The provisions concerning the subject of natural guardianship in India are highly unequal and discriminatory. All the personal laws, be it the laws of Hindus, Muslims, or other communities, give a preferential right to father over the mother in matters of natural guardianship, thereby relegating mothers to a secondary position. This often creates hardships for divorced, separated, deserted or single mothers who sacrifice many of their rights and bear the brunt of the inequitable laws. With the gradual breakdown of the patriarchal outlook of Indian society and the rising status of women as independent and capable beings, the balance has been tilting in favour of the mothers who are both breadwinners for their households and able caretakers of their minors – thereby placing them on a par with their male counterparts.
In this paper, discrimination against mothers and derogation of their rights as natural guardians has been analysed. For this purpose, the paper has been divided into four parts. The first three parts analyse the statutes and judicial opinions on the mother’s right to natural guardianship. They involve a comprehensive review of the two important judgments – Githa Hariharan v. RBI1 and ABC v. State2 – on the question of natural guardianship rights of mother. The fourth part discusses the question of how discriminatory the laws on natural guardianship are and the consequential difficulties they create for mothers. Position of natural guardianship laws in foreign jurisdictions has also been discussed to substantiate the argument. Lastly, the changes which need to be incorporated in the laws have also been highlighted and the need for having equal and joint guardianship laws for married couples, and preferential natural guardianship for single mothers has been emphasised.
Natural guardianship: As revealed by the Indian laws
The legal framework governing the family matters in India is peculiar. Every religious community has its own set of laws that govern family matters of inter alia marriage, succession, and guardianship. Hence, people practising the religions of Hinduism, Islam, Christianity, and Zoroastrianism are governed by a bundle of laws distinctive to their religion.
With respect to the law on guardianship, the Hindus are governed by the Hindu Minority and Guardianship Act, 19563 (hereinafter referred to as “the 1956 Act”). Under the Act, a guardian is someone who looks after the person, or property, or both of a minor (a person below eighteen years of age) and the natural guardian of a minor is the father and after him, the mother.4 This provision has been reinterpreted to reflect changes in the law’s functioning and the same will be discussed later in the paper. The father is the natural guardian of an adopted son and after him the mother.5 The mother has guardianship rights over her illegitimate child and after her it is the father.6 Therefore, for a legitimate child and an adopted son, the father is the natural guardian and for an illegitimate child it is the mother.
As a natural guardian under the Hindu law, the father, or the mother exercise the power to do all acts which are advantageous for the minor and necessary for the protection or benefit of the minor’s estate, provided that they take permission from the court before mortgaging, charging, transferring, selling, gifting, exchanging, or otherwise any part of the immovable property of the minor.7
Under the Muslim customary law too, the natural guardian of a minor is the father, and the mother only has rights to custody of the minor till they attain a certain age. During the lifetime of the father and even after his death, for both legitimate and illegitimate children, it is only the male relatives on the paternal side that enjoy the rights of natural guardianship.8 Mother only enjoys custody over the illegitimate children.9 The father has exclusive powers to make decisions regarding the person, property, or marriage of the minor and can take any decision on their behalf which are beneficial to the minor’s person or estate.
For matters not mentioned in the Muslim customary law and for governing guardianship among people from other religions, the Guardians and Wards Act, 189010 (hereinafter referred to as “the 1890 Act”), which is a secular law, takes precedence. Under the 1890 Act, the courts are barred from appointing a guardian for a minor whose father or mother is not unfit to look after the minor.11 However, mother was included in the provision by an amendment in 2010.12
From an overview of the aforementioned laws, one can discern that the rights of father as a natural guardian of the minor outweigh the recognition of mothers as natural guardians. Since independence, the fathers have exclusive power over the person and property of the minor and mothers have been relegated to a secondary position. Their fundamental right to equality under Article 1413 of the Constitution of India was conspicuously forgotten and the mandate of Article 1514 to not discriminate on the basis of sex overlooked. Provisions of law which only recognise father as the natural guardian of the minor were being applied to the country.
