This article is written by Ashpreet Kaur, IInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA. In this article, the author discusses discrepancies in the Hindu Minority and Guardianship Act and how it is affecting our society.

Introduction and meaning

In the Hindu Dharamshastras, not much has been said about the guardianship. This was due to the concept of joint families where a child without parents is taken care of by the head of the joint family. Thus no specific laws were required regarding the guardianship. In modern times the concept of guardianship has changed from the paternal power to the idea of protection and the Hindu Minority and Guardianship Act, 1956 codifies the laws regarding minority and guardianship with the welfare of the child at the core.

Under the Hindu Minority and Guardianship Act, 1956 a person who is a minor i.e. below the age of Eighteen years is incapable of taking care of himself or of handling his affairs and thus requires help, support and protection. Then, under such a situation a guardian has been appointed for the care of his body and his property.

In 1956 as a part of Hindu Code Bills, the Hindu Minority and Guardianship Act along with Hindu Marriage Act, Hindu Succession Act and Hindu Adoption and Maintenance Act were established under the leadership of Jawaharlal Nehru in order to modernize prevalent scenario of Hindu legal tradition. The Hindu Minority and Guardianship Act was established to empower the Guardians and Wards Act of 1890 and provide better right and protection to children instead of acting as a replacement of already prevalent act.

This act was passed with a motive of defining rights, obligations, relationships between adults and minors. Not only Hindus are covered under this act but also Lingayat, Virashiva, Brahmo followers, Parthana Samaj followers, Arya Samaj followers, Buddhist, Sikhs and Jains. In other words, Muslims, Christians, Parsis and Jewish are not covered under this act.

Minority of a particular person is defined according to the age of that person. Attainment age for being a major varies according to religion and time, for instance, in old Hindu law age of 15 or 16 years was the age of majority but now it has been increased to 18 years, for Muslims, age of puberty is considered as the age of majority.

Both legitimate and illegitimate minors who have at least one parent that meets the stipulations outlined above fall under the jurisdiction of this Act. Irrespective of personal laws followed by individual communities a common act majority is known as Indian Majority Act, 1875 applies to all communities.

Under this act attainment of age of majority is 18 years but if a person is under the care of guardian attainment of age of majority increases to 21 years. The Guardians and Wards Act, 1890 applies to everyone irrespective of their caste, creed or community unlike Hindu Minority and guardianship act which applies to Hindus and religion considered as Hindus only.

Jurisprudential Aspect And Evolution

Be it noted that the Hindu Minority and Guardianship Act of 1956 has been engrafted on the statute book by way of an amendment and codification of certain parts of the law relating to minority and guardianship among Hindus. It is not out of place to mention also that Hindu law being one of the oldest known system of jurisprudence has shown no signs of decrepitude and it has its values and importance even today.

But the lawmakers, however, thought it prudent to codify certain parts of the law in order to give a fruitful meaning and statutory sanction to the prevailing concept of law having due regard to the social and economic changes in the society. It is on this perspective however certain aspects of the law as it stood prior to the codification ought to be noted.

Incidentally, the law relating to minority and guardianship amongst Hindus is to be found not only in the old Hindu law as laid down by the smritis, shrutis and the commentaries as recognised by the Courts of law but also statutes applicable amongst others to Hindus, to wit, Guardian and Wards Act of 1890 and Indian Majority Act of 1875.

Be it further noted that the Act of 1956 does not as a matter of fact in any way run counter to the earlier statutes in the subject but they are supplemental to each other as reflected in Section 2 of the Act of 1956 itself which provides that the Act shall be in addition to and not in derogation of the Acts as noticed above.

Before proceeding further, however, on the provisions of the Act in its true perspective, it is convenient to note that lately, the Indian Courts following the rule of equality as administered in England have refused to give effect to the inflexible application of the paternal right of minor children. In equity, a discretionary power has been exercised to control the father’s or guardian’s legal rights of custody, where the exercise of such right cannot but be termed to be capricious or whimsical in nature or would materially interfere with the happiness and the welfare of the child.

