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Custody of a minor

UNIVERSITY INSTITUTE OF LEGAL STUDIES

Family Law Project


Custody of a minor

Submitted By:
Livanshu Garg
152/14
SECTION C
B.COM. LL.B. - 2

Submitted To:
Dr. Jaimala

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Custody of a minor

Acknowledgement
I would like to express my gratitude to my teacher Dr. Jaimala who gave
me the golden opportunity to do this project on the topic Custody of a
minor, which also helped me in doing a lot of Research and I came to
know about so many new things. I am really thankful to her. Secondly I
would also like to thank my friends who helped me a lot in finishing this
project within the limited time.
- Livanshu Garg

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Custody of a minor

Table Of Content
ACKNOWLEDGEMENT

TABLE OF CONTENT

TABLE OF CASES

ABBREVIATIONS USED

INTRODUCTION

MINOR CHILDREN

GUARDIAN

NATURAL GUARDIANS

TESTAMENTARY GUARDIAN

GUARDIAN APPOINTED BY THE COURT

DE FACTO GUARDIAN

GUARDIANS BY AFFINITY

CUSTODY OF A MINOR

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PARAMOUNT CONSIDERATION

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DIFFERENT CASES OF CUSTODY OF A MINOR

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FATHERS CUSTODY

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CUSTODY OF MINOR WITH MOTHER

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1. CUSTODY OF MINOR BELOW 5 YEARS OF AGE

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2. PRINCIPLES ON CUSTODY OF MINOR ABOVE 5 YEARS OF AGE: FATHER'S ABSENCE

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3. DIRECTION TO RETURN TO THE CUSTODY

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4. CUSTODY OF MINOR FEMALE CHILD OVER 5 YEARS OF AGE

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5. WILLINGNESS OF MINOR

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6. REMARRIAGE OF THE MOTHER NO DISQUALIFICATION

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7. NON-HINDU MOTHER AND CUSTODY OF CHILDREN BELOW 5 YEARS

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8. RE-MARRIAGE OF FATHER

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9. MENTALLY RETARDED BOY OF 14 YEARS

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10. MINOR BOY OF 6 YEARS WHOSE FATHER AND MOTHER BOTH REMARRYING AFTER MUTUAL DIVORCE

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CUSTODY OF MINOR ILLEGITIMATE GIRL

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MARRIED GIRL

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CONVERSION OF PARTIES

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WRIT OF HABEAS CORPUS

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BIBLIOGRAPHY

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Custody of a minor

Table Of Cases
Amrik Rai v. Sat Pal, 1980 HLR 216 (P&H)
Archana v. Shiva Kumar, 1995 (1) HLR 101 (AP-DB)
Chakki v. Ayyappan, 1988 (2) HLR 107 (Ker-DB)
Dhaniram v. Kusma, 2000 (2) HLR 692 (M.P.)
Elizabeth Dinshaw v. Arvind Dinshaw, AIR 1987 SC 3
Gita Hariharan v. Reserve Bank of India AIR 1999, SC 1149
Gohar Begam v. Suggs Begam AIR 1960 SC 93
Jagdish Singh v. Palvinder Kaur 1981 HLR 560 (P&H)
Kala v. Sooraj, 1993 (1) HLR 145 (Del-DB)
Murti Devi v. Hem Raj 1991 (1) HLR 141 (P&H)
Nandbai v. Mohan 1993 (1) HLR 143 (Bom.)
Paras Ram v. State 1960 All. 479
Prem Vati v. Nirmal Jain, 1986 (1) HLR 317 (Del-DB)
Premila v. Jaya Chandran, 1981 HLR 736 (Mad.-DB)
Ramchandra v. Katthiyani 1983 HLR 503 (Kar.-DB)
Ramesh v. Rajni 1985 (1) HLR 690 (Bom.)
Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090
Shioba v. Sau Vimal 1989 (1) MLR 433 (Bom.)
Sriramulu v. Pundarikakshayya 1949 F.C. 218.
Sukhjit Singh v. Olga Usha, 1980 HLR 291 (P&H)
Sumedha Nagpal v. State of Delhi 2000 (9) SCC 745
Surinder kaur v. Harbax Singh, AIR 1984 SC 1224
Vandana Shiva v. Jayanta Bandhopadhaya AIR 1999, SC 1149
Veena Kapoor v. Varinder Kapoor, AIR 1982 SC 792

