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The Changing Face of the Family- Guardianship, Custody and the Law

The Changing Face of the Family- Guardianship, Custody and the Law

Author: Darshana Mitra;
with inputs from Gauri Shukla, West Bengal National University of Juridical Sciences

An individual is considered a minor till he or she attains the age of eighteen. Till a minor attains majority, he has a guardian, who is empowered to take decisions on behalf of the minor. The minor may also be in the custody of an individual, who is responsible for his or her daily care and supervision.

The rights of guardianship and custody, while they often rest in the same person, are not the same. Guardianship implies the right to take decisions on behalf of the minor, and to administer the property of the minor, if any, till she attains majority. Custody is the limited right of taking care of the daily up-bringing of the child.

The laws governing guardianship and custody in India are the Guardians and Wards Act, 1890 (The GWA), the Hindu Minority and Guardianship Act (The HMGA), as well as provisions of the Hindu Marriage Act, 1955, the Parsi Marriage and Divorce Act, and the Indian Divorce Act, and Muslim personal laws. The GWA is a secular law regulating questions of guardianship and custody for all children in India, whereas the HMGA codifies Hindu law on custody and guardianship. The HMGA and the personal laws act in supplement to the GWA by laying down the substantive law with respect to guardianship and custody, whereas the GWA lays down the procedure for applying to courts to appoint a guardian for a minor.

Guardians can be either legal guardians or natural guardians. Natural guardians are persons presumed by the law to be the guardian of the minor, and are usually the parents of a child. Legal guardians can either be appointed by a court of law, or can be appointed vide the testament (will) of a natural guardian. In the case of testamentary guardians appointed by a Hindu father, the testament of the father gains precedence over that of the mother, unless the father dies while the mother is still alive, in which case, after the death of the mother, it is the guardian named in the mother’s testament that gains precedence.

Matrimonial legislations, such as the Hindu Marriage Act, the Parsi Marriage and Divorce Act, as well as the Indian Divorce Act (which governs Christian marriages), allow for courts to pass interim orders on the custody of the children. However, the same cannot be invoked to decide on guardianship rights, and petitions can be filed only under the GWA and HMGA to decide on the same.

A cursory perusal of the laws related to guardianship and custody will tell us that these laws are deeply rooted in the concept of a heterosexual, cisgender married couple. For example, Section 11 of the GWA necessitates the serving of notice to the both parents if an application is filed for guardianship of a minor. Moreover, the HMGA names the father, and not the mother, as the natural guardian of a minor child, except that in cases where the child has not completed five years of age, the custody of the child shall be with the mother of the child, but the guardianship will continue with the father. Both the parents may jointly, or, in the event of the absence of one due to death, divorce, legal separation, desertion or conviction, may singly apply for guardianship of their or as the case may be, his ward beyond the age of 18 years. No single male shall be considered as a guardian for a female ward and in the case of female wards, the male person shall be given co-guardianship with his spouse, who shall be master co-guardian.

Islamic law distinguishes clearly between custody and guardianship, with the custodial rights over a boy rests with the mother till he attains the age of seven, and of that over a girl rests with her mother till she attains puberty. Guardianship rights, however, continue to vest with the father.

It is clear that familial forms which deviate from the norm, e.g., same-sex families, single-parent families, are recognized in their absence, or, at best, as an exception. This makes it extremely difficult for alternative conceptions of parenting to find a foothold. The family as an institution plays an important role in the propagation of lineage, and in the preservation of private property. The primacy given to the father in most guardianship laws can be understood in this context. Coupled with this is the patriarchal notion of women being best equipped to be caretakers, which translates into the custodial rights, but not the guardianship rights of very young children remaining with their mothers.

However, recent judicial decisions are reversing this trend. For example, the Supreme Court of India, in the case of ABC v State (NCT of Delhi)ruled that an unwed mother can be appointed as the sole legal guardian of her child without the consent of the father.  The bench was adjudicating a plea by a Christian woman, who challenged the statutory necessity of involving the father of her five-year-old son in a guardianship petition even though she never married him — the father does not even know that the child exists.  The bench gave a liberal interpretation to Section 11 of the Guardians and Wards Act, ruling that in the case of illegitimate children whose sole caregiver is one of his or her parents, the term “parent” would mean principally mean that parent alone. In this case, the petitioner had applied for guardianship as she wanted to make her son her nominee in all her savings and other insurance policies, and also to protect the child’s inheritance and property rights. The law requires that a notice be sent to the child’s father to obtain his consent. But the woman questioned this need, saying disclosure would create more problems for both parents. Keeping in the mind the religion of the petitioner the Court observed that “India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with legislative intent and prevailing case law.”

In a landmark judgement of MsGithaHariharan and another v. Reserve Bank of India and another the Supreme Court driving home the equality of the mother to fulfil the role of a guardian held that “gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category”. In this case, which challenged the validity of Section 6 of the HMGA, it was held that the term “after the father”, did not necessarily mean that the mother was the natural guardian of the child after the demise of the father, but also in the absence of the father’s presence in the minor’s life.

What are the implications of these developments for the child? Certainly, the evolving discourse around guardianship indicates a gradual shift away from the patriarchal notions of familial lineage. However, there is still little clarity on how this recognition is to be read with other rights, e.g., the right of a single parent to apply for a passport for a child without seeking the consent of a spouse. More importantly, the best interests of the child remains an inconsistently applied standard across lower courts. The Law Commission of India, in its 257th Report on Guardianship and Custody laws, states, “the wide discretion available to judges under the welfare principle also means that certain issues that should merit consideration are not treated seriously while determining custody.” The Report takes the example of how courts often disregard even serious allegations of sexual abuse made by children against by male relatives. Further, it goes on to address the concerns of “father’s rights” groups that laws on custody are disproportionately favourable to women. The Report states that not only are such concerns baseless, they are also blind to the fact that when there is no equality in the sharing of parental responsibilities during the subsistence of marriage, the demand for a procedural equality of rights after the dissolution of marriage is baseless.

The comments of the Law Commission make it amply clear that a family is no longer perceived as a perfect haven of equal responsibilities which can nurture a child. However, even the Law Commission does not fully commit itself to exploring the contours of single-parent guardianship, but it suggests joint custody as a solution for such problems. While joint custody may indeed be a favourable solution in many cases, the suggestion of the Law Commission indicates an inability to truly question the traditional forms of family.

We are currently living in a time when not only gender roles, but the entire notion of gender itself is being questioned. Despite stiff resistance from the State and patriarchy, the institution of the family is being opened to the scrutiny of the critical public eye. Can the law help us in reimagining the best interests of a child? Or will it remain obdurate, and fail in its transformative mission?


Published in Karnataka Today

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