This article is written by Shreya Patel. This article emphasises the meaning and objectives of guardianship and custody, along with the key differences between them. This article further discusses the landmark cases on guardianship and custody. This article also throws light on the difference between guardianship and custody laws in India and other western countries like the United States of America and the United Kingdom.

Table of Contents

Introduction

The concepts of custody and guardianship have played a key role in the personal laws of India for decades. Both guardianship and custody are not new concepts for India. Guardianship and custody both play a vital role in the child’s development. India, as a country, is home to many different religions. All religions follow their own personal laws for guardianship and custody. The welfare of the child is the core element of the guardianship and custody provisions, whether they are under Islamic laws, Hindu laws, Parsi laws or Christian laws.

Guardianship and custody do not both have the same meaning. They are often used by people as synonyms, but they are completely different in nature. The main goal of both guardianship and custody is the protection of children, but they cannot be used interchangeably. The personal laws in India provide provisions for guardianship and custody. But in the famous case of Rafiq vs. Smt. Bashiran (1962), the Court held that the Guardian and Wards Act, 1890 will always overrule personal laws when any conflict arises between the two acts.

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The legal framework for guardianship and custody deals with different rights and obligations that parents and other guardians have in regard to the welfare and protection of children. As compared to guardianship, custody is a much narrower concept. 

Objectives of guardianship and custody

The laws related to guardianship and custody are introduced and designed to ensure the protection and welfare of the children. Hence, the key objective of guardianship and custody is the protection of the child and ensuring his/her wellness. In the case of Surya Vadanan vs. State of Tamil Nadu (2015), the Supreme Court of India held that the welfare of the child and the best interest is of prime importance. The next objective of guardianship and custody is to ensure that the child gets the best nurturing possible. 

Guardianship and custody also help in determining who will have the key authority to make decisions on behalf of the child, ensuring the best interest of the child. Guardianship and custody also play a major role in providing the child with stability in life by granting guardianship or custody to a party that will protect the welfare of the children. 

Guardianship and custody help in deciding who is responsible for the child’s welfare and who will have the legal authority to make the decisions on behalf of the child. By deciding on matters related to custody and guardianship, clear decisions can be made regarding the safety, protection, development, growth, stability and other important aspects of the child. 

Difference between guardianship and custody

Meaning of guardianship and custody

Guardianship

In layman’s terms, when an individual is designated by an authority to take care of a minor, or his property or both is known as guardianship. The guardian manages the activities related to the property and the minor. The legal right is given to the adult to make decisions on behalf of the minor for his/her well-being. A person who takes care of the minor’s property, the minor or both is known as a guardian. Section 4(b) of the Hindu Minority and Guardianship Act, 1956, defines a guardian as a person who takes care of the minor, his property or both the minor and the property. A minor is defined as a child who is below eighteen years of age, as per Section 4(a). 

The definition of guardian includes

  • Testamentary guardian– A guardian who is appointed as per the will of the minor’s parents. In case anyone or both parents die, then the guardian is appointed as per the will of the parents, if present.
  • A natural guardian–  A guardian who is a blood relative or by virtue is responsible for taking care of the minor. Most of the time, the natural guardians are the mother and father of the child.
  • Court appointed guardian- A guardian who is declared or appointed by the court, as the name itself suggests. As per Section 7 of the Guardians and Wards Act, 1890, the court has the power to appoint a guardian. There can be more than one guardian if the minor has more than one property. The court appoints a guardian only in cases where there is no testamentary or natural guardian present.

The main objective of the Hindu Minority and Guardianship Act, 1956, is to ensure the welfare and best interests of children below the age of 18 years. 

Custody 

Custody, in simple words, means a duty or right to look after children when the parents are no longer together, i.e., they have separated or divorced. Custody is a legal right given to both parents or an individual parent in relation to the rights of raising the child. The word custody is not defined in any Indian law. Both parents have equal rights to custody. The custody can be joint, where both the mother and father raise the child and ensure their welfare together, or it can be given to a single parent if any one party is deemed unfit for raising the child. 

Nature of guardianship and custody

Guardianship

The nature of guardianship is fully legal. The guardian has to manage the property of the minor, minor or both and ensure the protection and welfare of the minor. The nature of guardianship can be different; for example, the guardian can be appointed by the court, natural or testamentary.

