Child Custody & Guardianship

Child Custody & Guardianship
Prepared by
H. S. Mulia
Child custody is a term used in family law courts to
define legal guardianship of a child under the age of 18.
During divorce or marriage annulment proceedings, the
issue of child custody often becomes a matter for the
court to determine. In most cases, both parents continue
to share legal child custody but one parent gains physical
child custody. Family law courts generally base decisions
on the best interests of the child or children, not always
on the best arguments of each parent.

The Dharmashastras did not deal with the law of
guardianship. During the British regime the law of
guardianship was developed by the courts. It came to be
established that the father is the natural guardian of the
children and after his death, mother is the natural
guardian of the children and none else can be the natural
guardian of minor children.

Child custody is being awarded to the parent keeping in
view the best interest of the child.
For the sake of brevity, this document is formed into four
chapters.
Chapter -1 (child custody and Guardianship in Hindu law)
Chapter -2 (child custody and Guardianship in Muslim
Law)
Chapter -3 (child custody and guardianship in Christian)
Chapter -4 (child custody and guardianship in Parsi)

Chapter - 1 (Child Custody and
Guardianship in Hindu law)
The Hindu law of guardianship has been codified
and reformed by the Hindu Minority and Guardianship
Act,1956. With the help of the provisions of the act, it will
be convenient to discuss the subject matter under
suitable sub-headings.
1. Guardianship of person of minors
2. Guardianship of the property of minors.
3. De-facto guardians.
4. Guardians by affinity (guardian of a minor widow – Pre

1.1 Guardianship of person of minors
Under the Hindu Minority and Guardianship Act,
1956, minor means a person who has not completed
the age of eighteen years. A minor is considered to
be a person who is physically and intellectually
imperfect and immature and hence need someone’s
protection.

Guardians may be of the following
3 types:1. Natural guardians
2. Testamentary guardians
3. Guardians appointed or declared by the court.
Other than the types mentioned, the two other
types of guardians, existing under Hindu Law are
de-facto guardians and guardians by affinity.

Natural guardians are of three
typesA - Father- a father is the natural guardian of his minor legitimate children,
sons and daughters. A father cannot be deprived of the natural guardianship
of his minor children unless he has been found unfit. The position of adopted
children is at par with that of born children. In case the father is incapable,
or fails or refuses to perform the functions the mother can be the guardian.
B - Mother – the mother is the guardian of the minor illegitimate children
even if the father is alive. Mother’s right to guardianship stays even if she
has converted her religion. The position also remains the same even if the
child is an adopted child and not a natural born child.
C - Husband is the guardian of his minor wife.

1.2 Guardianship Of Minors
Property
The natural guardian of the person of a child is also the
guardian of the property of the concerned child. But a
natural guardian is not the guardian of the minor’s
undivided interest in the joint family property. Neither the
natural guardian nor the court can appoint a guardian of
the minor’s undivided interest in the joint property.

The father can appoint a testamentary
guardian on his own will. If the father does
not appoint , the mother’s appointee will
resume the responsibility of the guardian.
Guardians appointed by the court are the
guardians appointed by the virtue of the
courts empowerment. Under the Guardians
and Wards Act,1980, the jurisdiction is
conferred on the district court. The district
court on its own discretion appoints any
person whenever it thinks it to be better for
the welfare of the child.

1.3 De-Facto Guardian
A de-facto guardian is a person who takes continuous interest in
the welfare of the minor’s person or in the management and
administration of his property without any authority of law.
Hindu jurisprudence has all along recognized the principle that if
liability is incurred by one on behalf of another in a case where it
is justified, then the person, on whose behalf the liability is
incurred or, at least, his property, is liable, notwithstanding the
fact that no authorization was made for incurring the liability.