The statute therefore on a plain reading with literal meaning being ascribed to the words used, depicts that the mother’s right to act as a natural guardian stands suspended during the lifetime of the father and it is only in the event of death of the father, the mother obtains such a right to act as a natural guardian of a Hindu minor. It is this interpretation which has been ascribed to be having a gender bias and thus opposed to the constitutional provision.

It has been contended that the classification is based on marital status depriving a mother’s guardianship of a child during the lifetime of the father which also cannot but be stated to be a prohibited marker under Article 15 of the Constitution. The whole tenor of the Act of 1956 is to protect the welfare of the child and as such interpretation ought to be in consonance with the legislative intent in engrafting the statute on the Statute Book and not de hors the same and it is on this perspective that the word `after’ appearing in section 6A shall have to be interpreted.

It is now settled law that a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided unless of course, the same makes a violent departure from the Legislative intent in the event of which a wider debate may be had having due reference to the contextual facts.

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Law Commission Report

Accordingly, this report of the Law Commission reviews the current laws dealing with custody and guardianship and recommends legislative amendments to the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. These amendments are necessary in order to bring these laws in tune with modern social considerations.

Major amendments are recommended to the Guardians and Wards Act, 1890, by introducing a new chapter on custody and visitation arrangements. The Commission believes that the Guardians and Wards Act, 1890, being a secular law, will be relevant for all custody proceedings, besides any personal laws that may apply.

The new chapter opens with a set of objectives, to clarify that the welfare of the child is the primary guiding factor in all such matters. For the first time in India, the amendments also introduce several concepts relating to joint custody and child welfare, such as child support, mediation processes, parenting plans, and grand-parenting time.

The commission has suggested the following amendments in Hindu Minority and Guardianship Act-

It analyses Section 6 (a) of the Act, which lists the natural guardians of a Hindu minor in respect of the minor’s person and property. In the case of a boy or an unmarried girl, this section clearly states that the natural guardian of a Hindu minor is the father and after him the mother. The Commission notes that even after the Supreme Court’s judgment in Gita Hariharan v Reserve Bank of India, the mother can become a natural guardian during the lifetime of the father only in exceptional circumstances.

The report says that this is required to change “to fulfil the principles of equality enshrined in Article 14 of the Constitution.” Accordingly, the Law Commission recommended that this superiority of one parent over the other should be removed and that both the mother and the father should be regarded, simultaneously, as the natural guardians of a minor. The welfare of the minor must be the paramount consideration in every circumstance.

It has recommended changes to Section 7 as well. This section provides that the natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother. The language of this section is incongruous in that it refers only to the natural guardianship of an adopted son, and does not refer to an adopted daughter.

The Hindu Minority and Guardianship Act, 1956 came into force at a time when the general Hindu law as administered by the courts did not recognise the adoption of a daughter. Thus, at the time of passing of the Act, the adoption of daughters was only allowed under custom and not under codified law. It was also enacted before the Hindu Adoptions and Maintenance Act, 1956, which corrected the legal position of adoption of a daughter statutorily.

It hence recommends that now the Act should include both an adopted son and an adopted daughter within the scope of natural guardianship. Further, the Commission recommended that the natural guardians of an adopted child should include both the adoptive parents, in keeping with its recommendations to Section 6(a) provided above.

Critical analysis of Hindu Minority and Guardianship Act

According to section 7 of Hindu minority and guardianship act, the natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother. This provides natural guardianship in case of adoption only for son because of the traditional notion that adoption is meant for couples who do not have a son. Hindu Minority and Guardianship Act is, for now, silent on this issue. Over the time as the society has developed many legal measures are taken for empowerment of females as a gender and sex ratio but this legal lacuna has not been fixed due to the deeply enrooted preference of son over a daughter.

