Author-Jerrin B. Mathew*
Editor- Anisha Banerjee
Recently the Supreme Court has accepted a PIL urging the striking down of Section 6 of the Hindu Minority and Guardianship Act,1956 because it is discriminating against the wife. Section 6 of the HMGA is one amongst many parochial and unreasonable provisions of Guardianship law. We consider a Guardian as a person responsible to take care of a minor in terms of his person and property. There is a difference between custody and guardianship. Custody relates to the physical day-to-day care of the minor, whereas guardianship deals with the right to take important and major decisions in the minor's life and his property.
Law perceives Guardianship as a familial matter and therefore it comes under the ambit of personal laws. In India, personal laws differ from religion to religion. There is no single law regarding guardianship in India. Guardianship for Hindus is governed by The Hindu Minority and Guardianship Act 1956. Muslims have laws based on the Quran and various legal precepts of different schools of law. Guardians and Wards Act 1890 is in addition to the personal laws of all religions. Parsis and Christians have no specific law within the ambit of religion and therefore are directly governed by the Guardians and Wards Act 1890, which is a colonial law.
One of the major legal weapons to assail the parochial laws in guardianship is the best interest of the child principle. ‘The Best Interest of the Child’ is a principle used across many jurisdictions. It envisages that in all matters relating to the child, the child’s best interest should be sought and protected.The central thesis of this paper is that the best interest of the child is not protected as it should be. The scope of this paper is limited to laws relating to natural guardians of legitimate children, religion, and other miscellaneous matters of guardianship. The major limitation in this research was the paucity of academic resources and the absence of page numbers in commentaries used.
Best Interest of the Child
Best Interest of the Child was a principle used in the UN Convention of Rights of Child[i]. Article 3 of the convention states that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”India had ratified the UN Convention on Rights of Child in 1992, agreeing with almost all resolutions.The Indian version of the Best Interest of Child is ‘Welfare of the Child’. Section 17 of the Guardians and Wards Act talks about the welfare of the child should be taken into consideration while deciding guardianship. Section 13 of The Hindu Minority and Guardianship Act affirms that the welfare of the child is of paramount consideration.
The factors taken into consideration for determining the welfare of the child include religion, age, sex, wishes, will of the minor; character and capability of guardian etc. under section 17 of Guardians and Wards Act,1869. In other countries like Finland, section 4 of The Child Welfare Act of 2007 lays down broad principles of what constitutes child welfare.
Dark ages of Guardianship
Before analysing various laws in present-day India, we should look into the origin of present-day guardianship laws. Guardianship laws in India are heavily influenced by the common law of England and colonial laws of pre-independence India. These laws reflect the patriarchal and gendered notions of society. Father was best suited to have exclusive guardianship of his kids, even if custody lies with the mother. This was because of the patriarchal notion of men having more knowledge of the outside world and is better equipped to make decisions regarding property and education of the child. Guardianship was considered an absolute right of the father[ii]. We need to keep in mind these gendered beginnings to acknowledge the changes in the law to incorporate the rights of the child.
The word ‘Natural Guardian’ is mentioned only in Hindu Personal Law. Section 6 of the Hindu Minority and Guardianship Act 1956 states that the father is the natural guardian of boys and unmarried girls in the family (legitimate children). Section 7 of the same Act gives a similar rule for guardianship of adopted kids. An adoptive father is a natural guardian and after him, the adoptive mother.It does not define the word natural guardian in the Act, it only states who is to be considered as a natural guardian. Other personal laws also reflect the concept of a natural guardian, even though they don’t expressly mention the same. For example, in Muslim personal law, Father has the right of guardianship over his legitimate children by virtue of him being their father[iii].Section 19 of the Guardians and Wards Act says that the court shall not authorise or declare someone to be a guardian if the father or the mother of the minor is living.
A simple reading of the above paragraph would reveal the patriarchal notions of natural guardianship. In Hindu Personal law, the father is to be seen as a guardian of the minor and after father, mother would be the guardian. The word “after” was later given a progressive interpretation. However, till today father is given first preference if he is not found unfit to have the guardianship of the child. There have been many judgements that affirm that the court ought to find unfitness in the father rather than looking at the relative fitness of father and mother[iv]. Under section 6, courts cannot take into account the relative capability of both parents to become a natural guardian. So, even if the mother is better than father, she cannot be declared as guardian if the father is fit to be a guardian[v]. The researcher vents that this is not in the ‘Best’ Interest of the child.
Before the Personal Law Amendment Act 2010, even the Guardians and Wards Act had patriarchal provisions. It only stated that the court would not interfere in appointing a guardian if the father is living. It didn’t include ‘mother’ in Section 19 just like The Hindu Minority and Guardianship Act 1956 and Guardians and Wards Act, Muslim personal law also suffers from gendered notions of guardianship. Not only is the father the natural guardian when he is living, even if he dies, the minor's mother doesn’t get to be the natural guardian of the child[vi]. According to Sunnis, after the death of the father, the person who is appointed as a guardian in his will takes over guardianship.According to Shia law, the grandfather of the minor becomes the guardian of the minor irrespective of the will. Only in absence of grandfather, can an executor become the guardian for the minor. If neither an executor of father nor grandfather is present, then the executor of grandfather’s will becomes the guardian for the minor. However, the mother can become the executory guardian of the child if she is mentioned in the will of the father.
Laws regarding guardianship appear quite patriarchal and gendered notions are overt in various personal laws. However, there is a positive effect of the principle of ‘welfare of child’ across various provisions in almost all personal laws. In many cases, judges have taken the help of this principle and delivered to the judgement contrary to the letter of the provisions.In the case of Geeta Hariharan V Reserve Bank of India, the court held that the word ‘after’ in Section 6 of Hindu Marriage and Guardianship Act 1956 should be interpreted broadly[vii]. Thus, ‘after’ just doesn’t mean the death of the father but even his wilful absence.