1.4 Guardianship by affinity
In pre-1956 Hindu law there existed a guardian called
guardian by affinity. The guardian by affinity is the guardian of a
minor widow. Mayne said that "the husband's relation, if there
exists any, within the degree of sapinda, are the guardians of a
minor widow in preference to her father and his relations. 'The
judicial. pronouncements have also been to the same effect. The
guardianship by affinity was taken to its logical end by the High
Court in Paras Ram v. State In this case the father-in-law of a
minor widow forcibly took away the widow from her mother's
house and married her for money to an unsuitable person against
her wishes. The question before the court was whether the father-
in-law was guilty of removing the girl forcibly. The Allahabad High
Court held that he was not, since he was the lawful guardian of the
widow.
But as per the provisions contained under the Prohibition of
Child Marriage Act, above referred provision may not be apply in

Chapter - 2
(Child custody and Guardianship in
Muslim Law)
As per my consideration, Muslim law is
of utmost importance when it comes to
gauging the actual representation of women
when asking for the custody and
guardianship of children. As for that matter
the chapter has been further divided into
suitable sub-headings.

Nature
The term guardianship connotes
guardianship of a minor i.e. a person who
has not attained puberty.[13] Puberty is
assumed to have been attained at age 15
years in general. However, as far as
guardianship is concerned, a Muslim will be
governed by the Indian Majority Act of 1875
which provides that the age of majority is 18
years and 21 years if the minor has been
appointed a guardian by the court. A
guardian will be appointed by the court
under the Guardian and Wards Act of 1890
for the welfare of the minor.

Kinds Of Guardianship
Muslim law recognizes three types of guardianship
(i) guardianship in marriage (Jabar)
(ii) guardianship of persons of the minor for custody (Hizanat);
(iii) guardianship of property which is divided into three sub
groups:
a. de jure guardianship;
b. de facto guardianship;
c. Certified guardianship.

Guardianship of the Person of the Minor for
Custody
Under Sunni Law the mother is entitled to the custody of a male child up to 7
years and a female child till she attains puberty. Under Shia law she has custody of male
child till the age of 2 years and female child till the age of 7 years; She is the de facto
guardian; Under Sunni law failing the mother the custody of a boy up to 7 year and girl
up to puberty goes to the following female relatives in order:-
(i) Mother’s mother how highsoever;
(ii) Father’s mother how highsoever;
(iii) Full sister;
(iv) Uterine sister;
(v) Consanguine sister;
(vi) Full sister’s daughter
(vii) Uterine sister’s daughter;
(viii) Consanguine sister’s daughter;
(ix) Maternal aunt in like order as sisters;
(x) Paternal aunt in like order as sisters.

In default of mother and female relatives, the custody
goes to the following:
(i) Father;
(ii) Paternal grandfather (nearest)
(iii) Full brother;
(iv) Consanguine brother;
(v) Full brother’s son
(vi) Consanguine brother’s son;
(vii) Full brother of the father;
(viii) Consanguine brother of the father;
(ix) Son of father’s full brother;
(x) Son of father’s consanguine brother

Under Shia law the custody goes to the
mother, failing her to the father and failing him to
the father’s father.
Under Sunni law the father is entitled to
custody of the boy over 7 and an unmarried girl
who has attained puberty and in Shia law to the
custody of a male child over two year and
unmarried girl of 7 years. The custody of an
illegitimate child goes to the mother.

Rights Of Hizanat
In the case of Imambandi v.Mustadi[17] the
property in the suit belonged to Ismail Ali Khan
(Sunni). It was alleged by the plaintiff that on his
death he left three widows one of whom, Zohra,
acting on behalf of herself and her two minor children
purchased the share in the suit for the possession of
which they brought action. The reliefs sought were
(i) Declaration of the title and status of plaintiff’s
vendors;
(ii) A decree for possession of shares covered by the
sale deed;

The defendants contended that Zohra was not a
married wife and that the children were not legitimate and
that the shares did not pass under the sale. The Privy
Council held that Zohar and her children were entitled to
the shares. The important question was whether the
plaintiffs acquired any title to the infant’s share under the
sale by the mother. The defendants contended that the
mother had no power to convey her children’s interest to
the plaintiffs. It was held that although the mother is
entitled to the custody of the person of the minor, she is
not the natural guardian and the father alone or if he is
dead his executor (under Sunni Law) is the legal guardian.
The mother has not power to deal with the minor child’s
property. She may incur responsibilities but can impose no
obligation on the infant. This rule is subject to certain
exceptions provided for the protection of a minor child if
there is no de jure guardian i.e. the court may appoint the
mother as a guardian of the property. It was further held
that if the mother pledges (mortgages) the properties of
the minor child it is unlawful unless she is the executrix (of
the father) or is authorized by the guardian of the minor or

Termination Of Hizanat
Disqualification of the Hizanat can be
categorized into 5 heads:-
General disqualifications – a minor cannot act as a
guardian of any minor other than his own wife or
child, a non Muslim parent etc.

