After referring to the Black’s Law Dictionary; The Guardians & Wards Act, 1890; The Hindu Minority and Guardianship Act, 1956; The Tamil Nadu Elementary Education Act, 1994 & The Juvenile Justice (Care & Protection) Act, 2000.
“Guardianship postulates control over both the person as well as the assets of a minor or of one and not the other. Section 6 of The HMG Act is of seminal importance. It clarifies that Guardianship covers both the person as well as the property of the minor; and then controversially states that the Father and after him the Mother shall be the natural Guardian of a Hindu. Having said so, it immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the Mother. Very briefly stated, a proviso is in the nature of an exception to what has earlier been generally prescribed. The use of the word ‘ordinarily’ cannot be over-emphasized. It ordains a presumption, albeit a rebuttable one, in favour of the Mother. The proviso places the onus on the Father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her Mother. It is for the Father to plead and prove the Mother’s unsuitability. The Father’s character and background will also become relevant but only once the Court strongly and firmly doubts the Mother’s suitability; only then would the comparative characteristics of the Parents come into play.”
– Hon’ble Justice Vikramjit Sen, Roxann Sharma v. Arun Sharma, [Civil Appeal No. 1966-67 of 2015].