Minor Custody and Guardianship: Everything You Need to Know

Minor custody and guardianship refer to legal arrangements concerning the care and responsibility of children who are under the age of majority, typically 18 years old. In these arrangements, adults are appointed to act as guardians or custodians to ensure the well-being and proper upbringing of the minors.

Key Takeaways

• According to the Indian Majority Act 1875, a person who has not reached the age of eighteen is considered a minor.
• The welfare of the child is the first consideration for courts when making custody decisions. The importance of other factors is secondary.
• The best form of custody for a child can be determined by the courts; options include sole, joint, and third-party custody.
• The Guardians and Wards Act of 1890 applies to all Indian citizens, regardless of their religious beliefs. It gives courts the authority to appoint guardians for the minor’s person, or property.

Who is Minor?

A minor, as defined by the Indian Majority Act, 1875, is an individual who has not reached the age of 18 years. This legal designation signifies that the person is not considered an adult under the law and may require guardianship or custodial arrangements for their care and protection. Guardianship and custody arrangements for minors play a crucial role in ensuring their welfare, education, and overall development until they attain legal adulthood. These arrangements are established through legal processes and involve assigning responsible adults to make decisions on behalf of the minor and provide for their well-being.

Who is Guardian?

A guardian is a person with rights and responsibilities for the upbringing and management of a minor’s body and property, including their estate or money. Among these guardian powers are the authority to decide how the child will be raised in terms of religion, education, and other issues like property disposal and the like. It is the guardian’s responsibility to look out for the minor’s best interests. When deciding which kid to provide custody or guardianship of, the court’s first priority is the child’s welfare. Every town has rules governing guardianship and custody.

The Guardians and Wards Act, 1890

• This is a non-religious statute that applies to all countries in India in relation to guardianship matters.
• During the British era, the Guardians and Wards Act of 1890 was passed.
• The court may designate a guardian for a minor child under this Act.
• The child may be associated with any community.

The Hindu Minority and Guardianship Act, 1956

In 1956, the Hindu Minority and Guardianship Act came into effect. The law pertaining to guardianship and custody of Hindu community children has been codified by this Act.

Guardian comprises the subsequent:

• A natural guardian.
• A guardian chosen by the minor’s parents or guardians in their will.
• A guardian appointed by a court.

De-Jure and De-Facto Guardians

A guardian may be of following two types:

1. De-facto Guardians (Having Power Without Formal Establishment)

De-facto guardians are individuals who take on the role of guardianship for a child without formal legal authority. While they may not have been officially appointed by the court or designated by a will, they assume responsibility for the child’s care, upbringing, and decision-making. Their authority arises from their actions and the care they provide to the child.

2. De-jure Guardians (Having Authority Granted By Law)

De-jure guardians are individuals who have legal authority over a child granted by law. Their role as guardians is formally established and recognized through legal processes. There are different types of de-jure guardians, including natural protectors (typically the child’s parents), testamentary guardians appointed through a will, and certificated guardians appointed by the court under specific legal provisions.

Types of De-jure Guardians

There are three kinds of de-jure guardians:

• Natural Protectors (from Birth): In general, a child’s father and mother are acknowledged as their natural guardians.
• Testamentary Guardians: They are guardians designated in a will.
• Certificated Guardians: They are guardians appointed by the court in accordance with the Guardians and Wards Act of 1890.

Who is a Natural Guardian?

According to Section 6 of the Hindu Minority and Guardianship Act, 1956, the natural guardian of a Hindu minor boy or unmarried girl is typically the father, followed by the mother. However, if the father is absent or unable to fulfill this role, the mother becomes the guardian. Generally, if a child is below the age of five, custody is given to the mother.

In simpler terms, the law says that usually, the father is considered the main guardian of a Hindu minor, but if he’s not available, then the mother takes over. If the child is very young, they usually stay with their mother. However, what matters most is who is actually taking care of the child’s well-being. So, even if it’s not the father or mother, whoever is looking after the child’s needs becomes the guardian, always keeping the child’s welfare as the top priority.

Position under Muslim Law

Under Muslim Law, the mother is not recognized as a guardian, whether by natural right or otherwise. However, she does possess the “right of hizanat,” which grants her custody of the child during their early years. In contrast to Hindu law, where both parents can appoint a testamentary guardian for the child, under Muslim law, only the father has the authority to appoint a testamentary guardian; the mother does not hold such power.

Minor Custody and Guardianship- FAQs

In Muslims, is the mother considered as a guardian?

Muslims do not acknowledge mothers as guardians in any capacity, natural or artificial. However, she is entitled to the “right of hizanat,” which is a mother’s right to custody of her kid while they are still young.

What is a testamentary guardian?

A testamentary guardian is a guardian named by will. Both parents may choose a testamentary guardian for their kid in accordance with the Hindu Minority and Guardianship Act, 1956.

What will happen if both parents choose not to share custody after a divorce?

Under the Guardianship and Wards Act, any relative, grandparents, or other person may submit a petition; the court will make further appointments.

What is a minor child’s interim custody?

Interim custody is the temporary custody of a minor child granted to one parent while a decision or order is pending.

Can a Muslim mother appoint a testamentary guardian?

A testamentary guardian may only be appointed by a parent under Muslim law. Mothers don’t possess such authority.

Reference:

• Legal Studies. NCERT- Class XI
• District Court

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