Who is the natural guardian in case of boy or unmarried girl?

Section 6 of the Hindu Minority and Guardianship Act, 1956 settles the question of natural guardianship in plain and unambiguous terms. In the case of a boy or an unmarried girl, the natural guardian is, first and foremost, the father, and after him, the mother. This is the primary rule stated in clause (a) of the section.

The Statutory Position Under Section 6

The full text of clause (a) is worth understanding carefully. It reads — "in the case of a boy or an 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."

This single provision thus does two distinct things. It declares the order of natural guardianship — father first, mother second — and at the same time carves out a critical exception in favour of the mother in the matter of custody of very young children. Guardianship and custody are different concepts. Even though the father retains his status as natural guardian, the physical care and daily control of the infant below five years ordinarily vest with the mother.

The Word "After" — A Constitutional Reinterpretation

For a long time, the phrase "after him, the mother" was read literally to mean that the mother could become a natural guardian only after the father's lifetime, i.e., upon his death. This interpretation drew fire as being inconsistent with the constitutional guarantee of equality under Articles 14 and 15. The issue came squarely before the Supreme Court in Githa Hariharan v. Reserve Bank of India (AIR 1999 SC 1149), where a mother's authority to act as guardian for her minor child's investment application was denied by a bank on the ground that the father was alive.

The Supreme Court refused to strike down section 6(a) but instead gave it a constitutionally compliant reading. It held that the word "after" in the section does not necessarily mean after the lifetime of the father. It means in the absence of the father. That absence may arise from many circumstances — the father may be indifferent to the child's affairs, living separately, physically or mentally incapacitated, or otherwise not in actual charge of the child's person or property. In all such situations, the mother is entitled to act as the natural guardian with full legal validity, even during the father's lifetime.

This decision built upon an earlier Supreme Court ruling in Jijabai v. Pathankhan (AIR 1971 SC 315), where the parents had fallen out and been living separately for over twenty years, with the mother managing the minor daughter's affairs throughout. The court held the mother's acts as natural guardian to be perfectly valid, since the father was, for all practical purposes, non-existent in the minor's life.

Other Categories Under Section 6

The Act makes separate provision for different categories of children:

• Illegitimate boy or illegitimate unmarried girl — here the position is reversed. The mother is the natural guardian, and after her, the father. This recognises the practical reality that the mother is the primary caretaker of an illegitimate child.

• Married girl — her husband is the natural guardian. Though child marriages are prohibited under law, the Act still recognises this position, though courts have interpreted the husband's guardianship subject to the welfare principle.

Disqualifications

Two absolute disqualifications are recognised. No person shall be entitled to act as natural guardian under section 6 if — (a) he has ceased to be a Hindu by conversion to another religion, or (b) he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). The Explanation to the section also makes it clear that the expressions "father" and "mother" do not include a step-father or a step-mother. A step-parent has no natural guardianship and can only be appointed guardian by the court in appropriate circumstances.

The Overriding Standard

It must always be remembered that the position of natural guardian conferred by section 6 is not an absolute or indefeasible right. Section 13 of the same Act immediately qualifies it by declaring that the welfare of the minor is the paramount consideration. No person — including the father as natural guardian — is entitled to exercise guardianship if the court is of the opinion that it will not serve the welfare of the minor. The natural guardian's status is thus a starting point, not a conclusion.