Bench affirms that disputed custody deed cannot bar mother’s right under the Hindu Minority and Guardianship Act, emphasises child’s welfare and statutory guardianship norms.
Ahmedabad, India: The Gujarat High Court has held that the mother is the natural guardian of a girl child below five years of age under the Hindu Minority and Guardianship Act, 1956, and that a disputed separation deed claiming voluntary handover of custody to the father cannot defeat this statutory right.
The judgment was delivered on 23 February 2026 in a habeas corpus petition filed by a woman challenging the alleged unlawful retention of her four-year-old daughter by her estranged husband.
Background of the Case
The petitioner approached the High Court by way of a habeas corpus petition stating that her estranged husband had illegally kept their four-year-old daughter with him after she had left the marital home. The father, in response, placed reliance on a separation deed which he claimed contained the mother’s voluntary consent to hand over custody of the child to him.
The separation deed was disputed by the mother, who contended that it was obtained fraudulently and did not reflect her true wishes. She argued that, by law, the custody of her minor daughter, especially one below five years, belonged with her as the natural guardian.
Legal Issue
The principal legal question before the Court was whether a disputed separation deed purportedly giving custody of a minor to the father could override the statutory guardianship rights of the mother under Section 6 of the Hindu Minority and Guardianship Act, 1956, particularly in the case of a girl child who has not completed five years of age.
Court’s Ruling
A Bench comprising Justices Justice N.S. Sanjay Gowda and Justice D.M. Vyas allowed the habeas corpus petition. It held that:
- Under the Hindu Minority and Guardianship Act, 1956, the mother is the natural guardian of a minor girl below five years of age, both for her person as well as her property.
- The objective of Section 6 is to ensure that a young child’s welfare is best served by the parent capable of providing primary care and protection — ordinarily the mother in the case of a daughter below five years old.
- A disputed separation deed, which the father relied on to claim custody, did not supersede the statutory rights conferred on the natural guardian under the Act.
- In the absence of a clear and unambiguous agreement properly recording a willing surrender of custody, the statutory framework governing guardianship prevails.
On these findings, the High Court ordered that the girl be produced before the court so that appropriate custody directions could be given based on the statutory guardianship position.
Reasoning of the Court
In its reasoning, the Bench emphasised the primacy of the statutory provisions of the Hindu Minority and Guardianship Act over informal or private arrangements like separation deeds, especially where the documents are disputed.
The Court noted that Section 6(a) of the Act clearly states that, in the case of a boy or an unmarried girl, the father is the natural guardian, and after him, the mother, but it also includes a specific proviso that the custody of a minor girl below five years shall ordinarily be with the mother. This legal presumption is rooted in the practical realities of childcare and the best interests of the minor.
Further, the bench reasoned that allowing a contested document such as a separation deed, which allegedly contains the mother’s surrendered signature, to determine custody in place of the statutory position would undermine the legislative intent.
Practical Implications
The High Court’s decision clarifies that:
- In guardianship and custody disputes under the Hindu Minority and Guardianship Act, statutory rights of natural guardians cannot be easily displaced by private agreements, particularly where such documents are challenged as disputed or obtained under unclear circumstances.
- The ruling reinforces the presumption in favour of the mother as the natural guardian of a girl under five, emphasizing the principle of the child’s welfare being paramount.
- A habeas corpus petition remains an appropriate remedy where custody of a minor is in dispute and statutory guardianship rights are at stake.
The judgment adds clarity on the application of the Hindu Minority and Guardianship Act in custody disputes involving young children and affirms that a mother’s statutory guardianship rights prevail over contested private agreements purportedly altering custody arrangements.
