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Custody And Guardianship Of A Minor-Child

The Hindu Minority and Guardianship Act of 1956[1] defines a minor as a person who has not completed the age of eighteen years. A minor is seen as physically and mentally not matured, and therefore needs someone's protection and guidance. The Natural Guardians of a child are his/her parents. The father of the child is seen as the sole guardian and has the legal right of guardianship, but this right can be removed or altered when the father is proven to be incapable to take good care of his child.

Whereas a mother is the said to be the guardian of the child for as long as she lives. She can enforce this right even if she changes her religion or if she has an adopted child. This showcases that the father has a higher up position at least when it comes to being a natural guardian.

On the other-hand in Western countries there is no substantive law for guardianship. The sole reason for this is because of the different demographic conditions and judgements on such matters is given on case to case basis. This makes the 'Joint Custody' an easily availed option to remove gender biasness. It helps to tackle the issue of gender equality taking into consideration the mother's role.

Guardians and Wards Act[2] also include the Guardianship and custody of various other religions.

The Legal Structure Of Custody And Guardianship

  1. Codified Laws:

    1. Guardians And Wards Act, 1890

      The said law is applicable to every religion and is pertinent with certain codified and uncodified laws. These laws are secular, therefore are applicable to each and every child within the Indian territory. This defines minor as an individual who is physically and mentally, and therefore needs a caretaker to look after.[1] The Hindu Minority and Guardianship Act, 1956 exists in accordance with this act.

      The court has authority to provide order on guardianship keeping in mind the welfare and therefore making necessary appointment. [2]By this instruction a guardian declared not by will can be removed. This acts primarily authorizes the District courts to select the guardians but the high courts can also access this power.
      The court's jurisdiction is guided by the area where the minor usually resides. The court should consider the preferences and will of the minor taking into consideration that the minor can form a predilection.

      A relation of trust is made in between the minor-child and the appointed guardian. This guardian is bestowed duties to look after the health, education and other needs of the minor-child. Failing to do so the legislation has the power to either replace or provide remedies for the ill-treatment done to the minor.
    2. The Hindu Minority And Guardianship Act,1956

      Before the Guardianship and Custody act, 1956, the Hindu law declared that father is the sole guardian of his child and that mother plays a secondary role. [3] The role of father's guardian ship is sacred and cannot be replaced. [4] The Hindu law of guardianship was reformed in the year 1956.

      This act applies to anyone who is a Hindu by religion.[5] It further includes a person who is either a Buddhist or Jain or Sikh. It can be applied to a huge array of people as showcased from s 2(1)(c) of the Hindu Marriage Act, 1955. A minor is someone who has not attained 18 years and required guidance. [6] Therefore, the welfare of the child should be of paramount importance of the guardian.

      The terms of a natural guardianship in case of a Hindu minor are mentioned in Section 6 of the Guardianship Act. [7] Father is seen as the sole guardian for the child whereas the mother has the custody of the child below the age of 5 years. All rights for the well-being of the minor is imposed on his/her natural guardian.

      Section 9 deals with the issue of testamentary guardianship. This process can be initiated only by a will. Acceptance should be showcased by the testamentary guardian and it serves as the path to alter the guardianship. Section 13 talks about the doctrine of welfare which is seen as of great importance and the law cannot go against the child's well-being.
  2. Uncodified Laws:

    1. Islamic Personal Law

      The Quran play as a medium for law for guardianship- 'Wilayat'. These sources tell us about the guardianship of a minor child. The father is shown as the dominant figure and is the sole guardian whereas the mother only has custody (Hizanat) of the child in early years. After the death of the father the guardianship of the minor is passed to executor. [8]
      Completion of formal specialities for the testamentary guardians aren't focused by the law. This can either be done orally or in writing. But intentions have to be stated distinctly & unambiguously. This important role is played by the executor and the testator has to make the will at the time of execution. The person is lawfully given the status of Amin.
      the Indian Maj0rity Act 0f 1875 governs the Muslim minor-child that states that the age to attain majority is 18 years and 21 years if the minor is under a guardian by the court orders.
      A guardian can be appointed by the court through the Guardian and Wards Act 0f 1890 to take care of the minor. The High Court also has the power to appoint a guardian but it is used very delicately.
    2. Christian And Parsi Law

      The Guardians and Wards Act, 1890 and The Indian Divorce Act, 1869 can be used for all the proceeding relating to Christian children. The courts can pass a judgement in matters pertaining to custody, maintenance etc.[9]

What's The Status Of Mother

Guardians And Wards Act:

The section 19 and 25 of the prior Guardians and Wards Act, laid to the superiority of the father. But the in 2010 an amendment altered the provision for both parents of the child, doing away with the sole superiority of the father.

Constitutional Validity Of Section 6(A):

Section 6(a) mentions: (Hindu Minority and Guardianship Act)
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.

