CUSTODY AND GUARDIANSHIP UNDER DIFFERENT LAWS

When a marriage is broken, certain parties get affected by this. The most important party
which is affected is the child or children. A child makes a relationship between husband and
wife more complication. Rights, duties and responsibilities are added in this scenario, who’s
welfare is at stake.

International Instruments regarding this

1. UDHR – Article 25.

2. Preamble of Convention on the rights of Children and Art.19 of the same.

Doctrine of best Interest of the Child

If the child is above the age of 18 years, he is considered to be a major, and can take
decisions about himself, therefore he has got autonomy by the law. A legal standing is given
to such adult child, who is liable for one’s own actions. This is not in the case of a minor,
since they don’t have a legal standing as such. They can be looked after through a
‘Guardian’. Two things are taken care of by the guardian, the personal decisions, and the
property decisions.

The understanding of this debate has changed, now the courts are concerned not only about
rights or obligations of mother and the father, but also of children. The doctrine to be used is
the ‘welfare in the best interest of child to be of paramount importance’ . Now children’s
interest are taken into consideration before the father or the mother. This doctrine is also
taken into consideration in Section 13 of Hindu Guardianship Act. This emphasises the
importance of this concept.

During older times, best interests of the child were not taken into consideration, rights of the
parents, father and guardian were more important. Manusmriti, also mentions the same. There
was a change in the outlook however later on.

Custody and Guardianship are often used interchangeably. But there are some differences in
them.
 Custody is only applicable to the physical aspect of the child. A custodian does not
have any right of taking decision on behalf of the child.
 While in guardianship, the physical and financial responsibility of the child. They also
have the right to take decision in the best interests of the child.

However, the Hindu Minority and Guardianships Act does not take into consideration this
difference as such in terms of ‘words’. However, this difference is visible in the Muslim
Law. The mother does not have guardianship right with respect of a child. The father does
not have a custodian right of the child in this sense.

Interim and Final Order of Custody

Orders passed in the custody proceedings are sensitive matters. While deciding it a
balance between the sentiments of the parties and approach has to be taken. The doctrine
has to be considered here. If there are any unforeseeable changes, living arrangements,
financial arrangements, then the concerned court may change the order accordingly.

Muasomi Moitra vs. Kamini.

2018 Law commission report on Custody and Guardianship (read)

Veena Kapoor vs Virendra Kumar Air 1982 sc 792

Anjali Kapoor vs Rajiv Baijal 2009. – father vs grandparents . (read)

Purvi Mukesh vs Mukesh ppopatlal gada

Earlier financial status played an important role and mothers didn’t ger the guardianship.
Slowly, the court changed course. Father can still take carte of the financial, mother can
have guardianship. If mother is also earning then both should pay.

Section 2 and 3, 4 of the act

Every act has its own definition of a minor they don’t have to accept the standardized 18
years limit. In HGA, 18 Years is given, such is not the case in PCMA

Section 6A
 There is an inherent inequality in section 6. The Section 6 is not providing any basis for
differentiation based on sex. The geeta Hariharan case is very important case in this
regard.

Court said that we are not going to strike down of Section 6(a) of the act. But application
of a different interpretation will be more feasible. The doctrine of harmonious
interpretation will be here. The ters ‘after” will be interpreted as “in the absence of “
which means It does not mean only dead or physically absent, but also mentally absent.
This does not however solve the problem of inequality and the main question, where the
absence of father, whether physical or mental is still critical for a mother to get her child
is not yet solved. It is still unconstitutional now, a question can be raised.

Section 6B

Illegitimate Child – In each and every case, the father can take responsibility of a child.
Mother might not be willing to tell the father. After mother, it goes to the father. Because
the father is not able to be found sometimes.

GUARDIANSHIP UNDER MUSLIM LAW

Even if you have not attained puberty, the parents and guardians can give up the child for
marriage with or without the consent of the minor. The consent of the guardian is important.

Who all can be entitled?

1. Father
2. Father’s father – How high so ever – It can be father’s father’s father… and so on and
so forth.
3. Full Brother or other male relatives in the father’s side according to inheritance.
4. If such are not present, then the right goes to mother. Mother of the minor is not
qualified to be on a top hierarchy in such cases. Her consent is immaterial also, unless
all of the above are gone.

Custody and guardianship is different in Muslim law. Custodian is preferably mother.

Under Hanafi school of law, custody of a male child until the age of 7 years, and of a
girl child until the age of, is given to the mother with few qualifications.
In case of Shia law, the age of male child is to be 2 years and female to be 7 years for
a mother to be custodian. The mother is there to give emotional support and care.
After that father’s shelter is needed to take important decisions such as education,
betterment etc.
The presence of hierarchy under Muslim law is very important. In case of children
under 7 and 2 years as mentioned above, the hierarchy of guardianship stands as such.
 1. Mother’s mother how high so ever
2. Father’s mother …
3. Full sister, uterine sister etc.
4. Other relatives female of maternal side.
5. FATHER
6. Nearest grandfather
7. Brother, uterine brother etc.

Based on the demarcation of gender roles and duties, custody and guardianship is
divided in muslim law.
Any executor appointed by the father or father, can be name guardian.
Discrimination is there in Muslim law for guardianship. – Gulam Quitbuddin Maina
vs Abdul Rashid 2000 8 SCC 507.

CHRISTIAN LAWS

There is no hierarchy. The court has power to appoint a guardian irrespective of being a
woman or a man. For more, the law commission report can be analyzed for the same purpose.

CASE DISCUSSION – SHAYRA BANO VS UOI