India is home to more than a billion people following several, but majorly four different religions. All these religions have their respective set of rules and duties mentioned In their religious books and which to a certain extent have also been codified as ‘Personal laws’ by the legislature and recognized by the constitution of India. In this article, I have tried to explain one such duty which is common to every personal law known as ‘Guardianship’. Through this article, I have also tried to explain the related concepts like who is a minor, who is a guardian, what does guardianship means, appointment, removal of guardians, etc.
The relationship between a guardian and a child is also governed by several other secular laws like the Guardians and Wards Act, 1890[i], Special Marriage Act, 1954[ii], Indian Divorce Act, 1869[iii], and others that apply equally to all irrespective of the religion of the child, but our focus here would be on guardianship based on different personal laws in India. Though at times I have stepped into the domain of other closely related issues like custody, maintenance, etc just to explain the topic in detail.
Who is a Minor
Under the Indian Majority Act, 1875 a person who is below 18 years of age is considered a minor. Under the Hindu Minority and Guardianship Act, 1956[iv] a minor means a person who is below the age of 18 years of age, a person who is physically and intellectually immature and needs someone’s protection. Under the Guardians and Wards Act, 1890 A minor is defined as a person who, under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his majority.
Who is a Guardian
The Cambridge Dictionary defines Guardian[v] as a person who has the legal right and responsibility of taking care of someone who cannot take care of himself or herself and it defines Guardianship[vi] as ‘the state or duty of being a guardian’. In the general sense, a guardian is a person who has to look after another person or his property.
The Guardians and Wards Act, 1890 under Section 4(2) defines a guardian as a person having the care of the person of a minor or of his property or both of his person and property. That is to say that a guardian is a person who has the primary duty to take care of a child’s health, education, and other needs. He is primarily entrusted with the right to make all decisions for the child.
Difference between Custody and Guardianship
The term “custody” is nowhere defined in any personal or secular law. Guardianship and Custody are two sides of the same coin which are used interchangeably and are generally presumed to be one but, in a legal sense, they both are different still interrelated concepts in the domain of parental obligations and authority over the child. Guardianship is a much wider concept and relates to legal rights and control over the person and property of a minor for longer-term whereas, custody is a much narrower concept and refers to physical possession of the child for a shorter period and is only related to upbringing and day to day care of the child.
In Rosy Jacob v Jacob A Chakramakkal (1973)[vii] the supreme court has explained the difference between custody and guardianship. It was held that guardianship is a more comprehensive and valuable right than a custodian’s right of mere custody. Guardianship and the position of a guardian were described as being more akin to trusteeship and also more onerous than that of a mere custodian.
Guardianship under various personal laws
There are several kinds of guardianship under various personal laws. But both Hindu and Muslim Personal laws give primacy to a father compared to a mother in cases of guardianship of children.
- Guardianship under Muslim law
In India guardianship among Muslims is governed by The Muslim Personal Law (Shariat) Application Act, 1937 (except in the State of Goa) as well as by The Guardians and Wards Act, 1890.
Under Muslim personal law, the concept of guardianship is known as Waliyah[viii]. Under Muslim Law, there are three types of guardians namely guardian of the person (Walayat-e-Nafs), guardian of property (Walayat-e-Mal), and guardian of marriage (Walayat-e-Nikah). Here a mother is not entitled to act as a guardian for any of those purposes rather only a father and in his absence, his male relatives can only act as guardian. There is a great disparity under Muslim law between the position of a father and a mother in becoming a legal guardian.
Muslim law recognizes the following four kinds of guardianship – A natural or legal guardian, A testamentary guardian, A Guardian appointed by courts or statutory guardian, and A De-facto guardian.
(a) Natural guardianship in Muslims – Under Muslim law, a mother only has a right to custody compared to a father in whom the natural guardianship right ordinarily resides. The mother having custody is called ‘Hazina’. According to the Hanafi law, a mother’s custody concerning a girl child terminates on the child attaining puberty and concerning a male child on the child attaining seven years of age. After the mother loses her right this right to custody goes to the father. Whereas, under Shia law, the mother has the right to custody till the female child reaches seven years of age and in the case of a male child till the child completes two years of age. A divorced woman under Muslim personal law who has not yet remarried can still have custody of her child.
(b) Testamentary guardianship in Muslims – Among Sunnis, the father and after him the grandfather have absolute power of making a testamentary appointment of a guardian. While in Shias, the father can only appoint a testamentary guardian if the grandfather is not alive and the grandfather has the power of appointing a testamentary guardian if the father is not alive. Nobody else after them has this power. A mother in both Shias and Sunnis has no power of appointing a testamentary guardian.
But, in two cases the mother can appoint a testamentary guardian of her own property for her minor children. Firstly, if she was appointed as a general executrix by the will of the child’s father, then in such case she is authorized to appoint an executor by her will; and Secondly, she can also appoint an executor in respect of her own property for it to devolve on her children after her death.
