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Guardianship of Minor Child

A guardian is a caretaker of a minor, his or her property, or both. Classifications of guardians consists of a natural guardian, a guardian picked by the mother or father, a guardian appointed by the court, the individual who qualifies as a guardian as per the honorable court.

Father is the natural guardian of his minor legitimate children, son, and daughter. As per Section 19 of the Guardians and Wards Act 1890, a father cannot be denied the natural guardianship of his minor kids except if he has been discovered unsuitable.

We will make an application under the Guardians and Wards Act, 1890 to the family court of your jurisdiction by a local lawyer in the said court. We will fight till you get justice and/or you get the custody of your minor child. Till the age of 5 years of your child the court grants the custody of the child to his/her mother except some unusual circumstances.

From the age of 5 years to 12 years the court may grant the custody of the child to any of their parents after satisfaction on the grounds of the application. After the age of 12 the law in India presumes that the child can understand what is good to him/her. The child’s opinion is regarded as an important in the court before any judgment by the court for his/her custody and maintenance.

Section 12 of the Guardians and Wards Act, 1890 entitle the Court in making orders for temporary custody and security of the individual or property of a minor. During its decision for interim custody of the child, the court must be guided by the welfare of the children since Section 12 empowers the court to make any order as it deems proper. The elements that should be remembered while deciding the question of guardianship will apply with equivalent force to the question of interim custody.


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Examination of Child is Important

Assessment by the court of the kid to find out his desire as to with whom he wants to stay is important and acceptable. Apart from the statutory provision in the form of subsection 3 of Section 17 of the Guardians and Wards Act, 1890 the assessment additionally helps the court in performing cumbersome obligation in practicing discretionary jurisdiction and in choosing the sensitive issue of guardianship of a tender-aged child.

Nil Ratan Kundu vs. Abhijit Kundu (2008) 9 SCC 413

Section 6 of the Hindu Minority and Guardianship Act, 1956 provides who is the naturalguardian of a minor in different cases.
It enlists the natural guardian to be as:

a. 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 5 years shall ordinarily be with the mother.

b. If it’s a case of an immature boy or a non-mature unmarried girl – the mother, and after her the father.

c. On account of a married girl – the husband.

Custody of a Hindu Child Aged Below 5 Years

The Hindu Minority and Guardianship Act hypothesize that the authority of a baby or a tender-aged child ought to be given to his/her mother except the father discloses convincing justification that is suggestive of and presages the likelihood of the child being sabotaged or jeopardized if the custody is held by the mother. However it is immediately clarified that Section 6 (a) or for that matter any other provision including those contained in the Guadians and Wards Act does not disqualify the mother to custody of the child even after the latter’s crossing the age of 5 years,

Roxann Sharma vs. Arun Sharma (2015) 8 SCC 318.

Visitation Rights:

A visitation order means an order establishing the visiting times for a non-custodial parent with his or her children. Although the non-custodial parent is liable for the care of the kid during visits, appearance contradicts from guardianship because non-custodial parent and child do not live closely as a family unit. Appearance rights compactly are distinct from custody or interim custody orders. Essentially they enable the parent who does not have interim custody to be able to meet the child without removing him/her from the custody of the other parent.

Roxann Sharma vs. Arun Sharma (2015) 8 SCC 318.

It is the duty of the court to see that a parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing. For the situation where a child’s presence in India is the aftereffect of an illegal act of abduction or kidnapping, the father who is responsible for the said conduct, cannot claim any advantage by stating that he has already put the child in some school in Pune, Elizabeth Dinshaw Vs. Arvand M. Dinshaw (1987) 1 SCC 42.


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