Legal guardian
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This article has been written by Thiruthi Ashokan.

Introduction

The Hindu Guardianship and Minorities Act were established to give power to the Guardians and Ward Act of 1890 (GWA) and provide better rights and protection for children rather than act as a replacement for the already prevailing law. This law was approved with the purpose of defining rights, obligations, relations between adults and minors. This law covers Hindus, followers of Lingayat, Virashiva, Brahmo, Parthana Samaj, Arya Samaj, Buddhists, Sikhs, and Jains. But Muslims, Christians, Parsis and Jews are not covered under this law. The Guardians and Ward Act of 1890 applies to everyone regardless of caste, creed or community, whereas the Hindu Minority and Guardianship Act are considered only Hindu.
The Hindu Guardianship and Minorities Act was established in 1956. Three other important Acts were also created during this time which include the Hindu Marriage Act (1955), the Hindu Succession Act (1956), and the Hindu Adoption and maintenance Act (1956). The Hindu Guardianship and Minorities Act of 1956 (HGMA) was intended to improve the Guardians and Wards Act of 1890. 

This law specifically serves to define guardianship relationships between adults, minors and people of all ages and their respective assets. The welfare of the child is a top priority under the HMGA of 1956 and the GWA of 1890. Section 13 of the Hindu Guardianship and Minorities Act of 1956 perfectly captures the essence and purpose of the act – all measures taken by the guardian and any judgment rendered by the Court must be for the welfare of the child.

Meaning of minority and guardianship

According to Section 4(a) of the Act, the minority of a particular person is defined by the age of that person. The age of achievement to be a major varies by religion and time, for example, in ancient Hindu law, the age of majority was 15 or 16 years, but now it has been increased to 18 years, for Muslims, the age of puberty is considered the age of majority. Both legitimate and illegitimate minors who have at least one parent who complies with the stipulations described above are under the jurisdiction of this Law. This concept is called Majority Law. Under this law, the age of the majority is 18, but if a person is under the care of a guardian, the age of the majority increases to 21 years. 

Guardianship is when a person is appointed under the Guardianship Act to make decisions on behalf of another person who lacks decision-making capacity due to a disability. Most people with disabilities do not need guardians and can be supported in making their own decisions. According to Section 4 (b) of the Minority and Guardianship Act, a guardian is defined as a person who has attained the age of 18 and is adequately caring for a minor and minor’s property and as well as his own. 

Amendments

The law commission report has suggested the following amendments to the Hindu Guardianship and Minorities Act:

  • It analyzes Section 6 clause (a) of the act which explains that in the case of an unmarried boy or girl, the natural guardian of a Hindu minor is the father and, after him, the mother. The Commission observes that even after the Supreme Court ruling in the case of Gita Hariharan v Reserve Bank of India, the mother can become a natural guardian during the father’s lifetime but only in exceptional circumstances.
  • The Law Commission recommended that the superiority of one parent over the other should be eliminated and that both the mother and the father should be considered as natural guardians of a minor. The welfare of the minor should always be the primary consideration in all circumstances.
  • It has also recommended changes to Section 7 of the act. This section explains that the natural guardianship of a minor adoptive child passes, at the time of adoption, to the adoptive father and, subsequently, to the adoptive mother. But this section only talks about the natural guardianship of an adopted child and does not talk about the adopted daughter.
  • When the Hindu Guardianship and Minorities Act 1956 came into effect, at that time the courts did not recognize the adoption of a daughter. Thus, at the time of the approval of the law, the adoption of daughters was only allowed only according to custom and not as per codified law. It was also enacted before the Hindu Adoptions and Maintenance Act 1956, which corrected the legal status of adopting a daughter by law. Therefore, it recommends that the law now include both the adopted son and the adopted daughter in the scope of natural guardianship. Also, the Commission recommended that the natural guardians of an adopted child should include both adoptive parents, along with its recommendations to Section 6 clause (a) which is provided above.    

