Aspect Hindu Law Muslim Law Christian & Parsi
Laws
Natural Guardian Father (for boy or Father (primary Same as GWA -
unmarried girl) and guardian), followed by Guardianship handled
after him, mother grandfather by the Court.
(for children under 5
years)
Natural Guardian Mother usually has Mother has custody for Same as Hindu Law
(for children preference younger children, but
under 5) father is the guardian
Disqualification Father can be Father is disqualified No explicit
of Natural disqualified if he for reasons like being disqualification, but
Guardian renounces religion, is unsound or welfare of the child is
of unsound mind, or indifferent to the paramount
absent child’s welfare
Custody (under 5 Mother is preferred Mother retains custody As per Hindu Law or
years) unless there are until a certain age, GWA provisions
exceptional after which father’s
circumstances guardianship prevails
Testamentary Father or Mother Father appoints a Testamentary
Guardian can appoint in a will testamentary guardianship allowed
guardian, Shia Law under GWA for both
restricts this to certain Christian and Parsi
conditions
Power of Testamentary Testamentary guardian Similar to Hindu Law,
Testamentary guardian has full is valid for both person guardianship can be
Guardian powers post the and property arranged in a will
death of the parent
Court-Appointed The court appoints a Same as Hindu Law; Guardianship under
Guardian guardian when the court decides GWA (1890);
natural or based on the welfare court-appointed
testamentary of the child guardians based on
guardians are welfare
unavailable or unfit
Role of Court in Welfare of the child Court can intervene if Court appoints
Guardianship is paramount; court the father or guardian if welfare is at
appoints guardian if grandfather is unfit or risk
welfare is at risk unavailable
Guardian’s Natural guardians Guardians can Welfare of child is
Powers over can manage but manage property but considered; property
Property cannot sell or cannot sell immovable decisions are
mortgage property unless court-monitored
immovable property necessary
without court
approval
Alienation of Requires court Requires court Court involvement for
Property by approval for selling approval for selling managing and selling
Guardian immovable immovable property the property, with
property welfare as the focus
De Facto No legal standing No legal standing; No formal
Guardian under HMGA; cannot sell or transfer recognition; treated
previous powers to property similarly to Hindu Law
manage property
were limited
post-1956
Custody vs. Custody is about Custody can be Custody is temporary,
Guardianship care, guardianship separate from guardianship is
relates to legal guardianship; welfare permanent and legal
authority is key
Guardianship of Natural guardian Guardians can manage Same principles as
Property can manage minor’s property; sale of Hindu Law and GWA
property but cannot immovable property for property
alienate immovable requires court management
property approval
Adoptive Adoptive father is Adoption is not formally Adoptions are governed
Guardianship the natural guardian recognized, but the by the Juvenile
after adoption; Juvenile Justice Act Justice Act, applicable
court's approval is allows Muslim parents to all, including Muslim,
needed for adoption to adopt under the Christian, and Parsi
secular law
Parental Rights Both father and Father has the rights Both parents have
mother have rights to education, religion, rights unless one is
unless one is and property unfit
disqualified decisions for the child
Key Case Laws Summary:
● Hindu Law:
○ Githa Hariharan v. RBI (1999): The Supreme Court ruled that the word “after” in
HMGA means “in the absence of” the father, not necessarily after his death,
giving more power to the mother in case of father's absence.
○ Pushpa Singh v. Inderjit Singh (1990): Custody of minors under 5 is generally
given to the mother, except in special circumstances.
● Muslim Law:
○ Irfan Ahmad Shaikh v. Mumtaz (AIR 1999): The mother retained custody of her
daughter, even though the father was the natural guardian, emphasizing the
welfare of the child.
○ Athar Hussain v. Syed Siraj Ahmed (2010): The court ruled that the father may
have guardianship rights, but custody must be granted based on the child’s
welfare.
● Christian and Parsi Laws:
○ Guardianship under the GWA: Guardianship is primarily governed by court
decisions based on the welfare of the minor, regardless of religious affiliation.
Important Notes:
1. Natural guardianship is typically granted to the father first, and the mother second, in
both Hindu and Muslim law, but the court can intervene if the welfare of the child is in
danger.
2. Testamentary guardianship allows parents to appoint a guardian for their minor
children in a will, with the father holding more power in Hindu and Muslim Law.
3. De facto guardians (those who care for children without legal standing) do not have
authority over property but may be involved in custody decisions if no formal guardians
exist.
4. Guardianship of property requires the court’s approval for the sale of immovable
property, ensuring the minor’s assets are safeguarded.
