A Study on the Guardianship Law from the Gender Perspective

Pratibha Mishra
  1. Introduction

Guardianship can simply be defined as a legal relationship where court assigns a person or an institution to look after minor or incompetent adult, the arrangement can also be created by naming such person and institution in the will.[1] The term ‘guardian’ is defined under The Hindu Minority and Guardianship Act, 1956 as “a person having the care of the person of a minor or of his property or of both his person and property, and includes— (i) a natural guardian, (ii) a guardian appointed by the will of the minor’s father or mother, (iii) a guardian appointed or declared by a court, and (iv) a person empowered to act as such by or under any enactment relating to any Court of wards.”[2]

In Indian context, for the purpose of guardianship, the Hindus are governed by The Hindu Minority and Guardianship Act, 1956;[3] whereas the Quranic Laws govern the Muslims.[4] The Guardians and Wards Act, 1890 is a secular act applicable to all the citizens of this country irrespective of the gender, religion, etc.[5]

Usually, a mother is never considered good enough when a father is present. This pre-conceived notion of society is emblazoned in law as well.[6] To illustrate the same, Sec 6 of The Hindu Minority and Guardianship Act can be referred, which gives secondary position to mother in terms of being the natural guardian, exception being custody of minors less than 5 years of age.[7] This is in contravention with the fundamental rights of equality[8] and against discrimination based on gender,[9] guaranteed by the Constitution of India.

The judiciary while interpreting this clause has also seen it through the lens of gender inequality. The landmark case in this regard is Gita Hariharan v. Reserve Bank of India, where the apex court held, “the term ‘after’ as not meaning ‘after the lifetime’ and held that mother can be a natural guardian even when father is alive but unfit for that purpose.”[10] But does the disparity resolve over here? This opinion of the apex court still reflects giving a dominant position to a father. Also, another facet of it cannot be overlooked that the primary objective of the guardianship laws are to give welfare of the child the paramount consideration[11]; and the presumption of this society is women are not in every case economically and socially fit for that purpose. But as a society evolves, laws must be in the congruence of this evolution process. The paper attempts to study all these issues in detail and analyse the present legal position pertaining to guardianship laws with the current scenario.

  1. Historical Background of Guardianship Laws in India

India being a multi-religious country, is a home to diverse religious practices and cultural framework. People belonging to different religious communities are governed by different sets of laws when it comes to their personal matters such as marriage, divorce, maintenance, etc. Guardianship laws being religiously based, fall under the ambit of personal law.[12] Guardianship as defined under the Guardians and Wards Act, is nothing but the right to make decisions about the minor’s upbringing, disposal of his/her property, etc.[13]

2.1 Guardianship in Hindu Classical Law

Tracing the evolution of guardianship law, the concept can be found to be existent even in the Vedic Age, when all the decision-making powers used to vest in the hands of the head of the family. The idea of guardianship in Ancient Hindu law was based on the principle of the “king as parens patriae”, which confers the authority of supreme guardianship of all the people of the state in the hands of the king.[14] According to Narada Smriti, father and mother are declared to be guardians of a minor.[15] Ancient Hindu texts mention about the existence of joint family, karta being the head and absolute guardianship vests in him; and apart from that, guru is also considered to be guardian of the minor who is sent to ashram for education if he belong to any of first three classes, i.e. Brahmana, Kshatriyas and Vaishya. Hence, the need for laws governing guardianship of a minor in person was not felt, it was only about the minor’s property, for which if there is no one to look after, the king was considered an absolute guardian to protect such minor and his property.[16]

2.2 Guardianship dealt in Sharia Law

Coming to Muslim Law, there is no codified law as such dealing with guardianship. The provisions of the same in pursuance of the Koran and few Ahadi verses. All the sources of guardianship under Muslim law mostly deal with guardianship pertaining to minor’s property. The preferential position as per the law is given to the father, failing to appoint an executor before death would lead to the grandfather becoming the guardian and if he dies without appointing an executor, the Qazi will have the authority to appoint a guardian.[17] Not much in detail has been spoken about guardianship of minor in person; the provision regarding the same includes jabar, which talks about guardians having the authority to give the minor in marriage and hizanat, dealing with the custody of minor, which resembles the concept of custody under Hindu Law.[18]