It is stated by Narada, (Modern Hindu Law Book) that:
The father is preferred among the parents because of the superiority of the seed. In absence of the progenitor, mother is the guardian and in the absence of both of them, the ancestor [10] This means that mother can't be a natural guardian as long as the father of the child is alive. This follows even after the mother has chased the play of being next friend. [11] The Orissa High Court in case Sobha Devi v. Bhima, lays down the next friend ideology and states that the mother cannot play the part of being a next friend as long as the father is alive.[12]

In the case of Gita Hariharan v. Reserve Bank of India the validity of section 6(a) was challenged where the word 'after' was debated, and it was debated whether a mother can be a natural guardian as long as the father is alive. [13] the term 'after' was describes as in the absence of father. It was further mentioned that this absence is either temporary or completely (by ailment or otherwise)

Even after this clarification it doesn't change the fact that the father has superior status than the mother who can only become a natural guardian after the father's death. In a situation of dispute, the mother can only claim her status as a natural guardian by welfare principle as welfare is of paramount importance under the said act.

In the case of Padmaja Sharma v. Ratan Lal Sharma, the mother had to pay the maintenance for her minor-child.[14] Even though it may look advancing, it cannot provide equality, as the mother isn't showcased as a natural guardian and doesn't have any power whatsoever. Certain recent judgements are seen moving towards gender-equality. This is laudable but we need to move forward and dismantling the 'preferential status' of the superior father.

Right To Hizanat (Custody):

Under Islamic law the womens' are allowed to have custody of her child for a defined period. These rights cannot be taken away from her unless she is removed from it due to misconduct. This strikes a difference between guardianship and custody and gives the mother her rightful custody.

The mother's right of hizanat, related to taking care of the minor during his/her early years. Under the Sunni law, the son till the age of 7 years and daughter until she become an adolescence or is married. Under Shia law, the son up to 2 years and the daughter up to the age of 7 years. The mother is therefore referred to as the de facto guardian.
But this does imply that the father has no power. The father can still supervise and look after the child. He has the control.

Joint Custody

Looking At The Welfare Of The Minor-Child:

The welfare of the minor is of utmost importance, keeping aside the status of the guardian. The Sections 7 and 17 of the Guardians and Wards Act states that the legal system should function for the welfare of the minor-child. Courts have the power to advent the personal laws that minor has and designate a guardian based on welfare. The section 13, of the Hindu Minority and Guardianship Act supports the above statement. It has to be seen with divergent sense. [15]

The petitioner's legal decision doesn't show the legal matter of this principle. There is no said principle basis through which the courts can use the welfare principle. It has been noted by Legal Activist Flavia Agnes that courts should use their power cautiously and take care of the basic fundamental rights of the minors. [16]

The Supreme Court in ABC v. The State (NCT of Delhi), provided us with a great judgment which states that a women can be a legal guardian of her own child even if she isn't married and it was also added that she has not obligation to reveal the name of the biological father.[17]

The instrument of welfare is very subjective and therefore differ in various cases. To get the minor-child a legal custody the writ of Habeas Corpus can be implemented. In the case Gohar Begum v. Suggi- Where mother demanded the rightful custody of her child who used to stay with her aunt with the use of Mohammedan law.[18]

By the said law, the mother has the rightful custody, therefore the court ruled in favour of the mother. A mother can't deny the custody of her child due of her work. [19] The wealth of the relative acts as a factor of welfare but it isn't the sole criterion as it might make the mother dominant figure.

As the mother was financially weak than father, she still won the case. [20] Sometimes court focuses on material well-being and that's where the father can play a big role in providing the material needs. This depicts the importance of joint-custody and to end the differences of material and non-material well-being.

In the case Bhagyalakshmi v. K Narayana Rao: where before passing the judgement the judge had taken into consideration the joint-custody then the child would have got both the love and affection of mother and material welfare from father. [21] But the court set aside the emotions that the child would face as both parent were in debt.

Towards Shared Parenting:

The Supreme court held that in cases of custody dispute, primary importance should be placed on the child's well-being, even if one has to override the statutory provision as stated above. [22] Various cases state that the economic well-being is not the sole criterion of getting guardianship and therefore the mother has the chances of getting custody.

In a Supreme Court case, alterations were made to the visitation rights that father had and the child's mother was allowed to have the custody of her minor-child and take the child foreign. [23]

But there are also many other cases where generalisation is made pertaining the roles and responsibilities to give custody. It is showcased in the case Ashish Ranjan v. Anupama Tandon. [24] it ruled that neither the father is the natural guardian nor mother is biologically-fit to get the custody of the minor-child. This makes us think about the idea of Joint-custody.

Such judgements must be made keeping in mind the sustainable growth and maximisation of welfare of the minor-child. If joint-custody means treating the child as a possession then it is not good for the child and hence shouldn't be implemented.

