REQUIREMENT FOR GUARDIANSHIP AND CUSTODY OF A MINOR

8/13/2019 REQUIREMENT FOR GUARDIANSHIP AND CUSTODY OF A MINOR

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Requirements for a guardian and

Custody of the minor

Guardians and Wards Act, 1890. Hindu Minority and Guardianship Act, 1956.


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INTRODUCTION:

The Guardianship and Wards Act 1890 was passed to consolidate and amend all laws relating to

guardian and wards. The Hindu Minority and Guardianship Act came into force in 25th

August

1956. It purports to codify certain parts of the law relating to minority and guardianship among

Hindus. Section 2 of this act says that the provisions of this act shall be in addition to the

Guardians and Wards Act, 1890. Thus the act of 1956 is a supplemental to the act of 1890.

Section 5 of the act of 1956 says that any other law in force immediately before the

commencement of this act shall cease to have effect in so far as it is inconsistent with any of the

provisions contained in this act. It would thus be clear that the provisions of this Act of 1956 and

of the Guardians and Wards act are complimentary. But in case of repugnancy, the provisions of

the act of 1956 would prevail.


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TYPES OF GUARDIANS:

The 1956 act deals with three types of guardians

1. Natural guardians2. Testamentary guardians3. Guardians appointed or declared by the courts.

According to section 4 of the act, a guardian means a person having the care of a person of a

minor or of his property or of both the person and his property. This includes:

natural guardian guardian appointed by the will of a natural guardian (testamentary guardian) a guardian appointed or declared by court a person empowered to act as such by the order of Court of Wards.

This list of 4 types of guardians is not exhaustive. A person who is taking care of a minor

without authority of law, can also be a guardian under the above definition and is called a de

facto guardian. De facto guardians include self appointed guardians and guardians by affinity,

such as guardians for a minor widow. However, a person does not have right to sell or deal with

minor's property if he is merely a de factor guardian as per section 11.

Natural Guardian (Sec 6):

Section 6 of HMG Act 1956 defines only three natural guardians:

For a legitimate boy or an unmarried girl, the father, and after father, the mother,provided that the custody of a child less than 5 yrs of age will be with the mother.

For an illegitimate boy or an illegitimate unmarried girl, the mother, and after mother, thefather.

For a married woman, the husband.It further states that no person shall be entitled to be a natural guardian of a minor if

he ceases to be a Hindu or


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he renounces the world completely by becoming a hermit(vanaprastha) or an ascetic(sanyasi).

Here, by father and mother, natural father and mother are meant. Step father or step mother do

not have any right to guardianship unless appointed by court.

As per section 7, natural guardianship of an adopted son passes on to his adoptive father and

after adoptive father, to adoptive mother.

Position of Father

Pre- 1956, the right of the father was supreme. He could even appoint a person to act as a

guardian after his death even if the mother was alive. This is not the case now. Further, as held in

the case of Lali ta vs. Ganga AIR 1973 Raj.,a fathers right to guardianship is subordinate to the

welfare of the child. In the case of Githa Hariharan vs RBI AI R 1999 SCheld the mother to be

the natural guardian in spite of the father being alive and further held that the word "after" means

"in the absence" rather than "after the life" of the father. Thus, if a father is incapable of

protecting the interests of a minor due to any reason, he can be removed from guardianship.

Position of Mother

The mother is the natural guardian of her illegitimate minors. In case of legitimate minors, the

mother has right to custody of a minor less than 5 yrs of age. This does not mean that mother

does not have the right to custody after 5 yrs of age. In case of Sheela vs Soli , 1981 Bom HC, it

was held that a mother's right to guardianship is not lost upon conversion to another religion if

she is able to provide proper care to the minor. Further, in Kumar vs Chethana AI R 2004, SC

has held that the mother's right to guardianship is not lost automatically after her remarriage. In

all such cases, welfare of the child has to be considered above all including the convenience and

pleasure of the parents.