To remedy the shortcomings of the laws in force and to improve the stance concerning the rights of mothers over their minor children, the Supreme Court in Githa Hariharan v. RBI15 interpreted the relevant provisions of the 1956 Act and the 1890 Act to incorporate the recognition of the mothers on a close footing with that of the fathers.
Recognition of mothers as natural guardians – The first win
Before this case, the courts recognised the father as the natural guardian of the minor and as long as the father was alive only, he could act as the natural guardian.16 Githa Hariharan v. RBI17 was a watershed judgment on the subject-matter of guardianship and paved the way for recognition of mothers as natural guardians. However, in the opinion of the author, the judgment of the Supreme Court on the matter is unsatisfactory and missed the opportunity to elevate the status of mothers as true natural guardians.
Facts of the case
The mother (the petitioner) and father had jointly applied for relief bonds in the name of their son before Reserve Bank of India (RBI) (the respondent). The parents had mutually agreed that the mother would invest the money held by the minor and while doing so would act as the minor’s natural guardian. Consequently, the mother signed the requisite forms as the natural guardian of the minor. However, RBI insisted that the mother either get the form signed by the father who was the natural guardian or get a certificate from the appropriate authority declaring the mother as the natural guardian. This led to a petition being filed in the court with the prayer for striking down Section 6(a) of the 1956 Act and Section 19(b) of the 1890 Act as they recognise the father as the only natural guardian and are hence violative of the constitutional rights guaranteed under Articles 14 and 15. The petitioner prayed for the declaration of the mother as the natural guardian.
Arguments raised
The petitioner argued that the 1956 Act and the 1890 Act demoted the mothers to a secondary position by recognising only the father as the natural guardian. Only “after” the lifetime of the father was the mother recognised as a natural guardian. Thus, the laws violated Articles 14 and 15 of the Constitution.
Judgment of the Supreme Court
The Supreme Court observed that the definition of “guardian” and “natural guardian” under the 1956 Act did not make any discrimination between mothers and fathers as such and since the mother was mentioned as a guardian under Section 6 of the 1956 Act, then it could not be said that the mother could not be a natural guardian. However, Section 6(a) of the 1956 Act states that the natural guardian of a minor is the “father, and after him, the mother”. A quick reading of the section would suggest that mothers acquire the right to natural guardianship only after the father, which would mean that she gets the right only after the death of the father.
While deciding on matters of guardianship and custody, the welfare of the minor is of the greatest consideration. For the welfare of the minor, guardianship could be given to the mother or any other suitable person by the courts even when the father was alive. This would be possible because the interests of the minor are of paramount importance. Thus, the words “after” as they appear in Section 6(a) would have to bow down to the welfare and interests of the minor.
Therefore, to remedy the anomaly in the law and to bring it in line with the rights ensured in the Constitution, the Supreme Court made such a harmonious interpretation of the provision at hand, so it is in tandem with the provisions of the Constitution. It remarked that “after” need not necessarily mean “after the lifetime” of the father, it could also be constructed as “in the absence of,” where the term absence would signify the absence of the father from the care of the minor’s person or property. Thus, in cases where the father and the mother have mutually decided that the mother should be the guardian; in cases where the father is completely absent from the life of the minor and takes no interest in their welfare; in cases where the father is physically unable to look after the interests of the minor because he lives in a different place or sufferers from some mental and/or physical incapacity and in other similar cases; the mother can act as the natural guardian of the minor.
Analysis of the judgment and its aftermath
Even before the Supreme Court rendered its landmark judgment in Githa Hariharan v. RBI18, in an earlier case of Jijabai Vithalrao Gajre v. Pathankhan19 the Supreme Court had given relief to a mother on similar arguments. In that case, the mother had leased property of her minor daughter when the father was alive. On appeal, the Supreme Court had observed that the mother had separated from the father and was solely looking after the minor and her interest and welfare. Though the father was alive, he had been absent from the life of the minor and had been as good as non-existent. Hence, the court recognised the mother as the natural guardian of the minor immaterial of the fact that the father was alive.
