Who is the Testamentary Guardian ? Discuss his powers and obligations.

Introduction
HINDU MINORITY AND GUARDIANSHIP
The Hindu Minority and Guardianship Act were established in the year 1956 as part of the Hindu
Code Bills. This act extends to the whole of India except the State of Jammu & Kashmir and
applies to Hindus domiciled in our country. This act was launched to enhance the rules under
Guardians and Wards Act, 1890. Hindu Minority and Guardianship act was introduced to
modernize the Hindu legal tradition and to codify certain parts of the laws relating to minority
and guardianship among Hindus. This act serves explicitly to define guardianship relationships
between minors and adults, as well as between the people of all ages and their respective
property.
HISTORICAL BACKGROUND OF GUARDIANSHIP

The traditional mindset of the Guardianship revolves around the patriarchal society, the
father was considered the sole guardian of the person and property of the child. The
authority of the father in every aspect of the child’s life, including his/her conduct,
education, religion and maintenance, was considered absolute and even the courts
refused to interfere with the same. Mothers did not have any authority over children,
since mothers did not have independent legal status; their identities being forged with
that of their husbands upon marriage. As divorce became possible and mothers began
to have independent legal existence and residence, their claim, if not right, to have
custody of the children began to be recognized by the courts.

In Hindu law the broad principle is recognized from the Regime of the kingship where it
was said that the king is the supreme guardian [parens patriae] of all the minors present
in the state1 . No other sage except Narada who has mentioned parents i.e. mother and
father as the guardians . It seems to be that law of guardianship haven’t developed due
to the reason that in the earlier time the joint family concept is very much in notion and
minors of the family are in the guardianship of the Karta of the family then after went to
schools/ashrams for studies they have their Gurus are the guardians of that time-period
till then they get the education.

LEGAL FRAMEWORK OF THE GUARDIANSHIP IN INDIA

Guardianship and wards Act, 1890- The guardianship and wards act, 1890 was a secular act
which is answerable to the major issues of the guardianship and custody and it provide
provisions irrespective of the religion, it is applicable to all the citizens of India. The Act is a
complete Code laying down the rights and obligations of the guardians, procedure for their
removal and replacement, and remedies for misconduct by them. It is an umbrella legislation that
supplements the personal laws governing guardianship issues under every religion9Even if the
substantive law applied to a certain case is the personal law of the parties, the procedural law
applicable is what is laid down in the Guardians and Wards Act, 1890.

TESTAMENTARY GUARDIANS

When, during the British period, testamentary powers were conferred on Hindus, the
testamentary guardians also came into existence. It was father's prerogative to appoint
testamentary guardians. By appointing a testamentary guardian the father could exclude the
mother from her natural guardianship of the children after his death. Under the Hindu Minority
and Guardianship Act, 1956, 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.
guardian, as S. 9(1) confers testamentary power on him in respect of legitimate children. In
respect of illegitimate children, Section 9(4) confers such power on the mother alone.

Under Section 9, Hindu Minority and Guardianship Act, 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.

Powers
According to Section 9 (5), a Testamentary guardian has indistinguishable power just as Natural
Guardian and can exercise all the powers that were vested in the Natural Guardian subject to
restrictions of Act and the Will. The powers are the same except that power of TG to deal with
property is also subject to restrictions imposed by the Will. Since the powers of the TG are
similar to that of NG, it is relevant to know Section 8 of the Act. He has the power to alienate the
minor’s property only for the minor’s benefit. But, he has to seek the permission of the Court
before doing so.
Maintenance of Wife and circumstances under which wife can claim
maintenance living separately and Quantum of Maintenance

Our Constitution ensures equal opportunities for both men and women. But we cannot deny the
fact that we live in a society that is pretty patriarchal. The patriarchal society conceptually
considers the wife to be 'the homemaker' and does not consider it to be her function to engage in
the earning of wealth.

Because of this reason, most systems of law recognize the direct obligation of the husband
towards the maintenance of the wife. This obligation does not arise out of any contract but out of
the jural relationship of husband and wife created by the marriage.

Meaning and concept of Maintenance:

The dictionary meaning of the term maintenance is 'support' or 'sustenance'. The term
'Maintenance' has also been defined under Section 3(b) of the Hindu Adoption and Maintenance
Act, 1956. It includes provision for food, clothing, shelter, and basic needs such as education and
medical expenses. However, in the case of an unmarried daughter, apart from the basic
necessities it shall also cover all the reasonable expenses of her marriage.

Under Hindu law, Maintenance may be studied under the following four heads:
1. Maintenance as a personal obligation (It includes maintenance of wife, children,
and aged or infirm parents)
2. Maintenance of widowed daughter-in-law
3. Maintenance of dependants
4. Maintenance of members of joint family

Maintenance of wife:
In patrilineal families, maintaining the household is primarily the wife's domain. Under modern
Hindu law, a wife still depends on her husband to support her financially. Most systems of law
recognize that there is a direct obligation of the husband to maintain his wife properly during
marriage and that applies even after the marriage has been dissolved by divorce.

Thus, a wife is entitled to maintenance in the following three cases:

1. When the wife lives with her husband
2. When the wife lives separately from her husband
3. When the wife lives separately under the decision of the court (judicial
separation) or when the marriage is dissolved

When is the wife entitled to Maintenance?

