SANJAY DIXIT
(Advocate)
21 December 2007
Dear SuryaGaurav,
Hi!
The right of the natural guardian to have the custody of minor U/S 6 is subject to S.13 of the Hindu Minority & Guardianship Act. According to S.13 of the Act the welfare of the minor is of paramount consideration. Condition as mentioned in S.6 of the Act, is under normal circumstances but controlling consideration governing the custody of the children is the welfare of the children and not the right of the parents. Irrespective of age (under5) various courts viewed and given custody of minor (under5) to father in the welfare of minor.
In regard to the custody of minor, the court is bound to take into account the welfare of the minor. Where there is a guardian, the father of minor, who seeks to have the custody of the minor, has a burden on him to show that the welfare of the minor demands that the custody shall be with him in preference to the mother of minor. The word ΓÇ£welfareΓÇ¥ has the widest amplitude. It is to be understood in its widest sense so as to cover the material & physical well-being, education, health, happiness & moral welfare of the child.
What constitutes the welfare of the minor has to be determined by the court after a careful consideration of the case, as the Act does not lay down any tests or guidelines to determine what is for the welfare of the minor.
In the present matter the welfare of the minor in respect of medical & health can be easily established by facts, circumstances & medical history as the minor is under treatment at RMLH, Delhi & very much of his course completed in Delhi. Besides this, the mother of the minor is not living with the father of the minor but living with some illicit relative at Hyderabad, far away from Delhi. Thus she has hopelessly failed in providing her bonafides. Also a simple assertion on the part of the mother of minor that she is not interested in welfare, treatment, betterment & future of minor.
For your second query the Hindu Minority & Guardianship Act relates to Hindus and a codification of old Hindu Law but this is not a complete code relating to the Hindu Law on minor & guardianship. So for, as matters not covered by this Act are concerned they are regulated by the Guardians & Wards Act, which is common codification for all, in India in this regard. Moreover S.2 of the Hindu Minority & Guardianship Act itself clarifies that the provisions of this Act shall be in addition to, and not, save as herein after expressly provided, in derogation of the Guardians & Wards Act. The provisions of both the Acts are therefore complementary.