In Jijabai Vithalrao Gajre case20, the decision was given based on the facts and peculiar circumstances of the case. However, in Githa Hariharan case21, the verdict of the Supreme Court constructed a general interpretation of Section 6(a) of the 1956 Act and Section 19(b) of the 1890 Act and brought about a change in how the provisions were to be applied from the judgment onwards.
One cannot deny that Githa Hariharan case22 was monumental in availing natural guardianship rights to mothers. Yet, it is wished that the Supreme Court should have taken another step in the direction and should have struck down Section 6(a) of the 1956 Act as unconstitutional. Even with the interpretation which the Supreme Court has accorded to Sections 6(a) and 19(b) and the word “after” being constructed as “in absence of”, it is felt that the rights of a mother are still restricted to a certain extent.
It is reprehensible to observe that it took fifty-two years since independence of the nation for mothers to get natural guardianship rights. However, even these hard fought and achieved rights are minimal. By constructing “after” as “in absence of,” the laws once again put shackles on the rights of mothers while giving a free hand to the fathers. From the perspective of the mothers, what would have been truly a rewarding judgment in Githa Hariharan case23 would have been the unconditional recognition of the mothers as natural guardians. If the mothers had been given equal status alongside the fathers as the natural guardians, the judgment would have been welcomed with greater applause. However, in its place, the Supreme Court offered a conditioned concessional relief to the mothers by recognising their right to guardianship in only certain instances where the father was absent from the minor’s life. This still restricts the rights of the mothers only to the circumstances where the father is absent from the minor’s life. This is not much different than getting natural guardianship after the death of the father. Therefore, on arguments that Article 14 of the Constitution favours equality and Article 15 favours no discrimination on the grounds of sex, the Supreme Court could have struck down Section 6(a) as invalid and in violation of the Constitution and thereby given equal rights to natural guardianship to both, the mother, and the father.
Nevertheless, one cannot forget that changes in society do not happen overnight but take months or sometimes even years. Getting conditional rights to guardianship is still better than the previous provision of getting no rights until after the death of the father. Hence, the Supreme Court’s decision in Githa Hariharan24 can be termed as a small victory for all the mothers who had been suffering due to the unsatisfactory provision of the 1956 Act and the 1890 Act. With the consideration of the minor’s best interest and welfare weighed along with which one of the parents is better suited to look after them competently, it cannot be denied that if the mother is the one who is best suited and the one who will genuinely look after the welfare of the minor, then she would get the right to become the natural guardian. Essentially, the rights of parents are not above the welfare of the minor.
In Ramesh v. Anjanabai25, some property had been gifted to the plaintiff Ramesh, a minor, by his uncle. The plaintiff’s mother had acted as the natural guardian and signed the papers. The mother then gifted some share of the property to the wife of the plaintiff’s uncle to reach a compromise on disputes about the property. Later, the plaintiff, through the father as his natural guardian, had filed a suit for recovery of the property claiming that as per Section 6(a) of the 1956 Act, the mother could act as the natural guardian only after the death of the father and that since the property was alienated without the permission of the court, the gift of property was illegal. The Bombay High Court rejected the plaintiff’s contention that the mother could become a natural guardian only after the death of the father while taking support of Githa Hariharan26 and observed that the plaintiff’s father had been absent from the plaintiff’s life all these years and had not cared about the minor’s well-being. It was the mother who had been taking care of the plaintiff and had signed on the documents as the minor’s natural guardian and entered into the transactions as such. Therefore, in the absence of the father, the mother was the natural guardian of the minor and the property had been gifted by her in the capacity of the natural guardian to reach a compromise. The question of taking the court’s consent did not arise. Therefore, the gift of property by the mother, who was the natural guardian, was valid.
After going through the abovementioned case, it would be safe to say that though in the case, the mother was recognised as a natural guardian, reaching the same conclusion would have been much easier if mothers had been given equal and complete rights of natural guardianship irrespective of whether the father was alive or not. Moreover, while talking about mothers in these cases, one is only referring to those mothers who are either married, divorced, or separated.