Section 18(1): When the wife lives with her husband.
Under this sub-section, the husband is obligated to maintain his wife during her lifetime. It is the
husband's personal obligation to maintain his wife which begins with the marriage and continues
throughout the marital relationship. It is the imperative duty of the husband to maintain a wife
who resides with him. The husband's obligation of maintenance comes to an end only when she
leaves him without any justifiable cause or his consent.

Section 18(2): When the wife lives separately from her husband
Under this sub-section, a wife who lives separately from her husband with a justifiable cause or
his consent is entitled to maintenance. It provides a list of grounds stating when a wife can live
separately and still claim maintenance from her husband:
1. Desertion:'Desertion' as a ground for living separately is defined under S. 18(2)
clause (a) as 'abandoning her without reasonable cause and her consent or against her wish or of
willfully neglecting her'. The desertion may be of any duration. It is not necessary that it must be
of at least two years which is mentioned as an essential condition of desertion for judicial
separation or divorce under S.10 and 13 of the Hindu Marriage Act, 1955.In Krishnabai v.
Punamchand, the wife refused to live with her husband as she couldn't stand his father's
obtrusive behavior. The court ruled that this was unreasonable and she, therefore, did not receive
any maintenance on the ground of desertion. In these circumstances, a husband is also entitled to
maintenance from his wife provided that he is unable to maintain himself.
2. Cruelty:Clause (b) of S. 18(2) defines cruelty as a ground for living separately. If
the wife has been subjected to cruelty during her marriage and living with her husband calls for
danger to her life, then also, she is entitled to maintenance.In Ram Devi v. Raja Ram, the
husband's actions made it clear that he did not want his wife around, it was held that this
amounted to cruelty and justified the wife's living separately. The burden of proof is on the wife
to show that she was subjected to cruelty.
3. Leprosy:Clause (c) of S. 18(2) lays down that the wife will be entitled to
maintenance if the husband is suffering from a virulent form of leprosy. It may be of any
duration and no period is prescribed for such. Also, it must be existing at the time when the claim
for separate residence and maintenance is made.
4. Another wife is living:Clause (d) of S. 18(2) lays down that any wife can claim
separate residence and maintenance provided one more wife is living at the time when the claim
is made. In Satyanarayana v. Seetheramama, the High Court of Andhra Pradesh held that the
phrase 'wife living' means that the wife exists or is living and does not necessarily mean that she
is living with the husband. Also, it does not matter whether the wife had consented to the second
marriage of the husband or not. However, both these marriages must be valid to make a claim.
5. Keeps a concubine:Clause (e) of S. 18(2) lays down if the husband keeps a
concubine in the same house in which his wife is living, or habitually resides with a concubine
elsewhere. 'Keeping a concubine' or 'living with a concubine' are extreme forms of 'living in
adultery'. In both cases, the wife is entitled to live separately and claim maintenance from her
husband.
 6. Conversion:Clause (f) of S. 18(2) lays down that the wife will be entitled to
maintenance if the husband has ceased to be a Hindu by conversion to another religion.

7. Any other justifiable cause:Clause (g) has a wider scope, stating that if there is
any other cause that justifies the wife living separately from her husband. This clause will mean
the same thing as 'reasonable cause'. For a cause to be a justifiable cause, it should be grave,
weighty, and convincing and must be something more than the normal wear and tear of married
life. The mere drinking habit of the husband is not a sufficient ground for separate residence and
maintenance.

When is the wife not entitled to maintenance?

There is a direct obligation of the husband to maintain his wife properly during marriage and that
applies even after the marriage has been dissolved by divorce. But there are certain exceptions to
this rule. Section 18(3) of the Act states that a Hindu wife will not be entitled to separate
residence and maintenance from her husband:
1. If she is unchaste or has committed adultery or any other illicit sexual relationship
with anyone else, or
2. If she has ceased to be a Hindu by conversion to another religion
In Dattu Bhau Undage v. Tarabai Dattu Undage, the order of maintenance passed under Section
18(2) does not terminate merely on the ground of resumption of cohabitation. As long as the
basis of separate living is not extinguished, she will be entitled to live separately and claim
maintenance. Mere resumption of cohabitation can't terminate the order passed under section
18(2).

In Abbayolla M. Subba Reddy v. Padmamma, the defendant had two living wives and the second
wife was claiming maintenance. The validity of the marriage of the defendant with his second
wife was in question. It was held that if a man has two wives, the marriage with the second wife
will be void ab initio as Hindu laws prohibit bigamous marriage and she will not be entitled to
any kind of maintenance.

Maintenance of widowed daughter-in-law:

Section 19(1) lays down that a Hindu wife who has married before or after the commencement of
this Act shall be entitled to be maintained after the death of her husband by her father-in-law.

