6.Natural guardians of a Hindu minor.-
The natural guardians of a Hindu, minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are –
(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 five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father;
(c) in the case of a married girl – the husband;
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)
Explanation.—In this section, the expressions ‘father’ and ‘mother’ do not include a step-father and a step-mother.
Consideration for guardianship
The controlling consideration governing the custody of the children is the welfare of the children and not the right of the parents; Rosy Jacob v. Jacob Chakramakkal, AIR 1973 SC 2090: (1973) 3 SCR 918: (1973) 1 SCC 840.
Father as a natural guardian
Father is the natural guardian of a minor. In the absence of father, mother is the natural guardian. The mother of the minor children was dead, but the father was not residing with the children, who were being looked after by the aunty. It was held that though father was not residing with his children, he is still alive, has not ceased to be a Hindu or renounced the world and has not been declared unfit. This does not authorise any other person to assume the role of natural guardian and alienate the minor’s property; Essakkayal Nadder v. Sreedharan Babu, AIR 1992 Ker 200.
Mother as a natural guardian
(i) In the phrase “the father and after him, the mother” the word ‘after’ need not necessarily mean after the lifetime of father. In the context in which it appears in section 6(a) it means ‘in the absence of ‘, the word ‘absence’ therein referring to the father’s absence from the care of minor’s property or person for any reason whatsoever. If the father is wholly indifferent to the matters of the minor or if by virtue of mutual understanding between the parents, the mother is put exclusively in charge of the minor or if the father is physically unable to take care of minor for any reason whatsoever, the father can be considered to be absent and mother being a recognised natural guardian can act validly on behalf of the minor as the guardian. Such an interpretation will keep the statute within the constitutional limits otherwise the word ‘after’ if read to mean a disqualification of a mother to act as guardian during lifetime of father the same would violate one of basic principles of our constitution i.e. gender equality; Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.
(ii) Where the mother and father had fallen out and were living separately and the minor daughter was under the care and protection of her mother, the mother could be considered as the natural guardian of the minor girl; Jajabhai v. Pathankhan, AIR 1971 SC 315: (1971) 2 SCR 1: (1970) 2 SCC 717.