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Guardianship and Lawful Custody of a Minor: An Inclusive Study

The true character of a society is revealed in how it treats its children - - Nelson Mandela

The concept of Guardianship traces its origin from the fact that not all persons are considered eligible to keep themselves safe and secure and therefore some sort of guidance and security need to be provided to such persons for their well being. Especially, a child or a minor whose physical and mental capacity is at a nascent stage and needs assistance through love, care and caution.

This work is an effort on the part of the author to comprehensively deal with the concept of Guardianship of a child in India while covering each and every circumstances that a child may face during his tender age.

Guardianship Of A Child In India

The concept of minority
A child or a minor is a person who has not attained the age of majority i.e. 18 years of age as set up by The Majority Act of 1875 and therefore the minors need a person for safety and security of him as a person as well as of the property, till the time he attains majority.

From here, the concept of guardianship has been developed and in our country the concept of guardianship of a child is substantially governed by two legislations:
  1. Hindu Minority and Guardianship Act of 1956 (hereinafter referred to be as H.A.M.A), and
  2. Guardians and Wards Act of 1890 (hereinafter referred to be as G.A.W.A)
While the former governs- Hindus, Sikhs, Jains and Buddhists; on the other hand Muslims, Christians and Parsis are governed by the Guardians and Wards Act.

The term Guardian under the two Acts: Definition & Interpretation

Both the above enactments have defined the term Guardian in the same way. For instance, under H.A.M.A, 1956:
Guardian means a person having the care of the person of a minor or of his property or of both his person and property, and includes:
  • A natural guardian,
  • A guardian appointed by the will of the minor's father or mother,
  • A guardian appointed or declared by the Court, and
  • A person empowered to act as such by or under any enactment relating to any Court of wards.
While G.A.W.A has kept it precise to the first two lines of the above definition and is restrictive in nature (presence of 'means'), though under HAMA means finds its place but the definition becomes inclusive with the presence of includes in the latter half of the definition.

Guardianship under H.A.M.A, 1956
Hindu Minor Natural Guardian Remarks
Boy or Girl under 5years of age Mother of the child  
Boy or unmarried girl Father of the child After father, mother is entitled to become the guardian
Illegitimate Boy or Illegitimate Unmarried Girl Mother of such illegitimate boy or girl After mother, father is entitled to become the guardian
Married Girl Husband  
Adopted son Adoptive Father After father, passes on to mother

The same section has also clearly stated that in case where a person ceases to exist a Hindu OR renounces the world by becoming a hermit or an ascetic, then he shall lose his natural guardianship.

In the case of Ms. Githa Hariharan and another v. Reserve Bank of India and another, on the interpretation of after father it was clarified by the Honourable Supreme Court that after father not merely means after the death of him but also includes in the absence of him, she is the guardian.

In addition to it, the act under Section 9 has also endowed power upon the natural guardians classified above, to appoint someone as a guardian through a will and such guardians who are appointed are known as Testamentary Guardians. It should be noted that the role of a testamentary guardian shall only come into play when both the natural guardians mentioned above die and there is no one qualified to act as a natural guardian for the child.

Guardianship under other religions

  1. Muslim Law:
    Under Muslim Law, Guardianship is caled Hizanat, and the source of law of guardianship are certain verses of Quran and few Ahadis. Under both the Sunni and Shia Law, Father is the sole natural guardian of a minor child while mother has not been given any authority concerning guardianship in any form. Although she has been given the right to custody until the child attains a specific age.

    In Imambandi v, Mutsaddi, it was held that till the father is alive he is the sole and supreme guardian of his minor child.

    Natural Guardian Of A Minor In Order Of Priority

    Shia Law

    Sunni Law



    Executor of Father (if any)


    Executor of Father

    Paternal Grandfather

    The executor of Paternal Grandfather

    Testamentary Guardianship:

    Testamentary Guardianship is also the option that has been given under the Muslim Law. In both Shia and Sunni Law, father has been given the lawful authority to appoint a testamentary guardian but in Shia Law he can only do so when Grandfather is not alive.

    Under both laws, in addition to the Father, Grandfather has also been given the lawful authority to appoint a Testamentary Guardian.
    Mother vis-a-vis Testamentary Guardianship:
    • Mother can be appointed as a Testamentary Guardian under both Shia and Sunni Law. Among Sunnis, a Non- muslim mother can be appointed as a Testamentary Guardian but not under the Shia Law.
    • Mother cannot appoint someone as a testamentary guardian, but she is entitled to do so only in 2 cases:
    • When she has been appointed a general executrix by the will of the child's father.
    • She can appoint an executor in respect of her own property, which will devolve after her death to her children.
  2. Christian Law:

    There is no specific law of guardianship under personal laws of the Christians and the appointments of guardians are dealt by G.A.W.A.
  3. Parsi Law:

    There is no specific law on guardianship under Parsi Laws, but it is permitted to be governed by the practice and customs of Hindu Law.