Custody 

Custody is temporary in nature, it can change as per the needs of the minor. The custody can last until the child reaches the age of 18 years. It can be sole custody or jointly with the other parent as well.

Scope 

Guardianship

In guardianship, the scope of responsibilities is much broader. The guardian of the child has to make many crucial decisions for the minor, keeping their best interests in mind. All the hugely important decisions related to education, other legal aspects, financial decisions, and health-related decisions are to be taken by the guardian until the child reaches the age of majority. 

Custody 

In custody, as the physical aspect of the child is also included, i.e., the individual who has custody, the child will live with them. So the child’s daily needs and requirements and decisions related to those are to be taken. The basic necessities, like clothes, food and education-related needs, are included in the scope of custody. 

Duration of guardianship and custody

Guardianship

The duration of guardianship ends when the child attains the age of majority if the guardianship is granted solely for the minor. If the guardianship is granted for property, then the guardianship will end after the fulfilment of the rights and duties that are entitled to the guardian in relation to the property. If the property for which the guardianship is provided gets consumed, then it will also result in the end of the guardianship.

Custody 

As per Hindu laws, the custody of the child remains until they attain the age of 18 years. Under Muslim laws, the mother has custody of the child till the age of seven years, if the child is a male. In the case of a female child, until the girl attains majority age or puberty, custody will remain with the mother. Muslim law only counts the father as the natural guardian. Both Christian and Parsi laws grant custody to the parent who can look after the child more pleasantly and the child’s welfare can be guaranteed. 

Legal framework

Guardianship

The key acts that govern guardianship under Indian family law are:

  • The Guardians and Wards Act, 1890
  • Hindu Minority and Guardianship Act, 1956

Both the legal statutes state all the important regulations in relation to guardianship. The Guardians and Wards Act, 1890, includes provisions related to the appointment of guardians, the declaration of guardians, all the duties, rights and liabilities that the guardian will possess in relation to the ward and his/her property and the circumstances in which the guardianship will be terminated. The Hindu Minority and Guardianship Act, 1956, is a type of upgrade to the Guardians and Wards Act, 1890, a more modified version of the previous statute. The act defines guardianship between minors and adults. 

Custody 

The two major statutes that govern aspects related to custody in India are:

When child custody is to be sought, the rules and regulations that are set for the same are mentioned in the Hindu Marriage Act, 1955. Section 26 of the Hindu Marriage Act, 1955 and Section 38 of the Special Marriage Act, 1954, talk about the custody of children. While the Hindu Minority and Guardianship Act, 1956, includes a set of rules for when the child is Hindu, it also allows the parents of the child to seek custody. Only the parents are permitted to seek custody of the minor child under this Act. The rules and regulations of child custody differ from religion to religion. There are many personal laws that govern matters related to custody as per their religions. 

Parental rights in guardianship and custody

Guardianship

In guardianship, it is not compulsory to give the guardianship of the child to the biological parent. Any individual deemed fit by the court and who will consider the interest and welfare of the child is given guardianship. The guardianship can be given to any other family friend, relative or close acquaintance. The parents are the natural guardians. As discussed earlier, the guardian can also be appointed by the court.

Custody 

The custody of the child who is under the age of eighteen is given to any one of the parents. Only the minor’s biological parents are given custody. The custody can be given solely to one parent, whether a mother or father or it can be given jointly to both parents. The child has to live with the parent who has custody. In cases of joint custody, the number of days each parent will have custody is usually decided beforehand.

Rights and duties

Guardianship

The rights of a guardian include taking the decision and giving consent on behalf of the minor. The guardian also has the right to make decisions in relation to the minor’s property. The duties of a guardian include taking decisions in the best interest of the child, providing the child with proper necessities, taking decisions related to education which are favourable for the child, making decisions related to the finances of the child, etc. The key duty of the guardian is to not misuse the powers given to them. It is also the duty of the guardian to look after the health of the minor and make decisions according to it.

Custody

The rights and duties of the individual to whom the custody of the children is given depend on the type of custody. The custody can be a legal, physical, sole, joint, or third party. In cases of legal custody, the parent having legal custody will have the right to take all the decisions for the child/children. In most cases, both parents hold the legal custody of the children, so they both have the right to make decisions in relation to any medical treatments, anything related to education, etc. But there might be some cases where only one parent has legal custody.

