Description

Women Rights, Law and Justice
Editor: Prof. Dr. Yogesh Kumar Gupta
Published by Universal Academic Books Publishers and Distributors,
New Delhi (India)
ISBN: 978-81-686113-2-0, 2026

Chapter 10

Custody and Guardianship Rights of Women

Jaideep R
The Oxford College of Engineering, Bengaluru, Karnataka

Abstract

The determination of custody and guardianship rights remains one of the most contentious areas within family law, historically skewed by deeply embedded patriarchal notions of legal ownership and authority. This paper critically evaluates the evolution of custody and guardianship rights of women, examining the persistent friction between traditional personal laws and the modern judicial principle of the “welfare of the child.” While contemporary jurisprudence increasingly recognizes mothers as natural guardians and primary caregivers, statutory frameworks often continue to relegate women to a secondary status, prioritizing paternal rights in matters of legal guardianship, asset management, and natural lineage. This study analyzes the legal, procedural, and social hurdles women face during matrimonial disputes, focusing on the financial burdens, systemic institutional biases, and the challenges of enforcing joint custody or sole guardianship orders. Furthermore, the paper addresses the unique legal vulnerabilities of unwed, divorced, or marginalized mothers within fractured regulatory systems. Through a comprehensive analysis of statutory provisions, judicial precedents, and international human rights conventions, this research exposes the structural gaps that compromise women’s autonomy and child security. Ultimately, the paper advocates for comprehensive legislative reforms to unify custody standards, dismantle gender-based hierarchies in guardianship laws, and codify the child’s best interest as the absolute, gender-neutral determining factor in all custody disputes

Keywords

Custody Rights, Legal Guardianship, Child Welfare, Family Law, Gender Equality.

1. Introduction

It includes legal responsibility for the child’s person and, where applicable, property. A guardian may make important decisions concerning the child’s education, medical treatment, residence, travel and assets. The Guardians and Wards Act, 1890 defines a guardian as a person responsible for the care of a minor or the minor’s property, or both. The Act applies to court proceedings concerning the appointment or declaration of guardians. Section 7 empowers the court to appoint or declare a guardian when doing so is beneficial to the minor. Section 17 directs the court to consider the child’s welfare, age, sex, religion, the proposed guardian’s character and capacity, relationship with the child, and the intelligent preference of an older child.