The Guardians and Wards Act, 1890 (G.A.W.A)

The Act:
This Act is considered to be having a secular application of law in terms of all religion cohabitating in our country and therefore it is applicable also on the Hindus, Jains, sikhs, Buddhists in a limited sense, especially in situation where the Court deems it fit to appoint a Guardian for a minor.

Other than that, it is necessary to note that this Act substantially deals with the appointment of a Guardian and does not in any manner lay down in substance- who is a minor under the various personal laws as it is only concerned to grant a recognition to a minor, under a person eligible to be a guardian.

In other words, it can also be said that while H.A.M.A is a substantial piece of legislation while Guardians and Wards Act is more of a procedural law.

Appointment of Guardian:

Now let us understand, the procedure set up by this very act for appointing a Guardian:

The order u/s 7:
It is left upon the discretion of the Court w.r.t appointment of a Guardian and if the Court is satisfied that it would be for the welfare of the child, then an order should be made:
  1. For appointment of a guardian for minor's person or property or both, or
  2. To declare a person as guardian
And, in case where a person is already a guardian under a will or other instrument or a Court, then the order appointing new guardian shall not be made until that guardian's role cease to exist.

Persons entitled to apply for order: Section 8 of the Act lists down the people who can apply for the order of appointment:
  1. The person desirous of being, or claiming to be, the guardian of the minor, OR
  2. Any relative of friend of the minor, OR
  3. The Collector of the District where the minor ordinarily resides OR
  4. The Collector having the authority over the class to which such minor belongs
Admission of application:
If the Court is satisfied of the fact that there is a need to proceed in this matter, then it can send a show cause notice of the application to the parents of the minor or any other person whose name has been mentioned in the application by the applicant.

Under Section 17 of the Act, power has been conferred on the Court to appoint or declare guardian of a minor by paying due consideration to the law through which such minor is governed. The welfare of the child should be kept as a matter of utmost priority while disposing such application along with the:
  1. Character and capacity of the proposed guardian or applicant
  2. Age, sex and religion of the minor
  3. Nearness of his kin to the minor
  4. Last wishes of the deceased parents of the minor (if any)
Any previous or existing relationship between the minor and the guardian
In cases, where the Court thinks it to be fit, that minor is competent enough to make his own choices with regard to the appointment then the Court may consider this factor as well.

The statute has also laid down the cases where such appointment cannot be made, where:
  1. A minor is a married female and the Court thinks her husband is fit to be her guardian.
  2. A minor is an unmarried female and in the opinion of the Court, her father or mother are fit to be her guardian.
  3. A minor whose property is under the Court of wards which is competent.

Guardianship Or Child Custody Vis-A-Vis Divorce Or Legal Separation

Paramount Consideration
The sole consideration which drives the Court forward in deciding such questions of guardianship or custody is the welfare of the child and whether the child's interest would be served while putting him under the custody of a person.

The traces of this principle can be found both in The Hindu Minority and Guardianship Act, 1956 as well as in Guardians and Wards Act of 1859.

Under Section 13 of H.A.M.A, it has been stated that in the appointment of a guardian for a hindu minor by a Court, the welfare of the minor shall be the paramount consideration. Similarly under sections 7, 17 and 25 of G.A.W.A, this principle has been made as sine qua non for making an order of appointment.

In addition to the welfare of the child, some more considerations have been laid down u/s 17 of G.A.M.A that have been dealt with, above.

Some special provision under other legislative enactments w.r.t custody of a child
Section 26 of the Hindu Marriage Act, 1956- This provision endows power upon a Court to issue such interim orders or direction and make such provision as may deem fit pertaining to custody, maintenance and education of minor children, with their wishes wherever it seems possible to the Court during pendency of a suit.

Section 41 to 44 of Divorce Act, 1869- These sections confer power upon a Court to decide for custody of a child in matters involving nullity, judicial separation or divorce in a marriage for maintenance and well being of the child.

Section 38 of the Special Marriage Act, 1954- The Court can grant custody of a child by an order by taking into consideration the maintenance and education of the child.