In the case of joint custody, both the parents have equal rights and duties. If the decision is for the welfare of the child, the parents have the right to make the same decision. Custody mainly focuses on the day to day needs of the children in cases of physical custody. So the right to take decisions is with the parent that has physical custody in major aspects; there can be some exceptions as well, where the court has explicitly given some rights to any one party. 

Decision-making authority in guardianship and custody

Guardianship

In guardianship, the guardian has the decision-making authority. This is a legal authority given to the guardian to take decisions on behalf of the minor. In many cases, the court appoints the guardians themselves to make informed and educated decisions with the consent of the minor, his property or both.

Custody 

In cases of custody, the decision-making authority is provided to the party who has custody of the minor. It can be a single parent or both. When there is joint custody, both parents have equal authority when it comes to decision-making. In the case of sole custody, the parent who has custodial rights will have all the decision-making authority. 

Termination of  guardianship and custody

Guardianship

The guardianship can be terminated in the following circumstances:-

  • When the majority age is attained by the minor.
  • The guardianship is renounced by the guardian.
  • The guardianship is terminated by the court.
  • When the guardianship is only related to the property of the minor and that particular property comes to an end.
  • The death of the guardian takes place.

In Section 39 of Guardians and Wards Act, 1890, the guardian can be removed if it is found that he/she is abusing their power, is failing in fulfilling their duties towards the minor, neglecting or giving ill-treatment to the ward, has committed an offence, has an ulterior motive behind gaining guardianship, etc., then the guardian will be removed by the court.

Custody 

The custody can be terminated if the court finds that both the mother and father or any one of the parties, cannot take care of the minor. The custody can also be terminated if the parents are found to be violating the laws and not considering the minor’s best interests. There can be some cases where the parent/parents have voluntarily terminated their custody. The termination can also be involuntary in nature.

Landmark case laws surrounding guardianship and custody

Guardianship

In the case of Imambandi vs. Mutsaddi (1918), the Bombay High Court held that the father would be considered the sole guardian when he was alive. The father will be the supreme guardian of the children below the age of 18 years. Under Muslim law, the mother is not regarded as the natural guardian; only the father of the minors is held to be the natural guardian. Even if the death of the father takes place, the mother won’t be considered as a natural guardian as per the Muslim law in India. 

If the custody of the minor is not given to the father of the child, then in that circumstance, the father will also be considered the natural guardian of the minor. The father being the natural guardian will have control and influence in all the decisions related to the minor. Only the legitimate children will have the father’s guardianship. The father is not entitled to any guardianship rights if the child/children are illegitimate. The custody of the child can be given to the mother, but the guardianship will remain with the father only.

The two most vital cases on guardianship of the mother are the case of Githa Hariharan & Another vs. Reserve Bank of India & Another (1999) and the case of Dr. Vandana Shiva vs. Mr. Jayanta Bandhopadhyaya, 1999 AIR (SC) 1149. It was held by the Supreme Court of India that the minor’s mother will also be the guardian of the father. Both the mother and father of the Hindu child are considered the natural guardians of the minor. 

Before 1999, the mother was considered the guardian of the minor children only when the father’s death had taken place, because the provision included the word ‘after him’ (Section 6(a) of the Hindu Minority and Guardianship Act, 1956). These two judgements helped in changing the old scenario and gave the mother the right to guardian even when the father of the minor is alive. If the father is absent from the child’s life or the couple has been separated for many years and the father is not taking any active part in the child’s life, then the mother can be considered the natural guardian of the minor.

July 6th, 2015, marks a historic day for mothers who are not in a marriage to be legally recognised as the child’s guardian. In the landmark judgement of ABC vs. The State (NCT of Delhi), which arose after a petition was filed, the Supreme Court of India ruled that the mother who is unwed will be a legally recognised guardian of the minor child. This case proved to be a pioneering judgement on gender equality in India. The mother will also not be forced in any way to reveal the child’s biological name or other details. 

In the case of Jijabhai vs. Pathankhan (1971), for over twenty years, both parents were living separately. The child was being taken care of solely by the mother, and she was the one who managed everything related to the child. The court, in this case, believed that even with the father being alive, he had not taken any part or interest in the child’s life or his/her well being, so as a natural guardian of the child, the mother is the rightful guardian. The father was not at all present, so his existence can be considered null. Hence, the court held that the mother was the natural guardian for both the minor and his/her related property. 