She will be entitled to maintenance from her father-in-law to the extent that:
1. She is unable to maintain herself out of her own earnings or other property, or
2. She is unable to obtain maintenance from the estate of:
• Her husband
• Her father or mother
 • Her son or daughter

Section 19 (2) states those conditions under which the father-in-law is not liable to maintain his
widowed daughter-in-law. The conditions are:
1. When the father-in-law does not have any means to maintain her from the
coparcenary property in which the daughter-in-law does not have any share, or
2. When the daughter-in-law remarries
In Master Daljit Singh v. S. Dara Singh, the court said that the father-in-law did not inherit any
ancestral property, he was not liable to pay any maintenance to his widowed daughter-in-law.

Quantum of Maintenance:
The Hindu Adoptions and Maintenance Act, 1956, provides certain considerations which the
court will take into account while fixing the amount of maintenance. Section 23(1) lays down
that there is no fixed amount for maintenance that shall be paid and it is to be determined, after
considering the facts and circumstances of the case, by the Court.

Section 23(2) of the Act states that while awarding maintenance to the wife, the court must do so
after considering the following factors:
1. Position and status of parties:The phrase 'position and status of parties' is used
in a wider context here. It will include the financial position and social status of the parties. In all
the cases, the court must evaluate the income of the parties and the standard of living to which
they were used to.
2. Reasonable wants of the claimant:The wants of the claimant should be
reasonable and should be according to the standard necessities of their life. In Kiran Bala Saha v
Bankim Chandra Saha, the wife claimed Rs. 200/month as the amount of maintenance. The court
after examining the reasonable wants of the wife for food, clothing, residence, and medical care
decided that Rs.75 per month will be a sufficient amount for the satisfaction of her wants.
3. Claimant living separately:The wife is entitled to maintenance even if she is
living separately but the essential condition is that she should be justified in doing so. In Kiran
Bala Saha v. Bankim Chandra Saha, the court said that wife was living separately from her
husband as the latter had another wife living with him. Under such circumstances, she is entitled
to live separately without forfeiting her claim of maintenance.
4. Value of the claimant's property and separate earnings of the claimant:The
court, while fixing the amount of maintenance, shall consider the value of the claimant's property
or any income derived from such property. It will also take into account the separate earnings of
the claimant.In Kulbhusan Kumar v. Raj Kumari, it was argued before the Supreme Court that
the property that the wife inherited from her father and the monthly allowance of Rs. 250 which
she got from him during his lifetime should be taken into consideration while fixing the quantum
of maintenance. It was held that a sum of Rs. 250/month which the wife received from her father
was not her income but only a bounty received though the income of the inherited property has
to be taken into account in fixing the amount of maintenance. In this case, the husband failed to
establish that the wife inherited property from her father.
5. Number of persons entitled to be maintained:In fixing the amount of
maintenance, the court has to take into consideration the number of persons who are entitled to
be maintained by the non-claimant.

Conclusion:
The law of maintenance has special significance in Hindu Law. A lot of progress has been made
with regard to provisions for maintenance. Not only the wife but also children, parents, widowed
daughter-in-law, and the Hindu male himself are entitled to maintenance. In marital conflicts, the
maintenance idea aims to return the woman to the same level of comfort and lifestyle that she
had before the marriage. In India, there is no set amount of maintenance that a husband must
give to his wife, and is determined at the discretion of a family courtiable cause:Clause (g) has a
wider scope, stating that if there is any other cause that justifies the wife living separately from
her husband. This clause will mean the same thing as 'reasonable cause'. For a cause to be a
justifiable cause, it should be grave, weighty, and convincing and must be something more than
the normal wear and tear of married life. The mere drinking habit of the husband is not a
sufficient ground for separate residence and maintenance.

Doctrine of relationship back

An adoption is concept under which a child is transferred from a family in which he is born to
another family thereby the son acquiring new rights, duties and status and ending all ties with the
old family. Under uncodified old Hindu law, the doctrine of relation back was prevalent whereby
a son adopted by a widow relates back to widow's deceased husband and the son entitled to the
estate of his deceased adoptive father.
Introduction
An adoption is a doctrine that transfers a child from a family in which he or she is born into
another family, thereby acquiring new rights, duties and status and ending all ties with the old
family. Under ancient Hindu law, the main reason for adopting son in order to fulfill religious
duties. In early societies, the need to have a son was prevalent for the continuation of the family,
father's name, lineage and for performing various offerings, rites and rituals.

A Hindu widow has a right to adopt a son or a daughter to herself under the Hindu Adoptions
and Maintenance Act, 1956. The doctrine of relation back under old Hindu Law states that if a
Hindu widow adopts a son after the death of his husband then the adopted son will be deemed to
have been adopted on the death of the husband. The theory is against the rule that a property
once vested cannot be divested.
Adoption: under present Hindu Law
The Statutory law of adoption4 has codified and modified the old law of adoption. Now, all
adoptions by Hindu shall be carried out in accordance with the provisions of the Act after having
uniform statutory law for adoption. Various changes have been made under the Adoption Law,
such as previously women were not permitted to adopt a child but now they can.

The ceremony of Datta-Homam is not essential for adopting a child, which was earlier necessary.
Provisions relating to the registration and the presumption are made necessary. It is now not
essential that the adopter and adoptee must be of same caste but the only requirement to be
fulfilled is that they should both be a Hindu or governed under the Hindu Law.5 A divorced
woman, widow, unmarried woman or a wife can legally adopt with the consent of her husband.

