Judiciary Makes Mothers Matter In Guardianship Issues

Shalini Phansalkar Joshi. J, Former Judge, High Court of Bombay, writes on Guardianship Issues that mothers face and how the Judiciary makes mothers matter.

Nature has not only treated the woman equally with the man in terms of intelligence, feelings, and health but has endowed her with the bounty which no man can claim to have. A woman is blessed by nature with Motherhood. Conceiving and carrying a child for nine months in the womb is a unique privilege of a woman. Even after the birth of the child, socially, it is the mother who nurses, feeds and takes care of the child. If the role of guardian is to love, care and protect the minor, then the role of the mother is significant as a guardian. In that way she is entitled to not only rear the child but also to take all the decisions for proper upbringing of the child and to guard the welfare of the child.

However, according to Section 6 (a) of Hindu Minority and Guardianship Act 1956, it is the father, who is the natural guardian of the minor child and after him, the mother. Thus primary and first right of guardianship is given to the father; whereas mother is given secondary claim. Her right to guardianship can arise only after father, which necessarily meant and was construed as “after the death of the father”. During his lifetime she cannot assert any right over the minor child. The right to guardianship encompasses not only guardianship of minor’s property but also of his person.

Recently, however, in the HSC and Graduation Certificate of the minor child the name of mother has started appearing along with the name of father. In the year 2016 the Delhi high court has also held that in certain cases, mother’s name is sufficient for a child to apply for the passport, without insisting for father’s name, especially because a single woman can be a natural guardian as well as parent.

In view of this apparent and blatant gender discrimination writ large in this section, Ms. Githa Hariharan has challenged this section as being violative of right to equality, guaranteed in Preamble and Article 14 of the Constitution of India. The facts of this case were interesting. Githa Hriharan, who was earning her own independent income, has invested some amount of her earning in the Bonds of Reserve Bank of India, in the name of her minor child. After the Bonds became mature, she filed an application on behalf of the minor child to get the maturity amount. However, her application came to be rejected by the Reserve Bank of India on the ground that application should have been filed by the father as he was the natural guardian of the child and hence entitled to receive the amount on behalf of the child.

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Githa Hariharan challenged it before the Supreme Court, seeking a declaration that section 6(a) of the Hindu Minority and Guardianship Act is ultra-vires the Constitution, being offending to the fundamental right to equality. The Supreme Court had accepted her contention to some extent and read down section 6(a) of the Hindu Minority and Guardianship Act 1956 by interpreting that the words “after him”, used in the said section does not necessarily mean “after his death”; on the contrary, it means ‘in the absence of’, be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise.” In view of this interpretation, it was held that during the life time of father also the mother can become the natural guardian of the minor child in certain circumstances.

However, the fact remained that with this interpretation also her right to guardianship remained secondary. It was conditional on proving the absence of the father. Hence it was not unqualified, absolute or primary.Taking note of the same, the Law Commission in its Report suggested the amendment to section 6(a) of the Act to make both the parents, the father and the mother as the natural guardians of minor child. The legislature has yet to effect that amendment in law and it is again the judiciary which has come to the support of women.

In November 2019, in a PIL filed by an aggrieved mother, the Supreme Court has sought the Centre’s response. In this case also, the petitioner, who is a retired Army officer, Ms Sakshi Bhattacharya, faced the gender- biased discrimination after her husband initiated divorce proceedings before the family court. It is contended by her that this provision in section 6(a) contradicts the object of the Hindu Minority and Guardianship Act 1956, which is welfare of the minor child and it is also violative of right to equality guaranteed under the Constitution. Relying on the English Guardianship Act of 1973, which confers same rights and authority to both the parents in matter of guardianship of minor and administration of his/her property, the request is made to insert the similar provision in the Hindu Minority and Guardianship Act, by making section 6(a) gender neutral. Taking into consideration that this Act was enacted in 1956, when men exercised more financial power and social sanction to control and dominate women and children in family, after more than six decades, it would be natural, reasonable and advantageous for the welfare of the minor child, if mother is also given equal right, if not more than the father, in tune with the right given to her by nature. Let us see how the Government responds and how Judiciary once again revisit this provision in law.

What is pertinent to note is that even under other personal laws also, women are not given equal right in guardianship. In Muslim law also, it is the father who is treated to be the natural guardian of minor child. Same is the case in Parsi and Christian laws also. Motherhood, thus, is not treated at par or above fatherhood  in law. It is also worth to note that in case of illegitimate child, mother is the natural guardian.  An unwed  Christian mother’s right to become a legal guardian of minor child, without disclosing the name of the father was also upheld by the Supreme Court in the case of ABC v/s NCT Delhi 2015SCC Online SC 609 though Section 11 of the Guardians and Wards Act, 1890, which applies to Christians in India, requires that a notice must be given to the 'parents' of a child, before a guardian is appointed and  Section 19 of the same Act stated that a guardian could not be appointed if the father of the child was alive and fit to be appointed a guardian of the child.  Even in case of death of father at an early stage, it is the mother who becomes the natural guardian. Therefore it is not a case that mother is in anyway incapable to be a natural guardian.

However, according to Section 6 (a) of Hindu Minority and Guardianship Act 1956, it is the father, who is the natural guardian of the minor child and after him, the mother. Thus primary and first right of guardianship is given to the father; whereas mother is given secondary claim.

Recently, however, in the HSC and Graduation Certificate of the minor child the name of mother has started appearing along with the name of father. In the year 2016 the Delhi high court has also held that in certain cases, mother’s name is sufficient for a child to apply for the passport, without insisting for father’s name, especially because a single woman can be a natural guardian as well as parent. The court also took judicial notice of the fact that families of single parents are on increase because of various reasons like unwed mothers, sex workers, surrogate mothers, rape survivors, children abandoned by father and also children born through IVF technology. Now the Passport Office has changed the Rules stating that it is not mandatory to mention father's name while applying for a passport. This would enable single parents to apply for passports for their children and to also issue passports where the name of either the father or the mother is not required to be printed at the request of the applicant. Thus the times are changing and with it the laws and their interpretation.

Shalini Phansalkar Joshi. J is guest writer with Population First. This series is being published in collaboration with Laadli. The views expressed are the author’s own.

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