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suryagaurav (manager)     15 December 2007

father of minor below 5 years wants custody of child on medical grounds

father of minor below 5 years wants custody of child on medical grounds as mother lives outside delhi and not willing to remain with father of child but child is going under treatment in Delhi RML hospital and mother lives at hyderabad with some other illicit relative of her.

         Please suggest some tips and points to save the child from her mother


 6 Replies

bupesh (n/a)     15 December 2007

You need to file an application for appointment of  gaurdion and seek interim custody of the child pending the main case.

SANJAY DIXIT (Advocate)     16 December 2007

I think, there is no need for application for appointment of gaurdian,as father is the first natural guardian of the minor. Being a natural guardian he should not move for the guardianship or appointment of guardianship u/s 7 Guardians & Wards Act 1890 but sue for immideate custody (interim custody) of minor u/s 12 Guardian & Wards Act 1890 alongwith application u/s 25 of Guardians & Wards Act.

suryagaurav (manager)     17 December 2007

as per The Hindus Minority and Guardianship Act, 1956 :-

sec.-6        Natural guardians of a Hindu minor

The natural guardian of a Hindu minor, in respect of the minorΓÇÖs  person as well as in respect of the minorΓÇÖs property (excluding his or her undivided interest in joint family property), are-

(a)        in the case of a boy or unmarried girl- the father, and after him, the mother, provided that the custody of a minor who has not completed the  age of five years shall ordinarily   be with the mother;.

and she is making use of this act.

      Plz guide me how can I prove that the matter is not  ordinary as child is going neurological treatment and very much of his course is completed in delhi.


Moreover is there any difference between guardians and wards act and hindu minority and  guardianship act.

               Thanx for showing interest in the matter to all those who replied for the cause of justice.


SANJAY DIXIT (Advocate)     21 December 2007

Dear SuryaGaurav,

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.

suryagaurav (manager)     21 December 2007


        Thanx a lot ,

              can you provide me some case references concerning the matter , and plz suggest me from where I can see old cases judgement also.


Known (B)     06 April 2008

2. Call Hyderabad MLA at your wife's place and promise him that you will pay party fund. They will help you out.

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