SUPERIOR PATERNAL RIGHTS AND

WELFARE PRINCIPLE UNDER

GUARDIANSHIP
Submitted to: Professor Ruchika Rao

Submitted by: Sunidhi Gupta, 20010489

Date of Submission: 2nd November 2021

Word Count: 3222 words

 TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………………………….2
Statutes Referred……………………………………………………………………………..........2
Cases Referred…………………………………………………………………………….……….2
ABSTRACT………………………………………………………………………………………….3
INTRODUCTION………………………………………………………………………………….4-5
1. Historic Evolution and Present Regime of the Custody and Guardianship Statute…6
1.1 The Guardians and Wards Act, 1890………………………………………………………….6
1.2 The Hindu Minority and Guardianship Act, 1956………………………………………..........7
2. Inconsistencies and Issues of Contention………………………………………………. 8
2.1 Gender Bias and Constitutional Provisions on Equality………………………………………9
2.2 Men’s Take on Gender Bias and Reasoning………………………………………………….10
2.3 Importance of Welfare Principle to Deal with Gender Bias………………………………….11
3. Judicial Interpretations………………………………………...……………………….12
3.1 Gender Justice…………………………………………………………………………………12
3.2 Welfare Principle……………………………………………………………………………...13
CONCLUSION…………………………………………………………………………………........14
BIBLIOGRAPHY…………………………………………………………………………….……..15

1
INDEX OF AUTHORITIES
Statues Referred:
 The Guardians and Wards Act, 1890
 The Hindu Minority and Guardianship Act, 1956
 Personal Laws (Amendment) Act, 2010
Cases Referred:
Sakshi Bhattacharya v. Union of India, (2019), WP (Civil) No. 1290 ………………………10
Chethana Ramatheertha v. Kumar V. Jahgirdar, (2003) 3 KarLJ 530……………………… 11
Ms. Githa Hariharan & Anr vs Reserve Bank Of India & Anr, AIR 1999 SC 114………… 12
Padmaja Sharma v. Ratan Lal Sharma AIR 2000 SC 1398………………………................. 12
Jijabai Vithalrao Gajre v. Pathankhan & Ors (1971) AIR 315 SCR (2) 1…………………… 13
L. Chandran v. Venkatalakshmi, AIR 1981 AP 1…………………………………………….13
Shakuntala Sonawane v. Narendra Khaire (2003) 2 HLR Bombay……..……………………13

2
 ABSTRACT

The aim of this paper is to analyze the inconsistencies the Guardians and Wards Act, 1890 which
governs all the citizens and the Hindu Minority and Guardianship Act, 1956 which governs the
Hindus. There is discussion on various sections of both laws which collide and the historic
references to these Acts. It also focuses on understanding the issues which stem out of paternal
supremacy given in provisions and importance of welfare principle in laws pertaining to custody
and guardianship. The paper is divided in three parts with the first setting the basis of the theme,
giving historic evolution and existing provisions of the Act. The second part highlights the issues
which the said provisions have led to. These include gender discrimination, inequality and
extensive support of welfare principle. Finally, the last section deals with the judicial
interpretations of all these provisions and how they have broadened the perspective in some
cases and are ironic and others. The main objective of the paper is to reflect on how the Acts
which have been enacted decades before need to amend and become more pragmatic.

KEY WORDS: Hindu Minority and Guardianship Act, Guardians and Wards Act, Guardianship,
Custody, Paternal Supremacy, Welfare Principle, Gender Bias, Inequality

3
 INTRODUCTION

India is a country where people from diverse cultures and religions reside and so making
universal laws that cater to people belonging to different communities is difficult. The issues
pertaining to marriage, divorce, maintenance as well as custody, guardianship and adoption are
governed by a number of laws made according to different religious communities. 1 The custody
and guardianship laws are also different for religions and come under the sub-head of personal
laws.2 The laws relating to custody and guardianship are quite interconnected since both the
topics are quite closely related to each other. Custody is a narrowed down concept in relation to
guardianship which provides an adult with a number of rights and powers relating to a minor’s
person and property.3 Custody is more focused on physical presence of a minor and includes
making basic day-to day decisions of a minor.4 That is why custody is relates to more of minor’s
person and not property.