(c) Guardian appointed by the court – In absence of a natural and testamentary guardian, the court is authorized to appoint a guardian under The Guardians and Wards Act 1890.
(d) De-facto Guardianship – A De-facto Guardian is a person who is neither a natural guardian nor a testamentary one, but under circumstances has himself voluntarily assumed to be one to take care of the child as any other guardian.
- Guardianship under Hindu law
Under Hindu personal law, guardians can be of 3 types natural, testamentary, and court-appointed guardian. De-facto guardianship is the same here as discussed above. Guardianship by affinity is where a husband’s nearest relatives become guardians of her window as per the Guardians and Wards Act, 1890. A De-facto guardian and a guardian appointed by affinity can never take decisions concerning the property of a minor child.
(a) Natural guardianship under Hindus – The father here gets the first right to have guardianship under Hindu personal laws. After him, the mother has the right to guardianship.
(b) Testamentary guardianship under Hindus – Before 1956 only the father had the right to appoint a guardian under his will. After the 1956 act was introduced, now the mother begets the right to guardianship after the father and the father can no longer deprive her of this right by making a will. Now if the mother gets the guardianship and in case she dies then the guardianship will go to the person appointed by her and would supersede the father’s will thereby making the father’s will ineffective.
Section 7 of the Hindu Minority and Guardianship Act, 1956, provides that natural guardianship of the adopted minor son passes to the adoptive father and after him to the adoptive mother.
- Guardianship under Christians and Parsis
Guardianship in the case of Christians is governed by The Indian Divorce Act, 1869, and The Guardians and Wards Act, 1890. Guardianship in Parsis is governed by The Parsi Marriage and Divorce Act, 1936, and The Guardians and Wards Act, 1890. In both Christians and Parsis only the court has the authority to decide on the issue of guardianship.
Removal of a guardian under various personal laws
The Guardians and Wards Act, 1890 under Section 39 makes a provision for the removal of guardians on conditions. Personal laws also have certain conditions where guardians can be removed through the process of law. People who can be removed from guardianship are those who are of bad moral character, of unsound mind, who have no sufficient means to take care of the child, etc. But the list is not exhaustive as courts upon sufficient reasons can remove a guardian.
Supreme court over the years on guardianship
Generally, under personal laws, a father is considered the natural guardian of a child, and only in the absence of the father in the case of Hindus and testament action by the father in Muslims, a mother becomes the natural guardian. While in the case of illegitimate sons and daughters the mother has the primary right to get custody. In the case of a minor married girl, the husband becomes her natural guardian.
All this gender bias was based on the old patriarchal ideology that women at every stage of their lives are dependent on men and can’t take proper care of themselves or their children. With societal advancement and women becoming self-dependent the apex court has also re-molded this ideology through various landmark judgments and has made it quite clear that for deciding custody for guardianship the best interest of the child should be considered an important deciding factor. Hence, through various judgments, the preferential right of custody after a child’s initial years have passed and the absolute right of guardianship available to men has faded and the principle of equality has been established and has also brought mother on equal footing as that of a father.
Over the years several other high courts have also held that father’s right under section 6 of the Hindu Minority and Guardianship Act, 1956 must be read harmoniously with Section 13 of the same Act[ix] and Section 19 and 25 of the Guardians and Wards Act, 1890 should be read harmoniously with section 7 of the same Act[x] to protect the best interest and welfare of the child. Below is the chronological list of judgments which has brought in the much necessary change.
In Jijabai Vithalarao Gajre v. Pathankhan (1970)[xi] the legality of guardianship of mother for the first time came before the Supreme court in which the court observed that “It is no doubt true that the father was alive but was not taking any interest in care and protection of the minor for a very long time and in such circumstances, a mother could be considered the natural guardian.
In Rosy Jacob v. Jacob Charamakkal (1973) the Supreme Court held that the word “welfare” under The Guardians and Wards Act has the widest amplitude. It covers the material as well as the education, health, moral welfare, physical and mental wellbeing of the child. In deciding the welfare of the minor due regard has to be given to the first right of the father as natural guardian but if such custody cannot promote the welfare of the child he may not get guardianship.
This was the first instance where the apex court has tried to correct the balance of the right to guardianship to protect the welfare and best interest of the child.
In Surinder Kaur Sandhu v. Harbax Singh Sandhu (1984)[xii] held Section 6 of the Hindu Minority and Guardianship Act, 1956 can never supersede the paramount consideration of the welfare of the minor.
In Vandana Shiva v. Bandhopadhyaya (1992)[xiii] the constitutional validity of Section 6 (a) of Hindu Minority and Guardianship Act, 1956 and Section 19(b) of Guardians and Wards Act, 1986 was challenged on being violative of Articles 14 and 15 of the Constitution as it gives a secondary position to the mother. The court gave a restrictive interpretation to the word ‘after’ father and held that ‘after’ here does not mean after the lifetime of the father rather it means in the absence of the father and thus prevented itself from deciding the provision as unconstitutional.
