Custody of a Child Under Hindu Law: Natural Guardian, HMGA and Welfare Principle
Quick answer: Under the Hindu Minority and Guardianship Act, 1956 the father is the natural guardian of a minor son or unmarried daughter, and after him the mother, but custody of a child under five should ordinarily be with the mother. Courts, however, decide custody on the welfare of the child under the Guardians and Wards Act, 1890, and the welfare principle overrides rights of either parent.
Guardianship and custody are different
Guardianship is the legal authority to take decisions for a child, such as education and property. Custody is the day-to-day care of the child. A father may be the natural guardian while the mother has custody, or both parents may share them.
Section 6 of the Hindu Minority and Guardianship Act, 1956
The natural guardian of a Hindu minor is:
- for a boy or an unmarried girl: the father, and after him the mother, with the rule that the custody of a minor who has not completed five years shall ordinarily be with the mother;
- for an illegitimate boy or unmarried girl: the mother, and after her the father;
- for a married girl: the husband.
In Gita Hariharan v. Reserve Bank of India (1999) the Supreme Court read "after" to mean "in the absence of", so the mother can act as natural guardian even while the father is alive when he is indifferent or absent. In Roxann Sharma v. Arun Sharma (2015) the Court reaffirmed that the mother normally has custody of a child below five.
The welfare principle
The Guardians and Wards Act, 1890 (Sections 7, 17 and 25) says the court must decide in the welfare of the minor, considering age, sex, religion of the child, character and capacity of the proposed guardian, and the child's preference if old enough. The Supreme Court has said repeatedly, for example in Rosy Jacob v. Jacob A. Chakramakkal (1973) and Nil Ratan Kundu v. Abhijit Kundu (2008), that welfare is the paramount consideration, not the rights of the parents.
How to go to court
- During divorce: apply under Section 26 HMA for custody, maintenance and education of children.
- Separate petition: file under the Guardians and Wards Act in the Family Court where the child ordinarily lives.
- Interim relief: ask for interim custody or visitation while the case is pending.
- Evidence: school and medical records, caregiving history, home and income details.
See child custody after divorce in Delhi and the best interests standard explained. Our child custody lawyers in Delhi can help. Related: custody above 5 years, for mothers and for fathers.
Frequently asked questions
Who is the natural guardian of a child under Hindu law?
The father, and after him the mother, with the mother ordinarily having custody of a child under five.
Can the mother be a natural guardian while the father is alive?
Yes, in suitable circumstances, as held in Gita Hariharan (1999).
Does the welfare of the child override Section 6?
Yes. Courts decide custody on the child's welfare.
Do these rules apply to Muslims or Christians?
They follow their own personal laws, but the Guardians and Wards Act and welfare principle apply to all.
Where do I file for custody in Delhi?
In the Family Court having jurisdiction where the child normally resides.
Related guides
- Custody of child above 5 years
- Custody of a girl child
- Mutual divorce and child custody
- Child custody after divorce in Delhi
Where we can help
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Call +91-98680 84425Book an appointmentThis page is general legal information for readers in India, not legal advice, and no lawyer-client relationship is created by reading it. Laws and court practice change, so confirm the current position with a qualified advocate before acting. AM Legal, 2589 Hudson Lane, GTB Nagar, Delhi 110009.