By Sunidhi Gupta

Abstract

This article aims to analyse the inconsistencies between the Guardians and Wards Act, 1890 which governs all the citizens, and the Hindu Minority and Guardianship Act, 1956 which governs the Hindus. There is a discussion on various sections of both laws which collide and the historic references to these Acts. It also focuses on understanding the issues which stem from paternal supremacy given in provisions and the importance of welfare principles in laws pertaining to custody and guardianship.

India is a country where people from diverse cultures and religions reside and so making universal laws that cater to people belonging to different communities is difficult. The custody and guardianship laws are also different for religions and come under the sub-head of personal laws. The laws relating to custody and guardianship are quite interconnected since both topics are quite closely related to each other. Custody is a narrowed-down concept in relation to guardianship which provides an adult with several rights and powers relating to a minor’s person and property. Custody is more focused on the physical presence of a minor and includes making basic day-to-day decisions for a minor. That is why custody is related to more of a minor’s person and not property. In India, the laws for guardianship and custody include a secular law enacted by the colonial state in 1890, the Guardians and Wards Act which has been applicable on all people, irrespective of communities they belong to which has been adopted. Apart from that there are statutes that are specific to various religions. The modern statute for the Hindu Law which governs all Hindus under it is the Hindu Minority and Guardianship Act, 1956. There are certain inconsistencies in both these laws on provisions relevant to guardianship and custody with common law derived legacy to give importance to the supremacy of the father’s right in guardianship and custody matters while personal law gives more importance to the welfare of the child. These legislative inconsistencies have brought up certain issues like gender inequality and the welfare of minors into the picture which need to be understood.

Understanding Statutes: The Guardians and Wards Act, 1890 & The Hindu Minority and Guardianship Act, 1956

The Guardianship and Wards Act, of 1890 continues its legacy from the Common law. Under the Common law, traditionally, the father had supreme authority over the child’s rights and was the sole guardian of the child and his property. This authority was considered absolute with the courts also refusing to interfere and the mothers were not considered to have any authority over the child because of no existence of independent legal status. It was only after divorce and separation became prevalent that mothers began to claim custody; however, guardianship rights of the father remained supreme. After several developments at the legislative and judicial end under Common law, the paternal authority was dismantled . The provisions of the Guardians and Wards Act including the amended Section 19(b) as well as Section 25 imply that there are provisions for appointing guardians in accordance with the welfare of the minor but they are subordinate to the authority parents have as guardians and so under this provision welfare of a minor is not of paramount consideration. The provisions of the Hindu Minority and Guardianship Act, of 1956 (HMGA) apply only to Hindus and it comes under the Hindu personal law. Traditionally under the Ancient Hindu Law, there was no need for guardianship laws since most of the minors were  part of a joint family and came under the protection of the head of the family or the Karta. In the Act, the important section is Section 6(a) which states that for a minor boy or a minor girl who is unmarried, the natural guardian is the father and ‘after’ him the mother.  It also provides that for a minor who has not completed the age of five years, custody will ordinarily go to the mother. Section 13 states that for deciding the guardianship of a Hindu minor, the welfare of the child will be of paramount consideration. The father can claim custody at any time due to his superior guardianship rights but the provisions for the Act also state that the welfare of the minor is of most importance. This is the only provision which a mother can use for getting guardianship against paternal rights and this is how HMGA guardianship rights are subordinate to parental rights.

Inconsistencies & Prevalent Gender Bias

The 257^th Report of the Law Commission of India which came out in 2015 also put light on these inconsistencies and the issues which stem from them, especially under laws for Hindu minors. Under GWA parents have equal rights of guardianship but the welfare component is subordinate, while under HMGA welfare aspect is paramount. This differentiates the guardianship laws between Hindus and non-Hindus for whom the court does not have authority even in case of welfare issues. Apart from legal inconsistencies, there are other issues also which will be discussed. Firstly, there have been time and again questions on how the statute that gives preference to the father over to the mother in case of a minor child’s custody is objectionable. There is no rational basis or reasonable justification for such a provision and on the contrary, it brings forth a bias that exists against women. The 257^th Report of the Law Commission of India states how it is only reflective of the distrust of women since olden times and encourages the feeling of superiority for men and how women are inferior to men and have less power. There are justifications given saying that it is an ancient prejudice. But Hindu scriptures which are sources of the Hindu law to some extent say the contrary. Scriptures like Manu Smriti, Vedas and Puranas have held mothers and wives in very high regard. They have maintained that in the process of birth and upbringing, both mother and father have a very crucial role to play and the contribution of one cannot be considered better than the other. So, the argument of provisions getting their basis from ancient law is negated here. Secondly, these provisions are also violative of the Fundamental rights which have been given in the Constitution of India. Article 14 of the Constitution prohibits discrimination or discriminatory laws and that people in similar circumstances should be treated alike. It only allows reasonable classification for a purpose by the legislature which means there has to be a reasonable nexus and object for classification. Article 15(1) also states that the state cannot discriminate against people on grounds mentioned in the article which include sex as well and while Article 14 is general, Article 15 is more particular for application.

Men’s Take on Gender Bias and Reasoning

There are several men’s groups across the country who believe that the pendulum of equality has gone too far. There are a lot of laws being made today, most of them pro-women considering the increasing awareness about feminist movements. The people from the men’s movement believe that most of these laws are being made with the perception of benefitting women that too at the expense of men. This is due to the insurgence of the feminist movement. There has been criticism made against the court by men stating how they prefer mothers to give custody of children. They advocate and demand that the legal system should function with the perception that would also give men an equal share of children. This argument can be and has been countered stating how it is quite ridiculous that women have been able to safeguard their rights under the Indian Legal System. The fact cannot be hidden that the patriarchal bias and power over men in family units are more prevalent with many women not even able to take a stand for themselves due to a lack of awareness, fear, or idea of respect. There has been a lack of formal equality in the form of discriminatory laws which has been explained above. Apart from that there is a lack of substantial equality as well, with women in the public sphere being deprived of education or opportunity for political participation and not given enough agency.

Welfare Principles to Deal with Gender Bias

The idea of the welfare of a minor is abstract and so is the principle based on it. The welfare of minors as a principle is important to discuss when issues in guardianship laws are being discussed because the welfare principle plays a crucial role in dealing with such provisions. It has been discussed that HMGA has flawed provisions on guardianship but still welfare of the minor is given paramount importance. The welfare of a child has a lot of factors and so no particular principles or propositions have been given out. Each case has its own circumstances according to which judgment is made and there are no absolute rules for the same. Keeping welfare in mind there are times when the problematic law of the father being guardian is countered and gender justice has been provided. Also, there has been emphasis in the 2015 Report of the Law Commission which says that though the welfare principle is being used by the higher courts there has been no evidence of how much it is being referred to in the lower courts. This principle is very valid in custody and guardianship and so it is imperative that this is given utmost importance even if provisions are not changing for so long.

CONCLUSION

The Hindu Minority and Guardianship Act and the Guardians and Wards Act had been enacted according to the social setting under the colonial state and after independence. But it is important to know that the laws have always affected the way society evolves.  Thus, such important laws should be made thinking of the long term. The idea of men being supreme since others are dependent on them is outdated and women have got their share of rights in many spheres and it is important that the same equality is given under guardianship and custody rights

Author

Sunidhi Gupta, a student at Jindal Global Law School in her third year of BA. LLB (Hons.)

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