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Report No. 83

VII. Present Position

Custody-English Act of 1971.- The principles on which questions relating to custody, upbringing etc. of minors are to be decided, is thus laid down in the English Act of 19711:-

"1. Where in any proceedings before any Court (whether or not a court as defined in section 15 of this Act)

(a) the custody or upbringing of a minor;

(b) the administration of any property belonging to or held on trust for a minor, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the minor as the first and paramount consideration, and shall not take into consideration whether, from any other point of view, the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father."

Act of 1973.- Section 1(1) of the Guardianship Act, 1973 now provides as follows:

"1.(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other."

In proceedings for custody etc. such equality was already provided in 1971.2 But in the absence of such proceedings, the father's rights prevailed.3 That position is also now modified by the Act of 1973 referred to above.

Father as natural guardian and mother's position.- This would seem to have practically abolished the rule of the common law whereunder the natural guardian of legitimate child4 was the father, and the mother did not share the guardianship as such while he is alive.

1. Section 1, Guardianship of Minors Act, 1971.

2. Section 1, Guardianship of Minors Act, 1971.

3. Tenures Abolition Act, 1660.

4. Hopkins (Ex. p.), (1732), 152 Wind 3, per Lord King L.C.; Agar-Ellis (in re:), (1883) 24 Ch D 317 (335).

The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back

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