2.3 Provision of Guardianship during the British regime

Like matrimonial remedies, succession, adoption, etc.; there were no specific and codified laws as such to govern the matters pertaining to guardianship; however, legal developments were seen through different cases in the judiciary. During British regime, matter of guardianship used to come under personal affairs that are supposed to be dealt according to the uncodified, classical laws or customs; and Indian subjects belonging to communities other than Hindu and Muslim, i.e. Christian and Parsis were governed by common law of the land.[19] However, for the procedure of appointing guardians by court, the Guardians and Wards Act was enacted, which included minors of all the religion under its domain; though the personal laws of the minor remained to be the substantive law.[20]

  1. Position of law pertaining to guardianship post-independence

In the present legal regime, the natural guardian is presumed to be legally authorized to take ultimate decisions for the minor. Under the classical laws, usually the father is given the position of the natural guardian. Few changes were seen after the codified laws on guardianship came into picture post independence. The Hindu Minority and Guardianship Act, 1956, being the first legislation enacted dealing with the matter. Working as an addendum to the Guardians and Wards Act,[21] the Act governs only people belonging to the Hindu community or any of its developmental forms and who can fall under the jurisdiction of Hindu Law.[22] Further, India is also a signatory to the UN Convention and the Rights to the Child and has the onus to comply with the rights enshrined in it.

3.1 Hindu laws on Guardianship

Taking the provision of Hindu Minority and Guardianship into account, gender biasness is clearly evident as the father is given the predominant position as far as guardianship is concerned. The mother can exercise the rights of a natural guardian towards a minor only when the father is either not alive or incapable to discharge his functions. This simply implies, in the presence of the father, the mother has no rights of natural guardian towards the minor. Sec 6 of HMGA provides a couple of conditions in which the father would not be considered as the natural guardian. But judiciary has shown deviance from this provision in number of cases, where the court accepted the mother to be the natural guardian when neither of the condition were fulfilling; one such case was Jijabai v. Pathankhan, in which the apex court held, “It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor appellant was concerned”[23]; thus allowing the mother to be the natural guardian of her minor daughter.

Moreover, in Githa Hariharan v. Reserve Bank of India, SC observed, “The father by the reason of 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 and in that view of the matter the word ‘after’ shall have to be interpreted in terms of the constitutional safeguard and guarantee so as to give a proper and effective meaning to the words used.”[24]

No doubt this judgement is a remarkable step towards interpreting the said provision with no gender disparity, but the fact cannot be denied that the mother enjoys the right of natural guardianship on par with the father only when she possess exclusive right of guardianship over the minor for whatever reason, whether it be neglect towards the minor from father’s end or when the welfare of the minor is being compromised due to fault on the father’s part or when the child is illegitimate, but even that is subject to certain exceptions[25]. The question arises why can’t both the parents act as natural guardians when the minor is in mutual care of both, the judiciary is yet to form an opinion on this.

The Act also confers the rights of natural guardian to the husband in the case of minor wife while child marriage has been prohibited by the Act of 2006;[26] the question arises over here is then why the aforementioned provision is still being prevalent.