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Position of Husband

In Hindu shastras, husband and wife are considered to be one. Thus, it is believed that the

guardianship of a minor wife belongs to the husband. However, due to section 13, a court may

revert back the guardianship to the father or mother depending on the best interests of the minor.

However a guardian does not have a right over the joint family interest of a minor. In an

undivided family the father or other senior male member for the time being as KARTA is

entitled to manage the whole coparcenary property including the minors interest. Where all the

coparceners are minors the eldest of them is competent as managing member of the family to be

the guardian of his wife or child or of the wife and child of another minor member of the family.

The court may in such a case appoint a guardian of the whole of the joint family property until

one of them attains majority.1 The guardian is then bound to hand over the property to him

notwithstanding the fact that the other sons are minors.2The mother is not entitled to the custody

of the coparcenary interest of her minor son. But she is entitled to the custody of the person and

separate property if any, of him as his natural guardian.3

Removal of a guardian:

Court has the power to remove any guardian in accordance to section 13 if-

He ceases to be a Hindu. He becomes hermit or ascetic. Court can remove if it finds that it is not in the best interest of the child.

Testamentary Guardian (Sec 9)

A person who becomes a guardian due to the will of a natural guardian is called a testamentary

guardian. Section 9 defines a testamentary guardian and his powers.

For a legitimate boy or a girl, the father, who is a natural guardian, may appoint anyperson to act as the guardian of the child after the death of the father. However, if the

1Bindaji v. Mathurabai, 30 Bom. 152; Seetha Bai v. Narasimha Shet, AIR 1945 Mad. 306- it has been held by High

courts in India that, where the joint family consists only of minors, a guardian could be appointed in respect of the

joint family properties of the minor members.2Ramchandra v. Krishnarao, 32 Bom 259; Chandrapal Singh v. Sarabjit Singh, AIR 1935 Oudh 334.3Gharibullah v. Khalik, 25 All. 407 (PC); Kenchayya v. Subbaiah, 42 Mys. 268.


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mother is alive, she will automatically become the natural guardian and after her death, if

she has not named any guardian, the person appointed by the father will become the

guardian.

A widow mother who is a natural guardian, or a mother who is a natural guardianbecause the father is not eligible to be a natural guardian, is entitled to appoint a person to

act as a guardian after her death.

For an illegitimate child, the power of appointing a testamentary guardian lies only withthe mother.

The right of the guardian so appointed by will shall, where the minor is a girl, cease onher marriage.

De Facto Guardian:

Section 11 says that a de facto guardian is not entitled to dispose or deal with the property of

the minor merely on the ground of his being the de facto guardian. There is controversy

regarding the status of a de facto guardian. Some HC consider that alienation by de facto

guardian is void while alienation by de jure guardian is voidable (Ashwini Kr vs Fulkumari,

Cal HC 1983), while some HC have held that both are voidable (Srir amulu ' case 1949). It is

now well settled that de facto guardian does not have the right to assume debt, or to gift a

minor's property, or to make reference to arbitration.

Welfare of the minor is of paramount importance (Sec 13):

While appointing or declaring a guardian for a minor, the count shall take into account the

welfare of the minor.No person shall have the right to guardianship by virtue of the

provisions of this act or any law relating to the guardianship in marriage if the court believes

that it is not in the interest of the minor.Thus, under this doctrine, any guardian may be

removed depending on the circumstances on per case basis and the court may appoint a

guardian as per the best interests of the minor.


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UNDER GUARDIANSHIP AND WARDS ACT:

Section 17 of this act deals with the matters that is to be considered by the court in appointing

a guardian. The welfare of the child is considered to be of paramount importance. In

considering the welfare of the child the court has to look into certain factors such as the sex

and religion of the minor, the capacity and character of the proposed guardian and his

nearness of kin to the minor. Apart from this the court also considers the wishes of the child

under sub-sec (3) as also the wishes of the parents.

