Tuesday, May 28, 2024

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๐™ฐ๐™ต๐™ต๐™พ๐š๐™ณ๐™ฐ๐™ฑ๐™ป๐™ด & ๐™ฐ๐™ฒ๐™ฒ๐™ด๐š‚๐š‚๐™ธ๐™ฑ๐™ป๐™ด

HINDU LAWMODEL ANSWER

GUARDIAN

Define the term Guardian and explain who can be a naturian according to Hindu Minority and Guardianship Act, 1956. Moreover, discuss whether a mother can act as the natural guardian of a legitimate minor child during the life time of her husband with relevant case laws.

Article 39 of the Constitution of India states that children should not be exploited and such a freedom, opportunity and healthy environment should be given to them so that they can enjoy their childhood and it will help in the overall development of children.

It is generally believe that due to tender age children are not in such a condition that they could protect their rights. They always need help of their guardians and their guardians help them in their physical, mental and emotional growth.
Now the question arises, โ€œWho is a guardian.โ€

According to section 4(b) of Hindu Minority and Guardianship Act, 1956, a guardian means a person having care of a minor or his property or both the minor and his property. According to this section, a guardian may be natural guardian, testamentary guardian or a certified guardian.

Section 6 of the Hindu Minority and Guardianship Act, 1956, deals with the provisions of natural guardian. According to this section, if a child is a boy or and an unmarried girl then in such a case natural guardian will be father and after him the mother of that child and in case of an illegitimate male child or an illegitimate unmarried girl child, the natural guardian will be mother and after her the father of that child.

   

According to this section, till the age of five years the custody of child will always remain with the mother. It is a general rule but according to section 13 of Hindu Minority and Guardianship Act, 1956, the court while giving custody of child will analyze some situations and try to ascertain the welfare of child. The court has power to deny the natural guardian to give the custody. It can give the custody to that parent who is not a natural guardian. The main consideration of court in the case of custody is the welfare of child.

In the leading case of Mohini vs. Veerendra Kumar [(1997) 3 SCC 513), The Honโ€™ble court held that, the custody of a minor under the age of 5 years is to be ordinarily with the mother. However, it does not mean that father cannot have the custody of the child. This is so because the word โ€œordinarilyโ€ is used in section- 6 and also the Welfare of the minor is of Paramount consideration where the custody of minor comes into the question before the courts.

In the leading case of Sumedha Nagpal vs State of Delhi [(2002) 2 HLR 199 (SC)], The supreme court held that the controlling consideration governing the custody of a children is the Welfare of the children and not the right of the parents.

According to this section, a person ceases to be a natural guardian of a child if converts into another religion or if he completely renounces the world and becomes a hermit.

The issue in this section is that whether a mother can be a natural guardian of a legitimate child only after the death of her husband?
Because according to this section it is clear that firstly father will be natural guardian and after him mother will be the natural guardian.

  

The constitutionality of this section was challenged in the case Geeta Hariharan vs Reserve Bank of India [(1999) 2 SCC 228] on the ground of violation of Article- 14 of Constitution of India. Because article- 14 of Indian Constitution provides the fundamental right of equality and according to this article every person whether male or female is equal before the law and law cannot discriminate among them on the ground of sexual identity.

In this case, the Supreme Court declared this section constitutionally valid but the Honโ€™ble court interpreted this section in such a manner so as not to offend the constitutional mandate of gender equality. In this case the Supreme held that the word โ€œafter himโ€ does not specifically means after the life time of her husband but it really means โ€œin the absence of her of husbandโ€. If the husband is not capable to take care of the child or if he is not mentally fit or if he does not live with his wife and child, in these situations the court will considered him absent and in such a case mother can act as a natural guardian even if her husband is alive.

Hence it can be concluded that a mother can act as a natural guardian of a legitimate minor child during the life time of her husband.

  

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