Evolution of guardianship laws   

Through this list of cases, one can understand the evolution of guardianship laws:

  • In the case of PT Chathu Chettiar vs. VKK Kanaran, it was held that if the father is alive and if he is not unfit in any manner as per law to be the natural guardian, then the mother cannot claim to be the guardian of the minor.  
  • It was seen in the case of Rajalakshmi v. Ramachandran, where the Court stated that the fact that someone surrenders your property to a minor and appoints yourself as guardian of those property does not mean that you are a guardian as per law.
  • The Court threw light on the topic of importance of father as a natural guardian in the case of Essakkayal Nadder v. Sreedharan Babu. According to the facts of this case, the children did not live with their father and the mother had expired. The court stated that no one other than the father himself could be the natural guardian of the minors as the father was very much alive and as per law he was not declared as unfit guardian for any other reason. 
  • The Supreme Court launched a new wave of gender equality in the case of Gita Hariharan v. Reserve Bank of India. The court addressed the problematic and patriarchal notion that the father is the natural guardian and the mother becomes the natural guardian only after him. This case is an amazing example to understand the position of single mothers. According to the facts of this case, an educated and financially independent single mother wanted to make her son a candidate for her investments, but was prevented from doing so until she shared the details about the child’s father to complete the obligations of the paperwork. The lower courts declared that it was mandatory for her to provide details about the father as per Section 11 of the Guardians and Ward Act 1890. Upon appeal, the higher court stated that even if she was a single mother, it was necessary to check whether the father has any potential interest in the child. However, the Supreme Court did not support the judgments of the other courts and instead declared two essential principles to govern such cases in the future:
    • The most important factor in determining any custody case is checking what the welfare of the child is. If as per law, the circumstances are such that it is in the child’s best interest for the mother to be the natural guardian, then she can be the natural guardian.
    • To maintain her privacy, which is her fundamental right, the mother may refuse to disclose information about the father. This case was a milestone, since in the Indian legal structure, all administrative work, from school forms, bank details, to official documents, is in the father’s name.
  • This trend continued in the case of  Jajabhai v. Pathankhan. Here, the couple had separated and the youngest lived with her mother. In these circumstances, the court found it acceptable for the mother to be considered the child’s natural guardian.
  • Another judgment passed in the case of Bakshi Ram v. Shila Devi . The court held that due to the mother’s remarriage her rights as a natural guardian cannot be questioned or restricted ever. 
  • As per Section 6 of the Hindu Minorities and Guardianship Act, until the minor reaches at least five years of age, the child is supposed to be under the care and protection of the mother. The Rajasthan High Court rejected the appeal of the father who requested for physical custody of his daughter, in the case of Smt. Dr. Snehalata Mathur v. Mahendra Narain. In this case, the mother was granted custody of the child.

Analysis of HGMA 1956 and GWA 1890

The Guardian and Wards 1890 is a secular act that applies to every citizen and communities of India while The Hindu Guardianship and Minorities Act of 1965 is applicable only to Hindus and subsets of Hindus such as Jains, Buddhists, Sikhs, Lingayat, Arya Samaj, Followers of Brahmo, Followers of Prarthana Samaj, and Virashiva.

Other religious communities such as Muslims, Parsis and Christians do not fall within the scope of this law. This law is added to the Law of Guardians and Wards of 1860 and does not replace the latter. GWA 1890 covers the procedure on how to petition courts for the appointment of a guardian.

Conflicting law

The Indian law commission in its 2015 report has highlighted the gender differences existing in society that have affected the gender ratio and discrimination and why the empowerment of women is necessary. Shortly after the enactment of the Hindu Guardianship and Minorities Act, the Hindu Support and Adoption Act of 1956 was also enacted, which recognized the adoption of daughters. 

The law commission report states that the parliament passed the Hindu Guardianship and Minorities Act when the adoption of daughters was not recognized by Hindu law and the Hindu Adoption and Maintenance Act; however, the position of the daughters statutorily improved, but the conflict between these two laws has not been solved yet. To resolve this conflict, the Indian Legal Commission recommended an amendment of section 7 of the Hindu Guardianship and Minorities Act.

Custody

India’s legal commission in its 2015 report has reaffirmed that section 6 of the Hindu guardianship and minority’s law should be amended because if one law has eliminated such a discrepancy, then another should also agree to implement the same. This report has also highlighted issues related to custody of a child and the status of the mother and father in that custody and has proposed that to grant the same guardianship rights to the father and mother, the commission has suggested joint custody of the child. To soften the concept of joint custody, the commission had also established certain guidelines for it so that the well-being of the minor is not compromised. Bearing in mind this same principle, it is convenient to update our laws regarding guardianship, custody and adoption.