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Custody of a minor

Abbreviations Used
AIR : All India Reporter
All. : Allahabad Court
AP-DB : Legal Databases of Andhra Pradesh
Bom. : Bombay Court
Del-DB : Legal Databases of Delhi
F.C. : Federal Court
HMG Act : Hindu Minority and Guardianship Act
HLR : Hindu Law Reporter
Kar-DB : Legal Databases of Karnataka
Ker-DB : Legal Databases of Kerela
Mad-DB : Legal Databases of Madras
MLR : Modern Law Review
M.P. : Madhya Pradesh Court
M/S. : Messers
P&H : Punjab and Haryana Court
S. 3 : Section 3
S. 6 : Section 6
S. 13 : Section 13
SC : Supreme Court

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Introduction
The Dharmashastras did not deal with the law of guardianship of minor in any detail. The texts are
few and scanty. The texts do speak of according protection to the property of orphan-miners but not
of minors whose parents are alive. Very little is said about the guardianship of a person of the minor.
The broad principle is recognised that the King is the supreme guardian (parens patrie) of all the
minors within the realm. No other sage except Narada mentions father and mother as guardians. It
seems that two facts were responsible for the lack of any developed law of guardianship. The minor
children mostly lived in the joint family and were always under the prep production of the Karta.
Even after the death of the father, the child was not without protection; whosoever was the Karta
protected the child. Even if a child was outside the pale of joint family, he, if belonged to the first
three glasses, had to go to gurus Ashram for study and was under the protection of the guru. Thus,
guardianship of minors property could have arisen in marginal cases only where the child had no
parents and was a member of any joint family. In respect of the property of such children, the
general rule was laid down. The King as the supreme guardian protected all the children and their
property within the realm.1
During the British regime the law of guardianship was developed by the Courts. In the initial period
of British administration of justice, the codes fell prey to the learning of M/s. Strange and
Macnaughten who came out with the formulation that natural guardians of a Hindu minor are:
father, mother, elder brother, other parental relations and then maternal relations. But later, when the
reappraisal of text was made, the Court held that the father is the natural guardian of the child and
after his death, mother is the natural guardian of the children and none else can be the natural
guardian of minor children. Testamentary guardians were also introduced in Hindu law: It was also
accepted that the supreme guardianship of the minor children vested in the State as parens patrie
and was exercised by the Courts.2

Minor Children
Under the HMG Act, 1956, Section 4(b), minor means a person who has not completed the age of
eighteen years. A minor is considered to be a person who is physically and intellectually imperfect
and immature and hence needs someone's protection. In the modern law of most countries the
childhood is accorded protection in multifarious ways. 3

Guardian
Guardian is "a person having the care of the person of the minor or of his property or both person
and property." It may be emphasised that in the modern law guardians exist essentially for the
protection and care of the child and to look after its welfare. This is expressed by saying that
welfare of the child is paramount consideration. Welfare includes both physical and moral wellbeing. Guardians may be of the following types :
1

Diwan Paras, Modern Hindu Law (Faridabad: Allahabad Law Agency 2015) 263

http://crisp-india.org/laws/67-guardianship-under-hindu-muslim-christian-and-parsi-laws.html February 22,


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ibid.

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1. Natural guardians,
2. Testamentary guardians, and
3. Guardians appointed or declared by the Court.
There are two other types of guardians, existing under Hindu law:
De facto guardians and
Guardians by affinity.4