In the case KM Vinaya v. B Srinivas- where joint-custody was imposed by a 6 month mechanism, where the parent can visit the child on weekends and can contact them through technological means. [25] It leads to less trouble and better development of the child.

A detailed list of suggestions is provided by the Law Commission that talks about the Judicial amendments, inclusion of new chapters etc. These amendments have to be strictly abided, as section 7 and section 6(a) of the Hindu Minority and Guardians Act prevents the mother to get a lawful position and also doesn't allow the provision of Joint-custody.

Similarly, both the parents (mother and father) of the child should be seen as the natural guardians of the minor-child instead of father being a sole guardian. The amendment made to the section 19 is praiseworthy. Similarly, the amendment to section 17 and 25 of the Guardians and Wards Act should be revisited and revised as they don't act for the best interest of the minor-child who is of primary concern.

The right to Hizanat under Islamic Personal Law should be contemplated. It is because it only provides the child's custody to mother for a defined period of time with limitations within the range of termination of Hizanat.

To provide the child with the maximum welfare possible joint-custody should be supported as it helps the child to deal with the emotional and physical needs. It should be ensured that the child evolves to its full potential and get the love by being in a health relation with parents. The said doctrine must be applied to all the cases regarding the custody and child support. With the help of Legal pragmatism these ideas can be developed further.

Court should focus on the desires of the minor who is capable of expressing them. They cannot give any person the custody of the minor-child if there is not legal status available. A proper equilibrium should be maintained on the rights that the child has and his/her welfare. Welfare of the child should be free of any bias without any external influence. The happiness and welfare of the child should and always be of utmost importance.

Primary Sources:
  • The Guardians And Wards Act, 1890
  • The Hindu Minority And Guardianship Act, 1956
  • Indian Divorce Act, 1969
  • P.N Ramachandra Iyer v S.V Annapurni Ammal (1964) AIR Ker 269
  • Narain Singh v Sapurna Kuer, AIR (1968) Pat 318
  • Sobha Devi v. Bhima AIR [1975] Ori 180
  • Gita Hariharan v. Reserve Bank of India (1999) 2 SCC 228
  • Padmaja Sharma v. Ratan Lal Sharma AIR 2000 SC 1398
  • Suresh Babu v. Madhu AIR 1984 186
  • Bhagyalakshmi v. K Narayana Rao AIR [1983] Mad 9
  • Mausami Ganguli v Jayant Ganguli, (2008) 7 SCC 673
  • Vikram Vir Vohra v Shalini Bhalla
  • ABC v. The State (NCT of Delhi
  • Gohar Begum v. Suggi
  • KM Vinaya v. B Srinivas AIR [2013] SC 102
  • Neil Ratan v. Abhijeet Kandu [2008] SLP 1243
  • Gayatri Bajaj v.Jiten Bhalla [2012] 12 SCC 478
  • Imambandi v. Sheik Haji Mutsaddi [1918] BOM LR 1022

  • Law Commission, Reforms in Guardianship and Custody Laws in India (Law Com No 257, 2016)
Secondary Sources:
  • Mulla 'Hindu Law' (21 edn reprint 2012)
  • Arun Kumar, 'Guardianship and Custody of the person of a minor-child' [1975] JILI vol.17
  1. Section 4, Guardians and Wards Act, 1890
  2. Kumar (n4)
  3. Mulla 'Hindu Law' (21 edn reprint 2012) Chap.XXIV- Minority and Guardianship, 719
  4. Ibid 720
  5. Section 3, Hindu Minority and Guardianship Act
  6. Section 4(b) Hindu Minority and Guardianship Act
  7. Section 6(a), Hindu Minority and Guardianship Act
  8. Imambandi v. Sheik Haji Mutsaddi [1918] BOM LR 1022
  9. Section 41, Indian Divorce Act 1869
  10. P.N Ramachandra Iyer v S.V Annapurni Ammal (1964) AIR Ker 269
  11. Narain Singh v Sapurna Kuer, AIR (1968) Pat 318
  12. AIR [1975] Ori 180
  13. Gita Hariharan v. Reserve Bank of India [1999] 2 SCC 228
  14. AIR 2000 SC 1398
  15. Neil Ratan v. Abhijeet Kandu [2008] SLP 1243; Gayatri Bajaj v.Jiten Bhalla [2012] 12 SCC 478
  16. (n3)
  17. AIR [2015] SCC 609
  18. AIR [1960] SCR (1) 597
  19. AIR 1982 S.C 1276
  20. Suresh Babu v. Madhu AIR 1984 186
  21. AIR [1983] Mad 9
  22. Mausami Ganguli v Jayant Ganguli, (2008) 7 SCC 673
  23. Vikram Vir Vohra v Shalini Bhalla
  24. Contempt Petition (Civil) No. 394 of 2009, Supreme Court of India, Judgment dated 30 November, 2010.
  25. AIR [2013] SC 102
  1. Minority and Guardianship Act, 1956
  2. Guardians and Wards Act,1890

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