Mother’s and father’s stand

The Commission has also recommended another provision of the Hindu Guardianship and Minorities Act, Section 6, this section deals with the natural guardianship of a child and his property.  As per this Section, the first natural guardian is the father and only after him, the mother is considered the natural guardian of a child. 

This means that while the father is alive, the mother cannot claim natural guardian status. The legal commission found that the issue of natural guardianship should not be ignored and the influence of patriarchy is so strong that it is suppressing the rights of a mother. The Law Commission recommended the modification of Section 6 as then the mother and father both can have the same rights as natural guardians. This matter came to light in 1999 when the Supreme Court gave a judgment on a petition filed by Gita Hariharan to challenge that only the father can be the first natural guardian and only after him, the mother is considered as a natural guardian. 

The Supreme Court interpreted the word “after” in section 6, which originally meant “after the death of the father”, but is now “in the absence of the father”. In this case, an absence means that the parent was absent for an extended period or was inconsiderate of the child or was unfit due to illness. Therefore, the Apex court had issued judgments where the father is always preferred as a natural guardian but in exceptional circumstances, the mother is considered as a natural guardian. This was seen in the case of the famous writer Gita Hariharan where the principle of equity was challenged. Section 19 of the Guardians and Ward Act 1890 was amended in 2010 in which this act had prohibited the court from appointing a guardian for a minor whose father was alive and who was not in a position to take that responsibility. The 2010 amendment applies this clause to cases where even the mother is alive.

Important case   

Ms. Githa Hariharan vs. Reserve Bank Of India

In the case of Ms Githa Hariharan vs Reserve Bank of India, an educated and employed mother wanted her five-year-old son to be nominated for her investments, but in the paperwork, she had to disclose the father’s name. The district court rejected her claim because as per Section 11 of the Guardians and Ward Act of 1890, she needed to disclose the information of the child’s father, which she was unwilling to do. 

When this case was taken to the higher court, they gave the reasoning to uphold this ruling that even if the mother is not married, the father of the child could have any interest in the child. But the Supreme Court chaired by Judge Vikramjit Sen annulled this sentence by establishing two fundamental rules; the first interests of the child are paramount, and consequently, a mother can be considered a guardian; second, for privacy reasons, the woman has a fundamental right to conceal the identity of the father. In this case, the couple separated and the mother was the child’s guardian.
The court of law held that both parents have to be treated equally for the purpose of guardianship and the word “after” in Hindu minority law and guardianship should not make the mother’s position secondary. This trial will at least do some good and will safeguard the rights of single mothers or the illegitimate child that the Guardianship Law had mentioned but that society had not yet accepted. In this case, the child’s mother obtained the same rights in the case of guardianship. The interpretation of the word “after” has been changed to “in the absence of the husband”, so that now the position of the mother is never questioned and treated equally. This decision will be beneficial to some extent for children born out of wedlock or the descendants of commercial sex workers. This landmark ruling will also encourage adoption by independent and single women in India.

Conclusion

The Hindu Guardianship and Minorities Act 1956 established that the father would be the natural guardian of the child and only after him the mother would be considered as a guardian. In the case of the married minor, the husband would be considered as her guardian. The welfare of the child has always been top priority under HMGA 1956 and GWA 1890. As per Section 7 of the Hindu Guardianship and Minorities Act, the natural guardianship of a minor adopted child at the time of adoption goes to the adoptive father and only after him it goes to the adoptive mother. Over time, as society has developed, many legal steps have been taken for the empowerment of women in terms of gender and sex ratio, but this loophole has not been addressed due to deep-seated preference of the son over the daughter. Not only can a hint of patriarchy be seen in the laws mentioned above, in which the father is the first natural guardian and the mother is considered a first guardian only after the father. Therefore, in today’s time when women are being empowered and society is developing rapidly, these laws need an amendment to cope with the changing environment and so that the future generation has no partial basis of mother and father.

References

  1. https://indiankanoon.org/doc/143255431/
  2. https://www.scconline.com/blog/post/2019/11/25/custody-of-children/
  3. http://www.legalserviceindia.com/article/l35-Guardianship.html
  4. https://www.indiacode.nic.in/handle/123456789/2318?locale=en
  5. https://www.youtube.com/watch?v=ZYAiQZ3_cgY
  6. https://www.youtube.com/watch?v=-yut4WHu1S0
  7. https://www.youtube.com/watch?v=UyjF-iVPIrk

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