Natural Guardians
Natural guardians are of three types
1. Father - a father is the natural guardian of his minor legitimate children, sons and daughters.
A father cannot be deprived of the natural guardianship of his minor children unless he has
been found unfit. The position of adopted children is at par with that of born children. In
case the father is incapable, or fails or refuses to perform the functions the mother can be
the guardian.
2. Mother the mother is the guardian of the minor illegitimate children even if the father is
alive. Mothers right to guardianship stays even if she has converted her religion. The
position also remains the same even if the child is an adopted child and not a natural born
child.
3. Husband is the guardian of his minor wife.
The father can appoint a testamentary guardian on his own will. If the father does not appoint , the
mothers appointee will resume the responsibility of the guardian. Guardians appointed by the Court
are the guardians appointed by the virtue of the Courts empowerment. Under the Guardians and
Wards Act, 1980, the jurisdiction is conferred on the district Court. The district Court on its own
discretion appoints any person whenever it thinks it to be better for the welfare of the child.5
Section 13 of the HMG Act which lays down that welfare of the minor is of paramount
consideration and father's right of guardianship is subordinate to the welfare of the child. The Act
does not recognise the principle of joint guardians. The position of adopted children is at par with
natural-born children. The mother is the natural guardian of the minor illegitimate children even if
the father is alive. However, she is the natural guardian of her minor legitimate children only if the
father is dead or otherwise is incapable of acting as guardian. Proviso to clause (a) of Section 6,
HMG Act lays down that the custody of a minor who has not completed the age of five years shall
ordinarily be with the mother. Thus, mother is entitled to the custody of the child below five years,
unless the welfare of the minor requires otherwise.6

ibid.

http://www.legalservicesindia.com/article/article/child-custody-&-guardianship-204-1.html February 22,


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In Gita Hariharan v. Reserve Bank of India7 and Vandana Shiva v. Jayanta Bandhopadhaya8, the
Supreme Court has held that under certain circumstances, even when the father is alive mother can
act as a natural guardian. The term 'after' used in Section 6(a) has been interpreted as 'in absence of'
instead 'after the life-time'Rights of guardian of person - The natural guardian has the following rights in respect of minor
children:
1. Right to custody,
2. Right to determine the religion of children
3. Right to education
4. Right to control movement, and
5. Right to reasonable chastisement
These rights are conferred on the guardians in the interest of the minor children and therefore of
each of these rights is subject to the welfare of the minor children. The natural guardians have also
the obligation to maintain their minor children.9

Testamentary Guardian
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 any person to act as
the guardian of the child after the death of the father. However, if the 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 guardian because 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 with the
mother.10

Guardian Appointed By The Court


The Courts are empowered to appoint guardians under the Guardians and Wards Act, 1890. The
High Courts also have inherent jurisdiction to appoint guardians but this power is exercised
sparingly. The HMG Act is supplementary to and not in derogation to Guardians and Wards Act.
Under the Guardians and Wards Act, 1890, the jurisdiction is conferred on the District Court: The
7

AIR 1999, SC 1149

AIR 1999, SC 1149

http://crisp-india.org/laws/67-guardianship-under-hindu-muslim-christian-and-parsi-laws.html February 22,


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10

http://hanumant.com/MinoriyAndGuardianship.html February 22, 2016 - 1:17 PM

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District Court may appoint or declare any person as the guardian whenever it considers it necessary
in the welfare of the child. In appointing a guardian, the Court takes into consideration various
factors, including the age, sex, wishes of the parents and the personal law of the child. The welfare
of the children is of paramount consideration.11

De Facto Guardian
A de facto guardian is a person who takes continuous interest in the welfare of the minor's person or
in the management and administration of his property without any authority of law. Hindu
jurisprudence has all along recognised the principle that if liability is incurred by one on behalf of
another in a case where it is justified, then the person, on whose behalf the liability is incurred or, at
least, his property, is liable, notwithstanding the fact that no authorisation was made for incurring
the liability.
The term 'de facto guardian' as such is not mentioned in any of the texts, but his existence has never
been denied in Hindu law. In Sriramulu12 , Justice Kanta said that Hindu law tried to find a solution
out of two difficult situations : one, when a Hindu child has no legal guardian, there would be no
one who would handle and manage his estate in law and thus without a guardian the child would not
receive any income for his property and secondly, a person having no title could not be permitted to
intermeddle with the child's estate so as to cause loss to him. The Hindu law found a solution to this
problem by according legal status to de facto guardians.13

Guardians By Affinity
In pre-1956 Hindu law, there existed a guardian called guardian by affinity. The guardian by affinity
is the guardian of a minor widow. The textual source of the guardianship of minor widow is the
same as relating to the guardianship of a minor wife. To these texts may be added the concept that
on manage a woman passes completely into the family of the husband; she gets her husbands gotra
and name. This is nothing but another way of saying that marriage means transfer of dominion of
the girl by the father to the husband. On the basis of these texts, Mayne said that "the husband's
relation, if there exists any, within the degree of sapinda, are the guardians of a minor widow in
preference to her father and his relations." The judicial pronouncements have also been to the same
effect.
The guardianship by affinity was taken to its logical end by the High Court in Paras Ram v. State14.
In this case the father-in-law of a minor widow forcibly took away the widow from her mother's
house and married her for money to an unsuitable person against her wishes. The question before
the court was whether the father-in-law was guilty of removing the girl forcibly. The Allahabad
High Court held that he was not, since he was the lawful guardian of the widow.15