Thus the court is not entirely free to appoint whomsoever it thinks would give to the minor

the best advantages in life. The appointment is to be for the welfare of the minor, consistently

with the law to which the minor is subject.4

The correct rule under this section may be stated thus: one has to see who out of the several

applicants has a preferential right to be appointed guardian of the minor under the personal

law of the minor. If that person is unfit he may not be appointed. Even though that person

may not be unfit, yet when, compared to other person there are weighty considerations

against his appointment such other person will be appointed. But if the considerations are not

very weighty and there is merely a slight preference in favor of that other person, the

guardian pointed out by the personal law of the minor should be preferred. If however, none

of the applicants is a guardian under the personal law, the court can appoint anyone who

appears to be most suitable.

Appointment under this section can be altered from time to time as circumstances require. If

in future the applicant for guardianship can show that he is no longer unfit and has taken an

interest in the welfare of the minor, he can apply to the court again.5

Ravi Garg v. Bharti Garg6-Minor male children about 12-13 yrs of age filed petition through their mother for temporary

custody of the minors. Guardian judge passed order giving temporary custody to mother.

Revisional application was filed by the father in the High Court for modification of the said

4In re, Ghulam Mohamed ILR(1942) Kar 363; 205 IC 403; AIR 1942 Sind 154.5Haliman Khatoon v. Ahmadi Begum, AIR 1949 All 627.6AIR 2003 NOC 411(Del).


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order. High Court considering all the facts of the case, modified the order directing the

children to stay with their father for one month. The said order will be operative till final

order to be passed by guardian judge.

Surinder Kaur v. Harbans Singh7Father asked for custody of child who is to attain majority very soon. Child intends to appear

at the pre-engineering final examination to be held next year. The court held that mother

being educationalist would prove to be the guiding figure in helping the child to take a

decision. His custody was allowed to remain with the mother till he attains majority. Father

would have absolute right of visitation to child. In the interest of the child, court also directed

both the parents to deposit some amount in his name so that he can prosecute his studies even

after attaining age of majority. It was also directed that policy of medical insurance of child

would be taken out by both the spouses.

Kanhari Venugopalan v. K.V. Beena8Mother made an application for custody of daughter aged about 10 years, who was residing

with her father in view of separation of parents. Having regard to age and gender and

considering that she has attained adolescence, she might be in need of close parental

guidance including monitoring of her psychological changes. Mothers constant presence can

instill in minors mind qualities of fidelity. Reference to religion as guiding factor also favors

decision to grand custody to mother. A division bench of kerela high court held though father

continues to be the legal guardian, mother is entitled to custody of daughter.

Poolakkal Ayisakutty v. Parat Abdul Samad,9Mother of the minor child had committed suicide. Grandmother of the child with whom the

child was residing was diabetic patient and was dependant on her another daughter. Father is

entitled to custody of son considering his welfare. Mere fact the father remarried and had

children in that wedlock is not a ground to deny custody to him. Grandmother of the child

made an application for grant of custody to him. Grandmother of the child made an

7AIR 2003 NOC 263 (P&H).8AIR 2007 NOC 291 (Ker).9AIR 2005 Ker 68.


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application for grant of custody of child on the ground thatas per provision of Muslim law

father was not entitled to custody. Kerala High Court held that personal law cannot be read in

isolation of provisions of Guardians and Wards Act. The overriding consideration is welfare

of child. Custody granted to father considering the welfare of the child is not improper.

Lekshmi v. Vasantha Kumari,10In a Kerala case, application was made by paternal grandmother for custody of the minor.

Father has died before the minor was born. Mother remarried. Since birth minor was looked

after by mother extremely well. Welfare of the child is of prime importance in matter of

appointment of guardian. Law also recognizes guardianship of mother in absence of father.

Mere fact that the mother has married a person belonging to another religion, by itself, is not

a ground to take away custody of child from her. Moreso when she was source of income to

maintain child.

K. Hrangchhinga v. C. Zomuana,11Dispute arose between the paternal and maternal grandfather over the custody of the minor

children. Children belonged to religious sect that was practiced by maternal grandfather.

Paternal grandfather was 72 years old and having second wife. Maternal grandfather however

being aged about 47 years and that his wife still surviving, was in a position to do all needful

for the welfare of children. order holding maternal grandfather entitled for guardianship is

not improper. Considering the aspects that children should also get love from paternal

grandfather. Children were given liberty to meet and stay with the paternal grandfather as

and when they wish.