There has to be a twenty one year gap between the adopter and the adopter when adopting a child
of the opposite sex. The adoption can only be carried out legally if the adoptee is under the age
of fifteen years unless there is a tradition that requires such adoption.

A married Hindu male could adopt only with his wife's permission. The Act has also brought
some changes with respect to power of the widow to adopt a child. One of the important changes
made by the Act is that the doctrine of relation back has been abrogated and now the adopted son
or daughter comes into existence only from the date when adoption is being made.6

Adoption By A Widow
Under the Hindu Adoptions and Maintenance Act, 1956, a Hindu widow has a right to adopt a
son or a daughter to herself. The same has been recognized under Section 8 of the Act. A
window can make an adoption provided that she is of sound mind and not a minor. A widow
cannot adopt a son if she has already Hindu son, grandson or great grandson living at the time of
making an adoption. Also, in case of adopting a daughter, she must not have a Hindu daughter or
son's daughter living at the time of adoption. The woman (adopter) and adopted son must have a
gap of 21 years between them.

Earlier it was necessary for adopting a child by a widow to have a consent of her husband. There
must be consent of nearest sapinda while making an adoption by a widow the reason being that a
woman is incapable of independent judgment. The woman who is making an adoption need not
obtain the consent of senior female member who is also a widow.7

But now, in 1956, HAMA had lifted the restriction placed on a widow's adoption for her
husband's permission. Even after the legislation has been passed, a child adopted by a widow
without her husband's permission shall be treated as the son of the deceased husband of the
widow.8 If there is more than one widow, a widow can make an adoption without obtaining the
consent of other widows.

Doctrine of Relation Back: Meaning

According to the doctrine of relation back, under old Hindu Law, if a Hindu widow adopts a son
after the death of his husband then the adopted son will be deemed to have been adopted on the
death of the husband. It means that the adopted son will be entitled in the interest of his deceased
adoptive father. The theory is against the rule that ‘a property once vested cannot be divested'.
The theory was based upon the legal fiction that the continuity of the line of the adoptive father
should not break.11

The principle has some variations that do not follow the law. Next, in the event that an estate had
already been inherited in the hands of collateral and the collateral died prior to adoption, the
adoptee cannot sell the properties of the collateral's successor. The principle can only be enforced
when there is a question concerning the succession of the deceased father's property. The second
instance where the rule cannot be applied is in case where the alienation is made by a female heir
after the death of the adoptive father and before adoption.

The doctrine of relation back applies only when the claim is made by the adopted son relates to
the property of his adoptive father. A coparcener continues as long as there is a widow of
coparcener who is capable of bringing a son into the family be adoption. The rights of the
adopted son are the same as if he had been there at the time when his adoptive mother died and
that his title as a coparcener will be there as against any person's title claiming as an heir.13

Doctrine of Relation Under Modern Law

Under the Act14, the doctrine of relation back has been abrogated according to section 12 of the
said Act. Earlier, however, the adopted child came into being in the adoptive family from the
date of the death of his adoptive father, but now, in accordance with proviso (c) to section 12 of
HAMA, the adopter came into being from the date of the actual adoption.

The new Act has abrogated the principle of relation back only for a limited purpose of vesting
and divesting land. The doctrine of relation back still exists in a sense that, by making an
adoption, by a widow, the adopted child entails the relationship with the deceased husband of the
widow and is (the deceased husband) thereby becomes the adoptive father of the child.
Requirements of adoption

The Hindu Adoptions And Maintenance Act, 1956 came into effect from 21 December 1956.
The law of adoptions has been simplified after the commencement of the Hindu Adoptions and
Maintenance Act, 1956. This Act applies to Hindus, Buddhists, Jain and Sikhs and to any other
person who is not a Muslim, Christian, Parsi or Jew by religion. An adoption effected contrary to
the provisions of this Act will be void and it will not create any right in the adopted child.

Requirements Of Valid Adoption (Section 6)

The requisites of valid adoption are four in numbers. For making the adoption valid:
• The person adopting has the capacity and also the right to take in adoption
• The person giving in adoption has the capacity to do so.
• The person adopted is capable of being taken in adoption and
• the adoption is made in compliance with the other conditions

Who Can Adopt:

The sections 7 and 8 bring about important changes in the Hindu law of adoption, and specify the
persons who may lawfully take a son or daughter in adoption.

Capacity of Hindu Male to Adopt: Under S.7, any male Hindu of sound mind, and who is not a
minor, can take a son or a daughter in adoption. If he has a wife who is alive, he cannot adopt
without her consent, unless the wife.

Renunciation of world: has completely and finally renounced the world; or

Apostasy: has ceased to be a Hindu; or

Unsound mind: has been declared to be of unsound mind by a Court of competent jurisdiction.

Polygamy vis-a-vis consent of wives: If such a person has more than one wife living at the time
of adoption (as polygamy was not prohibited by Hindu Law prior to 1955), the consent of all the
wives is necessary, unless the consent of any one of them is dispensed with for any of the three
reasons referred to above.

