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Natural Guardian, who is?

Respected Seniors and Ld. Members,

I have filed S. 12 and S. 25 GWA for custody of 8 yrs. 4 months old daughter. S. 12 GWA has been disposed of in Nov. 2007 with granting me visitation for 1 hrs. at Ld. Duty MM Court on 1st. and 3rd. Sundays.

Wife filled S. 24 HMA and made daughter as party (co petitioner) stating "filled via Natural Guardian"

My que. under GWA is should I file seperate application under GWA Court for Natural Guardianship? And if yes, then S. 6 GWA to be used or other section under GWA? Please Advise.

My que. under HMA is though under W/s for her S. 24 HMA I wrote under preliminary objections para 1 that I being natural father of legitimate child is natural guardina and she is claiming falsely that she is natural guardian by stating false facts. Que. is should I file a Application under HMA the Act that I am the Natural Guardian or Court will take its own motion and make me natural guardian as per Law? If I am supposed to file an Aplplication then which Section of HMA or HAMA shoudl I use?





 1 Replies

N.K.Assumi (Advocate)     01 December 2008

Dear Arun Ji,

                               As far as Hindu Shastric law is concerned, it did not speak of natural Guardians and the King was vested with the Supreme Guardianship. But the old law has been codified by the Hindu Minority and Guardianship Act of 1955 and under the act the Father is the natural Guardian of the person and property of his legitimate children and after him the guardianship is vests in the mother.However, even this has been turned aside by the case of Gita Hariharan Vs Reserve Bank of India decided by the Supreme Court  as reported in AIR 1999 Sc 1149, and this was mainly due to Article 16 of the Convention on the Elimination of all forms of Discrimination against Women ( CEDAW) But in your case the child is now 8 years old and the Court will see best interest and welfare  of the Child and not necessarily the rights of the father or the Mother. In other words if it is in the best interest of the child that you be the Guardian the court will certainly give you the right of guardianship.Section 13 of the Hindu Minority and Guardianship act says that the welfare of the minor to be the paramount consideration.

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