Report No. 133
2.4. Qualifications to provision regarding natural guardians.-
It would be seen that although section 6(a) of the Hindu Minority and Guardianship Act, 1956 declares1 that in the case of a boy or an unmarried girl, the natural guardians of Hindu minor are-the father, and after him, the mother, that proposition is subject to two qualifications, as enumerated below:-
(i) the proviso to section 6 lays down that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother;
(ii) secondly, section 13(1) lays down that in the appointment or declaration of any person as guardian of Hindu minor by a court, the welfare of the minor shall be the paramount consideration. By sub-section (2) of the same section, it is provided, inter alia, that no person is entitled to guardianship by virtue of provisions of this Act, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.
It is thus fairly clear that if the case comes before the court, the court must look to the welfare of the minor and not merely to the legal provisions relating to guardianship. In this sense, section 6 is subject to section 13. The extent to which the correct legal position has been appreciated by the courts, particularly the trial courts, is a matter to be examined later in this Report.
1. Para. 2.2, supra.