Nature of consent: It may be noted that the consent of the wife need not be express consent, i.e.it
can also be spelt out from the facts and circumstances of the case. Thus, if the wife has taken a
prominent part in the adoption ceremonies. Such an inference can validly be made.
Capacity of Hindu female to adopt: Under S.8 of the Act (as amended by the Personal Laws
(Amendment) Act,2010), any female Hindu who is of sound mind and is not a minor, has the
capacity to take a son or a daughter in adoption. However, if she has a husband who is alive, she
cannot adopt without the consent of her husband, unless the husband.

Renunciation of world: has completely and finally renounced the world; or

Apostasy: has ceased to be a Hindu; or

Unsound mind: has been declared to be of unsound mind by a Court of competent jurisdiction.

Person Who Can Give The Child-Giving In Adoption

Three categories of persons: Section 9 of the Act (as amended by the Personal Laws
(Amendment) Act, 2010) deals with persons who can lawfully give a son or daughter in
adoption. Only three categories of persons, vix., the father, the mother and the guardian are given
this right. Further, it is also clarified that the terms father and mother do not include the adoptive
father and the adoptive mother.

Equal right of father and mother: Under the amended section, both father and the mother have an
equal right to give a son or daughter in adoption. Even so, either of them cannot exercise this
right except with the consent of the other spouse, unless such other spouse:
• has completely and finally renounced the world; or
• has ceased to be a Hindu; or
• has been declared to be of unsound mind by a Court of competent jurisdiction.

The Person Who Is Adopted Should Be Capable Of Being Taken In Adoption

Section 10 provides that no person shall be capable of being taken in adoption, unless the
following four conditions are satisfied, viz.
• Hindu: he or she is a Hindu
• No previous adoption: he or she has not already been adopted;
• Unmarried: he or she is not married unless there is a custom or usage applicable
to the parties, which permits married persons being taken in adoption; and
• Under fifteen years of age: he or she has not completed the age of fifteen years
unless there is a custom or usage applicable to the parties, which permits persons over fifteen
years being taken in adoption.

Conditions For A Valid Adoption:

As per section 11 in every adoption, the following conditions must be complied with;
 1. if the adoption is of a son, the adoptive father or mother by whom the adoption is
made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood
relationship or by adoption) living at the time of adoption;
2. if the adoption is of a daughter, the adoptive father or mother by whom the
adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood
relationship or by adoption) living at the time of adoption;
• if the adoption is by a male and the person to be adopted is a female, the adoptive
father is at least twenty-one years older than the person to be adopted;
• if the adoption is by a female and the person to be adopted is a male, the adoptive
mother is at least twenty-one years older than the person to be adopted;
• the same child may not be adopted simultaneously by two or more persons
the child to be adopted must be actually given and taken in adoption by the parents or guardian
concerned or under their authority with intent to transfer the child from the family of its birth (or
in case of an abandoned child or a child whose parentage is not known, from the place or family
where it has been brought up) to the family of its adoption;

Provided that the performance of datta homam shall not be essential to the validity of an
adoption. This section lays down some vital rules relating to the law of adoption. The rules and
conditions stated in the section are absolute and non-compliance with any of them will render an
adoption invalid.

Clause (i) Adoption of a son can only be by a person who has no son. The very basis of
adoption being substitution of a secondary son in place of an aurasa or a real son for the objects
mentioned above, the rule was fundamental that only a person who had no son, grandson or great
grandson could validly take a son in adoption

The Act now conferred right to adopt on a female evidently clause (i) apply to both adoptive
father and the adoptive mother by whom the adoption is made must not have Hindu son,
grandson or great grandson (whether by legitimate blood relationship or by adoption) living at
the time of adoption.

Existence of an illegitimate son is not a bar to male or female Hindu taking a son by adoption.
However, the existence of a son who is to be deemed to be a legitimate child of the parents by
operation of Sec.16 of the Hindu Marriage Act, 1955, would be a bar to the father's or mother's
right to take a son in adoption.

Clause (ii): Adoption of a daughter:

The object of recognising the right to take a daughter in adoption now conferred by the Act is to
permit a person, male or female, to have a substituted or secondary daughter in the absence of a
natural born daughter and it, therefore, stands to reason that the right should not be allowed to be
exercised when there is a daughter or a son's daughter in existence. A person who has an adopted
daughter or the adopted daughter of a son living, cannot adopt a daughter.

Clause (iv) Age of the adoptive mother:

This clause requires that, in case of adoption of a son by a female Hindu, the son must be at least
21 years younger than the adoptive mother. This is obviously, a precautionary measure, there was
no such restriction of age under the previous law. This condition must be complied with,
otherwise the adoption would be invalid. The requirement of difference in age is mandatory. An
adoption is contravention of the rule would be void.

Conclusion
The adoption involves the feeling emotions between the adopted family and adopted child. By
the act of adoption the adopted child is uprooted from his natural family and transplanted in to
adoptive family like a natural son.

