By Raka Chatterjee and Smita Kumari
A Feminist Approach
In India the first and foremost or the official guardian of a child is one’s father and not the mother and this has been very well enshrined in the laws and statutes relating to the law of guardianship in India under Hindu law. The laws governing guardianship and custody of a child in India are the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956.
Under Section 6(a), Hindu Minority and Guardianship Act states that the ‘natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property …. in the case of a boy or unmarried girl — the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother’.
By seeing such law provision, the very first question that will strike one’s mind is why mother has not been given the same status and right over the child? Candidly, it depicts the mind-set of our country’s lawmakers who seem to have been a believer of staunch patriarchal form of society. This might be the sole reason they have differentiated between a mother and a father’s right over a kid. Sometimes due to such a law a mother has to face quite embarrassing situations and who gave the right to the lawmakers to demean a mother.
Even the Guardians and Wards Act, 1890, recognised the superiority of the father over the mother and gave a superior right to the father in respect of guardianship. The position of the mother as a guardian of her children was of the second grade.
Under old law, father was again given another prerogative, whereby the father could nominate a guardian of his children so as to exclude the mother of the child through orally or the process of the execution of deed. The mother had no power to appoint testamentary guardian even if the father of the child had expired.
Moreover, Section 19 of the Guardians and Wards Act, 1890, lays down that a father cannot be deprived of the natural guardianship of his minor children unless he has been found unfit. But the effect of this provision has been considerably whittled down by judicial decisions and by Section 13 of the Hindu Minority and Guardianship Act, 1956 which lays down that welfare of the minor is of paramount consideration and father’s right of guardianship is subordinate to the welfare of the child. But in reality how far this provision has been effectively used? The superior position of the father is still very much prevalent in the society.
The mother and the welfare of the child
For example, if we take in consideration the case of Jijabai v. Pathan (AIR 1971 SC 315). Normally, when the father is alive, he is the natural guardian and it is only after him that the mother becomes the natural guardian. There can, however, be an exceptional case where the minor can be legally represented by the mother as the natural guardian, even though the father may be alive.
Thus, for instance, where the father of the minor was alive but the father had fallen out and the mother with whom the minor was living had been managing the affairs of the minor daughter for over 20 years, it was held that a lease executed by the mother on behalf of the minor was valid and binding on the minor, the mother being regarded as the natural guardian of the minor in the particular circumstances of the case.
Thus in Narayan v. Sapurna (AIR 1968 Pat 318), it was observed that where the father fails to function or refuses to function or is incapable of functioning as guardian, the mother will be able to exercise all powers and functions of a natural guardian without being appointed as guardian by the court.
Therefore, it is only in such cases with such kind of circumstances that a mother can be the guardian of her child whom she has given birth after so much of difficulties and pain. The Courts have always given a secondary status to the mother on par with the father. It may be considered that when the Acts were enacted the women were not in a position to look after her child since they were not much educated and were not even earning. But why the lawmakers are still continuing with such obsolete provisions as Indian women have now empowered themselves and are capable of handling their children very well with their handsome salaries.
In P.N. Ramachandra Iyer Son Of P.S. v. S.V. Annapurni Ammal Wife Of P.N. (AIR 1964 Ker 269) case the Kerala High Court established that under Sec. 6 of the Hindu Minority and Guardianship Act, 1956 the father is natural guardian and it is only after him the mother can be natural guardian; only in the case of an illegitimate child, the mother is recognised as fully capable of looking after the child.
Section 6(a), the Hindu Minority and Guardianship Act, 1956 also lays down that the custody of the child up to the age of 5 years will be with the mother.
In Yasudevan v. Viswalakshmi (AIR 1959 Ker 40) case the mother was not given the custody of the child aged 2 1/2 yrs. despite the provision of proviso to Sec. 6(a). Thus it is manifested that a mother has been assigned statutorily subservient position in the matter of the custody of her minor children. The right to custody has been qualified by the word, ‘ordinarily’, which has raised the dilemma in the judiciary.
It is very necessary condition for a perfect upbringing of a child they must enjoy the comfort and shelter of both the parents. To make a perfect human being one needs to give love, care, protection, financial support and much more.
Constitutional concerns
Moreover, such a pro-male bias and an anti-female prejudice should have persisted even after the ushering in of the Constitution of India on 26th Jan., 1950, is somewhat unfortunate because the constitutional command etched in Article 15(1) frowns upon such gender-based discrimination:
“15 (1) the State shall not discriminate against any citizen on grounds only of Religion, race, caste, sex, place of birth or any of them.”
And, as a matter of fact, by implication approves of making special provisions for reversing the prevalent injustice to women and children vide Article 15(3):
“15. (3) Nothing in this article shall prevent the State from making any special provision for women and children.”
That is why it has been considered eminently desirable to suo motu examine this issue and to make appropriate recommendations in order to unload the dice which is presently loaded against the woman.
Therefore, to erase the injustice to the woman in this sensitive area in obeisance to the letter and spirit of the Constitution, the relevant provisions of the Hindu Minority and Guardianship Act, 1956, as also the pertinent provisions of the Guardians and Wards Act, 1890, and working of the ‘welfare principle’ should be scrutinized and suitable recommendations must be made.
Both parents and the welfare principle
This kind of law simply portrays the lawmakers as so-called liberals which they just pretend to be what they are not. These lawmakers have failed to foresee the demerits of such a law in the country. The present lawmaker’s panel does not understand a simple fact that a country cannot progress to its fullest unless and until it is freed from shackles. Putting shackles around one gender cannot bring in progress to its fullest. A family can run well only when men and women are at par but the moment there is a forced curb on one’s right then the family will get disorganized.
Furthermore, the question which popped into the authors’ mind was why only one parent would enjoy the privilege of becoming the official guardian of the child. As a child is a gift to a couple by God on this earth and the responsibilities towards the child rests upon both the parents. That means giving prerogative to one parent while ignoring the other one is not a justified law.
In the opinion of the authors both the parents are equally important for a child’s growth and development as well as for its welfare. It is very necessary condition for a perfect upbringing of a child they must enjoy the comfort and shelter of both the parents. To make a perfect human being one needs to give love, care, protection, financial support and much more.
One needs to understand a child and his needs for a proper upbringing. Neither all love without money nor will vice-versa be able to make a perfect child. Thus, it does not matter who provides what to the child but the point is a child is receiving the required amount of attention, love, care, financial support and rest of the required aids which help it to grow properly. A true and proper life is all about a combination of emotional, physical and financial fulfilment. If one gets missing then it’s obvious that the child at some point of time will show its craving for it. The crisis of any kind let it be emotional, physical or financial deepens with the passage of time rather than fading or diminishing until such crisis receives a befitting reply.