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Section 5: Overriding effect of Act

Hindu Minority & Guardianship • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1956
Section 4 All 13 Sections of Hindu Minority & Guardianship Section 6

Legal Commentary & Landmark Judgments: Section 5

Section 5 establishes the absolute overriding and preemptive authority of HMGA, abrogating all inconsistent pre-existing texts, shastric doctrines, customs, and prior statutes.

  • Abrogation of Prior Texts & Rules: Any text, rule, or interpretation of Hindu law or any custom or usage in force immediately before the commencement of the Act ceases to have effect regarding guardianship matters.
  • Supremacy Over Inconsistent Enactments: Overrides any other law in force immediately before the commencement of this Act insofar as it is inconsistent with any provision of the Act.
  • Complete Statutory Code: Constitutes HMGA as an exhaustive codification of natural and testamentary guardianship among Hindus, subordinating ancient father-centric shastric privileges to modern statutory standards.
Key Landmark Precedents:
  • Gita Hariharan v. Reserve Bank of India (1999) 2 SCC 228: The Supreme Court held that Section 5 invalidates any patriarchal shastric rule that subordinated the mother's natural guardianship to the father's absolute authority.
  • Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42: Affirmed that under Section 5 r/w Section 13, all pre-existing rules of personal law yield to the paramount statutory welfare of the child.
Courtroom Practice & Strategic Litigation Guidance:

Rely on Section 5 whenever an estranged father asserts absolute shastric right to the custody of a child. Under Section 5, statutory provisions and the welfare principle under Section 13 supersede all archaic uncodified texts.

Section 4 All 13 Sections of Hindu Minority & Guardianship Section 6