3.2 Muslim Laws on Guardianship

In Muslim Law, laws of guardianship of minor’s property have been laid down in detail but not much has been provided by guardianship of minor in person, reason being the perception of law makers that the matter of guardianship has mainly to do with the custody of the minor. Though the concept of natural guardian does not exist in Quran, yet father is considered as a guardian in parallel to the same in both Shia and Sunni Law.[27] The guardianship laws in Muslim Law is no alien to gender disparity, like classical Hindu Law, biasness towards the father, and after that the other male members is inscribed in the law itself. A father is the sole and supreme guardian of the minor and has authority to control the education, religion, upbringing, etc. of the minor till the time he is alive.[28]

Rudd ul Muhtar specifically gives the father the absolute authority to manage the minor’s property, and after his death the privilege is transferred to the grandfather if the executor has not been appointed by the father. Similarly, if the grandfather dies without appointing any executor, the guardianship belongs to the Qazi, nowadays the court and person appointed by the same.[29] The mother’s right of guardianship is not even in the picture, only exception lies, if the minor is girl but even that is only allowed upto a certain age;[30] she is not even entitled to the guardianship of her illegitimate child.[31]

Shia law only recognizes the father, and after his death, the grandfather as the guardian of the minor, no other person is vested with the right to be the natural guardian. Not even a single school under Islamic Jurisprudence recognizes the mother to act as a natural guardian even in the absence of the father.[32] Beside this, the mother is not allowed to appoint a testamentary guardian under both Shia and Sunni school of law; exception being when the father in his will appoints her as the general executrix and for her own property.[33] Though in these two cases, the mothers were allowed to appoint a testamentary guardian but the law does not seem realistic and significant in practice as it does on paper. The power conferred by the will of the minor’s power is meant for all the executors, the mother is not given the sole right and the right of appointing testamentary guardians for her own property does not carry much resemblance as every individual is free to do so.

  1. Judiciary’s standpoint on guardianship laws

Judiciary in many instances have recognized the welfare of the child to be with the mother, but have only limited this notion upto the custody of the minor and the position of father with respect to guardianship has been still persistent as held by the court in the case Medai Dalavoi T. Kumaraswami vs Medai Dalavoi Rajammal,[34] in which the mother was merely entrusted with the custody of the minor while retaining the guardianship of the father. The custody of the child does not take away the right of the father to be the natural guardian of the child. The same was held in the case Bai Tara v. Mobanial Lallubbaii[35]  as well.

In the landmark judgement of Gita Hariharan case, the court had opined in favour of interpreting the statutory provisions in broader sense and in compliance with the Constitution of India. The court further added: “Is that the correct way of understanding the section and does the word after in the section mean only after the lifetime? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e., six years after the Constitution. Did Parliament intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on the grounds of sex? In our opinion No.” But, the legislation is yet to find an answer to the same.

This case has given a new dimension as far as interpretation of this statutory provision considering the mother to be a natural guardian after the father is concerned. The case has been referred further in numerous cases and the mother, if proven the father’s absence in terms of discharging his duties or not raising question when the mother does something for the benefit of the minor,[36] she has been held as a natural guardian.

J. Vaidyalingam in the case Narayan v. Sapurna stated, “in particular circumstances of this case, mother could be considered as the natural guardian of her minor daughter…where father fails to function or refuses to function or is incapable, mother will be able to exercise the power and duties of natural guardian without even being appointed.”[37]

4.1 Law Commission’s views on the matter

The Law Commission of India in its report questioned the rational basis of considering a mother less suitable for guardianship merely on the account of her gender. The report cite reference of the Legislation enacted in Britain seeking eradication of gender indifferences in laws including guardianship laws, the preamble of which reads as: “Whereas Parliament, by the Sex Disqualification (Removal) Act of 1919 and various other enactments, have sought to establish equality in law between the sexes and it is expedient that this principle should obtain with respect to the guardianship of infants and the rights and responsibilities conferred thereby” (Guardians and Infants Act, l925)[38] An amendment was brought in the sec 19 (b) of the Guardians and Wards Act in order to do away with the gender biases in the law.[39]

Similarly, the recommendation of gender equality in terms of rights and legal position in the matter of guardianship for both the parents was made in the 257th Law Commission Report as well, but the legislation seems uninterested in addressing the issue.[40] In 2021, the PILs filed by Updhayay to remove the inconsistencies with respect to the gender in the personal matters, one being guardianship has resulted in the apex court agreeing to examine the plea seeking direction to the centre in laying down uniform laws for all.[41]

  1. Need for reforms in Guardianship Laws

The laws governing the matter of guardianship is an age-old law as Guardianship and Wards Act came into force pre independence, Shariya law is one of the most ancient laws and the Hindu Minority and Guardianship Act enacted in 1956 and not many amendments have been made in the law. If we look into the genesis of laws, it shows reflection of patriarchal society and considering women as a secondary member in the family. Also, women were not considered financially, physically and psychologically strong enough to control the affairs of the minor and thus were not allowed to act as a natural guardian of the minors. As the society has evolved with times and lot of feminist movements on song, these gaps need to be filled.

