The Gujarat High Court has held that under the Hindu Minority and Guardianship Act, 1956, a mother is the natural guardian of her daughter who has not completed five years of age, and this status is not overridden merely because a father relies on a disputed separation deed to claim custody.
What the Court Held
The judges emphasised that for a child below five, the law ordinarily places physical custody with the mother, recognising that a young child’s care and nurturing are best provided by her mother.
The father in this case sought custody based on a separation deed, claiming that the mother had voluntarily handed over care of the child to him. The mother challenged this, filing a habeas corpus petition alleging that her husband had taken the child after getting her to sign the document under pressure.
The High Court held that a disputed separation deed — especially one challenged as obtained by fraud or under duress — cannot bar a habeas corpus petition seeking the child’s custody. The mere existence of such a deed does not affect the mother’s right as natural guardian where its authenticity and voluntariness are in question.
Principles Applied
The decision reflects the legal position that the welfare and best interests of the child are paramount in custody matters.
Section 6 of the Guardianship Act recognises that for children under five, the mother has primary custodial preference, unless compelling reasons indicate otherwise.