Modern countries have gotten rid of favoring one parent over other in terms of guardianship. English Guardianship Act of 1973 is a prime example. The researcher is in favour of the Amendment of Hindu Minority and Guardianship Act 1890. Section 6 and Section 7 should be done away with. Both father and mother should be treated as natural guardian. They should be granted equal opportunity to prove their guardianship before courts in case of divorce.The unequal treatment of father and mother in terms of guardianship should also be held unconstitutional under articles 14, 15 and 21 and in the best interest of the child by the judiciary.
Religion in Guardianship
Religion is one of the basis for the existence of different personal laws in the country. All the personal laws take into account the religion of the parent and that of the minor before allotting guardianship. A person ceases to be a guardian if he ceases to be a Hindu under section 6 of Hindu Minority and Guardianship Act, 1956. Among Muslims, the Sunni community allows non-Muslim mothers to be guardians through their father’s will[viii]. The Shia community doesn’t allow non-Muslims to be guardians. Section 17 of Guardians and Wards Act 1890 says that religion should be taken into account to decide guardianship.
Many jurists submit that India has yet to achieve a secular outlook on issues of guardianship[ix]. The researcher agrees with this statement. Religion should be considered only when the child is strictly brought up in faith, and living with a converted spouse would be psychologically detrimental to the child. Instead, both Hindu and Muslim Personal law tends to guard the interest of the religious community.
However, even in this regard, the provision of the welfare of the child has helped. Courts have decided that if the parents never cared about their kid’s religion when he was with a parent of different religion, then religion should not be a consideration[x].The courts have held that belonging to a religion doesn’t mean the person has to sincerely follow the religion[xi]. If the judge thinks a minor can decide for himself, irrespective of his parents religion, then his wish should be considered[xii]. Courts in western countries have looked at the fact, whether the child was raised with a religiously conservative or liberal outlook[xiii].
According to the researcher, the provisions regarding guardianship and religion should be read in terms of the welfare of the child. Let’s say a Hindu father converts to another religion when the child is just one year old. At this age, it doesn’t matter whether custody or guardianship of the child is being given to a Hindu or a non-Hindu. Therefore, in these circumstances’ religion should not be considered for guardianship.
In all the above pages we see that the principle of ‘welfare of child’ present in statutes has certainly helped in bringing forth a progressive interpretation. The positive effect of the welfare principle provides justice even if the provisions seem patriarchal and gender biased. Indian legal system has certainly come a long way from the colonial notions.The Supreme Court and High Courts play a huge role in ensuring the welfare of children in case of guardianship.
This is because the law declared by the Supreme Court are binding on all the subordinate courts of India under article 141.Similarly, the law declared by the High Court is binding on subordinate courts under its jurisdiction under article 277. This is important because district courts have jurisdiction to hear most cases related to custody and guardianship. However, the judges cannot go beyond the law. If the law itself is regressive and patriarchal, there is little that judicial interpretation can do to make it better apart from striking it down. Therefore, there is a need for reformation in guardianship laws. This has been acknowledged even in the 147th law commission report[xiv].
Guardianship is a very important and sensitive aspect of family law. While allotting guardianship, the welfare of the minor should be the paramount consideration.It's all about the welfare of the child. Guardianship laws in India had very dark beginnings of common law and colonial times. Since then, India has certainly taken a progressive stand. However, serious impediments to the best interest of a child still exist. These include patriarchal notions of natural guardianship and strict grounds of religion. Only if the father is unfit to be a natural guardian, mother or someone else becomes a guardian.
Thus, laws prefer fathers over mothers to have guardianship. Current laws only protect kids from extreme situations rather than ensuring the best interest of the child. Apart from being patriarchal, these laws place too much emphasis on religion. The religion of parents is considered even in situations where it is futile to do so and could preclude the best interests of the child. The Judiciary has done a commendable job in giving a progressive interpretation of statutes. There is no reason why India should continue to have its colonial legacy when western countries have done away with them. The researcher acknowledges all the welfare-based provisions, amendments and interpretations. However, he maintains and concludes that Best Interest of the Child is not protected as it should be.
[i]UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: https://www.refworld.org/docid/3ae6b38f0.html [accessed 11 August 2020].
[ii]Paras Diwan , Law of Adoption, Minority, Guardianship and Custody (5th edn, Universal Law Publishing 2012). [iii]Diwan (n 2), Introduction to Muslim Law. [iv]Kamalama v. Laxminarayana Rao AIR 1971 Mys 211. [v]Audiappa Pillai vs Nallendran Pillai (1915) 28 MLJ 442. [vi]Diwan (n 2), Introduction to Muslim Law. [vii]Ms. Githa Hariharan &Anr v Reserve Bank Of India &Anr (1999) 2 SCC 228. [viii]Diwan (n 2), Introduction to Muslim Law. [ix]Diwan (n 2), Powers of Guardian [x]Abdul v. Jagannath AIR 1930 All 255. [xi]V. T. S. ChandarasekharaMudaliar v KulandaiveluMudaliar And Others AIR 1963 SC 185. [xii]Sarat Chandra v. Foreman (1890) 12 All 213. [xiii]Re Collins (1950) 1 All ER 1057. [xiv]Law Commission, Reforms in Guardianship and Custody laws (No. 257 2015). * The Author Jerrin B. Mathew is a 2nd year B.A.LLB (Hons) student at the National Law School of India University (NLSIU),Bengaluru,Karnataka.
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