[S.6 Hindu Minority & Guardianship Act] Unless Declared Disentitled, Mother Entitled To Minor Children's Custody After Father's Death: HP High Court

The Himachal Pradesh High Court has recently stated that under the Hindu Minority & Guardianship Act 1956, the mother assumes the role of a natural guardian of minor children upon father's death.

However, the mother's right to custody is not absolute, but contingent upon the welfare of the children and if, during appropriate proceedings, she is found to be unfit or incapable of ensuring the welfare of the children, she may lose the right to maintain custody of them, it clarified.

“Unless or until mother is incapacitated and declared incompetent or disentitled for custody of children, by the competent Court in appropriate proceedings in accordance with law, in view of Section 6 of the Guardianship Act, mother, after death of father, is entitled to have custody of her minor children”, a bench of Justice Vivek Singh Thakur observed.

The observations came to be passed on a petition filed against an order dated November 23, 2022, passed by the Nalagarh sub-divisional magistrate, whereby he directed the grandparents to hand over custody of the minor children to the mother.

In the instant matter Respondent Priti Devi and her husband Amar Singh were residing together with their two minor sons, separate from her in-laws. On July 17, 2022, Amar Singh took his own life and in response, Darshan Singh, Amar Singh's father, filed a complaint against Priti Devi, accusing her of subjecting his son to cruelty and leading to his suicide. Consequently, Priti Devi was arrested on July 18, 2022, and later released on bail on July 27, 2022. During this period, the children stayed with their grandparents.

Following her release on bail, Priti Devi filed an application with the court of the Sub-Divisional Magistrate (SDM) in Nalagarh, seeking custody of her children. On November 23, 2022, the SDM issued an order directing the grandparents to hand over the custody of the minor children to Priti Devi. Dissatisfied with this decision, the grandparents moved the High Court in the instant petition.

Petitioner-grandparents argued that respondent Priti Devi had a strained relationship with her husband and allegedly encouraged him to take his own life. They contended that the safety and well-being of the children would be compromised if they were placed in their mother's care.

Counsel representing Priti Devi denied the allegation of abetment and defended her right to custody.

At the outset, the High Court observed that Section 6 of the Hindu Minority & Guardianship Act, 1956 clearly prescribes that in case of a boy, the mother is a natural guardian after father, with the further proviso that custody of a minor, who has not completed age of 5 years shall ordinarily be with the mother. Therefore, after the death of the father mother is the next person to have guardianship/custody of minor children, the bench underscored.

Court also observed that until the incident of suicide, custody of children was with both the parents. "It is not a case where father of the children, who had committed suicide, was living alongwith children but separate to the mother of children so as to exclude the mother from having custody of children. Both of them husband and wife (father and mother) were looking after their children," Court said. 

It added that allegation of mother having abetted the father of children to commit suicide is yet to be proved. Thus it observed,

"Mother has not been declared incompetent or disentitled to have custody of her minor children. According to Section 6 of Hindu Minority & Guardianship Act, 1956 (in short ‘Guardianship Act’) in case of a boy, mother is a natural guardian after father, with further proviso that custody of a minor, who has not completed age of 5 years shall ordinarily be with the mother. Therefore, after death of father mother is the next person to have guardianship/custody of minor children."

Accordingly, Court upheld Magistrate's order.

Case Title: Lajwanti & others Vs Priti Devi & others

Citation: 2023 LiveLaw (HP) 43

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