In India, the laws for guardianship and custody include a secular law enacted by the colonial
state in 1890, the Guardians and Wards Act which has been applicable on all people, irrespective
of communities they belong to which has been adopted. 5 Apart from that there are statutes which
are specific to various religions. The modern statute for the Hindu Law which governs all Hindus
under it is the Hindu Minority and Guardianship Act, 1956. 6 When the issues of custody and
guardianship are being discussed, it is important that the interest and welfare of a child is given
utmost importance but if Hindu Law is specifically talked about there are certain inconsistencies
between the secular and personal law.7 The Guardians and Wards Act,1890 has derived its legacy
from the Common law and there are provisions which gave supremacy to father for guardianship
and custody rights has evolved over the period of time with Section 7 and 17 laying down basic
rules for guardianship and custody but still paramount consideration to the welfare of child has
not been given explicitly.8 On the other hand the Hindu Minority and Guardianship Act, 1956
has provisions which give superior position to paternal rights but the Act also provides that

1
Asha Bajpai, Custody and Guardianship of Children in India, 39 FAM. L.Q. 441, 441 (2005)
2
Id at 441
3
Law Commission of India, 275th Report, May (2015):12
4
supra note 1, at 442
5
supra note 3, at 12
6
supra note 3, at 15
7
supra note 3, at 4
8
supra note 3, at 4
4
interest of the minor is of utmost importance and can oversee all the other factors. 9 The paper
throws light at these legislative inconsistencies and how they have bought up certain issues like
gender inequality and welfare of minor. It also analyzes how loopholes in the legislation have
been judicially interpreted for better understanding of these statutes especially natural
guardianship.

9
supra note 3, at 4
5
 1. Historic Evolution and Present Regime of the Custody and Guardianship Statute

The terms guardians and natural guardian and the subtle difference between them is
important to understand the statutes and the provisions which are being questioned. A
guardian according the Guardians and Wards Act, 1890 is the one who has rights and duties
to care and control of a minor’s person and property. 10 The care here includes guardians’
responsibility and looking after the minor in a wider sense than the custody, making
decisions about property and upbringing.11 A natural guardian is the adult who is naturally
appointed to take all decisions on the behalf of a minor and can only not act as a guardian if
the court takes away the right in accordance to appropriate legal statutes or the will appoints
a testamentary guardian.12 These statutes for guardianship and custody in pursuance of Hindu
law have evolved over a period of time before they reached the present state.

1.1 The Guardians and Wards Act, 1890

This Act continues its legacy from the Common law. Under the Common law traditionally
the father had supreme authority over the child rights and was the sole guardian of the child
and his property.13 This authority was considered absolute with the courts also refusing to
interfere and the mothers were not considered to have any authority over the child because of
no existence of independent legal status.14 It was only after divorce and separation became
prevalent that mothers began to claim custody but guardianship rights of the father remained
supreme.15 It was after a number of developments at the legislative and judicial end under
Common law that dismantled the paternal authority.

Under the present GWA as enacted in India, the Section 7 gives court the authority to appoint
a guardian for a minor if it is deemed necessary for the welfare of the minor. 16 Section 17 of
GWA provides with the factors which would be considered by the court to appoint the

10
supra note 1, at 441-442
11
supra note 1, at 441-42
12
supra note 1, at 443
13
supra note 3, at 3
14
supra note 3, at 3
15
supra note 3, at 3
16
Guardians and Wards Act, No. 8 of 1890, S.7
6
 guardian.17 Section 19 gives situations where courts cannot appoint guardians which in some
cases acts against the principle of welfare of minor.18 Section 19(b) of the GWA states that
the court cannot appoint a guardian for a minor whose father of mother is alive and are not
unfit to become guardian in the opinion of court. 19 Now, here the superior rights of father
dismantled under the Guardians and Wards Act. Previously, Section 19(b) only mentioned
that court was not authorized to appoint guardian only in case when father was alive but later
in 2010 under Personal Laws (Amendment) Act this condition was also applicable when the
mother is alive. The last important provision is Section 25 of GWA which states that the
court has the authority to issue order for a ward who has been removed form the custody of
the guardian if the court thinks it is for the welfare of the child. 20 In all these important
provisions of the Guardians and Wards Act imply that there are provisions for appointing
guardians in accordance to the welfare of the minor but they are subordinate to authority
parents have as guardians and so under this provision welfare of minor is not of paramount
consideration.21

1.2 The Hindu Minority and Guardianship Act, 1956

The provisions of this Act apply only on Hindus and it comes under the Hindu personal law.
Traditionally under the Ancient Hindu Law there was no need for guardianship laws since
most of the minors were a part of joint family and came under the protection of the head of
the family or the karta.22 If they were not a part of the joint family then they were to go to
guru’s ashram for studying and were under their protection. 23 For all those who were not a
part of the joint family or had parents ultimately came under the supreme guardianship of the
king who protected all such minors.24 This traditional law for Hindu was prevalent
throughout the British period along with the secular Guardians and Wards Act introduced by
the colonial rulers and only in 1956 was the Hindu Minority and Guardianship Act was
passed.