(i) Disqualification effecting females – the mother or
female’s relatives can be disqualified on the following
counts-
a. She leads an immoral life –
i. Adultery ;
ii. Becomes a prostitute;
iii. Has committed criminal offence;
iv. Is a professional singer or mourner
b. She neglects the child;
c. She marries a person not related to the child within
prohibited degrees (Rahima Khatoon v. Saburjanesa);
d. During subsistence of marriage she goes and resides
at a place at a distance from the father’s place;

(ii) Disqualification affecting males - No male relative,
outside of prohibited degrees, is allowed to have custody
of an unmarried girl.
(iii) Disqualification affecting parents –
§ Mother gives up custody of boys after 7 and girls
after puberty (Sunni Law) and boys after 2 and girls after
7 (Shia law). The mother does not lose her right to
custody by divorcing the father.

§ The father is a natural guardian but will be disqualified
by the court for –
o Cruelty to wife or children;
o Felony;
o Adultery (though not if the woman is not brought into
contact with the child);
o If he is unfit in character and conduct;
o If he is unfit as regards external circumstances;
o If he waives his right of custody;
o If he enters into agreement to the contrary
o If he goes out of the jurisdiction of the court or if intends to
go abroad;
(iv) Disqualification affecting husband – husband is not
entitled to custody of minor wife unless she attains puberty
or such age that would permit consummation of marriage. In
this circumstance, the mother is the guardian. However,
minority of the husband does not deprive him of his right to
guardianship.

Chapter - 3 (Child custody and Guardianship in
Christian Law)
Christian law per se does not have any provision for
custody but the issues are well solved by the Indian
Divorce Act which is applicable to all of the religions of
the country. The Indian Divorce Act, 1869 contains
provisions relating to custody of children. Section 41 of
the said Act provides with the powers to make orders as
to custody of children in suit for separation. -In any suit
for obtaining a judicial separation the Court may from
time to time, before making its decree, make such
interim orders, and may make such provision in the
decree, as it deems proper with respect to the custody,
maintenance and education of the minor children, the
marriage of whose parents is the subject of such suit, and
may, if it think fit, direct proceedings to be taken for

In the case of 'Rosy Jacob v. Jacob A. Chakramakkal' the
Court held that:
All orders relating to the custody of the minor wards from
their very nature must be considered to be temporary orders
made in the existing circumstances. With the changed
conditions and circumstances, including the passage of time,
the Court is entitled to vary such orders if such variation is
considered to be in the interest of the welfare of the wards. It
is unnecessary to refer to some of the decided cases relating
to estoppel based on consent decrees, cited at the bar.
Orders relating to custody of wards even when based on
consent are liable to be varied by the Court, if the welfare of
the wards demands variation. ‘The Court, after a decree of
judicial separation, may upon application (by petition) for this
purpose make, from time to time, all such orders and
provision, with respect to the custody, maintenance and
education of the minor children, the marriage of whose
parents is the subject of the decree, or for placing such
children under the protection of the said Court, as might have

In any suit for obtaining a dissolution of marriage or
a decree of nullity of marriage instituted in, or removed
to, a High Court, the Court may from time to time, before
making its decree absolute or its decree (as the case may
be), make such interim orders, and may make such
provision in the decree absolute or decree and in any
such suit instituted in a District Court, the Court may
from time to time, before its decree is confirmed, make
such interim orders, and may make such provision on
such confirmation, as the High Court or District Court (as
the case may be) deems proper with respect to the
custody, maintenance and education of the minor
children, the marriage of whose parents is the subject of
the suit, and may, if it thinks fit, direct proceedings to be
taken for placing such children under the protection of
the Court.'