The adoptive child severs his ties from the family of his birth and becomes a regular member of
the family in which the child has been adopted. The adopted child becomes the child of his
adoptive family from the date of adoption for all the purposes like a natural child and thereby get
all rights like birth in that family.
The adopted son is considered to be born on the adoptive father's death date. The ideas that arise
are that the adoption of a widow cannot be obstructed by the joint family's anterior division, and
the adopted son can claim a share as if he were begotten and alive when the adoptive father died.
As a preferential heir, an adopted son could divest his mother of the property of his adoptive
father and his adoptive mother of the property she gets as an heir of her son, died after her
husband.12

Effect of Valid Adoption Under Hindu Law

Effect of adoption
Adoption results in the transfer of the child from the family of its birth to the family of its
adoption. The ties in the family of birth are severed and replaced in the family of adoption.
However, the child cannot marry any person whom he or she could not have married if he or she
had continued in the family of his or her birth. Any right vested in the adopted child before
adoptions continues in such person even after adoption. The adopted child does not divest any
person of any estate which has already been vested in such person before the adoption. This is a
radical departure from the shastric Hindu law. Formerly the adopted son could divest in many
cases when adoption was made by a widow, by a legal fiction the adoption related back to the
date of the death of the husband of the adoptive mother. Now the adoption operates from the date
on which the child was taken in adoption.
Section 12 of the Hindu Adoption and Maintenance Act,1956

Section 12 of the Act deal with the Legal effects of valid adoption. When there is valid adoption,
the child is deemed to die in the natural family, and to be reborn in the adoptive family. His rights
in the natural family are destroyed, and he acquires in the adoptive family. An adopted child
becomes the child of the adoptive family for all purposes from the date of adoption. In fact, he is
deemed to be natural son.

Marriage: To adopted child's relationship with the natural family continues for purpose of
marriage. A child cannot marry anybody whom he or she could not have married in the natural
family.

Vesting in Natural Family: Any property vested in the adopted child prior to adoption is not
divested by adoption for e.g., A, B and C are brothers in a hindu joint family. All of them inherit
some properties from their maternal grandmother. They hold these properties in common; with
rights so equal share. ‘A' is adopted. Now, the one third share vested in ‘A' is not divested by
adoption. He takes his one third share to the adoptive family, but subject to obligations attached
to the property.

Divesting in Adoptive Family: When the adopted son acquires a right by birth to the ancestral
property in the hands of the adoptive father. But in the self-acquired property of the adoptive
father the adopted son does not acquire any right. The adoptive father con freely disposes of his
self-acquired property.
Section 12 of the act lays down “An adopted child shall be deemed to be the child of his or her
adoptive father or mother for all purposes with effect from the date of adoption and from such
date all the ties of the child in the family of his or her birth shall be deemed to be served and
replaced by those created by the adoption in the adoptive family.”

In the Natural family

Under Hindu law, both old and new, the adoption of the child means that the child is totally
uprooted from the natural family and transplanted in the new family.
The child is now deemed to be the child of the adoptive family rather than that of his or her
natural family.

Relationship with the members of the natural family

For secular, religious, or civil purposes, the adopted child ceases to be the child of the natural
family. His father or mother ceases to be his parents and all the relation from father’s side and
mother’s side ceases to be existed from the date of the adoption.
Only the tie which he retains with his natural family is that he cannot marry any person in his
natural family whom he could not have married before his adoption.
The right of guardianship of natural parents ceases to exist as with the effect from the date of
adoption, whatever be the age of the child.
Even if the child is below 5 years of age, it’s natural mother cannot claim it’s custody which she
would be entitled to otherwise under the provision to section 6(a), Hindu Minority and
Guardianship Act,1956.

Divesting of property
Provision of section 12 (b) of the act provides that any property which is vested in the adopted
child before the adoption shall continue to vest in such person subject to the obligations, if any,
attaching to the ownership of such property, including the obligation to maintain relatives in the
family of his or her birth.
Thus, any property that the child inherited from any relation before adoption will continue to be
his property even after adoption.

In the Adoptive family

The adopted child is deemed to be the child of the adopter for all the purposes. His position for
all intents and purposes is that of a natural born son he has the same rights, privileges and the
same obligation in the adoptive family.

Relationship with the members of the adoptive family

The adoption in Hindu law means complete transplantation of the child in the adoptive family
from the natural family.
This means that is not merely the child of adoptive parents but he is also related to all the
relations on the father’s side as well as mother’s side as if he is the natural-born child of the
family.

Father’s and mother’s parents are his or her grandparents.

But under the modern law as well as under the old Hindu law, if an unmarried person, a bachelor,
adopts a child, the child will only have one parent, adoptive father or mother, and he will have
only one line paternal or maternal as the case may be.

Divesting of property
Section 12(c) specifically lays down that the child shall not divest any person of any estate which
is vested in him or her before the adoption.
The old Hindu Law of divesting of property on adoption was very complicated and a constant
source of litigation.
Under the modern Hindu law, this source of litigation and consequent dissentions in the Hindu
families have been done away with by laying down that the adopted child cannot divest any
person of the properties vested in him or her before adoption.

Guardianship, inheritance and maintenance

The adoptive parents are the natural guardians of their adopted minor child, first the father, then
the mother.
If the adopted child is less than five years than the adoptive mother will have a preferential claim
to the custody of the child.
The position of an adopted child in respect of inheritance and maintenance is the same as that of
the natural-born child, if there is an adopted child and a natural child, both will inherit equally.

Conclusion
The child who is being adopted by the adoptive family is the natural child of the adoptive family
having all the rights and obligations as that of a natural born child.