17
Id, S.17
18
Id, S.19
19
Id, S.19(b)
20
Personal Laws (Amendment) Act, No. 30 of 2010
21
supra note 3, at 14-15
22
supra note 1, at 442
23
supra note 1, at 442
24
supra note 1, at 442
7
 In the Act passed in 1956, the section that is important for the purpose of this paper is
Section 6(a) which states that for a minor boy or a minor girl who is unmarried, the natural
guardian is the father and ‘after’ him the mother.25 It also provides that for a minor who has
not completed the age of five years the custody will ordinarily go to the mother.26 The section
13 of the HMGA also states that for deciding the guardianship of a Hindu minor, the welfare
of the child will be of paramount consideration and a person cannot be appointed guardian
for the minor if it is not in the interest of the minor according to the court. 27 Now, these
provisions give preferential position to the father, though there have been cases where the
provisions have been interpreted differently but mother becomes a natural guardian but those
are exceptional circumstances. 28
The father can claim custody any time due to his superior
guardianship rights but the provisions for the Act also state that welfare of the minor is of
most importance.29 This is the only provision which a mother can use for getting
guardianship against paternal rights and this is how HMGA guardianship rights are
subordinate to parental rights.30

2. Inconsistencies & Issues of Contention

Both the statutes, the Guardians and Wards Act, 1890 and the Hindu Minority and
Guardianship Act which govern the laws of guardianship have inconsistent provisions which
has been established above. The 257th Report of the Law Commission of India which came
out in 2015 also put light on these inconsistencies and the issues which stem out of them
especially under laws for Hindu minors.31 The GWA and HMGA have different stances on
parental authority and importance to welfare. Under GWA parents have equal rights of
guardianship but the welfare component is subordinate, while under HMGA welfare aspect is
paramount.32 This differentiates the guardianship laws between Hindus and non-Hindus for
whom the court does not have authority even in case of welfare issues. 33 Apart from legal
inconsistencies there are other issues also which will be discussed.
25
Hindu Minority and Guardianship Act, No. 32 of 1956, S.6(a)
26
Id, S.6
27
Id, S.13
28
supra note 3, at 16
29
supra note 3, at 17
30
supra note 3, at 17
31
supra note 3, at 17
32
supra note 3, at 17
33
supra note 3, at 17
8
 2.1 Gender Bias & Constitutional Provisions on Equality

Firstly, there has been time and again questions on the how the statute that gives preference
to father than to mother in case of a minor child’s custody is objectionable. 34 There is no
rational basis or reasonable justification for such a provision and on the contrary it brings
forth an anti-feminine bias.35 The 257th Report of the Law Commission of India states how it
is only reflective of the distrust on women since olden times and encourages the feeling
superiority for men and how women are inferior to men and have less power. 36 There are
justifications given saying that it is an ancient prejudice. But Hindu scriptures which are
sources of the Hindu law to some extent say the contrary. Scriptures like Manu Smriti, Vedas
and Puranas have held mothers and wives in a very high regard. 37 They have maintained that
in the process of birth and upbringing, both mother and father have a very crucial role to play
and contribution of one cannot be considered than the other. 38 So, the argument of provisions
getting their basis from ancient law is negated here.

Secondly, these provisions are also violative of the Fundamental rights which have been
given in the Constitution of India. The Article 14 of the Constitution prohibits discrimination
or discriminatory laws and that people in similar circumstances should be treated alike. 39 It
only allows reasonable classification for a purpose by the legislature which means there has
to be a reasonable nexus and object for classification. 40 Article 15(1) also states that the state
cannot discriminate people on grounds mentioned in the article which include sex as well and
while Article 14 is general, Article 15 is more particular for application. 41 The objective
behind laws for guardianship is the welfare of minor and welfare is a broad term affected
with a number of factors and not just physical or material well-being. 42 It has to see the
happiness of minor, the educational, moral welfare and upbringing of the child and there can
be no justification given to the fact that welfare is guaranteed under a father’s guardianship. 43

