Child Custody: Hindu Minority & Guardianship Act

• Child Custody Under Hindu Minority And Guardianship Act, 1956

  Under the Hindu Minority And Guardianship Act, 1956, the Court can pass necessary orders concerning the custody of any child or children of the parties before it. To comprehend the issue in hand, it will be in the fitness of the things that we know who the Guardian is, natural or otherwise.

  Who is Natural Guardians 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 are-

  1. 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

  2. in the case of an illegitimate boy or an illegitimate unmarried girl- the mother, and after her, the father;

  3. in the case of a married girl- the husband:

  The expression "father" and "mother" do not include step-father and a step-mother

  The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.

  Powers of natural guardian

  The natural guardian of a Hindu minor has power to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor''s estate; but the guardian can in no case bind the minor by a personal covenant.

  The natural guardian shall not, without the previous permission of the court-

  1. mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or

  2. lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

  Any disposal of immovable property by a natural guardian, in contravention of law, is voidable at the instance of the minor or any person claiming under him. No court shall grant permission to the natural guardian to do any of the acts except in case of necessity or for an evident advantage to the minor. The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court. An appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the to the court to which appeals ordinarily lie from the decisions of that court. The "court" means the City Civil Court or a District Court.

  Testamentary guardians and their powers

  A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property or in respect of both. Similarly, a Hindu mother is also entitled to appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property or in respect of both.

  The guardian so appointed by will has the right to act as minor's guardian after the death of the minor's father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will. The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.

  Welfare of minor to be of paramount consideration:

  In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

  No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

  Where The Child Custody Petitions Could be filed

  The Custody Petitions Could be filed before:

  1. Metropolitan Magistrate;

  2. District Judge/ Additional District Judge (ADJ)

  3. Family Court

  Related Links

  • Bare Act

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