Kanhari Venugopalan v. K.V. Beena,12Mother made an application for custody of daughter aged about 10 years, who was residing

with her father in view of separation of parents. Having regard to age and gender and

considering that she has attained adolescence, she might be in need of close personal

guidance including monitoring of her physiological changes. Mothers constant presence can

10AIR 2005 Ker 249.11AIR 2005 Gau 158.12AIR 2007 NOC 291 (Ker).


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instill in minors mind qualities of fidelity. Reference to religion as guiding factor also

favours decision to grant custody of mother. A Devision Bench of Kerala High Court held

though father continues to be legal guardian, mother is entitled to custody of daughter.

Ram Kawal Yadav v. Sm. Pratibha Yadav,13Application was made by the father for custody of minor son. Minor aged more than 14 years

was found unequivocally unwilling to reside with the father even for short period. Minor was

living with his mother and sisters since birth. Directing him to be given to the custody of

father would result in change of family, cultural and social environment. For the last many

years prior to the filing of application under s. 125, CrPC, the mother had been maintaining

the minor boy and her two daughters. Therefore it cannot be said that interest of the minor

would not be served in case she filed an application for maintenance.

Amit Beri v. Smt. Sheetal Beri,14In a case of Allahabad application was made by the father and grandfather for the custody of

the child. Child was in custody of mother. Mother was working lady in Dubai and child had

to be kept sometime in Care Home. That does not indicate that mother would not be able to

take care of minor. It is not unusual for working mother to utilize services of Care Home.

Child had been with mother was about 10 years and if his custody was transferred to father,

he would find himself in new surroundings which may not be very congenial he would find

himself in new surroundings which may not be very congenial for him. Even if father and

fathers father were extremely affluent, that will not entitle them to custody of minor on this

ground because money is not substitute for affection. Custody of child was therefore restored

to mother.

Sujatha Christiana v. C. Thomas,15The Madras High Court considering the custody of child under the Divorce Act 1869,

refused to handover the custody of child to the father. In that case the child was in the

13AIR 2002 MP 44.14AIR 2006 All 267.15AIR 2002 Mad 6.


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custody of the mother from the date of the birth. The father did not make any attempt to see

the child. It is established that for the past 17 years, the child is living only with the mother.

Even though the petitioner (father) is the natural guardian of the child, it is not desirable to

pass order directing the mother to handover the child to the custody of the father. Further, as

the reunion of the father with the mother has reached the stage of impossibility, the child

cannot be directed to live with the father.

CUSTODY OF A CHILD:

Child custody is the word which we hear in family courts, when the spouses are taking the

divorce and fighting for the physical custody of their child. The child custody is the custody

of the children who is below the age of 18 years. The matter of child custody comes in front

of the court when there is the divorce or annulment of the marriage. Family law courts

generally base decisions on the best interests of the child or children, not always on the best

arguments of each parent.

Legal custody means that either parent can make decisions which affect the welfare of the

child, such as medical treatments, religious practices and insurance claims. Physical child

custody means that one parent is held primarily responsible for the child's housing,

educational needs and food. In most cases, the non-custodial parent still has visitation rights.

Though all matrimonial laws provides a provision regarding custody of child, but the real

power lies under Guardian and Wards Act-1890. Guardian and wards court are empowered to

determine the issue of child custody.

Generally speaking, Guardian and Wards Court have power to grant:

Permanent Custody Interim Custody Visitation Right


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Permanent Custody is awarded by the Court after determination of all aspect of the case.

Prime Criterion before awarding final custody in favour of one spouse as against the other is

welfare of the child.

Important factors, amongst other, which are considered by the Court in awarding custody are:

a. Education of the father

b. Education of the Mother

c. Family background of the Husband which includes financial and educational background.

d. Family background of the Wife

e. Financial Background of the Husband and Wife

f. Wishes of the minor

g. Better chances of overall development of personality of child.

h. Conduct of the parties

Interim Custody is awarded by the Court during the pendency of the case before it.