With the rising inflow of modernised culture, India’s traditional culture has infused with modern ideas. Today, the traditional stance towards an unwed woman becoming a mother is being relaxed. While a taboo around the subject subsists, a cloud of uncertainty loomed around the rights of unwed mothers to natural guardianship who did know but were unwilling to disclose or did not know who the father of their child was. The discourse around the rights of unmarried mothers and their recognition as natural guardians began to increase.
Recognition of unwed mothers as natural guardians – The second win
Soon after Githa Hariharan case27, the rights of the mothers, who had been once married, over the guardianship of their children became crystal clear. Now, the question of unwed mothers’ natural guardianship rights over their children when the fathers were absent from their lives came to the forefront for consideration before the Supreme Court in ABC v. State (NCT of Delhi).28
Facts of the case
The petitioner was an unwed mother who was well educated, employed and Christian by faith. Since the birth of her son, she had looked after all the interests of the minor and taken care of his needs without any involvement from the father’s side in the child’s upbringing. Meaning to make her son her nominee in all her bank accounts and insurance policies, she had approached the appropriate authorities who told her that she either had to disclose the name of the father as the natural guardian or get a certificate from the court declaring herself as the natural guardian. She applied to the courts under Section 729 of the 1890 Act to be declared as the guardian and published a notice in the local newspaper of the same but refused to reveal the name or address of the father. She even gave an affidavit swearing that in the future, if any claim was made by the father to the guardianship of the minor, the guardianship could be altered as per the order of the court. The Guardian Court and the High Court refused to grant her request, stating that a guardianship application could not be entertained without giving a notice to the parents of the child under Section 1130 of the 1890 Act because even if the couple were unwed, it could not be presumed that the father did not want to have any interest in the welfare of the minor. She appealed to the Supreme Court.
Arguments raised
The petitioner argued that revealing the name and address of the father would cause harm to the future of the child if the father refused to acknowledge the child’s paternity. The father was already married and had a family of his own. Any revelation of the father fathering a child outside of his family would have grave repercussions in the society for the mother and child, and the father. Thus, requesting the petitioner to reveal the name of the father would be against her right to privacy. Likewise, under Section 7 of the 1890 Act, the welfare of the minor was the paramount consideration for appointing a guardian and the rights of the parents came after. Accordingly, the appointment of the mother would be in the welfare of the minor and the same should be decreed.
On the other hand, the respondent, the State, argued that Section 11 of the 1890 Act required a notice to be served on the parents of the minor, and by Section 19, no guardian could be appointed if the father of the minor was alive and not unfit to be the guardian. Hence, the mother cannot become the guardian.
Judgment of the Supreme Court
The Supreme Court observed that under Hindu and Muslim law as well as the Succession Act, 192531, the custody of the illegitimate child lay with the mother. In many foreign countries, mothers had a preferential right to guardianship over their illegitimate child irrespective of whether the father was taking care of the child or not. The court remarked that it was well known that mothers care for their children with all the love. Therefore, favouring maternity over paternity would not be an issue in the case of unwed mothers.
Therefore, in contemporary times when women choose to raise their child alone and give them all the care required, it would not be viable to impose a father on the well-settled and loving relationship of the petitioner and her child. Since the father was unconcerned with the minor’s well-being, there was no question of the minor’s welfare lying with the father. Issuance of notice to the father would not be in the welfare of the minor and only cause needless controversy. Therefore, the term “parents” in Section 11 of the 1890 Act was to be interpreted as referring to that parent who solely looked after the welfare and took care of the minor.
Since the unwed mother was the best person to look after the welfare of the child, she was made the natural guardian. Further, the Supreme Court also gave directions that in cases where single mothers register the birth of the child, only an affidavit regarding the same should be requested and the mother must not be compelled to reveal the name of the father.
Analysing the judgment
Thus, after ABC v. State (NCT of Delhi)32, the rights of an unwed mother to become the natural guardian of their illegitimate child became pre-eminent in cases where the father had been as good as non-existent from the child’s life. The judgment was under the 1890 Act, and hence became applicable to all the communities.
