Hindu Minority and Guardianship Act, 1956

Under the Guardians and Wards Act , the court has the authority to make orders regarding custody, access, education, and maintenance of a minor. Such orders can be made in favor of either parent. If a third party seeks such orders in their favor, they must rely on the provisions of the Children Act, 1975 .

Indian statutory law has not yet progressed beyond the framework established by the Guardianship of Infants Act, 1886 . However, through judicial interpretation, Indian courts have brought the law closer to modern English legal principles.

Welfare of Minors as Paramount Consideration:
The Guardians and Wards Act was enacted four years after the English statute, the Guardianship of Infants Act, 1886.

At that time, English courts were debating between two conflicting principles:

1. The paternal right being supreme and inviolable except in cases of gross misconduct.
2. The welfare of the child being the paramount consideration.

This conflict influenced Indian law, and the Guardians and Wards Act provided statutory recognition of these competing principles.

Section 19 of the Act reflects the principle of paternal supremacy. It states that the court cannot appoint or declare any person as the guardian of a minor whose father is alive unless the court finds the father unfit to serve as a guardian. Similarly, a husband, being the natural guardian of his minor wife, cannot be replaced by a court-appointed guardian unless deemed unfit.

Section 25 provides that only a guardian may apply for custody of a minor. It further stipulates that in deciding custody matters, the court must prioritize the welfare of the minor. Additionally, Sections 7 and 17 require that, in appointing or declaring a guardian, the court must consider the welfare of the child along with other factors.

The plain reading of Section 19 implies that unless the father is found unfit, no other individual can be appointed as a guardian. When Sections 19 and 25 are read together, it becomes clear that guardianship and custody are closely linked, and only a guardian may apply for custody. In this context, the welfare of the child often becomes secondary. The Act does not explicitly state that the welfare of the child is the paramount consideration.

These statutory provisions have naturally led to divergent judicial opinions and confusion in legal reasoning. Indian judges have oscillated between strictly adhering to the letter of the law and embracing the principle of child welfare as paramount, a principle drawn from English law. Over time, courts have increasingly inclined toward prioritizing the welfare of the child as the paramount consideration.

Key Provisions and Observations:

1. Under Section 9(1), only the father or mother can apply for custody-related orders.
2. Section 37 outlines the duties of guardians appointed by the court.
3. English legal authorities continue to play a significant role in shaping arguments and judgments in Indian courts, with counsel frequently citing, and judges relying on, English precedents.

Written By: S Kundu & Associates
Email: [email protected], Ph No: +9051244073