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Report No. 83

6.44. Effect of sections 6 and 13, Act of 1956.-

If section 6 and 13 of the Act of 19561 are read together-as they must be-then it will be seen that neither the father nor the mother can, as of a right, claim to be appointed by the Court as the guardian of a Hindu minor, unless such appointment is for the welfare of the minor. The welfare of the minor is the paramount consideration. So, in regard to being granted the custody of a minor by the Court, the mother cannot, as of right, claim it merely because a minor is below the age of five years, nor can the father get the custody as of right solely on the ground that the minor has completed the age of five years.

This is plain from the fact that section 6 provides only that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother and section 13, which relaxes the rigour of section 19 of the Act of 1890 in the interest of the minor's welfare, also makes the welfare of the minor the paramount consideration. The approach adopted by the Act of 1956 is thus somewhat different from that adopted by the Act of 1890, which is tilted to some extent in favour of the father.

1. Para. 6.42, supra.

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

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