11

Diwan 270

12

1949 F.C. 218.

13

Diwan 278

14

1960 All. 479

15

Diwan 277

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Custody Of A Minor
(WELFARE OF MINOR)

Paramount Consideration
The provisions contained in s.6 are subject to s.13 of the Act16, which specifically lays emphasis
that in the appointment or declaration of any person as a guardian of a Hindu minor by a Court, the
welfare of a minor should be the paramount consideration. As pointed by the Supreme Court in
Surinder kaur17 , s.6 constitutes the father as the natural guardian of a minor son. But the provision
cannot supersede the paramount consideration as to what is conductive to the welfare of the minor.18
The expression welfare of the minor, though has not been defined, yet undoubtedly has to be
given a very wide meaning. It ought not be measured in money only or physical comfort alone. It
has many facets, such as, financial, educational, physical, moral and religious welfare. In fact, it
includes every circumstance that a wise parent must ought to consider for the well-being of the
minor.19
Also, due regard must also be kept to the ties of affection and the capacity for building up of a good
career for the infant.20
In Kapoor v. Kapoor21, The Supreme Court has reiterated the paramount consideration is the
welfare of the minor and not the legal right of this or that particular party. The fathers right to the
custody of his minor child is not absolute; nor it is indefeasible in law; it is circumscribed by the
considerations of the benefit and welfare of the minor.
In the case of Ramchandra v. Katthiyani22 , it was propounded that a court will be reluctant to pass
an order for custody of a minor child in favour of a person who is more or less a total stranger to the
child merely because of the fact that he happens to be the father when the child is seen to be
growing up in surroundings in which it feels at home and surroundings from which if it is removed,
it will feel miserable. This is a circumstance which is a code has to take into account. If for a
number of years, the child grows up well in an atmosphere which is conductive to its growth, the
sudden show of affection by one or other of the parents who has been stranger to the child all along,
me not by itself be a legitimate ground for I would think the environment to which the child is used
to. Quite often, parents speak to their right over their child as if it is property over which they can
claim right. The right of the Parent is intended to be exercised only in furtherance of the due date to
the child and in that sense, it is really the right of the child which is material and not any right of the
16

HMG Act, 1956

17

Surinder kaur v. Harbax Singh, AIR 1984 SC 1224

18

Shuklendra Acharya, Hindu Law (Allahabad: Modern Hindu Law 2004) 875

19

ibid.

20

Amrik Rai v. Sat Pal, 1980 HLR 216 (P&H)

21

Veena Kapoor v. Varinder Kapoor, AIR 1982 SC 792

22

1983 HLR 503 (Kar.-DB)

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parent. That is the reason why emphasis is always laid on what would happen to the child by the
courts order and not how the mother or father would be affected by the order. May be that the child
has been living with its mother or its uncle all its grandparents for a number of years and it is quite
happy in the surroundings in which it grows up. If the child is properly looked after by them and the
child, in a case where it has reached the age when it could indicate itself it's intelligent preference,
does not desire to go with the father, doors also comes answers which a court will be well advised
to look into.23
To conclude, as observed by the Supreme Court in Sumedha Nagpal v. State of Delhi24, what has
to be borne in mind is the welfare of the minor child and not to decide such a question nearly based
upon the rights of the parties under the law. The lap of a mother is the natural cradle where the
safety and welfare of the child can be assured and there is no substitute for the same.

