Q: Does section 6 of Hindu Minority and Guardianship Act , 1956 provide absolute right to father of natural guardian ?

Ans: The law mandates that it is only the welfare of the child that should be considered while determining custody of and access to child. Be it any of the above referred three legislations, the Court is required to consider as to what is in the welfare of the child. The question, thus, arises as to what is said to be in the welfare of the child, and what does a party need to prove before a Court to establish that it is in the welfare of the child that its custody be given to the said party.

The word 'welfare' must be construed literally and must be taken in its widest sense. It must be understood that welfare of child is not to be measured only by money or physical comfort. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well-being. Though the provisions of the special statutes that govern the rights of the parents or guardians may be taken into consideration, there is nothing that can stand in the way of a Court exercising its parens patriae jurisdiction arising in cases concerning a child's custody and access. A Court while dealing with the custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents since the only consideration is the welfare and well-being of the child. Though section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor, the provision cannot supersede the paramount consideration as to what is in the welfare of the minor; and a father's right to custody of the minor children is neither an absolute nor an indefeasible one thus leading to the implicit conclusion that a mother can also be given custody of the minor if its welfare should require it.

क्या है पैरेंस पैट्रिया (parens patriae) ? लैटिन में पैरेंस पैट्रिया का अर्थ है “राष्ट्र के माता-पिता”।

SUPERSEDE = उल्लंघन करना |

Absolute rights cannot be limited for any reason.

Relative Rights: Most human rights are relative rights. This means that they may or even shall be restricted by states for the protection of the rights of others or for the protection of national security, public order (Ordre Public), public health or similar public interests.