Requirements for a guardian and Custody of the minor

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

Priyanka Kalra Dinesh Moorjani Christ University

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.

TYPES OF GUARDIANS: The 1956 act deals with three types of guardians 1. Natural guardians 2. Testamentary guardians 3. 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, the father. 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

 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 Lalita 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 AIR 1999 SC held 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 AIR 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.

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.2 The 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 any person to act as the guardian of the child after the death of the father. However, if the
1

Bindaji 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. 2 Ramchandra v. Krishnarao, 32 Bom 259; Chandrapal Singh v. Sarabjit Singh, AIR 1935 Oudh 334. 3 Gharibullah v. Khalik, 25 All. 407 (PC); Kenchayya v. Subbaiah, 42 Mys. 268.

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. The right of the guardian so appointed by will shall, where the minor is a girl, cease on her 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 (Sriramulu' 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.

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
4 5

In re, Ghulam Mohamed ILR(1942) Kar 363; 205 IC 403; AIR 1942 Sind 154. Haliman Khatoon v. Ahmadi Begum, AIR 1949 All 627. 6 AIR 2003 NOC 411(Del).

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 Singh7

Father 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. Beena8

Mother 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,9

Mother 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
7 8

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

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,10

In 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,11

Dispute 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,12

Mother 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
10 11

AIR 2005 Ker 249. AIR 2005 Gau 158. 12 AIR 2007 NOC 291 (Ker).

instill in minors mind qualities of fidelity. Reference to religion as guiding f actor 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,13

Application 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,14

In 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,15

The 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
13 14

AIR 2002 MP 44. AIR 2006 All 267. 15 AIR 2002 Mad 6.

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

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

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. District 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. 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.
16

In case of a minor

16

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

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 Krishanlal AIR 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 it complies with the fulfillment of the welfare requirements of child. A mother who is proven to neglect the child in his/her infancy is not handed with the child custody.

Gain Chand v. Smt. Sudha,17

A 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,18

Madras 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,19

Mother 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,20

Father, 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 was not disqualified in any way from being guardian. Only allegation leveled against father was

17 18

AIR 2000 P&H 208. AIR 2004 Mad 1. 19 AIR 2006 NOC 276 (Bom). 20 AIR 2006 SC 1343.

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,21

Application 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,22

Willingness 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,24

Though 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.

21 22

AIR 2003 NOC 590 (Kant). 2000 AIHC 3683. 23 AIR 2002 MP 44. 24 (2001) 4 SCC 71.

Jaiprakash Khadria v. Shyam Sundar Agarwalla,25

Effluence of party seeking guardianship cannot be the sole criteria for making appointment. G. Eva Mary Elezabath v. Jayaraj,26

The 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,27

Father 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.

25 26

AIR 2000 SC 2172. AIR 2005 Mad 452. 27 AIR 2002 Raj 148.