Who Are The Natural guardians Under Family Law?
Under modern Hindu law, the father is the natural guardian of his minor legitimate children though the mother is entitled to custody of the child up to the age of five. Mother is the natural guardian of her illegitimate children and after the death of the father of her legitimate children. The husband is the natural guardian of his wife. This implies that the parent ceases to be the guardian of a girl in her marriage. After the death of the mother, a putative father is the natural guardian of his illegitimate children. A stepparent is not a guardian of step-children. A minor may be the natural guardian of the person of his children, but cannot be of property. A natural guardian of a minor is not the guardian of the minor's interest in coparcenary property. Regarding the custody of minors below five years of age, the court has interpreted these provisions quite ingeniously. Section 6 of the Minority and Guardianship Act, which purports to specify a natural guardian of a minor with reference to his person or property, makes a distinction between guardian and custody. The father is first declared to be the natural guardian in the case of a boy or an unmarried girl. Only thereafter, the claim of the mother as a guardian is provided for. This is with reference to guardianship, which in its original connotation takes in custody and care of the minor, which could be equated to the guardianship of a person and custody and control of the property which is really guardianship with reference to the property of the minor. The proviso to section 6 (a) carves out a special right relating to custody in favor of a mother in cases where the infant has not completed the age of five years. In such a case, a preferential claim for custody is conferred statutorily on the mother and the father, though he would still be the natural guardian of an infant, would not be, as of right, entitled to the custody of the infant if the infant has not completed the age of five years.
The mother of the child shall not suffer disqualification to have custody of the child for the mere fact that she is not residing with her husband or that she had not forsaken voluntarily her husband's company, she should not be penalized. That apart, importance must be attached to the main rider, namely, she resides "at a distance from the father's place of residence." Indeed the court must read the underlying meaning of the rider. Even if the mother must have custody of the child of the tender age, till he attains the age of seven years, the father must not be denied access to the child.
Under Muslim law, the father is the natural guardian of the person and property of his minor legitimate children. Muslim law does not provide for the guardianship of illegitimate children. Mother is not the guardian of her minor children even after the death of the father. This deficiency is more than offset by the Muslim law of hizanat (commonly translated as custody, though in the submission of the original writer it is more in the nature of 'care and control').
Under the Hanafi school, the mother is entitled to the hizanat, and the father is not, of male children up to the age of seven years, and of female children up to the age of puberty.
Under the Shia law, the age is lower, of a male child up to the age of two, of a female child up to the age of seven. Among the Malikis, Shafeis, and Hanbalis hizanat of the female child continues till she is married and of a male child till he attains puberty. On attaining puberty, hizanat belongs to the father. If the girl is married before attaining puberty, then the mother's right of hizanat continues and the husband cannot claim custody either under section 25 of the Guardians and Wards Act or by filing a petition for restitution of conjugal rights. After the mother, the right of hizanat to which mother is entitled goes to certain females, then to father and other male relatives.
Under Hindu law, no person can remain a natural guardian if he ceases to be a Hindu or has become a vanaprasthi or sanyasi or yati (i.e., has renounced the world). Under Muslim law, in the case of the mother (unless she is a non-Muslim) apostasy is a disqualification. Other disqualifications are the following her marriage with a ghair-rnahram (a person not related to the child within prohibited degrees), her misconduct, her insanity, her neglect of, or cruelty to, the child and her going away to reside at a distant place.
Among Parsis, Christians and other communities, father is the natural guardian of his minor legitimate children and after the father, mother is the natural guardian.