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Report No. 83

Appendix 1

Position as to Custody of Children in Personal Law

Custody in Hindus.- Custody of children in Hindus is governed by the following statutory provision1-2:-

"6. Natural guardian of a Hindu minor.-The natural guardians 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 the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;

(c) in the case of a married girl-the husband:

Provided that no person shall be entitled to get as the natural guardian of a minor under the provisions of this section-

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation.- In this section, the expressions 'father' and 'mother' do not include a. step-father and a step-mother."

Custody in Muslim Law (Hanafi).- As to Muslims, under Hanafi law, the mother is entitled to the custody of a male child until the child attains the age of seven years and of a female child until puberty.3-4 If the mother is absent or disqualified during the age of the child mentioned above, the custody of the child belongs, in Hanafi Law, to the specified female relatives. If the mother and the female relatives are all disqualified, then the father and (in his absence) the specified male relatives become entitled to custody.5 After the ages mentioned above (i.e., in respect of a male child above the age of seven years or of a female child who has attained puberty), the father becomes entitled to the custody.6

Shia Law.- Among Shias, the first right of custody is that of the parents, and priority between them is determined on the basis that the mother should be entitled during infancy, i.e. in the case of male till the age of two years and female till seven years. Later on, the father has the right to custody.7 Among Shias, failing the parents, the grandfather is entitled to the custody, and failing him, certain specified relatives are entitled.8

1. Section 6, Hindu Minority and Guardianship Act, 1956.

2. For History of Hindu Law, see Appendix 2.

3. Tyabji Muslim Law, (1968), p. 216, para. 238.

4. As to husband's rights, see discussion as to section 1.

5. Tyabji Muslim Law, (1968), p. 217, para. 239, and p. 218, para. 241.

6. Tyabji Muslim Law, (1968), p. 218, para. 242.

7. Tyabji Muslim Law, (1968), p. 228. para. 249, summary.

8. Tyabji Muslim Law, (1968), p. 221, paras. 245 to 249.

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

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