The concept of custody is related to physical control over a person or property whereas the concept of guardianship is akin to trusteeship. A guardian is a trustee in relation to the person for whose guardianship he is so appointed. The position of guardian is more onerous than of a mere custodian. Custody may be for short duration and for specific purpose but it is not so in the case of guardianship.

    Matters relating to custody arise during matrimonial proceedings under Section 26 HMA. Section 26 HMA empowers the court to make provisions for the following:

1.      custody of minor children,

2.      their maintenance, and

3.      their education.

In an application under the GWA read with the Hindu Minority and Guardianship Act, 1956, custody of minor children is determined according to the welfare of the child. The custody  of a child who is less than five years old will, therefore, ordinarily be with mother. This is so, even though the father is the natural guardian of a minor child.

Custody of illegitimate children

The term "Children" includes the following:

1.      Issues of marriage.

2.      Children of husband only.

3.      Children of wife only.

4.      Natural issues and adopted children.

5.      Legitimate and illegitimate children.

Custody of a minor wife

A minor Hindu husband can, as a natural guardian of the wife under Section 6(c), Hindu Minority and Guardianship Act, 1956, deal with a minor wife's property and act as her guardian with respect to her person, i.e.  claim custody of the minor wife.


A guardian includes any person having legal custody of or control over the child. The term guardian, thus, includes:

1.      natural guardian,

2.      guardian appointed by Will of the minor's father or mother,

3.      guardian appointed or declared by a court, and

4.      person empowered to act as such by any enactment relating to curt of wards.

Hindu Minority and Guardianship Act, 1956

Hindu Minority and Guardianship Act, 1956 is the law that applies to Hindu in matters related to minority and guardianship.

   According to Section 4(b), Hindu Minority and Guardianship Act, 1956, there are four types of guardians:

1.      natural guardian,

2.      guardian appointed by the Will  of the minor's father or mother,

3.      guardian appointed or declared by court, and

4.      person or act as such by or under any enactment relating to any Court of Wards.

Besides the guardians mentioned in Section 4, there are two other types of guardians recognised under Hindu Law:

1.      Do facto guardian (though such a person under Hindu Law can only be a guardian of person).

2.      Ad hoc guardian.

Natural guardians

The natural guardian in case of a boy or an unmarried girl is 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. In Githa Hariharan v. RBI.  the court decreed that the mother is entitled to be the guardian of her minor child before the death of her husband as well, because it is in the best interests of the child that the minor child remain with the mother in his/her early years. Thus, the court applied the tender years doctrine and stated that if the right of the of the mother was inferior to the right of the father, that would constitutional right violation, as it would be discriminatory on the basis of gender.

    In the case of adopted children, Section 7 lays down that the natural guardianship of an adopted child lies with no  one but the adoptive father and after him to the adoptive mother.


Section 8, Hindu Minority and Guardianship Act, 1956 empowers guardian of a Hindu minor to do anything that is beneficial for the minor's person or property. A natural guardian cannot do any of the following acts without the prior permission of the court:

1.      mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or

2.      lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

Section 8, Hindu Minority and Guardianship Act, 1956 in view of the express terms of Section 6 and 12 would not be applicable where a Joint Hindu Family property is sold/disposed of by karta involving an undivided interest of the minor in the said Hindu family property.

Testamentary guardians

A father is the natural guardian of his minor children. By a Will, he can appoint a guardian for their person and property of his minor children. Such a guardian is termed as a testamentary guardian. If the father dies, the mother, having a superior right over the children, would be a guardian but then she cannot be said to be a testamentary guardian.

    Mother ca appoint a testamentary guardian of her choice when she survives her husband. If she fails to appoint such a guardian, the testamentary guardian appointed by the father would function from the time of her death. In case of illegitimate children, the mother can appoint a guardian who could function as a testamentary guardian on her death even though the mother predeceases the putative father.


Section 9, Hindu Minority and Guardianship Act, 1956 says that a testamentary guardian can exercise all the rights of a natural guardian under this Act as are specified in this Act and in the Will.