In Halsbury's Laws of England, the Law is succinctly in the
following terms:-
Infant's welfare paramount. In any proceedings before any
Court, concerning the custody or upbringing of an infant or
the administration of any property belonging to or held on
trust for an infant or the application of the income thereof,
the Court must regard the welfare of the infant as the first
and paramount consideration, and must not take into
consideration, whether from any other point of view, the
claim of the father, or any right at common law possessed by
the father in respect of such custody, upbringing
administration or application is superior to that of the mother,
or the claim of the mother is superior to that of the father.
This provision applies whether both parents are living or
either or both is or are dead.
Even where the infant is a foreign national, the Court,
while giving weight to the views of the foreign Court, is bound
to treat the welfare of the infant as being of the first and
paramount consideration whatever orders may have been

In the case of 'Rosy Jacob v. Jacob A. Chakrammakkal', this
Court has observed:
"Where, however, family dissolution due to some unavoidable
circumstances becomes necessary the Court has to come to a
judicial decision on the question of the welfare of the children on a
full consideration of all the relevant circumstances. Merely because
the father loves his children and is not shown to be otherwise
undesirable cannot necessarily lead to the conclusion that the
welfare of the children would be better promoted by granting their
custody to him as against the wife who may also be equally
affectionate towards her children and otherwise equally free from
blemish, and who in addition because of her profession and
financial resources, may be in a position to guarantee better
health, education and maintenance for them. The children are not
mere chattels; nor are they mere playthings for their parents.
Absolute right of parents over the destinies and the lives of their
children has, in the modern changed social conditions, yielded to
the considerations of their welfare as human beings so that they
may grow up in a normal balanced manner to be useful members
of the society and the guardian Court in case of a dispute between
the mother and the father, is expected to strike a just and proper
balance between the requirements of welfare of the minor children
and the rights of their respective parents, over them.

Chapter - 4 (Child custody and Guardianship in Parsi Law)
The issue of custody is dealt with by the Guardians
and Wards Act of 1890, under which it is a well-
established principle that the welfare of the child is
paramount - i.e., the most important thing considered by
the Guardian Court when deciding custody.
No matter what customs or personal law rules the
parents' community or sect follows regarding custody,
any parent who wants custody and does not presently
have custody has to seek custody from the Guardian
Court. In other words, there is never any automatic
transfer of a child's custody to a particular parent.

Factors Considered by the Courts when Granting Custody
# The welfare of the minor is very broadly defined and includes
many diverse factors, notably:
# the age, sex and religion of the minor: courts take into
account the personal law of the father). The welfare of younger
children is generally regarded as being in the mother's custody;
# the character and capacity of the proposed guardian: courts
usually reject baseless allegations against mothers;
# the wishes, if any, of a deceased parent, for example specified
in a will;
# any existing or previous relations of the proposed guardian
with the minor's property: courts do not look kindly on guardians
seeking custody just in order to have control over the minor's
property. But if, for example, the minor's property is shared with
the mother and she is otherwise a suitable guardian, the court
will regard the property relationship as an additional factor in

# the minor's preference if she/he is old enough to form an
intelligent preference, usually accepted as about 9 years old.
# whether siblings would be divided: courts prefer to keep
children united and award custody of both to either the
mother OR the father.
# whether either/both parents have remarried and there are
step-children: Although the mother's remarriage to someone
who is not the children's close blood-relative often means the
court will not grant her custody, this rule is not strictly
followed. Although the father's remarriage usually denies him
custody, sometimes the courts agree to grant him custody
especially when the children's step-mother cannot or will not
have her own children.
# whether the parents live far apart: courts sometimes do not
give the mother custody because she lives very far away
from the father who is the ‘natural' guardian. But in 1994 an
Uzbek woman living in Uzbekistan was given custody; the
judge said modern transport had shortened distances and
meant that the father could depart from his home in the

# the child's comfort, health, material, intellectual, moral
and spiritual welfare: this very broad category includes
the adequate and undisturbed education of the child.'
However, the mere fact that the mother is
economically less secure than the father, or that she
suffers from ill-health or a disability is not usually reason
enough to deny her custody because maintenance is the
father's responsibility irrespective of who holds custody.
The mental and psychological development of the minor
should not be upset by a reversal of the existing status
quo: courts will take into account the likely impact of a
change in guardians

Child Custody & Guardianship

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