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Report No. 83

6.43. Act of 1956 arid its relationship to the Act of 1890.-

The Act of 1890 contains no separate provision as to preference to be given to any particular parent as to custody, although it does contain a provision1 whereunder questions of custody may come up for adjudication.

In this context, the Hindu Minority and Guardianship Act, 1956, may be noted, since its provisions mark a departure in some respects. The Act is supplemental to the Act of 1890, and save as expressly provided in he Act of 1956, is not in derogation thereof.2 Where, therefore, the Act of 1956 is silent, the Act of 1890 operates. There are, however, some matters on which the Act of 1956 is not silent and makes a specific provision.

Sections 6 and 13 of the Act of 1956 are of particular relevance. Under section 6, the natural guardian of a Hindu minor is the father, and after him, the mother (The specific mention of the mother may be noted). The father's guardianship is subject to the proviso that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother-a provision very material to the third question3 formulated by us.

Section 13, it may be recalled,4 provides that in the appointment of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. Here, it must be noted that section 17(1) of the Guardians and Wards Act, 1890, while speaking of "the welfare of the minor", does not make the welfare of the minor the paramount consideration in the appointment of any person as guardian.

1. Section 25.

2. Section 2, Act of 1956.

3. Para. 6.39, supra.

4. For the text of section 13, see supra.

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

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