However, if one takes a closer look at the judgment, it can be discerned that the Supreme Court had not taken the decision based on the substantive question of whether the unwed mother could have the custody or guardianship rights, but on the question that whether notice had to be sent to the father for determination of natural guardianship of an illegitimate child. The court also refused to go into the question of the child’s custody and expressly observed that the case would not be applicable to the suit of those spouses who approach the court for declaration of custody of the child behind the back of the other spouse.33
Moreover, it seems that the Supreme Court’s decision on giving a chance to the mother to represent her guardianship case once again before the lower judiciary was motivated more by the fact that the father had been willingly unconcerned with the minor and had consciously been absent from the minor’s life rather than on the consideration that the mother was employed, earning a decent living for herself and her child and was doing everything required for the minor’s welfare. Focusing on the latter argument for giving its final decision would have presented a strengthened opinion of the court in favour of the changing position of women in society and departed from the prevailing traditional thought process that women are only caregivers and fathers the protectors. It would have displayed the evolving feminist ideas of the contemporary times and supported women who were caregivers and breadwinners. Nevertheless, one idea was strongly put forward by the judgment that uninvolved fathers had no natural right to guardianship.
It is important to note that the guardianship laws in India are based on a quagmire of different laws for different religions. Therefore, it cannot be said that every decision by the courts would be necessarily followed in the diversity of cases having different facts and circumstances along with consideration of the different faiths of the parties and the different laws applicable to them. Only one consideration, that is, the welfare of the minor and the interest of the minor remains consistent throughout the array of unique cases. Therefore, the welfare of the minor is predominant in questions surrounding the rights of parents to guardianship.
Shifting Indian culture and the need for equal guardianship laws
Traditionally, women had been identified as a responsibility of their father or husbands. Their life was restricted to the confines of the four walls of the house and men were considered as their protectors and earners of the house. Likewise, men were at the forefront while forming laws and deciding disputes. The customary laws of the various communities living within India have been influenced by the concept of patriarchy. Family laws are no exception to this process. Since the customary laws favoured men’s position as the caretakers of the household, the same conceptions were codified in the statute enacted soon after the arrival of the British in India. Thus, many of the social problems which women face today, stem from the single idea of patriarchy and male dominance.
After independence, though in light of the rights enshrined in the Constitution of India, a greater part of laws was made equitable, much could not be done about family laws as its tenets were dear to the people. This led to the codifying of some inequitable laws. One of them is the right to natural guardianship of the minor which is under scrutiny in this paper.
Until recently, a gendered division was prevalent in Indian society. Fathers were associated with affairs outside the home and mothers with those on the inside. This normalised the concept of patriarchal families and downgraded the position of women to a secondary level within the society. This particularly proved disadvantageous for the women who were beyond the perceived framework of the “complete happy family of four” – the father, the mother and their two children – and created many hardships for separated mothers, divorced mothers, and single mothers.
The experience of single mothers is a testimony of how they have been discriminated against over the years as people across India considered father as the designated welfare provider of the child. While enrolling her little daughter in a school with many splendid hopes for her future, a mother was stopped by the school authorities and asked to get a no-objection certificate from the child’s father as it must be the father who should sign the paper.34 Another mother was appalled when the passport officials refused to process her minor child’s passport application because it did not have her ex-husband’s signature.35 Another single mother observed that even when the law favoured the women it was the narrow-minded officers working in the government offices who brought up uncomfortable questions about paternity of the child.36
Shalu Nigam v. Regional Passport Officer37 was one such case before the Delhi High Court where an aggrieved mother had appealed to the court to direct the passport office to issue her daughter’s passport without mentioning the name of the father (the ex-husband) on the passport, which was “insisted” as necessary detail for the passport by the authorities. The father was as good as non-existent from the minor’s life. By mentioning the father’s name on the passport, the identity of the child would be changed as through the years nowhere was the father’s name mentioned in any of the minor’s documents. The High Court observed that there was no legal requirement making it mandatory to mention the father’s name in the passport and the passport authorities could not insist upon the same. The Supreme Court in ABC v. State (NCT of Delhi)38 had recognised single mothers as parents and natural guardians. Hence, the passport office could not insist on mentioning the father’s name in the passport and an affidavit sworn by the mother stating that the parents had divorced or that she was an unwed mother should be enough to consider the issuance of the passport without making it mandatory to mention the father’s name.