In Gulamhussain Kutubuddin Maner v. Abdulrashid Abdulrajak Maner (2000)[xiv] the Supreme Court observed that the mother cannot be the guardian of the minor to accept a gift on his behalf during the lifetime of the father.
In Moitra Ganguli v. Jayant Ganguli (2008)[xv] the Supreme court has held that parents’ love for the child and their better financial resources may be one of the relevant considerations and determining factors for deciding who gets custody of the child. But that can’t be the sole criteria of deciding custody. In this case, the court agreed to give the custody of the child to the mother but upon seeing the reluctance by the child the court decided otherwise.
In Nil Ratan Kundu v. Abhijit Kundu (2008)[xvi] it was held that A court is not bound by statutes, by strict rules of evidence or procedure, or by precedents while dealing with custody issues. The court has to balance between a child’s ordinary comfort, contentment, health, education, intellectual development, moral and ethical values, favorable surroundings, and a minor’s intelligent preference or judgment.
In Ruchi Majoo v. Sanjeev Majoo (2011)[xvii] it was held that the minor should not be insulated from the influence and parental touch of either of parent even when an interim order is made in favor of any of them as it is so very important for the healthy growth and development of the personality of the minor.
In Vivek Singh v. Romani Singh (2017)[xviii] the twin objectives behind the “welfare principle” were explained. It was held that firstly that the child should grow and develop in the best environment for the protection of his individual dignity and secondly because it is in the interest of public welfare as children are the future of this nation.
In J. Selvan v. N. Punidha (2007)[xix] several considerations common to all child custody disputes were listed out like continuity and quality of attachments, preference, parental alienation, special needs of children, education, gender issues, sibling relationships, parents’ physical and mental health, parents’ work schedules, parents’ finances, styles of parenting and discipline, conflict resolution, social support systems, cultural and ethnic issues, ethics and values and religion.
In Vikram Vohra v. Shalini Bhalla (2010)[xx] the court established the visitation rights of non-custodial parents. It enables the parent who is not having custody of the child but desires to meet the child.
In ABC v. State NCT of Delhi (2015)[xxi] it was held that orders related to guardianship or custody never attain permanence or finality and can at any time be re-questioned by any person who is concerned for the minor child. It was also held that where a parent remains irresponsible and uninterested in the care and protection of a child then in such a case either of the parents has a right to approach the court and be declared as the sole and only guardian of the child.
In Lahari Sakhamuri v. Sobhan Kodali (2019)[xxii] several other factors that have to be kept in mind by the courts while deciding the issue were mentioned such as maturity and judgment, mental stability, ability to provide access to schools; moral character; ability to provide continuing involvement in the community; financial sufficiency and kind of relationship with the child.
In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019)[xxiii] it was held that in cases of custody of the child, where it is proved that the detention of a minor child by a parent or others is illegal a writ of habeas corpus is maintainable for restoration of custody.
Uniformity of opinion on the issue
The laws on guardianship in India are evolving and over the years the courts, as well as the legislature, have adopted the uniform rule of securing the best interest of the child and equal and joint custody by the parents. The law commission also in its 133 rd report in 1989 had suggested bringing mothers equally at par when it comes to deciding guardianship. Accordingly, section 19 (b) of The Guardians and Wards Act was amended but no corresponding amendments were made in section 6(a) of The Hindu Minority and Guardian Act, 1956
The commission in its 257th report has suggested amendments to be made to existing laws to emphasize ‘welfare of the child’ and ‘joint custody as an option where the question of custody and guardianship has to be decided.
A cursory perusal of the complex laws on guardianship and custody makes it very clear that children are the biggest sufferers when issues related to guardianship, maintenance, custody, and other allied issues are taken to the court for settlement. Due to the separation of parents, the child often suffers psychologically from Parental Alienation Syndrome which leaves some seriously detrimental effects on the child.
However, recent judicial decisions are reversing this scenario as courts have time and again made it very clear that children are the future of this country and they deserve the best care and protection in a good environment so that he or they can excel and achieve the best in their life. Later with the combined efforts of courts, the law commission as well as the legislature the need to reach a position where the child’s interest can be secured has been in the positive direction. The rule on the appointment of guardians now has shifted from giving preference to the father to protecting
equal rights of guardianship of a mother and securing the best interest and welfare of the child.
From the foregoing discussion, it is evident that the status of women on the point of the right to have guardianship still needs much work to be done. Thus it can be said that much has been done to tackle the problems, however much is still left to be done but now we are headed in a positive direction.
[ix] (1985) 1 HLR 690 (Bom)
[x] AIR 1961 Punj 51.
Written by Naman Practising Advocate at Patna High Court and student at Gujarat National Law University.