Section 13 of the Act does not lay down any new rule, but merely reiterates the well-established principle that when the Court appoints any person as the guardian of a Hindu minor, the welfare of the minor will be the paramount consideration.
This salutary rule forms the key-stone of the whole law on this subject. In this context, the term, “welfare” is to be understood in a very wide sense, and includes not only the material and physical well-being of the minor, but every factor connected with the moral and religious welfare, education and upbringing of the minor.
As once observed by the Supreme Court, in matters relating to the custody of a minor child, what is important is the interest and welfare of the child – and not the convenience or pleasure of the parents (Kumar v. Chetana, AIR 2001 SC 2179)
It is further expressly provided that if the Court is of the opinion that a particular person’s guardianship will not be for the benefit of the minor, such a person shall not be entitled to be the minor’s guardian, even if he or she is otherwise entitled to do so under the provisions of the Act, or any law relating to guardianship in marriage among Hindus.
It is to be remembered that the present Act is to be read as supplementing the provisions of the Guardians and Wards Act. Section 17 of that Act deals with the matters to be considered by the Court in appointing a guardian.
In determining as to what will be for the welfare of the minor, the Court would have regard to, inter alia, the age, sex and religion of the minor, the character and capacity of the guardian, his nearness of kin to the minor, the wishes (if any) of the minor’s deceased parent, and the previous and existing relations of the minor with the proposed guardian. If the minor is old enough to form an intelligent preference, the Court may also consider such a preference. The underlying thread running through both the Acts is that the minor’s welfare should, in all cases, be the paramount consideration.
In one case, the mother of a male child filed an application against the child’s father for custody of the child. As the child was below five years of age and as the father had ceased to be a Hindu, the Court gave the custody of the child to the mother.
The Court reiterated the principle that the mother is entitled to custody of such a child, in the absence of any exceptional circumstances as would disentitle her to such custody. (Onkar Walia v. Urmila Devi, A.I.R. 1985 H.P. 100)