The Law Relating to

GUARDIANSHIP &
CUSTODY
 A Brief Overview
• Best Interests of the Child
• Guardianship & Custody: The Semantic
Understanding
• The Hindu Minority and Guardianship Act,
1956
• The Muslim Law on Guardianship- Hizanat
• The Guardians & Wards Act, 1890
• Custody & the Judicial View on Custody
 The Doctrine of Best Interest of Child
• Emergence in the Western Legal Systems
 Guardians had unqualified rights over the child.
 The courts role was to decide as to who “owned” the
child….
• The shift in the 19th century
 Children’s interests were considered and the public
became aware about the plight of many children.
 Rise of different public lobbies like the women’s
movement, the new specialty of pediatrics etc.
 The legally enforceable thresholds of acceptable
parenting was set.
The United Nations Convention on the Rights of the Child (UNCRC)

• Art.3 echoes this all encompassing dynamic and

urges the states and their courts to ensure that
“…the best interest of the child shall be primary
consideration.”
• The concept of the best interest (BI) of the child
is found throughout the Convention, providing
States parties with numerous obligations to
consider the best interests of children in
relevant decision-making processes, very
specially in family law.
 Understanding the principle

• The “best interest of the child” is a fundamental legal

principle of interpretation developed to limit the
extent of adult authority over children (parents,
professionals, teachers, medical doctors, judges, etc.).
• This provision, does not include any specific
explanation of its application; fix any particular duty,
or state precise rules.
• The principle in intended to affect the decision
making process in the BI of child.
• It is clear that the BI principle must respect: the
short- medium- and long-term perspectives of the
life of the child, bearing in mind that the child is a
human being in development, the global spirit of the
CRC; and an interpretation that is not “culturally
relativist” or denies other rights of the CRC.
• A careful perusal of the origin and enumeration of
the principle brings out the ‘protectionist’ and
‘welfare’ tone rather than a participative-democratic
ambiance of the existence of this principle.
Guardianship & Custody: The Semantic Understanding

Guardianship
Custody
 Guardianship & Custody: The Semantic Understanding

 Custody is granted specifically as a

matrimonial relief to a parent who seeks such
custody, whereas guardianship exists at law.
 Guardianship is more comprehensive terms
and connotes wider rights than mere custody
A guardian need not be a custodian; or a
custodian, a guardian of the child. However, a
guardian, even if he does not have custody, may
yet, by virtue of his guardianship status,
exercise powers regarding marriage or
education of the child, and move the court, if
required, for appropriate orders.
 The present laws on the subject
• The Guardians & Wards Act, 1890

• The Hindu Minority and Guardianship Act,

1956

• The Muslim Law on Waliyat and Hizanat

 The types of Guardians
Natural Guardians

Testamentary Guardians

Court Appointed Guardians

De-facto Guardians
 Natural Guardian
• Natural guardians of a Hindu minor.—The natural
guardian of a Hindu minor, in respect of the minor’s
person as well as in respect of the minor’s property
(excluding his or her undivided interest in joint
family property), are—
(a) in the case of a boy or an unmarried girl— the
father, and after him, the mother: provided that the
custody of a minor who has not completed the age of
five years shall ordinarily be with the mother;
(b) in case of an illegitimate boy or an illegitimate
unmarried girl— the mother, and after her, the
father….
Gita Hariharan v. RBI,
AIR 1999 SC 1149
 The Main Issue in the case
‘after him’ Sec. 6 of the Hindu Minority &
Guardianship Act, interpreted

‘After the lifetime’ of the father

In the ‘absence’ of the father**

• **The court gave the broader interpretation to

give sensible meaning to the statute.
 The Guardians & Wards Act, Section
19

• Mother and father can be excluded from

guardianship only in case they are found unfit to
discharge their duties and responsibilities.
Section 9 Hindu Minority &
Guardianship Act, 1956
provides for Testamentary
Guardians
 Sundaramurthy v. Shanmuganadar
The grandmother appointed the mother as testamentary
guardian for the property bequeathed to the minor, during
the lifetime of the father.

The mother (testamentary guardian) alienated the

property.

Such alienation was void ab initio as the court noted that

the grandmother has no power to appoint a testamentary
guardian.
 Removal of a Testamentary Guardian
• A testamentary guardian can be removed by the
court on the following grounds:
(i) Abuse of his/her trust;
(ii) Continued failure to perform duties;
(iii)Incapacity to perform duties;
(iv)Ill-treatment, or neglect to take proper care of
his ward;
(v) Continuous disregard of any provisions of the
Act or of any order of the court;
 Removal of a Testamentary Guardian

(vi) Conviction of an offence implying, in the opinion

of the court, a defect of character which unfits him
to be the guardian;
(vii) Having an interest adverse to the faithful
performance of his duties;
(viii) Ceasing to reside within the local limits of the
jurisdiction of the court;
(ix) In the case of guardian of property, bankruptcy or
insolvency.
 Muslim Law
• A father enjoys a more dominant
position in regard to custody and
guardianship of children.
The settled law • Even if the mother has custody over
the child, the father has a right of
supervision and control.

• It is perfectly clear that under

Mohammedan law the mother is entitled
only to the custody of the person of her
Imambandi v. minor child up to a certain age according to
the sex of the child. But she is not the
Mutsaddi natural guardian; the father alone or, if he
be dead, his executor (under the Sunni
Law) is the legal guardian.
 Hizanat Rights
• Mother’s right to the custody
Shia of her minor children extends
until a son is two years old,
Law and the daughter attains the
age of seven.

