guardianship

A guardian may be natural (by law), testamentary (appointed by will), appointed by the court under the Guardians and Wards Act, 1890, or de facto. Under s.6 of the Hindu Minority and Guardianship Act, 1956, the natural guardian of a Hindu boy or unmarried girl is the father, and after him the mother, but custody of a child under five is ordinarily with the mother. In Githa Hariharan (1999) the Supreme Court read “after” as “in the absence of”, so the mother can act as natural guardian while the father is alive but absent or indifferent.

In all cases the welfare of the minor is the paramount consideration (s.13 HMGA; s.17 GWA). Under Muslim law the father is guardian of the minor's property, while the mother has custody of young children (hizanat). Guardianship (control over person and property) is wider than custody (physical care).

Example

Relying on Githa Hariharan, the mother applied for the child's passport as natural guardian although the father was alive.

In Indian law

• Sections 6 and 13, Hindu Minority and Guardianship Act, 1956
• Section 17, Guardians and Wards Act, 1890
• Githa Hariharan v. Reserve Bank of India, 1999 INSC 66

See also

custody · hizanat · minor · parens patriae

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