Similarly, in A. Aniswar v. Union of India39 the ex parte divorce of the mother had become final after the husband failed to show up. The minor child of the couple was issued with the “person of Indian origin” card, however later when the mother submitted the minor’s registration application as overseas citizens of India card holder, his application was rejected on the grounds that the mother must produce papers showing that she was granted custody of the minor after the divorce. She filed a petition before the Court against the rejection. The Madras High Court observed that in both Githa Hariharan40 and ABC v. State (NCT of Delhi)41, the mother had been recognised as the natural guardian of a minor and since the divorce had been decreed and the minor had always stayed with the mother since their return to India, it was established that the custody and the natural guardianship was with the mother. Thus, the petitioner, as the natural guardian, was competent to present the minor’s application before the authorities and her application must be considered by the authorities as expeditiously as possible.
Accordingly, it can be concluded that the hardships faced by divorced mothers, unwed mothers or single mothers have not decreased over the years despite the weight of the laws and the judiciary behind them. The vivid image of the “complete happy family of four” has become so widely imprinted in the minds of the people, that when a single mother comes forward, the conventional notions of a complete happy family which are deeply rooted in the minds of people make the society frown upon the status of single mothers. Many times, single mothers are even looked down upon for violating the ideal Indian family perceptions.
The conventional concept of a complete happy family of four is no longer an unassailable standard for the Indian family. The rising tide of single parents and especially single mothers has overturned this situation as women increasingly choose to raise their minor alone. With the evolution of technology and the availability of new methods of pregnancy like artificial insemination and in vitro fertilisation, today single mothers include women who have adopted a child, married women who are solely looking after the child, divorced women, separated women, deserted women, unwed mothers, and rape victims. The dissemination of live-in relationships has also contributed to the emergence of single motherhood.
It is only rational that with the rise of single mothers, the laws should shift in favour of mothers and allow them equal and joint rights to natural guardianship. Article 14 of the Constitution of India gives the right to equality before the law. Like must be treated alike and unlike must not be treated alike, and among equals law must be administered equally. Giving precedence to father over the mother under the Hindu and Muslim laws in matters of natural guardianship cannot pass the test of intelligible differentia as theorised under Article 14 as the primacy of father over the mother as the natural guardian cannot have a rational relation with the object of “welfare of the child” sought to be achieved in every single case. Likewise, Article 15 explicitly states that there can be no discrimination based on sex. Hence, no law enacted by the legislature shall discriminate between the people on grounds of gender.
Therefore, according to the Constitution, the laws should be equal for all. Both the father and the mother should be given equal rights to natural guardianship under all the laws and joint guardianship should be preferred in cases of married couples. For persuasive purposes and for identifying the practical application of the before mentioned suggestion of giving equal and joint guardianship to both parents, some guardianship laws in foreign jurisdictions have been analysed below.
Guardianship in foreign nations
In the United Kingdom (UK), according to the Children Act, 1989, parental responsibility means rights, powers, responsibilities, duties, and authority which a parent has according to the law in relation to a child and the child’s property. According to Section 2(1) of the Act, parental responsibility of the child of a married couple lies with both the parents. In case the child is born through artificial birth methods like artificial insemination, in vitro fertilisation, or others, then the parental responsibility lies with the mother and the other parent. Mother has the parental responsibility for a child born without marriage and the father can acquire parental responsibility for the child in accordance with the provisions of the law. Section 2(4) of the said Act expressly abolishes the rule that the father is the only natural guardian of the legitimate child and Section 2(5) paves the way for more than one person to have parental responsibility simultaneously. Thus, mothers are generally favoured as equal and joint natural guardians of their child in the UK.