Different Cases Of Custody Of A Minor


1. Father's custody
2. Custody of minor with mother
(i) Custody of minor below 5 years of age
(ii) Principles on custody of minor above 5 years of age
(iii)Direction to return to the custody
(iv) Custody of minor female over 5 years of age
(v) Willingness of minor
(vi) Re-marriage of mother no disqualification
(vii)Non-Hindu mother and custody of chid below 5 years
(viii)Re-marriage of father
(ix) Mentally retarded boy of 14 years
(x) Minor boy of six years whose father and mother both remarrying after mutual divorce
3. Custody of minor illegitimate girl
4. Married girl
5. Conversion of parties
6. Writ of habeas corpus

23

Shuklendra 876

24

2000 (9) SCC 745

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Fathers Custody
The right of the father to be the natural guardian of a Hindu minor is well recognised in s.6 (a). But
s.6(a) of the Act, preserves the right of the father to be the guardian of the property of the minor
child but not the guardian of his person whilst the child is less than five years old. It carves out the
exception of interim custody, in contradistinction of guardianship, and then specifies that custody
should be given to the mother so long as the child is below five years in age. The court said that the
Act placed the onus on father to prove that it was not in the welfare of the infant child to be placed
in the custody of mother and HC order virtually nullifies the spirit of the enactment. The Act
immediately provides that the custody of a minor who has not completed the age of 5 years shall
ordinarily be with the mother. The proviso is very guarded and it says that shall ordinarily be with
the mother.The use of the word 'ordinarily' cannot be over-emphasised. It ordains a presumption,
albeit a rebuttable one, in favour of the mother.25
But if the custody of such child is with the father it more it will not be illegal.
Further, search custody of the tender child with the mother is only preferential claim and the fact
that it is with the father cannot make such custody illegal.26
In the case of Shioba v. Sau Vimal27 , considering the welfare of the minor, The court must have
regard to the character of the Guardian. where the father was prosecuted for offence punishable
under Section 354, IPC but the prosecution ended in acquittal, merely because the father was
acquitted by the criminal Court, stigma of being prosecuted is enough to show the character of the
person and that too for an offence of outraging the modesty of a woman. The character of the father
being doubtful, it is not advisable to keep the minor children under his control or custody.28
As observed by the Supreme Court in Dinshaw v. Dinshaw29 , whenever a question arises before the
court pertaining to the custody of minor child, the matter is to be decided not on considerations of
legal rights of parties but on the soul and pre-dominant criterion as to what would best serve the
interest and welfare of the minor.30
Therefore, where the attitude of the children towards the mother, as observed by the court, is not
very amicable and particularly, the daughter has a deep sense of hatred towards her mother, the
children seem to be quite happy with the father and grandparents, it would not be proper to direct
the custody of the children to be with the mother, rather, it would be in the interest of the children
that their custody remains with the father until they attain the age of majority. 31
25

http://www.hrln.org/hrln/child-rights/pils-a-cases/1685-landmark-judgment-pronounced-by-sc-dealingwith-guardianship-a-custodial-and-visitation-rights-to-parents-and-children-stuck-in-matrimonialdisputes.html February 23, 2016 - 10:59 PM


26

Premila v. Jaya Chandran, 1981 HLR 736 (Mad.-DB)

27

1989 (1) MLR 433 (Bom.)

28

Shuklendra 877

29

Elizabeth Dinshaw v. Arvind Dinshaw, AIR 1987 SC 3

30

Shuklendra 878

31

Kala v. Sooraj, 1993 (1) HLR 145 (Del-DB)

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Custody Of Minor With Mother


1. Custody Of Minor Below 5 Years Of Age
Section 6, which purports to specify a natural guardian of a minor with reference to his person or
property, makes a distinction between guardian and custody. The father is first declared to be the
guardian in the case of a boy or an unmarried girl. Only thereafter, the claim of the mother as the
guardian is provided for. This is in reference to guardianship with in is originary connotation would
take in custody and care of the minor which could be equated to the guardianship of a person and
custody and control of the property which is really guardianship with reference to the property of
the minor.
The proviso to s.6 (a) carves out a special right relating to custody in favour of a mother in cases
where the infant has not completed the age of five years. In such a case, Oh preferential claim for
custody is conferred statutory on the mother and the father, though he would still be the natural
guardian of the infant, would not be, as of right, entitled to the custody of the infant if the infant has
not completed the age of five years.32
Clause (a) states that in the case of a boy or a unmarried girl, the father and after him, the mother is
the natural guardian, provided the custody of a minor has not completed the age of five years shall
ordinarily be with the mother.