Guardians appointed by courts/legal guardians/de jure guardians

Where neither the natural nor the appointed guardians of the minor are alive, the courts appoint a guardian keeping in mind the welfare and wishes of the minor.

    Section 12, Hindu Minority and Guardianship Act, 1956 is a provision that applies in the case of HUF property specifically. In other words, when a minor's undivided interest in the joint family property is under the management of an adult member of his family (for example, minor's father), no guardian shall be appointed for such undivided interest of the minor. The manager of a joint Hindu family would be the guardian in respect of the minor's interest in such property, if the father is the manager, he would be such a guardian. But the father here cannot appoint a testamentary guardian for the minor's property. If he dies, the mother takes his place. The eldest son can be the manger and custodian of the minor's undivided interest.

De facto guardians

Persons who do not belong to the categories of natural, testamentary or legal guardians but who place themselves in the position of a guardian by intermeddling with the affairs of a minor are called de facto guardians. It is usually the relatives of the minor who become de facto guardians. De facto guardians have no power of alienating the minor's property; alienation by them is considered void an initio.

   No person is entitled to dispose of or deal with the property of a Hindu minor, whether immovable or movable, merely on the ground of his or her being the de facto guardian of the minor.

   Section 11 of the Hindu Minority and Guardianship Act, 1956 states that a de facto guardian cannot deal with the minor's property and his/her status as the minor's de facto guardian grant him no powers or entitlement over the minor's property.


    16. Legitimacy of children of void and voidable marriages. - (1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

   (2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

   (3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

The result of the 1976 Amendment was conferment of legitimacy on the child of a void marriage. Section 16 gives legitimacy to children begotten during a voidable marriage as well. For invoking Section 16, the condition precedent is that there must be either de jure or de facto marriage. It must, however, be noted that the children born of bigamous marriage and a legally valid marriage will have equal status.

    In respect of children born out of adulterous intercourse, maintenance of such illegitimate children has to be undertaken either by their father or mother irrespective of the fact whether they hold any property or not. This liability of the parents ends as soon as the children become major. If an illegitimate child converts to some other religion, his right of maintenance ends.

   If a marriage is annulled on account of bigamy and when it is known that the husband of the former marriage was dead and due to this reason she has remarried then before the annulment order is made, such children would be considered as legitimate.

   The children of void and voidable marriages would now be considered as legitimate, no matter if such a marriage has been declared void or not. The children of void or voidable marriages, would have a right of inheritance in their parent's property only. No such right would be available to them in the property of any other relatives.

Pre-marriage pregnancy of wife

Section 12(1)/9d) enables the avoidance of a marriage solemnised, whether before or after the Act came into force, at the instance of the husband, on the ground that the wife was at the time of the marriage pregnant by some person other than himself, provided that the conditions set out in Section 12(2)(b) are fulfilled.

   Children born of such pre-marriage pregnancy are considered illegitimate and can inherit to the property of the mother only.

   Under Hindu Law, presumption of legitimacy is made as per Section 112, Evidence Act, 1872. Whenever this presumption is negatived by evidence, the child in question is declared as illegitimate and he gets the right to inherit his father's self-acquired property only and not to the coparcenary property.

    In Bharatha Matha v. Vijaya Renganathan,  the court held that the presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872 was a rebuttable presumption, which could be disproved by presenting the appropriate evidence. If a child is proved to be illegitimate by rebutting the presumption, he will only be entitled to the self-acquired property of the parent and not tot he coparcenary property.

Presumption of legitimacy of children born from presumed marriage

In Madan Mohan Singh v. Rajni Kant,  it was held that law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years. Such presumption can be rebutted by producing unimpeachable evidence. A live-in relationship if continued for a long time cannot be termed as "walk-in and walk out" relationship and there is presumption of marriage under Section 112, Evidence Act, that they lived as husband and wife and children born to them will not be illegitimate.