Natural Guardian
Guardianship is a relationship between the person and the child/ward who is unsound mind or
has been born with incapacities. There was no specific laws regarding the guardianship during
the Hindu Dharamshastras due to the concept of joint families where a child without parents is
taken care by the head of the joint family.

Therefore no specific laws were required. During the British regime the law of guardianship was
developed by the courts. It established that the father is the natural guardian of children and after
his death mother is the natural guardian of the children and no one else can be the natural
guardian of minor children. But that concept of guardianship has changed, in modern times the
Hindu Minority and Guardianship Act,1956 codifies the laws regarding minority and
guardianship with welfare of the child.

Powers of Natural Guardian over person and property of a Hindu mainor

Meaning or Guardian
Guardian is a person who takes care of the child until he is capable of making the decisions on
his own. In the Hindu Minority and Guardianship Act 1956, a guardian is a person who takes
care of the person of minor or of his property or both his person and property. And there are
different types of guardians such as,
● Natural Guardian
● Guardian appointed by the will of the minor’s father or mother or appointed or declared
by the court.

Natural Guardian under Hindu Law

Under section 6 of the Hindu Minority and Guardianship Act, 1956, the natural guardianship of
legitimate child vests in the father. A mother can be natural guardian of her illegitimate children
only after the father. Which means she is the natural guardian only after if the father is dead or
otherwise is incapable of acting as Guardian.

But section 6 of Hindu minority Guardianship Act lays down that the custody of a minor who
has not completed the age of five years shall be with the mother. So mother is entitled to the
custody of the child below five years unless the welfare of the minor requires otherwise.

No outsider can become the guardian of minor except father or mother, because the guardianship
of the minor is not about the legal right of the minor, but the welfare of the child is taken into
consideration. Therefore it is stated that section 6 of Hindu Minority and Guardianship Act
should be always be read with section 13 of the same. Cause section 13 is where welfare of the
minor is stated.

Section 6 Clause (c) states that if a girl is married then the husband becomes the naturals
guardian. If the minor girl is married then also the husband is the natural guardian.

In the explanation of Section 6 it is stated that the father and mother does not include step-father
and step-mother. Section 7 of the Hindu Minority and Guardianship act states that the natural
guardian of the adopted child is the adoptive father and adoptive mother.

The powers of Natural Guardian

The powers are lay down in Section 8 of Hindu Minority and Guardianship Act, 1956:
● Guardian can perform all function regarding care of the minor which are in his benefits.
● Guardian can do any act, subject to the provisions of section 8, that are necessary or are
reasonable and proper for the benefit of the minor or the benefit of the minor's estate. But
the guardian, in no case, shall bind the minor by a personal covenant.
● The guardian cannot, without prior permission from the court,
 ○ Mortgage, charge or transfer the immovable property of the minor by the way of
sale, gift, exchange or otherwise.
○ Lease the immovable property for a term more than 5 years or where the lease
ends one year after the minor attains majority.
● Any sale of immovable property in violation of the above two points, is voidable at the
insistence of the minor
● The court shall not give permission for sale of immovable property unless it is necessary
in the benefit of the minor.

Conclusion
In Hindu religion, there was no guardianship law as all the family members stayed together. So if
the parents are not there, then the other members of the family would take the guardianship of
the child. That's why there was a need for a proper guardianship law in our country. Then the
parliament enacted the Hindu Minority and Guardianship Act in 1956. As all the enactments this
Acts was not perfect either, there were some gender discrimination problems in the acts.

As we are living in the 21st century, there should not be any gender discrimination, and
everybody should be treated equally in every law. Mothers have an undeniable and consequential
role in the child’s upbringing. She cannot be treated as secondary to anyone, not even the child’s
father.

And in a matter where the future of the child is of concern, the importance must be of the best
interest of the child. Priority must not be given to the various religious or personal laws but a
secular law and uniform law is the need of the hour, since adoption is legal affiliation of a child,
it forms the subject of personal law

Maintenance of dependants

Dependents of a deceased must be maintained if they do not have the capacity to do so by

themselves. Section 21 of the act defines dependents and Section 22 states that such persons shall be
entitled to maintenance.

Who are dependents?

Dependent is someone who relies on parents, brother or some other relative for sustaining
themselves.Section 21 of the act says that in the context of this act dependents refer to the following
relatives of the deceased:
 ● A father.
● A mother.
● A widow who has not remarried.
● A minor son, grandson, or great-grandson with predeceased father and grandfather.
Provided he has not been able to obtain maintenance from any other source.
● Unmarried daughter, granddaughter, or great-granddaughter with predeceased father and
grandfather. Provided she has not been able to obtain maintenance from any other source.
● A widowed daughter who has not been able to obtain maintenance from the estate of her
husband, children, or from her in-laws.
● Widowed daughter-in-law, or widowed granddaughter-in-law, who has not been able to
obtain maintenance from any other sources.
● An illegitimate minor son or illegitimate unmarried daughter.