Custody 

In the case of Dhanwanti Joshi vs. Madhav Unde (1997), it was held by the Delhi High Court, at the time of custody, many different aspects were taken into consideration. The financial aspect is one of them, but the parent’s financial status alone cannot be taken into consideration for custody. Other criteria, such as child’s requirement, sex, age, etc are also crucial to be considered. Different circumstances and factors are contemplated at the time of custody decisions.

The growth of the minor is a vital facet that is often considered in custody cases. The same was seen in the case of K. M. Vinaya vs. B. Srinivas (2013), the Karnataka High Court held that for the development and growth of the child, custody is granted to both parents. The minor should not be fully detached from their families when it comes to custody related decisions; only the father is considered the guardian of the minor. The rights of both the parents and the welfare of the child is crucial. In order to maintain the rights of the natural guardian, who is the father, the child should not be ripped out of their familiar surroundings, as held in the case of Vegesina Venkata Narasiah vs. Chintalpati (1971).

The Supreme Court of India held in the case of Mausami Ganguli vs. Jayant Ganguli (2008), held that the welfare and best interest of the child are to be considered supreme and will supersede statutes and provisions mentioned for custody if they are proven to be hindering the well being and welfare of the minor in the custody cases.  The same notion is followed by all the high courts and the Supreme Court for all disputes related to custody.

The Andhra Pradesh High Court, in the case of Md. Jameel Ahmed Ansari vs. Ishrath Sajeeda (1982), granted the custody of a boy who was eleven years old to the Muslim father. Only until the age of seven years can the mother have exclusive custody of the male child, as per Muslim law. If there are no grounds that can prove that the father is unfit for the boy’s custody, then after seven years, custody will be awarded to the father of the minor. 

The custody of the minor can be temporary in nature. The custody of the minor can be changed as per the circumstances. In the case of Rosy Jacob vs. Jacob A. Chakramakkals (1973), it was held by the Supreme Court that all the orders granted in relation to custody can be considered temporary in nature. When there is a change in circumstances and other conditions, the custody order can be changed wholly or modified as per the need. As time passes, the court is qualified to make some variations as the need arises, taking into account the welfare and interests of the ward at that time. Even if the ward’s consent was included in the custody order, it is liable to vary again if, at a later stage, the ward’s well-being, protections and interests demand the same.

Table of differences between guardianship and custody

Sr No.Basis of DifferenceGuardianshipCustody
1MeaningWhen an individual is assigned to look after a minor’s property, or just the minor or both and can take the decision on behalf of the minor, this is called guardianship.The rights given to the parent/parents to raise the child. The right to legally look after and keep the child physically with them is known as custody.
2ScopeGuardianship has a broader scope.Custody, when compared with guardianship, has a slightly narrower scope as it deals with more daily life related decisions. 
3NatureThe nature of the guardianship includes the responsibility of managing the minor, his property or both. The right of guardianship is a legal right provided to the guardian. The nature of guardianship can be limited to some aspects only. The custody can be changed as per the needs and demands of the welfare of the child; hence, the custody can be temporary in nature. Custody is not limited in nature. The parent who has custody will have the right to make all decisions for the welfare of the child. 
4DurationGuardianship automatically terminates when the child reaches the age of 18 or when the specific responsibility assigned to the guardian gets consumed (it can be related to a minor or his property).Custody also ends with the attainment of the majority age. But the duration can also be changed if the custody is given to some other party before the minor reaches the age of 18 years.
5Legal FrameworkThe main legislations that oversee the vital aspects of guardianship are The Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. These acts lay out all the provisions required to be followed and considered when it comes to guardianship of children below the age of 18 years.The important acts that provide a framework for custody related aspects are The Hindu Marriage Act, 1955; the Hindu Minority and Guardianship Act, 1956; and the Special Marriage Act, 1954.
6.Decision-Making AuthorityThe guardian only has decision-making authority in relation to which guardianship is provided. If the guardianship is provided only for the minor’s property, then the guardian cannot take any decisions in relation to the minor’s education, health, etc.In custody, the decision-making authority is with the party that has custody of the child. In joint custody, the decision-making authority is equally shared between both parents. All the decisions regarding the child’s property, education, health and other important factors are to be taken by the individual who has custody.
7.Rights and DutiesUnder guardianship, the guardian has the right to take educated and informed decisions with the consent of the minor in relation to the minor, his property or both. The guardian can make decisions which are optimal and for the betterment of the child. It is the guardian’s duty to ensure the welfare and best interests of the child.The rights and duties vary as per the type of custody the parents have. The common rights of the parent with custody include deciding on the type of school for the child, medical plans, extracurricular activities, residence, etc and the duties include taking all these decisions while keeping the consent, best interests, safety and well being of the child in mind. 
8.Parental RightsIn guardianship, parental rights are not ceased. The guardian is given guardianship of the child until they are 18 years old. Having a guardian does not entail that the child has no parents. Parents and guardians can have rights over the child in different aspects. The guardianship can be over the minor’s property solely. In this case, the welfare and upbringing of the child will remain with the parents. Rights similar to parental rights can be given to a guardian if the parents seem to be unfit in the eyes of the law.In custody, parental rights can be exclusively given to one or both parents jointly. The parent who has custody of the child will be in charge of all the decisions that will be taken. Only the biological parents have parental rights in case of custody. 
9.TerminationThe guardianship can be terminated whenever the guardian is not taking into consideration the best interests of the child. The court can terminate the guardian if they violate any laws. When the party who has custody of the child proves to be unfit and neglects the welfare of the child, the court can terminate custody in such circumstances. There can also be a voluntary termination of the custody.

