Section 6 of the Hindu Minority and Guardianship Act, 1956, is reproduced below for your information:
“6. Natural guardians of a Hindu minor.—The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are—
(a) in the case of a boy or an unmarried girl—the father, and after him, the mother : Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;
(c) in the case of a married girl—the husband :
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.—In this section, the expressions ‘father’ and ‘mother’ do not include a step-father and a step-mother.”
As per above provisions, in the case of a boy or an unmarried girl—the father is the preferred natural guardian, though it is also provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. However, in your case, both children are above the age of 5 years.
In view of this, you can apply for regular custody of your children.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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