Generally, the Court awards interim custody when such an order does not affect the overall

development of the child and same is in no way prejudicial to the interest of the minor. Court

tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the

child should not become shuttle cock between warring spouses. While awarding interim

custody, Court has power to impose certain conditions which could be deposition of passport

of minor, if any and/or direct the party to deposit its own passport so that the child could not

be removed from the jurisdiction of the Court.

Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the

other, after determination of entire issue of the appointment of Guardianship of minor by the

Court. Indian law is clear on the point that proper development of the child is possible only

after the child is showered with the love and affection of both the father and mother. Once

the permanent custody is granted to one of the spouse, other parent has an inalienable right to

meet the child(ren) one or twice a week or as directed by the Court. The object of law is that


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the emotional bond between child and father or mother, as the case may be, should not be

snapped.

In nut shell, we can say that welfare of the child is the paramount consideration before the

court while adjudicating the claims of husband and wife over the child.

UNDER HINDU MINORITY AND GUARDIANSHIP ACT:

The Hindu Minority and Guardianship Act 1956 (HMGA) and Guardians and Wards Act

1890 (GWA). These Acts are to be read together and implemented in the matter of child

custody and appointment of guardian for the minor.

Custody of a minor is also subordinate to section 13, which declares the welfare of the child

to be of paramount interest. Regarding a child, who is at the age of discretion, his wishes are

also to be considered, though his wishes may be disregarded in his best interest.

Under this section the word welfare means both material and spiritual welfare of the minor.

In Ram Prasad v. Distr ict Judge, 51 I .C 651, the Allahabad High Court held that the word

welfare means not only material but moral welfare as well.

According to The Hindu Minority and Guardianship Act, 1956, normally the mother is

considered to be fit to have the custody of the child if the age of the child is below 5yrs. But

when circumstances are exceptional and when there are strong reasons to make the mother

unfit to have custody, it is the paramount duty of the court to remove the minor child below

5yrs from the custody of the mother and entrust the same to the father.16

In case of a minor

child above 5yrs the father is given preference of custody.

Between the step mother and step grandmother, the step mother will be given preference

because the step mother is under the control of the father.

16K.S. Mohan v. Sandhya Mohan, AIR 1993 Mad. 59.


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In Kumar vs Chethana AIR 2004, SC has held that mother's remarriage is not a sufficient

cause in itself to lose custody of a minor. It was further held that convenience of the parents

is irrelevant.

To ensure the welfare of the child, the custody may even be given to the third person as was

given to the mother and grandfather by SC in case of Poonam vs Kr ishanlal AI R 1989.

In the case of Re Madhab Chandra Saha 1997, father was never active in the interest of a

minor and after a long time demanded the guardianship. His claim was rejected.

In the case of Chakki vs Ayyapan 1989, a mother who says she will keep living with friends

and may beget children from others, was not considered appropriate for custody in the

minor's interest.

UNDER GUARDIANS AND WARDS ACT :

The secular law for appointment and declaration of guardians and allied matters, irrespective

of caste, community or religion, is Guardianship and Wards Act, 1890. Under this act,

Minor child, under the age of 5, are committed to the custody of mother. Older boys to father and older girls to mother, however there is no hard and

fast rule and the paramount factor in decision is welfare of the child.

The choice of child is considered, above the age of 9 and is only held if itcomplies with the fulfillment of the welfare requirements of child.

A mother who is proven to neglect the child in his/her infancy is not handedwith the child custody.


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Gain Chand v. Smt. Sudha,17A minor son of 17 years wants to stay with his mother and does not want to go with his

father. Forcing him to go with his father would be harsh treatment to the minor as after one

year when he completes the age of majority he cannot be so compelled. Having regard to the

welfare of minor. Custody should be given to mother.