Conflicting law

The law commission of India in its 2015 report has highlighted the gender anomalies prevalent in the society which have affected the gender ratio and discrimination and why there is a need of women empowerment. Shortly after the Hindu Minority and Guardianship Act was enacted, the Hindu Adoption and Maintenance Act of 1956 was also enacted which had recognized the adoption of daughters. This difference of opinion and policy happened because Hindu Minority and Guardianship Act was Act No 32 of 1956 and Hindu Adoption and Maintenance Act was Act No 78 of 1956 it would appear that the Nehru government’s gender consciousness had evolved a great deal in the span of a few months.

The law commission’s report states that Hindu Minority and Guardianship Act was passed by the parliament when the adoption of daughters was not recognized under Hindu law and Hindu Adoption and Maintenance Act nevertheless the position of daughters were improved statutorily, but the conflict between these two laws remained unsolved. In order to resolve this conflict, The Law Commission of India recommended amending section 7 of Hindu Minority and Guardianship Act.  

Father’s First

Commission has also recommended on another outdated provision of Hindu Minority and Guardianship Act, section 6, this section deals with natural guardianship of a child and its property. According to this section, the first natural guardian is the father and then after him, the mother is the natural guardian of a child. This means that as long as the father is alive mother cannot claim the status of a natural guardian.

Our patriarchal society is so prevalent that our laws reflect its hint. Law commission found out that the issue of natural guardianship is not that small that it should be ignored and the influence of patriarchy is so strong that it is suppressing the rights of a mother.

The Law Commission could see Section 6 for what it was only when it returned to the subject in 1989 with the express intent of removing “discrimination against women in matters relating to guardianship and custody of minor children”. Complying with the object The Law Commission recommended the amendment of section 6 so that mother and father can have equal rights of being a natural guardian and enjoy guardianship jointly and severally.

This matter came into limelight in the year 1999 when the supreme court ruled on a petition filed by Geeta Hariharan for challenging the validity of the stipulation that only father can be first natural guardian after him, the mother is considered as natural guardian. Even though it did not amend any part of section 6 but the supreme court interpreted in such a way that its severity should be mitigated. Supreme court interpreted the word ‘after’ in section 6 which originally meant that “after the death of the father” but now it is ”in the absence of the father”. Herein, absence means that father was away for a long duration or inconsiderate towards the child or unfit due to illness.

Therefore, the Apex court had delivered the judgements where the father is always preferred in case of natural guardianship but in extraordinary circumstances mother is considered as natural guardian. This was seen in case of Gita Hariharan famous writer when she wanted to invest some money for her son but stipulations required her to mention details of the father but she was separated and sole guardian of her son. The principle of equity was challenged here and this unresolved issue of guardianship was mitigated to some extent in 2010 by parliament.

When parliament amended section 19 of Guardians and Wards Act, 1890. This section had barred the court from appointing a guardian for a minor whose father was alive and was not unfit to assume that responsibility. The 2010 amendment applies this clause to cases where even the mother is alive, thus removing the preferential position of the father under GWA which is applicable to all communities.

Sharing Custody

The law commission of India in its report of the year 2015 has restated that section 6 of Hindu minority and guardianship act should be amended stating that if one law has removed such discrepancy then other should also accept that implement the same. This report has also highlighted the related issues related to custody of a child and status of mother and father in that custody and have proposed that for giving equal rights to father and mother with regards to guardianship the commission has suggested joint custody of the child.

For easing out the concept of joint custody commission had also laid down certain guidelines for the same so that minor’s welfare is not compromised. Keeping in mind this same principle our laws relating to guardianship, custody and adoption should be updated.

Position of Unwed mothers for sole guardianship

A glimpse of patriarchal society can be seen from our Hindu Minority and Guardianship Act where the first natural guardian of a child for both property and person is father and second is a mother. But as society is modernizing, its laws have to change accordingly so that people a change and develop, the apex court had understood this proposition very well. Consequently, in recent judgements supreme court allowed an unwed mother to apply for sole guardianship of minor children.