Difference between guardianship and custody : India and other western countries

In all countries, family laws play a significant role. One of the most significant aspects of family law is the guardianship and custody of children under eighteen years of age. These laws relating to custody and guardianship include the rights and obligations that the parents as well as the guardians have to fulfil for the better upbringing of the children. There are many differences in guardianship and custody laws between India and other western countries. All countries have their own cultures, social structures and legal statutes, which result in having different rules and regulations even when the subject is the same. The laws in India relating to guardianship and custody have the influence of both personal laws and civil laws.

India, as a country, is very diverse when it comes to religion. The rules and regulations relating to guardianship and custody differ as per personal laws. For instance, if the child is Hindu, there are different sets of regulations when it comes to custody and guardianship; the same goes for Muslims, Christians, etc. 

The Hindu Minority and Guardianship Act was introduced to govern guardianship related issues for Hindus. The act divided guardianship into three types, i.e., a natural guardian, a guardian appointed by the court, and a testamentary guardian. On the other hand, there are three types of guardianship recognised by Muslim laws, which are guardianship of property, guardianship of a minor and guardianship in marriage. The guardianship of property is further divided into three subtypes which are de facto (assuming the guardianship voluntarily), de jure (a natural or legal guardian) and certified (court ordered). The Guardians and Wards Act, 1890, governs the guardianship of Parsi and Christians.

In western countries, they do not have different custody and guardianship laws as per their religions, as seen in India. Most western countries have one or two-three major statutes that deal with the provisions of custody and guardianship. The laws are common for all minors in relation to their custody and guardianship. The United Kingdom has the Family Law Act, 1996 (scrapped in 2001) and the Children’s Act, 1989. Section 1 of the Children’s Act, 1989 talks about the welfare of children. Similar to India, the U.K. also has two types of custody, i.e., sole and joint custody. 

Most of the countries in the West also follow the same approach as India when it comes to joint custody. The United States of America and Canada follow two types of custody which are joint physical custody (the physical custody is shared by both parents, i.e., the child will live with both parents in turn) and joint legal custody (both parents share the decision making authority equally). India has been following the trend of joint custody for a few years, as it proved to be more stable and beneficial for the minors as they can have contact with both the parents. Most of the time, parents have to share the responsibilities equally among themselves. All the western countries also follow the path of keeping the minor’s best interests a priority when determining guardianship or custody. All aspects, including emotional and physical well being are taken care of. 

One of the major differences that can be seen in the approach towards the guardianship and custody matter between India and other western countries is that India gives more significance to the involvement of the family, whereas western countries emphasise the rights of the individual. The factors that are considered in determining custody and guardianship differ a little. In most western countries, the mother is considered the natural guardian of the minor. In India, the father is considered the natural guardian under some personal laws.