Similarly, in New Zealand, the child’s mother automatically becomes the natural guardian of the child at birth.42 The fathers become the natural guardians of the child if they were married to, or were in civil union with, the mother. The father can also file an application before the Family Court to be appointed as the natural guardian and their application will be considered only if it is for the welfare of the child.43
In the United States of America, most of the States favour joint natural guardianship of parents.44 In France, by 1985, the right of the father as the sole natural guardian of the minor was abolished and both the mother and the father were given joint guardianship over their child, whether born of marriage or without marriage.45
Position in India and way forward
In foreign countries, both mother and father have equal and joint natural guardianship rights and the mother’s position is preferential in such matters. If the same is replicated in India by giving equal and joint natural guardianship rights to all the parents, and by giving single mothers natural guardianship (the fathers can become natural guardians by registration or by applying to the court), then the existing discriminatory problems which the mothers in the country face can be mitigated to a great extent.
The Law Commission of India Report released in the year 2015 specifically highlights the need to have equal natural guardianship laws for parents.46 It says that Section 6(a) of the 1956 Act should be amended to remove the superiority of one parent over the other in light of Article 14 of the Constitution and that both the parents should be given guardianship rights simultaneously while keeping in mind the welfare of the minor.47 Similarly, Section 7 of the 1956 Act should be amended to make both the parents the natural guardians of their adopted son and/or adopted daughter.48
The Ministry of Women and Child Development also emphasised the need to give natural guardianship rights to all mothers before the father, irrespective of the personal laws which govern them.49 Even the National Commission for Women (NCW) a couple of years ago recommended that the laws on natural guardianship should favour mothers, whether married, divorce, separated or single.50
Thus, the Law Commission’s Report and the ministry’s recommendations, both recognise that it is high time that mothers get equal and joint guardianship rights over their child along with the father. Now, it falls upon the legislature to amend all the existing personal laws in the country to highlight the same.
Conclusion
The realisation that the country’s guardianship laws are not equitable hits hard when one reads news about how a mother is unable to get her child admitted to a school without the father’s sign or no-objection certificate.51
With changing culture and social conditions, it is essential that a country progresses towards greater equality and freedom for its citizens. Though the Supreme Court’s judgment, in Githa Hariharan v. RBI52 only gave concessional rights to mothers as natural guardians in cases where the father was particularly uninvolved and uninterested and, in ABC v. State (NCT of Delhi) gave procedural relief to an unwed mother alongside the recognition of her guardianship rights, it cannot be denied that the Supreme Court’s path-breaking judgments signify the forward-thinking judiciary’s revolutionary shift towards reform in the natural guardianship laws of the country.
It is high time that women are given an equal share of recognition in society. With changing times, the position of women has undergone sweeping changes in the country where women fight the patriarchal model of society and strive for their rights. However, the family laws of the respective communities still hold back women from progressing forward in some aspects. Natural guardianship is one of them.
By amending Section 19(b) of the 1890 Act in the year 2010, the Government recognised the equal status of mothers in guardianship. It is now prayed that the legislature rises to the task of amending Sections 6 and 7 of the 1956 Act, and all other customary laws on the matter, and gives equal and joint natural guardianship rights to both mothers and fathers. While married, both the parents, as natural guardians, shall continue to exercise their guardianship duties simultaneously and in the welfare of the minor.
After divorce or separation between the couple, or in case of desertion or single motherhood, the mothers should be given the preferential right to guardianship by virtue of their maternity and the estranged fathers should be given a choice of getting themselves registered as a guardian, or of applying to the court for being declared as a guardian, if they are willing to share equal responsibilities in care and upbringing of the minor and are genuinely interested in the welfare of the minor. If at any time it is felt that the welfare of the minor child would not lie with the single mother and if the willing father presents itself before the court, then the natural guardianship, for the welfare of the minor, should be given to the father. Otherwise, other willing relatives of the minor can be given the guardianship rights by the courts. The welfare of the minor should remain the paramount consideration in all cases.
Therefore, the ball is now in the court of the legislature. It has the power to change the prevalent discriminatory state of affairs and bring equality and fairness to the laws on natural guardianship. It is high time that mothers get fair recognition as natural guardians of their children.
