Who is the lawful guardian of a married minor girl — the husband or the father?
Delhi High Court was confronted with this tricky question on Friday when the father of a married minor girl Reshma (name changed) objected to her “underage husband” Sohan (name changed) seeking her custody.
Normally, the husband is the natural legal guardian of a married girl.
But under the Hindu Minority and Guardianship Act, 1956, the father is the natural legal guardian of an unmarried woman, irrespective of her age.
Interestingly, the girl in question is not only married but also delivered a baby boy last month at the children’s home where she is lodged, pending the decision of the court.
What has complicated the case is the father’s claim that the marriage was not valid and therefore, he was the girl’s natural legal guardian and not the man who claims to have married her. The father has also filed a separate criminal case seeking Sohan’s conviction for kidnap and rape of his daughter.
A three-judge bench headed by Justice Vikramjit Sen was almost ready to hand over Reshma’s interim custody to Sohan as he informed the court that she had attained majority recently (turned 18). “It’s her wish now,” said the court.
But this was till Arvind Jain, the counsel of Reshma’s father, intervened and cited the Guardianship Act.
Jain reminded the court that the legality of marriage had not been finally decided and as per the Act, the natural legal guardian of an unmarried girl of any age was the father. But under the same Act, a boy, once he attains the age of 18 is free from the legal guardianship of his father and can take an independent decision.
“Oh! This is interesting. By discriminating between a boy and girl, doesn’t the Guardianship Act violate the right to equality guaranteed by the constitution?” Justice Sen asked.
The bench has asked Jain to address it on the issue. The court has also asked the girl to appear in the court with the newborn baby on July 24, the next date of hearing.