34
supra note 3, at 21
35
supra note 3, at 21
36
supra note 3, at 21
37
Devika Sharma, No Legal Rationale for Primacy- Revisiting Section 6(a) of the Hindu Minority and
Guardianship Act, 1956, SCC ONLINE (Nov. 7, 2020) https://www.scconline.com/blog/post/2020/11/07/no-legal-
rationale-for-primacy-revisiting-section-6a-of-the-hindu-minority-and-guardianship-act-1956/#_ftn19 (accessed:
29.10.2021)
38
Id
39
Id
40
Id
41
Id
42
Id
43
Id
9
 The clause 3 of Article 15 has a pre-vision of legislation which is beneficial geared to cater to
special needs of women and children which are pro-women and pro-children. 44 In light of
these arguments regarding violation of Fundamental rights there have been expected from
Supreme Court that the provisions which place father on a higher pedestal are declared
unconstitutional.45 A PIL for the same was filed by Sakshi Bhattacharya and a notice was
issued to the Centre in November, 2019 by the Supreme court seeking answer for this PIL.46

2.2 Men’s Take on this Gender Bias and Reasoning

There are several mens group across the country who believe that the pendulum of equality
has gone too far. There are a lot of law being made today, most them pro-women considering
the increasing awareness about feminist movements.47 The people from men’s movement
believe that most of these laws which are being made are with the perception of benefitting
women that to at the expense of men. This is due to the insurgence of feminist movement.
There has been criticism made against the court by men stating how they prefer mothers to
give custody of children.48 They advocate and demand that the legal system should function
with the perception that would also give men equal share of children.49

This argument can be and has been countered stating how it is quite ridiculous that women
have been able to safe guard their rights under the Indian Legal System. The fact cannot be
hidden that the patriarchal bias and power to men in family units is more prevalent with
many women not even able to take stand for themselves due to lack of awareness, fear or
idea of respect.50 There has been lack of formal equality in the form of discriminatory laws
which has been explained above. Apart from that there is lack of substantial equality as well
with women in public sphere are deprived of education or opportunity to political
participation and not given enough agency.51 These is the situation on the face of it. Also,
mens criticism on generalization of custody to mothers has been countered by Courts. In one
of the cases from Supreme Court, it made clear that they do not support the generalization of

44
supra note 3, at 21
45
supra note 37
46
Sakshi Bhattacharya v. Union of India, WP (Civil) No. 1290 of 2019
47
Ira Chadha-Sridhar & Aratrika Choudhuri, Of Men's Rights, Motherhood and Minors: Critical Feminist
Reflections on Shared Parenting Laws in India, 9 NUJS L. REV. 153, 159 (2016).
48
Id, at 159
49
Id, at 159-60
50
Id, at 160
51
Id, at 163
10
 custody made in the favor of the mother and such comments given by the High Courts. 52 The
report of Law Commission of India also puts emphasis on the goal to establish equality
between both the parents.53

2.3 Importance of Welfare Principle to Deal with Gender Bias

The idea of welfare of a minor is abstract and so is the principle based on it. 54 Welfare of
minor as a principle is important to discuss when issues in guardianship laws are being
discussed because welfare principle plays a crucial role dealing with such provisions. Like it
has been discussed that HMGA has flawed provision on guardianship but still welfare of the
minor is given paramount importance.55 In some of such cases, giving paramount importance
to welfare tends to eliminate the problem which was being caused by applying the flawed
provision.

Now, welfare of a child has a lot of factors and so no particular principles or propositions
have been given out.56 Each case has its own circumstances according to which judgement is
made and there are no absolute rules for the same.57 Some of the factors which determine the
application of welfare principle are also relevant for dealing with solving the issue primacy
given to father under guardianship law. Keeping of welfare in mind there are times when the
problematic law of father being guardian is countered and gender justice has been provided.
Also, there has been emphasis in the 2015 Report of the Law Commission which says that
though welfare principle is being used by the higher courts but there has been no evidence of
how much it is being referred to in the lower courts.58 This principle is very valid in custody
and guardianship and so it is imperative that this is given utmost importance even if
provisions are not changing for so long.

3. Judicial Interpretations

Apart from the statutory laws, it is the judicial precedents which help in the application and
interpretation of statutes and change the outlook at the legal aspects of certain provisions.

52
Chethana Ramatheertha v. Kumar V. Jahgirdar, (2003) 3 KarLJ 530
53
supra note 3, at 23
54
supra note 1, at 447
55
supra note 1, at 447
56
supra note 1, at 447
57
supra note 1, at 447
58
supra note 3, at 23
11
 There have been cases where the gender discrimination has been tackled using interpretation
of provisions, while in other cases the judgment of the courts though pragmatic does not
convene with the laws on guardianship. There some instances where welfare of the minor has
been given utmost priority which has superseded the paternal authority provided under the
laws, thus working towards undoing such a problematic provision.

