Report No. 257
Legal Framework Governing Custody and Guardianship in India
2.1 The law governing custody of children is closely linked with that of guardianship. Guardianship refers to a bundle of rights and powers that an adult has in relation to the person and property of a minor, while custody is a narrower concept relating to the upbringing and day-to-day care and control of the minor.
The term 'custody' is not defined in any Indian family law, whether secular or religious. The term 'guardian' is defined by the Guardians and Wards Act, 1890 (hereinafter, GWA) as a "person having the care of the person of a minor or of his property or of both his person and property."19 Another term used by the law is 'natural guardian,' who is the person legally presumed to be the guardian of a minor and who is presumed to be authorized to take all decisions on behalf of the minor.
The legal difference between custody and guardianship (or natural guardianship) can be illustrated by the following example: under some religious personal laws, for very young children, the mother is preferred to be the custodian, but the father always remains the natural guardian.
19 § 4(2), GWA.