5.1 Role UCC can play in removing gender disparity from the Guardianship Laws

When one talks about removing gender equality in laws, the probable idea comes up to bring personal matters under the umbrella of a unified law applicable to all regardless of their gender, religion, class, etc. The judiciary has attempted time and again the question of whether Uniform Civil Code can be put in the place of diverse personal laws existing in present legal order. The apex court dealing with the question has stated, “UCC as envisaged under our Indian Constitution is time and again hailed to be the miraculous cure for all the social problems faced by the Indian women.”[42]

J. Mudgal in Sarla Mudgal v. Union of India had opined, “The desirability of uniform civil code can be hardly doubted but it can concretize only when social climate is properly built by the elite of the society and the statesmen, instead of gaining personal mileage, rise above and awaken the mass to accept the change.”[43]

However, the law commission had negated the idea of having a UCC, stating neither it is necessary nor desirable at the moment. Rather, the report suggested to look for reforms within the community.[44] But, one aspect of reforms in the society is its progressive laws; laws could be one of the factors paving way for the reform in the society and can play a vital role in doing away with the discrimination exists in the social order.

  1. Conclusion and Suggestions

Guardianship being a personal affair dealt under personal laws for each individual. Since the matter falls under the ambit of personal laws, a reflection of age-old preconceived notions of society and religious practices can be seen in the laws even today. We, after 72 years of the Constitution coming into force, are still debating whether gender equality and other fundamental rights should prevail over personal communal and religious practices or not. Analysing the laws of guardianship existing in the present day legal system of India, one can easily find the dominant position being entrusted with the father. Hindu Law has undergone a few changes with the time and social progress, but a few is still yet to be amended to bring laws in correspondence to the modern times. Muslim law is lagging far behind since in most of the cases it keeps the mother away from acting as a natural guardian; besides, in usual circumstances, she is not allowed to appoint testamentary guardian for controlling minor’s property. The father has been given the supreme position when one talks about natural guardians in both the legislations. The judiciary has brought a few changes in interpretation of the provision but that has done much to change the position of women as far as the natural guardian of a child is concerned. Uniform Civil Code has always been advocated as a way to remove gender disparities from personal laws and can work as a social reform to secure women’s rights.

An amendment should be made in the existing laws to remove the gender disparity. Legislature and law commission should consider inserting the mother as well as the natural parent in Sec 6(a) of The Hindu Minority and Guardianship, i.e., both the parents acting mutually as the natural parents and if dispute arises, the welfare of the child must be taken into account. Also, the legislature should reconsider sec 6(c), which makes the husband the natural guardian of minor’s wife as it has been around 15 years since Prohibition of Child Marriage Act came into force. Since, LGBTQ community has now got legal recognition, the legislature should even consider bringing them into the picture of guardianship. The legislature once again should take a step in order to bring UCC on paper that could bring homogeneity in personal laws and secure the rights of women, thus playing a significant role in empowering them who have been kept suppressed by the biased practices of the past.

Photo Source: The Hindu

About the author

Pratibha Mishra is a  a fourth year student pursuing BA LLB from Symbiosis Law School, Hyderabad, which is a constituent of Symbiosis International University Pune.

