Who is a Guardian?
The custody of a Hindu minor is governed by the Hindu Minority and
Guardianship Act, 1956. It applies to every Hindu, Buddhist and Sikh, domiciled
within the territory of India, except for the State of Jammu and Kashmir. A
minor is a person who has not completed 18 years of age and a guardian
means a person taking care of the minor or of his property or both. A guardian
could be a natural guardian which is the father, in case of a boy or unmarried
daughter and after him the mother. However, the custody of a minor who has
not completed five years is ordinarily with the mother. A guardian could also
be appointed by the will of the the minor’s biological parents or by an order of
the court. Therefore, in simple terms the custody of a minor child below five
years is usually with the mother. But, this is not a strict rule.
Custody of child in case of divorcing parents
In case the parents of the minor decide to separate, the divorcing parents can
come to an agreement outside of court or the parents can file for custody of
the minor in the court. The paramount consideration by the court while
adjudicating a custody matter is the welfare and wellbeing of the child. The
court has to decide what would be favorable for the child’s overall
Custody of a child in cases where divorcing parents are NRIs
Where the divorcing parents are NRI’s, there is always an issue of jurisdiction.
The petition for custody is either filed in India or in the country where the
parents and children ordinarily reside. In case a judgment has been passed by
a foreign court the Indian Courts usually do not interfere unless the judgment
so passed is in contravention with the welfare of the child. For instance, if a
child born to Hindu parents is a US citizen and goes to school in the US and the
court agrees to give the custody of the child to a parent who would remove
him from the US, the Indian courts can interfere and set aside such a
judgment as it is not in the best interest of the child. Therefore, even though a
foreign court may have jurisdiction to entertain the custody matter, but if the
judgment so passed by the foreign court is not in consonance with the welfare
of the child, then the Indian Court can interfere.
Thus, there is no strict rule for custody of a child. The paramount
consideration for the custody of a child is the welfare of the child, which
depends upon the facts and circumstances of every case.