2. Principles On Custody Of Minor Above 5 Years Of Age: Father's


Absence
As explained by a three-judge bench of the Supreme Court in Githa Hariharan, the phase the
father and after him, the mother, though, on a cursory reading, does give an impression that the
mother can be considered to be natural guardian of the minor only after the lifetime of the Father,
but it is not so because if the interpretation is excepted, it would violate the gender equality, on the
basic principles of the Constitution. Hence, the word after need not necessarily mean after the
lifetime. In the context in which it appears in s.6 (a), it means,"in the absence of, the word
absence therein referring to the father's absence from the care of the minors property or person
any other reason whatever. if the father is wholly indifferent to the matters of the minor even if he is
living with the mother or if, by virtue of mutual understanding between the father and the mother,
the latter is put exclusively in charge of the minor or if the father is physically unable to take care of
the minor either because he is staying away from the place where is the mother and the minor
leaving or because of his physical or mental incapacity, in all such like situations, the father can be
considered to be absent and the mother being a recognised nurturing mother, can act validly on
behalf of the minor as a guardian.33

32

Shuklendra 879-880

33

ibid. 881

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3. Direction To Return To The Custody


Since the paramount consideration is the welfare of the ward by making an order for the return to
the custody of the Guardian, it is necessary to consider the preference of the minor girl aged 13
years, who is old enough to form an intelligent reference, which can only be possible if you present
in court.34
The custody of a minor boy of 17 years may be directed to be given to the mother from the uncle
and it cannot be denied on the ground that the mother has no facilities of television, telephone and a
different you did etc., and as such, it was not for the welfare of the child that the custody should be
transferred to the mother.35

4. Custody Of Minor Female Child Over 5 Years Of Age


In the case of Jagdish Singh v. Palvinder Kaur36, on an enquiry, it was found that one of the two
female children was 13 years old and the other was of 11 years. Both of then stated that there was
mother was looking after them very well and they did not want to go to that father. They even went
to the extent of alleging that their father sometime came in the absence of your mother give them a
beating. The court held that the children being grown-up females need very much the care and
attention of the mother at the age at which they were. The father has to go out for work and it would
not be possible for him to look after them. Moreover, at this age, the children need particular
attention of the mother and they cannot repose their confidence in the father in certain matters.
Therefore, it would not be in the welfare of the children to entrust them to the custody of the father
but to that of the mother.37
In a M.P. case, the mother of the girl was not the married wife go the appellant, who had kept her as
a mistress and the appellant and respondent were living separately for the past many years and from
the very beginning, the minor daughter, aged 5 years, was residing with her mother. The appellant
had his first wife alive with 4 daughters from her. In these circumstance, the court held that the
custody of the minor girl with her mother was fully justified on the consideration of her paramount
welfare.38

34

Sukhjit Singh v. Olga Usha, 1980 HLR 291 (P&H)

35

Prem Vati v. Nirmal Jain, 1986 (1) HLR 317 (Del-DB)

36

1981 HLR 560 (P&H)

37

Shuklendra 883

38

Dhaniram v. Kusma, 2000 (2) HLR 692 (M.P.)

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5. Willingness Of Minor
As pointed out by the Supreme Court in Jacob v. Jacob39 , the fathers fitness cannot override the
consideration of welfare of the minor children. No doubt, the father has been presumed by statute
generally to be better fitted to look after the children, being normally the earning member and the
head of the family, but the court has in each case to see primarily to the welfare of the children in
determining the question of custody in the background of all relevant facts having bearing on their
health, maintenance and education. Merely because the father loves his children and he is not
shown to be otherwise undesirable, it cannot necessarily lead to the conclusion that the welfare of
the children would be better promoted by granting their custody to him as against the wife who may
also be equally affectionate towards her children and otherwise equally free form blemish, and, who
in addition, because of her profession and financial resources, may be in position to guarantee better
health, education, and maintenance for them.
Further, the father as well as the mother do not stand on the same footing so as to give preference to
the father for being appointed as the guardian of the minor. It may be that the willingness of the
child may not carry much weight but it may help the court in exercising discretion in case such
contingency arises. Where minor girl is about 13 years old, having regard to the sex and the tender
age of the minor, it is obvious that she needs the company of grown up females in the house and
where there are no females, much less elderly ones, in the house of the father to look after the
comforts of minor, the mother is better suited to be the guardian of the minor as against the father.
This was held in the case of Ramesh v. Rajni40 .

