be
either the mother or the father, or by the Court of Law which is contrary to
the best interests of the minor child.
In Thrity
Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka[21]
it was held that the
principles of law in relation to the custody of a minor appear to be well
established. It is well settled that any matter concerning a minor, has to be
considered and decided only from the point of view of the welfare and interest
of the minor. In dealing with a matter concerning a minor, the Court has a
special responsibility, and it is the duty of the Court to consider the welfare
of the minor and to protect the minor's interest. In considering the question
of custody of a minor, the Court has to be guided by the only consideration of
the welfare of the minor.
These
regulations are governed by Section 19 of the Principal Act which talks of the
instances where a person cannot be adjudged as the guardian of the minor:
1. Of a minor
who is a married female and whose husband is not, in the opinion of the Court,
unfit to be guardian of her person. Or
2. ????Of a minor
whose father is living and is not, in the opinion of the Court, unfit to be
guardian of the person of the minor, or
3.
Of a minor whose property is under
the superintendence of a Court of Wards competent to appoint a guardian of the
person of the minor.
4.
CONCLUSION
Ensuring
that protection and safety is extended to the most vulnerable class of society—
the children who are not only minor but also dependant on adults around them
for support and guidance— is a crucial aspect for any State. India, although,
witnesses several different ways of ensuring this safety is guaranteed and
given due to the existence of the personal laws. These personal laws have for
years been governing the most sensitive issues of a person’s life not
necessarily in a manner that places equity, justice and good conscience at a
higher pedestal than but rather a system that provides for greater emphasis on
the religious processes and practices. Whilst this was possibly needed in the
epoch of sectarian ties to be affected in order to curb excessive violence in
bring order and peace, however the country now needs to regulate such matters
in the same way it does other civil matters, without being swayed or swooned by
the religious practices, rather understanding the importance of the supremacy
of the law.
In
the words of the great author and academician Vikram Singh Slathia, “Without a Uniform Civil
Code, labelling India be Secular nation is just an illusion. Uniform Civil Code is
necessary for India so that t same laws r valid for every citizen without
taking religion into consideration." This paper aims to instil in the
reader a sense to support and propagate the need to have a Uniform Civil Code,
one which places the Secularist State equidistant from
all religions and schools of thought, allowing literalistic and traditional
freedoms but bringing to the sphere a semblance of generalised justice, for
all.
[1] 9 JONATHAN LAW, A DICTIONARY OF
LAW 350 (Oxford University Press 2018)
[2] Id. at 438
[3] SHRUTI EUSEBIUS, PARENS PATRIAE AND
ROLE OF STATE UNDER JUVENILE JUSTICE LAW IN INDIA 74-75 (National Judicial
Academy India 2021)
[4] S.N. Hart, From Property to Person
Status: Historical Perspective on Children’s Rights, 46(1) American Psych. 53,
53-54 (1991)
[5] HANITA KOSHER ET. AL., CHILDREN’S
RIGHTS AND SOCIAL WORK 9-10 (Springer 2016)
[6] Dr. Anisa Shaikh, Guardianship of
a Minor in India and Western Countries: A Comparative Exploration, 1(4) Journal
of Legal Analysis and Research 22, 23 (2014)
[7] 26 DR. PARAS DIWAN, MODERN HINDU
LAW 270 (Allahabad Law Agency, 2023)
[8] Hindu Minority and Guardianship
Act § 3, No. 32, Acts of Parliament, 1956 (India)
[9] Id. at §4(b)
[10] AIR 1999 SC 1149
[11] Sheela vs Soli, 1981 Bom. 175
[12] Prohibition of Child Marriage Act
§3, No. 6, Acts of Parliament, 2007 (India)
[13] AIR 2012 Mad. 62
[14] Harshita Bhasin vs. State of West
Bengal, 2017 SC 117
[15] Guardians and Wards Act, §7, No.
8, Acts of Parliament, 1890 (India)
[16] Ravneet Kaur, Legal Aspect of
Guardianship under Hindu Jurisprudence: An Analysis 20(1) 1953, 1955 (2021)
[17] Ibid
[18] AIR 1960 All 479
[19] 1918 45 (Cal) 887
[21] AIR 1982 SC 1276
Article Information
A STUDY OF ‘MINORITY’ UNDER HINDU PERSONAL LAWS — A COMPARATIVE ANALYSIS OF THE VARIOUS PERSONAL LAWS.
Authors: SARTHAK CHUGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/08
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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