Maintenance of Dependants:
● Subject to the provisions of sub-section (2)9 the heirs of a deceased Hindu are bound to
maintain the dependents of the deceased out of the estate inherited by them from the
deceased.
● Where a dependent has not obtained, by testamentary or intestate succession, any share in
the estate of a Hindu dying after the commencement of this Act, the dependent shall be
entitled, subject to the provisions of this Act, to maintenance from those who take the
estate.
● The liability of each of the persons who takes the estate shall be in proportion to the value
of the share or part of the estate taken by him or her.
● Notwithstanding anything contained in sub-section (2) or sub-section (3) no person who
is himself or herself a dependent shall be liable to contribute to the maintenance of others,
if he or she has obtained a share or part the value of which is, or would, if the liability to
contribute were enforced, become less than what would be awarded to him or her by way
of maintenance under this Act.
Do dependants need to be maintained?
Now that we have already seen who dependents are and why they need maintenance, let us
proceed further and see how to maintain them and who is obligated to maintain them.
Section 22 of the act states:
● That dependants of a deceased Hindu must be maintained by his heirs with the aid of the
estate that they inherited from the deceased
● When the dependents have not been left with any share in the property or estate by way
of will or succession, they are still entitled to be maintained by whoever takes over the
estate.
● If multiple persons have taken over the property of the deceased, each one of them will
be liable to maintain the dependents.
● The amount of maintenance to be paid will be divided among them depending on the
value of the share they hold in that property.
 ● In case a dependent has obtained some part of share in the property of the deceased, they
will not be liable to maintain other dependents.
● Others who have taken over the property will still have to maintain other dependents but
the dependent holding a share shall be excluded and maintenance will now be paid from
the remaining property.
General Rules of Maintenance of Dependants Section (22):
● The obligation is tagged to the estate and not to the person. Hence the obligation limited
to the extent to which the heir has the estate of deceased in his or her hands.
● Dependants are entitled only if has not obtained, share by testamentary or intestate
succession, in the estate of the Hindu cloying after the commencement of their act.
● Liability of each of the persons who takes estate shall be in proportion to the value of the
share or part of the estate taken by him or her.
● No person is obliged to maintenance if she/he obtains a share or part, the value of which
is, or would sufficient for maintenance for his/her life.
● EX: - under a will of a Hindu his widow takes an estate yielding an annual income of
5000/- and this a mount is just sufficient to maintain her. Now suppose there is a mother
of the deceased Hindu who has not got no share in the estate. Both are dependents under
section 2114 of Act.
● None of the dependents is entitled to maintenance, if he or she has ceased to be a Hindu
by conversion to some other religion.
● Section 22 then provides that, subject to what is stated below, the heirs of a deceased
Hindu are bound to maintain the dependants of the deceased out of the estate inherited by
them from the deceased.
● It is further provided that if a dependent has not obtained (by testamentary or intestate
succession) any share in the estate of a Hindu dying after the commencement of the Act,
such a dependent can claim maintenance from those who take the estate.
● It may also be noted that the liability of such persons (as are referred to above) is not joint
and several, but is proportionate to the value of the share or the part of the estate received
by each of such persons.
● Section 22 also lays down that a person who is himself a dependant of the deceased male
or female, and has taken a share or part of the estate of the deceased, is liable to
contribute towards the maintenance of any other dependant who has not obtained any
share by testamentary or intestate succession.
● His proportionate contribution in any such case is, however, to be computed in such a
manner that what remains with him of the share of the estate after his liability to make
contribution is enforced, is not less than what would have been awarded to him by way of
maintenance as a dependant.

Dependants based on personal obligation:

Personal obligation means that a Hindu is personally liable, irrespective of the property that he
has inherited or his earrings, to provide for certain relations who are dependent on him.
These relations have been specified in the following sections of Hindu Adoption and
Maintenance Act, 1956.
Section 18(1) declares that whether married before or after this act, a Hindu wife shall be entitled
to claim maintenance by her husband during her lifetime.
Section 20(1) declares that a Hindu is bound to maintain his children, legitimate or illegitimate,
and aged or infirm parents. Section 20(2) says that a child, legitimate or illegitimate, can claim
maintenance from father and mother, until the child is a minor.
Section 20(3) says that the right to claim maintenance of aged or infirm parents and unmarried
daughter extends in so far as they are not able to maintain themselves through their other sources
of income.
Dependants based on obligation tied to property:
A person has obligation to support certain relations of another person whose property has
devolved on him. In this case, this obligation is not personal but only up to the extent that it can
be maintained from the devolved property.
Section 21 specifies the relations of the deceased who must be supported by the person who
receives the deceased property.
Section 22 (1) says that heirs of a Hindu are bound to maintain the dependents of the deceased
out of the estate inherited by them from the deceased. Thus, this obligation is to be fulfilled only
from the inherited property and so it is not a personal obligation.

Conclusion
Recent court rulings make it clear that the Indian courts have been increasingly lenient when
making decisions about maintenance. However, there is debate over whether a paramour may be
considered entitled to support simply by virtue of living with a married man, and there is also
debate over whether bigamy is legal.
Even if it seems like it from the decisions made under the personal laws, section 12521 court
rulings continue to support the idea that only a lawfully married woman can request
maintenance. Not just the community as a whole, but also the weaker groups, have been
concerned with maintenance. For weaker sections, it is a problem in the sense their very survival
rests on the provision made available as maintenance.