6. Remarriage Of The Mother No Disqualification


Under S.6 (a), in the absence of the father, mother is the natural guardian of both person and
property of the minor. Therefore, no guardian of the person as well as property can be appointed in
the presence of the mother, unless it was shown that the mother had made herself unfit t retain the
custody of the minors to the custody of the property of the minors. The remarriage of the mother is
no disqualification in this behalf.
Also the fact that if the mother remarried a person belonging to a different religion will not be a
disqualification or a negative factor for her entitlement to the custody of the minor child.

7. Non-Hindu Mother And Custody Of Children Below 5 Years


There is nothing in S. 6 (a) to dis-entitle a non-Hindu parent from the natural guardianship,
particularly, in view of S. 3 (3) and explanation (ii), which clearly contemplates a case of a Hindu
minor having one non-Hindu parent. Conceding that as a result of the said proviso, a non-Hindu
parent cannot become a natural guardian, the said proviso has got nothing to do with the right of the
custody of the mother, as distinguished from her right to guardianship.41
39

Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090

40

1985 (1) HLR 690 (Bom.)

41

Shuklendra 884-885

Custody of a minor

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8. Re-Marriage Of Father
Where the father has re-married, the minor sons would get step-motherly treatment in the house
which would naturally affect the welfare of the children. Even if the financial position of the father
is better than that of the mother, the welfare of the children is supreme and, therefore, it would be
better that the children are permitted to remain with the mother.
In the case of Nandbai v. Mohan42, where the mother of the children was driven out or left the
matrimonial home of her own accord because she was being ill-treated by her husband having his
first wife, who though initially issueless, gave birth to a male child and the children remained in the
custody of the father, it would be quite just that the custody of daughter of three years should be
given to the mother and that of the son of five years should remain with the father.43

9. Mentally Retarded Boy Of 14 Years


Where the father did not take care of child for such long period of almost 14 years and the child is
mentally retarded, needs assistance for his day-to-day deeds which has, in fact, been provided by
the mother and which in the normal course, a mother is expected to perform mentally retarded child
not as a visual but as a sacred performance out of her motherly affection and the child being
incapable of being educated, the affluence and means of his father loose relevance. It is normally
the fathers duty to provide sufficient funds to give the medical aid to the son which the father has
utterly failed. It is not explained how after an utter neglect of 14 years, all of a sudden this affection
and love for the child has woken up. It is, therefore, not proper to disturb the custody of such a child
with the mother. This happened in the case Murti Devi v. Hem Raj44 .

10. Minor Boy Of 6 Years Whose Father And Mother Both Remarrying
After Mutual Divorce
In a case, no arrangement was made for the custody of a minor boy aged 6 years at the time of
divorce by mutual consent of the parties, the father was not visiting the child frequently and the
child was being looked after well by the mother from the birth of the child. The mother, though had
married after divorce, had no child from the second marriage, whereas the father had a minor
female child from the second marriage. The father was a busy man and it was not possible for him
to look after the minor boy and it was not unlikely that the boy was to be looked after by the
stepmother, if custody of the boy was given to the father. The minor also expressed his
disinclination also to go to his father. The court held that though the father as a natural guardian had
statutory right to have the custody of the boy of 6 years, yet the same was not absolute and the
welfare of the child was paramount consideration. Therefore, the interests of the minor were to be
well served by keeping him with the mother.45

42

1993 (1) HLR 143 (Bom.)

43

Shuklendra 885

44

1991 (1) HLR 141 (P&H)

45

Archana v. Shiva Kumar, 1995 (1) HLR 101 (AP-DB)

Custody of a minor

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Custody Of Minor Illegitimate Girl


Section 6 (b) lays down that in the case of illegitimate boy or an illegitimate girl, the mother is the
natural guardian in the first instance and only after her, the father is the natural guardian. Where,
therefore, the illegitimate daughters are minors, the mother would have a preferential right to be
considered as the natural guardian of the minors and entitled to custody of them. Where there is
admitted hostility between the father and the mother, it would be desirable that the minor daughters
remain in the custody of their mother. Once the children are he'd to be illegitimate, then under s. 6
(b), mother is the natural guardian of the children; and that being so and the children in her custody,
she cannot be deprived of the custody of the children.46