Landmark Judgments
Let us now considers some of the recent landmark judgments of the Constitutional Courts situated throughout the country, on this issue:
Parens Patriae Jurisdiction & Welfare of the child
In one of the recent judgments, the Supreme Court in the case of Sheoli Hati v. Somnath Das, reiterated its one of the essential jurisdictions i.e. Parens patriae jurisdiction and opined that no statute or legislative enactment bars the Supreme Court to exercise it parens patriae jurisdiction in the interest of the child. And was of the opinion that there is no hard and fast rule to determine the custody of a child, as it would vary on a case by case basis. Here this jurisdiction traces its essence from the dire need for a child to be in the best environment that he can get and the Court here enters into the shoes oa parent while deciding for such a child.

The Court in this case, also mentioned Parental Alienation Syndrome and believed that the ill effects of a marital discord affects the child and may slow down his natural development and therefore it is necessary to keep the child away from the negative influences. And therefore, in this case upheld the order of H.C. admitting minor to a Boarding School keeping it away from both the parents.

2. Will or consent of the child
The Supreme Court in Gayatri Bajaj v. Jitne Bhalla held that the consent of the child is also of paramount importance and in certain circumstances may decide the fate of the case. As in this case, the Court went with the consent of the child and stated that where children expressed their reluctance to go with their mother or father and to meet, then in such cases custody or visitation rights in their favour would be against the welfare of children.

3. No statute bar the powers of a Court
In the case of Ashish Ranjan v. Anupma Tandon, the Apex Court was of the opinion that no provision in a statute under any personal law can supersede the paramount consideration of welfare of the child.

4. Child under 5 years of age: Mother's right to custody and exceptions
In a recent case of Meenakshi v. State of U.P., before the Allahabad High Court, the High Court stated that the general rule about custody of a child, below the age of five years, is not to be given a go-by. If the mother is to be denied custody of a child, below five years, something exceptional derogating from the child's welfare is to be shown. And also reminded the need of both the parents for the development of a child by stating that-

The mother, being found fit to have the minor's custody, cannot be the best arrangement to secure the child's welfare, or so to speak, repair his devastated world. He must have his father's company too, as much as can be, under the circumstances.

This Court must, therefore, devise a suitable arrangement, where the minor can meet his father in an atmosphere that is reassuring and palliative. The father must, therefore, have sufficient visitation while the minor stays with his mother.

5. Father accused for committing wife's death, seeking custody of the child
This year in the case of Pankaj v. State of U.P., the Allahabad High Court held the custody of the children with their maternal grandfather as legal and did not consider it good for the interest of the children to be given to the accused.

6. Matters involving Foreign Jurisdiction
It is to be noted that where the parties belong to India but are permanent resident of some other country, then in matters involving guardianship they are governed by the jurisdiction of that country and on the basis of the Principle of Comity of Courts, our Indian Courts have to give way to the judgments of the foreign courts on the afore-mentioned principle in accordance with section 13 and 14 of the Code of Civil Procedure, 1908.

As it is believed, that the Foreign Court that has pronounced such judgment has the most intimate contact with the issues that have arisen concerning custody of the child, and therefore no Court other than that would be in a better position to decide. This theory of most intimate contact was approved by the Honourable Supreme Court in the case of V. Ravichandran v. Union of India

But the Supreme Court has also paid due consideration to the welfare of the child and has sometimes overridden the principle of comity of courts. For instance, in Nithya Anand Raghavan v. State (NCT of Delhi) the Supreme Court was of the view that a writ of habeas corpus cannot be used as a weapon to enforce the judgment of a Foreign Court and due consideration must be paid to the welfare of the child while deciding custody.

Similarly in Smriti Madan Kansagra v. Perry Kansagra, the Supreme Court while keeping in consideration the utmost interest of the child held that unnecessary translocation of a 5 year old child from India to USA, when such a child has lived with his father for two and a half years in India would make the child suffer serious setback and,held in favour of the father.

For the overall development of a child, love, affection and guidance of both the parents is required, and therefore the Courts throughout the country has considered this aspect very well and have given due regards to it.

This paper was an honest effort on the part of the author to explain the concept of guardianship from the very initial day of taking birth till the time he attains majority and also, from the commencement of marriage till its unwanted dissolution.

Children are the future of any country and therefore it is important that they grow in a healthy environment. Since a minor child is not competent enough to make his decisions therefore the Courts while exercising its parens patriae jurisdiction have done well, so far in realising the needs of such children and to some extent has safeguarded the rights of these children.

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