† 2nd year student of BA LLB (Hons.) at Damodaran Sanjivayya National Law University, Visakhapatnam.
3. Hindu Minority and Guardianship Act, 1956.
4. Hindu Minority and Guardianship Act, 1956, Ss. 4(a), 4(b) and 6(a).
5. Hindu Minority and Guardianship Act, 1956, S. 7.
6. Hindu Minority and Guardianship Act, 1956, S. 6(b).
7. Hindu Minority and Guardianship Act, 1956, S. 8.
8. Syed Khalid Rashid, Muslim Law (6th Edn., Eastern Book Company).
9. Mulla: Principles of Mahomedan Law (20th Edn.), S. 358.
10. Guardians and Wards Act, 1890.
11. Guardians and Wards Act, 1890, S. 19(b).
12. Personal Laws (Amendment) Bill, 2010.
13. Constitution of India, Art. 14.
14. Constitution of India, Art. 15.
16. Narain Singh v. Sapurna Kuer, 1967 SCC OnLine Pat 64.
29. Guardians and Wards Act of 1890, S. 7.
30. Guardians and Wards Act of 1890, S. 11.
33. (2015) 10 SCC 1, 24.
34. CRIS, “Single Mothers Fight a Lonely Battle”, Deccan Chronicle (14-4-2018), <www.deccanchronicle.com/nation/current-affairs/140418/single-mothers-fight-a-lonely-battle.html> (accessed on 18-11-2021).
35. Arpita Raj, “Single Women Seeking Kids’ Passports Run into Red Tape”, The Times of India (10-12-2016), <https://timesofindia.indiatimes.com/city/bengaluru/Single-women-seeking-kids-passports-run-into-red-tape/articleshow/55903908.cms> (accessed on 19-11-2021).
36. Arpita Raj, “Single Women Seeking Kids’ Passports Run into Red Tape”, The Times of India (10-12-2016), <https://timesofindia.indiatimes.com/city/bengaluru/Single-women-seeking-kids-passports-run-into-red-tape/articleshow/55903908.cms> (accessed on 19-11-2021).
39. 2016 SCC OnLine Mad 12549.
42. Care of Children: Who A Guardian Can Be (Ministry of Justice New Zealand), <www.justice.govt.nz/family/care-of-children/parenting-and-guardianship/who-a-guardian-can-be/> (accessed on 20-11-2021).
43. Care of Children: Who A Guardian Can Be (Ministry of Justice New Zealand), <www.justice.govt.nz/family/care-of-children/parenting-and-guardianship/who-a-guardian-can-be/> (accessed on 20-11-2021).
44. ABC v. State (NCT of Delhi), (2015) 10 SCC 1, 12.
45. Frédérique Ferrand, National Report: France (University of Lyon), <http://ceflonline.net/wp-content/uploads/France-Parental-Responsibilities.pdf> (accessed on 20-11-2021).
46. Law Commission of India, Report No. 257 on Reforms in Guardianship and Custody Laws in India (August 2015).
47. Law Commission of India, Report No. 257 on Reforms in Guardianship and Custody Laws in India (August 2015), para 6.3.
48. Law Commission of India, Report No. 257 on Reforms in Guardianship and Custody Laws in India (August 2015).
49. Shalini Nair, “Mother Should be Natural Guardian, Not Father, Says WCD Ministry”, The Indian Express (27-7-2017), <https://indianexpress.com/article/india/mother-should-be-natural-guardian-not-father-says-wcd-ministry-4768786/> (accessed on 20-11-2021).
50. Amrita Madhukalya, “Review Child Guardianship Laws: NCW to Government”, Hindustan Times (New Delhi, 12-10-2019), <www.hindustantimes.com/india-news/review-child-guardianship-laws-ncw-to-govt/story-L13Ve3VsgLKUOR0YpgLTvL.html> (accessed on 20-11-2021).
51. CRIS, “Single Mothers Fight a Lonely Battle”, Deccan Chronicle (14-4-2018), <www.deccanchronicle.com/nation/current-affairs/140418/single-mothers-fight-a-lonely-battle.html> (accessed on 20-11-2021).