References

  1. Guardianship Law and Legal Definition, US Legal, definitions.uslegal.com. 

  2. The Hindu Minority and Guardianship Act, No. 32 of 1956 § 4, India Code (1993). 

  3. Id. § 1. 

  4. Qur’an, 4:34. 

  5. The Guardians and Wards Act, No. 8 of 1890, India Code (1993). 

  6. Towards gender Equality in Guardianship, The Telegraph (No. 27, 2019), https://www.telegraphindia.com/opinion/towards-gender-equality-in-guardianship/cid/1722501. 

  7. Supra note 3 § 6. 

  8. India Const. art. 14 

  9. Id. art. 15 

  10. Gita Hariharan v. Reserve Bank of India, 1999 2 SCC 228 (India). 

  11. Sashanka v. Prakash, 2020 SCC OnLine Bom 3497 (India). 

  12. Asha Bajpai, Custody and Guardianship of Children in India 39 Fam. L. Q. 441-457 (2005). 

  13. Supra note 6 § 4(2). 

  14. Manu Smriti VII, 27, Gautama X, 48. 

  15. Narada XIII (28-29). 

  16. Mulla, Principle of Mahomedan Law (LexisNexis, 22nd ed. 2017). 

  17. Paras Diwan, Law of Adoption, Minority, Guardianship and Custody, (Universal Law Publishing Co, New Delhi, 5th ed. 2016) 

  18. Supra note 12. 

  19. Supra note 17. 

  20. Supra note 12. 

  21. Supra note 2 § 2. 

  22. Supra note 2 § 3. 

  23. Jijabai v. Pathankhan, (1970) 2 SCC 717 (India). 

  24. Supra note 10. 

  25. Supra note 2 § 6. 

  26. Prohibition of Child Marriage Act, No. 6 of 2006, India Code (1993). 

  27. Supra note 16. 

  28. 2 Kusum, Family Law Lectures, (LexisNexis, Nagpur, 3rd ed. 2011). 

  29. Fyzee, Outlines of Muhammadan Law 198-199 (Oxford Univ. Pr, 5th ed. 2008). 

  30. Mujeeb Ur Rehman, Constitutional Validity of Muslim laws on kids’ welfare in custody battles between spouses: Y. Sulochana Rani v. Union of India 8 MLJ 1 (2020). 

  31. Gohar Begum v Suggi, AIR 1960 SC 93 (India). 

  32. Supra note 12. 

  33. Supra note 12. 

  34. Medai Dalavoi T. Kumaraswami v. Medai Dalavoi Rajammal, (1957) 2 MLJ 211 (India). 

  35. Bai Tara v. Mobanial Lallubbaii AIR 1922 BOM 405 (India). 

  36. K.R. Sudha v. P.R. Sasikumar, AIR 2012 Ker 71 (India). 

  37. Narayan v. Sapurna, AIR 1968 Pat 318 (India). 

  38. Law Commission of India, 133rd Report on Removal of Discrimination against Women in Matters Relating to Guardianship and Custody of Minor Children and Elaboration of the Welfare Principle (1989). 

  39. Bill on gender equality in guardianship gets assent, The Hindu (Nov. 5, 2016),

    https://www.thehindu.com/news/national/Bill-on-gender-equality-in-guardianship-gets-assent/article15900325.ece 

  40. Law Commission of India, 257th Report on Reforms in Guardianship and Custody Laws in India (May 2015). 

  41. SC agrees to examine plea for gender & religion neutral uniform law on adoption, guardianship, Economic Times (Jan. 30, 2021), https://legal.economictimes.indiatimes.com/news/industry/sc-agrees-to-examine-plea-for-gender-religion-neutral-uniform-law-on-adoption-guardianship/80598332 

  42. Supra note 10. 

  43. Sarla Mudgal v. Union of India, AIR 1995 SC 1531 (India). 

  44. Krishnadas Rajagopal, Uniform civil code neither necessary nor desirable at this stage, says Law Commission, The Hindu (Aug. 31, 2018), https://www.thehindu.com/news/national/uniform-civil-code-neither-desirable-nor-necessary-at-this-stage-says-law-commission/article24833363.ece. 

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