Married Girl
Clause (c) of s. 6 states that in the case of married girl, the husband is her natural guardian.
In a case, the respondent was alleged to have kidnapped the girl while she was in her school. The
father of the girl asserted that the girl was minor and he, being his father, was natural guardian and
entitled to her custody. The respondent stated that he had married the girl lawfully and shows living
with him voluntarily and also was pregnant at the time. It was also stated that the girl was 17 years
old on the date of her marriage with the respondent. The court held that the husband was the natural
guardian of the minor girl under s. 6 (c). the girl also appeared before the court and stated that she
was living with the respondent and her in-laws happily. As the girl was of age of discretion and
knew what she stated, it would not be in her interest to ask her to go with her father, as he was
hostile to her marriage because the girls in such a situation were not welcomed. The court held that
the girl was not in an illegal custody of the respondent.
However, in another case, it has been held that simply because husband is named as natural
guardian under s. 6, the husband cannot be ipso facto said to be entitled to the custody of married
minor girl. Where the husband is a divorcee and his wife committed suicide, the welfare of the
minor married girl cannot be said to be safe in his association. Therefore, it is neither legal nor just
and proper to send her to her husband.47

46

Shuklendra 886

47

ibid. 886-887

Custody of a minor

!18

Conversion Of Parties
Proviso (a) to s. 6 states that no person is entitled to act as a natural guardian of a minor if he ceased
to be a Hindu. Therefore, where the mother has embraced Islam after the customary divorce, her
conversion to Islam disentitled her to continue as a guardian of the minor female child. Welfare of
the child requires her separation from her mother. As welfare of the child is of paramount
consideration in matters of custody, it would be quite justifiable to entrust the child to the custody of
the father.48
Similarly, where husband has converted to Islam and married a Muslim girl, as per proviso (a), he
ceased to be Hindu and, therefore, he is not entitled to act as a natural guardian of the minors. It is
the mother who is entitled to be the natural guardian and also the the custody of minors.49

Writ Of Habeas Corpus


The writ of Habeas Corpus all extends its influence to restore the custody of a minor to his
guardian when wrongfully deprived of it. The detention of a minor by a person not entitled to his
legal custody is treated, for the purpose of granting the writ, as equivalent to the imprisonment of
the minor. Its, therefore, not necessary to show hat any force or restraint is being used agains the
minor by the respondent.50
In Gohar Begam v. Suggs Begam51 , the writ was issued because the mother had, under the personal
law, the legal right to the custody of her illegitimate minor child. But is is an extraordinary remedy
and the writ is issued, where, in circumstances of a particular case, ordinary remedy provided by the
law is either not available or is ineffective or inadequate for restoration of custody of minor from
person who according to the law, is not his legal or natural guardian, the ordinary remedy lies under
the HMG Act or the Guardians and Wards Act, as the case bay be, and it is only in exceptional
cases that the right of the parties to the custody o the minor will be determined on writ petition from
Habeas Corpus.
The writ of Habeas Corpus is a proper remedy on the part of one parent to recover a child from the
other parent, either before or after the parents have been legally separated or divorced. Since the
welfare of the child is paramount consideration in making an award for the custody of it, such an
award may be made in a habeas corpus proceedings. There are no rights created by the HMG Act.
It only creates obligations on the children. They only have obligation towards their children and that

48

Chakki v. Ayyappan, 1988 (2) HLR 107 (Ker-DB)

49

Shuklendra 887

50

ibid.

51

AIR 1960 SC 93

Custody of a minor

!19

obligation is required to be properly discharged wit care, love, affection and devotion. If this is not
done, no society can function.
Where male child of two and half months is in custody of maternal parents since the death of her
mother and the child is being looked after well in maternal home because the family has sufficient
means other facilities available with it, the welfare of the child being the paramount consideration,
the father cannot be granted the custody of the child on his habeas corpus petition.

!20

Custody of a minor

Bibliography
PUBLISHED SOURCES
1. Diwan Paras, Modern Hindu Law (Faridabad: Allahabad Law Agency 2015)
2. Shuklendra Acharya, Hindu Law (Allahabad: Modern Hindu Law 2004)

WEB SOURCES
1. http://www.crisp-india.org/
2. http://www.legalservicesindia.com/
3. http://www.hanumant.com/
4. http://www.hrln.org/