3.1 Gender Justice

For elimination of gender bias, the landmark case has been Geeta Hariharan v. Reserve Bank
of India. In the case, the petitioner filed the case claiming that both mother and father are
natural guardians after RBI refused to issue bonds without father’s signatures. 59 The Section
6(a) of HMGA which states father to be natural guardian and ‘after’ him the mother was seen
unconstitutional through one interpretation while the other interpretation was within the
constitutional limits.60 Thus, court interpreted ‘after’ as not just after death of father but
certain other situations like when father is indifferent, child is in mother’s exclusive custody,
father is incapable of acting as guardian or with mutual decision of both parents.61 This
judgement is a milestone but is not absolute gender justice in guardianship laws because
mother is given the status of natural guardian only when father is incapable or consented for
the same and just stopped from giving that equal status.62

There was another case, Padmaja Sharma v. Ratan Lal Sharma where the Supreme Court
held that mother has equal responsibility to pay maintenance of a child. 63 This decision by the
court was quite impressive but what was ironic and core issue was how financial
responsibility was equally divided but the mother still did not have unconditional right of
being natural guardian and only special exceptions.64 These case portray the efforts to
establish equality but how overlooking statutory provisions is not very easy.

3.2 Welfare Principle

One of the initial cases where principle of minor’s welfare was considered was Jijabai
Vithalrao Gajre v. Pathankhan where mother was given status of natural guardian of
daughter because father was incapable of taking her responsibility and the mother was taking
59
Ms. Githa Hariharan & Anr vs Reserve Bank Of India & Anr, AIR 1999 SC 114
60
Id
61
Id
62
supra note 1, at 452
63
Padmaja Sharma v. Ratan Lal Sharma AIR 2000 SC 1398
64
Id
12
 care of her since she was born.65 Since then the court has in various cases held that children
cannot be treated as chattel and even if the father is not unfit to act as guardian the child
cannot be uprooted to enforce the unconditional paternal right of custody over child’s person
and property.66

There has been another case where the couple was in a marital conflict during pregnancy
with wife returning to maternal home and divorce petition was filed on the day of child
birth.67 The child was in the mother’s custody but under some circumstances the wife died
and the child’s grandmother filed for the custody since she had been taking care of him since
birth.68 The Bombay High Court gave the custody to the maternal grandmother with the
stance that custody is to be given to someone who is fit to be a guardian even if the natural
guardian is living.69 This is where welfare of the minor is superseded by the authority of the
natural guardian and judicial interpretations expand the scope of eliminating certain issues.

65
Jijabai Vithalrao Gajre v. Pathankhan & Ors (1971) AIR 315 SCR (2) 1
66
L. Chandran v. Venkatalakshmi, AIR 1981 AP 1
67
Shakuntala Sonawane v. Narendra Khaire (2003) 2 HLR Bombay
68
Id
69
Id
13
 CONCLUSION

The Hindu Minority and Guardianship Act and the Guardians and Wards Act had been
enacted according to the social setting under colonial state and after independence. But it is
important to know that the laws have always affected the way society evolves.70 Thus, such
important laws should be made thinking of long term. The idea of men being supreme since
others are dependent on them is outdated and women have got there share of rights in many
spheres and it is important that the same equality is given under guardianship and custody
rights. Not just the 257th Report but the 133rd and 83rd Report of the Law Commission that
equal rights should be given to mother and father. 71 The 83rd report also recommended that
Section 6 and 13 of the HMGA should be read together. 72 Also, the importance of
considering welfare of minors is realized. The economic status or the supreme paternal
authority cannot be the ultimate way of welfare and that interest of the child should be
priority.

70
supra note 37
71
Law Commission of India, 133rd Report, (1989)
72
Law Commission of India, 83rd Report, (1980)
14
BIBLIOGRAPHY

Articles Referred

1. Asha Bajpai, Custody and Guardianship of Children in India, 39 FAM. L.Q. 441 (2005).
2. Devika Sharma, No Legal Rationale for Primacy- Revisiting Section 6(a) of the Hindu
Minority and Guardianship Act, 1956, SCC ONLINE (Nov. 7, 2020)
https://www.scconline.com/blog/post/2020/11/07/no-legal-rationale-for-primacy-
revisiting-section-6a-of-the-hindu-minority-and-guardianship-act-1956/#_ftn19
(accessed: 29.10.2021)
3. Ira Chadha-Sridhar & Aratrika Choudhuri, Of Men's Rights, Motherhood and Minors:
Critical Feminist Reflections on Shared Parenting Laws in India, 9 NUJS L. REV. 153
(2016).

Reports Referred

1. Law Commission of India, 275th Report, May (2015)

2. Law Commission of India, 133 Report, (1989)

rd

3. Law Commission of India, 83rd Report, (1980)

15