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Report No. 257

(ii) Hindu Minority and Guardianship Act, 1956

2.2.6 Classical Hindu law did not contain principles dealing with guardianship and custody of children. In the Joint Hindu Family, the Karta was responsible for the overall control of all dependents and management of their property, and therefore specific legal rules dealing with guardianship and custody were not thought to be necessary.32 However, in modern statutory Hindu law, the Hindu Minority and Guardianship Act, 1956 (hereinafter, HMGA) provides that the father is the natural guardian of a minor, and after him, it is the mother. Section 6(a) of the HMGA provides that:

(1) in case of a minor boy or unmarried minor girl, the natural guardian is the father, and 'after' him, the mother; and

(2) the custody of a minor who has not completed the age of five years shall 'ordinarily' be with the mother (emphasis added).

32 Paras Diwan, Law of Adoption, Minority, Guardianship & Custody (2012), Universal Law Publishing Co.: New Delhi, P. xv.

2.2.7 In Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228 the constitutional validity of Section 6(a) was challenged as violating the guarantee of equality of sexes under Article 14 of the Constitution of India. The Supreme Court considered the import of the word 'after' and examined whether, as per the scheme of the statute, the mother was disentitled from being a natural guardian during the lifetime of the father.

The Court observed that the term 'after' must be interpreted in light of the principle that the welfare of the minor is the paramount consideration and the constitutional mandate of equality between men and women. The Court held the term 'after' in Section 6(a) should not be interpreted to mean 'after the lifetime of the father,' but rather that it should be taken to mean 'in the absence of the father.' The Court further specified that 'absence' could be understood as :

temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise. Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228, ¶ 25.

2.2.8 Therefore, in the above specific situations, the mother could be the natural guardian even during the lifetime of the father.

2.2.9 Section 13 of the HMGA declares that, in deciding the guardianship of a Hindu minor, the welfare of the minor shall be the 'paramount consideration' and that no person can be appointed as guardian of a Hindu minor if the court is of the opinion that it will not be for the 'welfare' of the minor.35

35 Hindu Minority and Guardianship Act, No. 32 of 1956, § 13.

2.2.10 The following can be concluded with respect to guardianship under the HMGA. First, the father continues to have a preferential position when it comes to natural guardianship and the mother becomes a natural guardian only in exceptional circumstances, as the Supreme Court explained in Gita Hariharan.

Thus, even if a mother has custody of the minor since birth and has been exclusively responsible for the care of the minor, the father can, at any time, claim custody on the basis of his superior guardianship rights. Gita Hariharan, therefore, does not adequately address the original problem in Section 6(a) of the HMGA. Second, all statutory guardianship arrangements are ultimately subject to the principle contained in Section 13, that the welfare of the minor is the 'paramount consideration.' In response to the stronger guardianship rights of the father, this is the only provision that a mother may use to argue for custody/guardianship in case of a dispute.

2.2.11 The point of difference between the GWA and the HMGA lies in the emphasis placed on the welfare principle. Under the GWA, parental authority supersedes the welfare principle, while under the HMGA, the welfare principle is of paramount consideration in determining guardianship. Thus, for deciding questions of guardianship for Hindu children, their welfare is of paramount interest, which will override parental authority. But for non-Hindu children, the court's authority to intervene in furtherance of the welfare principle is subordinated to that of the father, as the natural guardian.36

36 Guardian and Wards Act, No. 8 of 1890, § 17(1) ("In appointing or declaring the guardian of a minor, the court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.") (emphasis added).

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