V. Maria Pushpa Janet Rajam v. G. Anantha Jayakumar,18Madras High Court considered s. 17 and s. 25 of the Guardians and Wards Act which lay

down that while appointing or declaring the guardian of a minor, the Court has to consider

the welfare of the minor. What will be the welfare of the Minor, the Court has to take note of

the age, sex and religion of the minor, the character and capacity of the proposed guardian

and his relation to minor, the wishes, if any, of a deceased parent.

Kiran A. Lakhani (Smt.) v. Shri Ajit H. Lakhani,19Mother sought custody of the minor daughter aged 13 years. Company of the mother would

be vital and important for all sides development of daughter when she attains the age of

puberty. Company of mother cannot be equated with the company of other members of the

family of the father. Mother being an earning mother was able to spend on daughters

education and other expenses. Conditional custody was directed to be given to mother.

Sheila B. Das v. P.R. Sugasree,20Father, a lawyer by profession claimed guardianship of minor girl child reaching the age of

puberty. Child, a little more than 12 years was found to highly intelligent. She is capable of

making intelligent choice as regards to her custody. Child preferred to live with her father.

Child had a very good relationship with paternal aunt living in fathers house and was able to

relate to her in matters concerning a growing girl child. Father was financially stable. He wasnot disqualified in any way from being guardian. Only allegation leveled against father was

17AIR 2000 P&H 208.18AIR 2004 Mad 1.19AIR 2006 NOC 276 (Bom).20AIR 2006 SC 1343.


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his purported apathy towards the minor. Allegations are not borne out on materials adduced.

There is no sufficient material to make father ineligible to act as guardian of the minor.

Chethana Ramatheertha v. Kumar V. Jahgirdar,21Application was made for custody of child by a parent. Parent of the child was not

disqualified from being natural guardian of minor child. Still minors interest can be better

served if custody of child is with other parent. Financial position of either parent of the child

is good enough. Traditional concept that father is first guardian of child should be in his

custody no longer holds good. Held, on facts, child in the instant case who was a female child

should not be deprived of custody of her mother.

Kishore v. Manju,22Willingness of the minor boy who is aged 14 years is also to be taken into consideration

because he has become sufficiently old even though a minor to come to a rational conclusion

especially when a dispute is pending in the Court in regard to his custody between his father

and mother.

Ram Kumar Yadav v. Pratibha Jadav,23

Minor was found unequivocally unwilling to reside with his father even for a short period.Court declined to grant custody of the minor in favour of the father.

R.V. Srinath Prasad v. Nandarani Jayakrishna,24Though father is the natural guardian, the said legal right is subject to the provisions of s. 17

of the Act which emphasizes that the Court should be guided by the sole consideration of the

welfare and wish of the minor. Neither affluence nor capacity to provide comfortable living

should cloud the consideration.

21AIR 2003 NOC 590 (Kant).222000 AIHC 3683.23AIR 2002 MP 44.24(2001) 4 SCC 71.


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Jaiprakash Khadria v. Shyam Sundar Agarwalla,25Effluence of party seeking guardianship cannot be the sole criteria for making appointment.

G. Eva Mary Elezabath v. Jayaraj,26The orders relating to custody of children are by the very nature not final but are

interlocutory in nature and subject to modification at any future time upon proof of change of

circumstances requiring change of custody but such change in custody must be proved to be

in the paramount interest of the child.

Goverdhan Lal v. Gajendra Kumar,27Father made an application for custody of minor son. Mother died when the son was just

about three months old. Since then son was being looked after and taken care of by maternal

grandparents. Three years after the death of the wife, husband contracted second marriage

and out of the said wedlock a daughter was born. The son was 14 years old when the father

made the application for the custody of the son. The son was pursuing his studies and was

properly taken care of by the grandparents. Statement made by the son in Court that he is

willing to live with maternal grandparents and not with his father. Father and son are

foreigners to each other. Court held that the welfare and interest of son will be better served

in custody of his maternal grandparents than his father. Order of Family Court handing over

his custody to father was set aside.

25AIR 2000 SC 2172.26AIR 2005 Mad 452.27AIR 2002 Raj 148.


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Documents

REQUIREMENT FOR GUARDIANSHIP AND CUSTODY OF A MINOR