In case of Ms. Githa Hariharan & Anr vs Reserve Bank Of India & Anr (AIR 1999, 2 SCC 228), an educated and employed mother wants to make her five-year-old child nominee for her investments but asked for the paperwork in which she was either required to provide the name of the father or guardianship certificate. The district court rejected her claim because under section 11 of the Guardians and Wards Act, 1890 she needs to disclose the information of the father of that child which she was not willing to do.

When this case was transferred to the high court, they gave the reasoning for upholding this judgement that even if the mother is unmarried, father of that child could have an interest in the child. But the supreme court bench headed by Justice Vikramjit Sen overturn this judgement by laying down two fundamental rules; first interests of the child are supreme and in the pursuance of that a mother can be considered as guardian; second on the ground of privacy woman has a fundamental right to conceal the father’s identity.

The ruling of this case had at least given a ray of hope to women who have fought for the equal rights in guardianship, which will ease out their daily life from From school admission and bank account opening forms to investment papers, official documentation insists on the father’s name. Gita Hariharan case where she applead to the supreme court when she was not able to make an investment for her son as his guardian because of the fact that it requires stipulation that father’s information should be mentioned. In this case, the couple was separated and the mother was the guardian of the child.

The court of law held that both parents will be treated on equal footing for the purpose of guardianship and the word ‘after’ in Hindu minority and guardianship act should not render the mother’s position secondary. But the father’s information is still required by many private and public institutions.

This new ruling had benefitted the society in two ways, firstly protection of rights of a child born out of wedlock and secondly provided a legal status to single mother especially for the children of sex workers. This judgement will at least do some good and safeguard the rights of unwed mothers or illegitimate child which Guardianship act had mentioned but society had still not accepted.

Implications of the ruling-

• After this ruling mother of the child got equal rights in case of guardianship.
• Interpretation of the word ‘after’ has been changed from ‘after the death of husband’ to ‘in the absence of husband’ so now the secondary position of the mother is changed to equal.
• This ruling will be beneficial to some extent fro child born out of wedlock or progenies of commercial sex workers.
• This landmark judgement will also encourage adoption by single, independent women in India

Conclusion

India is a country where people tend to believe that children are exemplar of god. But every ideology, every belief, and every tradition has two sides one is good and another one is bad. While goods side being, a child raised in India is being pampered, taken care of and provided with healthy environment to grow.

On the contrary, bad side being, there are more than 60,000 children who abandoned every year in India. In most of the cases, these children are pushed into a vicious cycle of forced labour, human trafficking or prostitution. In order to save the lives of these children and mitigate the harm they have suffered, a child is gifted with a second life through adoption. In its simplest of senses, adoption is a process whereby a person assumes the parenting for another and, in doing so, permanently transfers all rights and responsibilities, along with filiation, from the biological parent or parents. So, to freely promote adoption for a noble cause of saving lives of children or tackling the issue of guardianship of one’s own child our prevalent law needs some reform and amendment.

Now take a look at gender discrimination and gender gap, the concept of treating natural born child and adopted child on same footing is followed by Hindu law in India. Reason being traditional, spiritual and material being of the family can be maintained only because of a son. But most importantly for the ‘moksh prapti’ of the parents when they die having a son is quintessential.

Not only this a hint of patriarchy can be seen in laws stated above where father is first natural guardian and mother is considered a first guardian only in the absence of the father. But nowadays when women are being empowered and society is developing rapidly these age-old laws needs an amendment in order to cope up with the changing environment or otherwise in future cases of guardianship of one’s own child will be pilled up in our courts.

References

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4. 1956. “Hindu minority and guardianship act.” universal.
5. india, Law commission of. 2015. “reforms in custody and guardianship law in india.”
6. kusum. n.d. family law lectures. lexis nexis.
7. kusum. n.d. “gender Bias in Adoption Law: A Comment On Malti Roy Choudhury v. Sudhindranath Majumdar.” journal of Indian law institute.
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