Conclusion 

Custody and guardianship, despite having almost similar roles, are very distinct in nature.  Both concepts play very different roles in the welfare of the child. Guardianship comprises the responsibilities in more extensive ways, while custody focuses on the day to day requirements and well being of the child. In India, we can see the interweaving of both personal and civil laws in relation to custody and guardianship, while on the other hand, western countries have more of a uniform framework for the same approach. The judgements that are discussed in this article emphasise the protection of the interests and well being of the child over the rigid statutes in place. With these laws, we can protect minors in the country more comprehensively. 

Frequently Asked Questions (FAQs)

What are the key factors that are considered by the courts when granting custody?

The key factors that are considered at the time of granting custody of the child are the wishes of the child, the child’s welfare, a stable environment, the age of the child and various other factors as per the case. 

How is child custody decided by the Indian Court?

When the court is determining the custody of the child, there are various factors that are taken into consideration related to emotional, financial and well being aspects. The child’s preference is also taken into consideration if the child is over the age of five.

What are the grounds for a father to get custody of a child?

The paramount rule of child custody is to ensure the welfare and best interests of the child. If the court thinks that the father can provide the best interest of the child in all aspects, then the father is granted custody of the child. The preference of the child is also taken when the child is above the age of five and below the age of eighteen. 

What do you mean by joint custody?

When both parents share the custody of the child together, it is known as joint custody. In this type of custody, a single parent does not have custody of the child.

Are grandparents allowed to claim guardianship of children in India?

In India, grandparents can claim guardianship of minor children as per Section 8 in The Guardians and Wards Act, 1890.

Can the court terminate a guardianship?

The court can terminate the guardianship, if the appointment of guardianship is against the welfare of the child and is not in the child’s best interest, as per Section 13 of the Hindu Minority and Guardianship Act, 1956.

What is a de facto guardian?

In simple words, a guardian that is self appointed is known as a de facto guardian. This individual becomes the guardian of the minor by reason of fact. The guardian is assumed voluntary in this case.

Can custody be given to any other party other than the parents?

It was stated in the case of Kirtikumar Maheshankar Joshi vs. Pradipkumar Karunashanker Joshi (1992) that the custody of the minor can be given to a third party.

Who is considered as the natural guardian as per the Muslim laws in India?

The father is considered as the natural guardian in India as per the Muslim laws.

Who can be a natural guardian as per Section 6 of the Hindu Minority and Guardianship Act?

Section 6 states that a natural guardian of a Hindu minor is the father of the child, after that the mother. In case the child is not above the age of five years then custody will be with the mother.

Does the Hindu Minority and Guardianship Act consist of any Section for illegitimate children and their custody?

The custody of the illegitimate unmarried girl and boy will be given to the mother first then the father as per Section 6 of the Act.

Who can be a guardian in India?

An individual who can take care of a minor and is also considered suitable in all vital aspects by the court can be a guardian.

Is it mandatory for a guardian to be a blood relative?

It is not mandatory for a guardian to be a blood relative. A guardian can be any third party who is eligible to look after and make educated decisions on the behalf of the minor in their best interest.

What is the difference between adoption and guardianship?

Adoption and guardianship are terms that often cause confusion in the minds of people. Guardianship is temporary in nature; which means the guardianship of a minor is assigned until he/she reaches the age of majority or certain other specific criteria are fulfilled, while adoption is permanent in nature. When a child is adopted, he/she becomes a permanent member of the family and in the case of a minor, the adopted parents have all the same rights as the natural guardian.

In adoption, all the rights of the biological parents are substituted by the adopting parents. In guardianship, the authority to look after the minor is given to the guardian in some aspects or for some time period, but the rights of the biological parents do not cease. People often get confused between guardianship and adoption and think both are the same, as the adopting parents and guardians (in some cases) are not blood relatives. In cases of guardianship, many  times the parents of the minor are required to provide some kind of child support as well. But when a child is adopted, all the obligations of the biological parents end. 

Can guardianship be revoked?

The court can revoke the guardianship if the guardian is found to be unfit for looking after the child.

Can custody of the child be provided to the surrogate mother in case of the death of the biological parents?

In India, the child that is born via surrogacy is considered the natural child of the intending couple, and they will have all the rights and duties similar to other parents (natural guardians).

Who can claim custody of the minor if both parents have died?

In case of death of both the parents the paternal or maternal grandparents can claim the custody of the minor, or any other blood relative who is close to the minor can claim the custody. Custody is provided only if the court approves of it after thoroughly investigating and ensuring that the custody of the child will lead to their protection and well being.

References

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