• Mother’s right to the custody

Sunni of her son is till he attains the
age of seven, and in case of
Law daughter, till she attains
puberty.
 THE GUARDIANS & WARDS
ACT, 1890
• The GWA is a consolidating statute. It applies to all minor
children of any caste and creed, though in appointing or
declaring a person as guardian of the minor the court will
take into consideration the personal law of the minor.

• The procedural law regarding the appointment is in the

GWA and the substantive law is still the personal law.
In case of conflict between personal law
and secular law
WELFARE OF
THE CHILD
SHALL REMAIN
PARAMOUNT
CONSIDERATION
Guardi
ans
Person
and
al Law
Wards
Act
• The Act deals only with the guardians of the person
and property of the minor. All other guardians are
outside the scope of the Act.

• It also categorically makes a mention of appointed

guardian under the Act. A guardian appointed by
the court is known as certificated guardian.

• The Act (u/s.6) preserves the power of appointment

of guardians under the personal laws.
 Court Appointed Guardians
• Where the court, on the application of a
person, is satisfied that for the welfare of the
minor, to appoint a guardian for the person or
property or both, it can appoint a guardian.

• Sec.17 lays down various factors that the court

would consider in appointing or declaring a
guardian.
 - Factors taken up by the court -
(a) Wishes of the child
(b) Age of the child
(c) Sex of the child
(d) Misconduct, immorality,
delinquency of the parent
etc.
(e) Abandonment of parental
right
(f) Remarriage of the parent
(g) Change of religion by the
parent
(h) Parent or guardian out of
jurisdiction
(i) Nearness of kin
(j) Wishes of the parent
(k) Willingness of the proposed
guardian
(m) Personal Law of the child.
 - Appointment of several guardians -
• Under the provisions of Sec.15, the court can appoint
joint guardians. It empowers the court to appoint
one person as guardian of the person and another as
guardian of the property of the minor.

• The court also has power to appoint different

guardians for different purposes.

(As per Guardians and Wards Act, 1890)

 - Relationship/Remuneration of the
Guardian -
• The relationship of guardian and ward is based
on the principles of good faith.

• A guardian however, shall also be entitled to

such allowances, as the court may think fit, for
his care and pains in the execution of his
duties. He can be paid certain amount from the
property of the ward. However, he cannot
make profit out of his office.
 Irfan Ahmed Shaikh v. Mumtaz
• In this case, the custody of the daughter was given
to the mother after divorce.
• Elucidating the general rule of Islamic law, the
court remarked:
…..the Muslim law is not taking ‘any pedantic view
of the matter.’ The law does not lay down that in any
circumstances and at any cost the mother would be
disqualified for the custody of the child the moment
she gets married.... There is no dogmatic insistence
that the child must remain with the father even
against the wishes of the child and the moment the
mother gets remarried to a stranger.
WELFARE OF THE
CHILD AND
MATTERS OF
CHILD CUSTODY
• The histogenetic and dominant design of the statutory
provisions are clear to the effect that there cannot be
any unbridled, unlimited or absolute power to any
person, whether he is the legal guardian or natural
guardian, to have the custody of the minor, simply that
he holds the position, that he is the natural guardian.
The principle is that in the case of minors who cannot
be expected to express their intelligent preferences, the
state assumes the ultimate responsibility of the welfare
of children.

Baby Sarojan v. S.V.K. Nair

 Gayatri Bajaj v. Jiten Bhalla
AIR 2013 SC 102

• Custody of two teenage

The Factual daughters was with the father
Scenario and the visitation rights with the
mother under an interim order

• The visitation rights was granted

every fortnight at the mediation
center.
Consideratio • The daughters, however strongly
n of the court refused to meet the mother and
behaved abnormally, including refusal
to take food.
 The final order of the court

• Since all efforts made by the father and

mediator failed to convince them, the
court withdrew the order of the mother’s
visitation rights.
 GAURAV NAGPAL V.
SUMEDHA NAGPAL
2008 SUPREME COURT
• Children are not mere chattels nor are they toys for
their parents. Absolute right of parents over the
destinies and the lives of their children, in the modern
changed social conditions must yield to the
considerations of their welfare as human beings so
that they may grow up in a normal balanced manner
to be useful members of the society and the guardian
court in case of a dispute between the mother and the
father, is expected to strike a just and proper balance
between the requirements of welfare of the minor
children and the rights of their respective parents over
them...
 Nil Ratan Kundu v. Abhijit Kundu
(2008) 9 SCC 413

• It is not the “negative test” that the father is not

“unfit” or disqualified to have custody of his child,
which is relevant, but the “positive test” that such
custody would be in the interest of the minor.

• It is only on such basis that the court should grant or

refuse custody of the minor in favour of the father,
mother or the guardian.
Anjani Kumar v. Shambhu Prasad
AIR 2014 Pat.218

The • The mother of the infant had

died of burn injuries and
criminal proceedings were
Factua pending against the father.
• The child was handed over to
l the maternal grandparents
when it was 6 months old.
Matri • The father claimed custody
when the child was now 8
x years old.
 • The court refused to
The Order of grant custody to the
the Court father.

• The child is likely to suffer

trauma in an entirely strange
environment if custody were to be
Consideratio shifted.
n of the • The sentiments of the father or
court paternal grandparents cannot be
the lone guiding factor in such
cases.
• Superior financial position of the party is no
consideration for awarding custody of the minor to
that party

• No amount of wealth and ‘mother-like love’ can take

the place of mother’s care and love for the child.
Surabhai Ravi Kumar v. State of Gujarat
AIR 2005 Guj 149