Early stages of the Hindi Minority and Guardianship Act
In India, the legal framework that governs family disputes is peculiar. Every religious community has its own set of laws that govern family matters such as marriage, succession, and guardianship, among other things. As a result, adherents of Hinduism, Islam, Christianity, and Zoroastrianism are governed by a set of laws unique to their faith.
In terms of guardianship law, the Hindu Minority and Guardianship Act, 19563 (hereinafter referred to as “the 1956 Act”) governs Hindus. According to the Act, a guardian is someone who looks after the person, property, or both of a minor (a person under the age of eighteen), and the natural guardian of a minor is the father, followed by the mother. This provision has been reinterpreted to reflect changes in how the law operates.
As a result, the father is the natural guardian of an adopted son, followed by the mother. The mother is the primary guardian of her illegitimate child, followed by the father. As a result, the father is the natural guardian of a legitimate child and an adopted son, while the mother is the natural guardian of an illegitimate child.
Being a natural guardian under Hindu law, the father or mother has the authority to do all acts beneficial to the minor and necessary for the protection or benefit of the minor's estate, provided that they obtain permission from the court before mortgaging, charging, transferring, selling, gifting, exchanging, or otherwise disposing of any part of the minor's immovable property.
According to the preceding, the rights of the father as a natural guardian of the minor outweigh the recognition of mothers as natural guardians. Since independence, fathers have had sole authority over the minor's person and property, while mothers have been relegated to a secondary role.
Their fundamental right to equality under Article 14 of the Indian Constitution was conspicuously ignored, as was the mandate of Article 15 of the Indian Constitution not to discriminate on the basis of gender.
To address the shortcomings of the current law and to improve the position on the rights of mothers over their minor children, the Supreme Court interpreted the relevant provisions of the 1956 Act in Githa Hariharan vs. Reserve Bank of India to include the recognition of mothers on a par with that of fathers.
Analysis of the case: Githa Hariharan vs. Reserve Bank of India, (1999) 2 SCC 228
The mother (petitioner) and father had jointly applied to the Reserve Bank of India (RBI) for relief bonds in their son’s name. The parents had mutually agreed that the mother would invest the minor's money while also acting as the minor’s natural guardian. As a result, the mother signed the necessary forms as the minor’s natural guardian. However, the RBI insisted that the mother either have the form signed by the natural guardian’s father or obtain a certificate from the appropriate authority declaring the mother to be the natural guardian. This resulted in a petition being filed in court with the request that Section 6(a) of the Hindu Succession Act, 1956 and Section 19(b) of the Guardians and Wards Act, 1890 be struck down because they recognise the father as the only natural guardian and thus violate the constitutional rights guaranteed under Articles 14 and 15 of the Indian Constitution. The petitioner requested that the mother be declared the natural guardian.
The district court denied her claim, stating that under Section 11 of the Guardians and Ward Act of 1890, she was required to disclose the child's father’s information, which she refused to do.
When this case was appealed to a higher court, they stated that even if the mother is not married, the father of the child may have an interest in the child. However, the Supreme Court, presided over by Judge Vikramjit Sen, overturned this sentence by establishing two fundamental rules;
The first is that the child’s interests are paramount, and thus a mother can be considered a guardian;
Second, the woman has a fundamental right to conceal the identity of the father for privacy reasons. In this case, the parents divorced, and the mother became the child’s guardian.
The court of law ruled that both parents must be treated equally for the purposes of guardianship, and that the word “after” in Hindu minority law and guardianship should not reduce the mother’s position to a secondary position. This trial has done some good and will protect the rights of single mothers and illegitimate children, as mentioned in the Guardianship Law but not yet accepted by society. In this case, the mother of the child obtained the same rights as in the case of guardianship. The meaning of the word “after” has been changed to “in the absence of the husband”, so that the mother's position is never questioned and treated equally. This decision will benefit children born out of wedlock or the descendants of commercial sex workers to some extent. This landmark decision also contributes to the encouragement of adoption by independent and single women in India.
Conclusion
In Githa Hariharan vs. Reserve Bank of India, the Supreme Court granted only limited rights to mothers as natural guardians in cases where the father was particularly uninvolved and uninterested. It is past time for women to be given equal recognition in society. With changing times, the position of women in the country has undergone dramatic changes, with women fighting the patriarchal model of society and fighting for their rights. However, the respective communities' family laws continue to prevent women from progressing in some areas, one of which is natural guardianship. It is now hoped that the legislature will take up the task of amending Sections 6 and 7 of the 1956 Act, as well as all other customary laws on the subject, and grant both mothers and fathers equal and joint natural guardianship rights. While married, both parents must continue to exercise their guardianship duties concurrently and in the best interests of the minor.
Witten By,
Kalpana Nailwal,
Intern, Chanchlani Law World
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