Hanging in the balance: The welfare of the child

Six-year-old Bindiya Mandal hit the headlines last year when both her parents met with a fatal cable-car accident in Darjeeling. This year, she is in the news again. And again for all the wrong reasons. The tragedy in her life has doubled, what with both sets of grandparents fighting over her custody and ignoring the child’s craving to be with her mother’s parents. In the legal tussle that took off, the black letter of the law let Bindiya down as well. The court chose her paternal grandparents as “the rightful legal guardian of (the) orphan”. The matter, however, turned even more muddy when young Bindiya kicked up a huge fuss and refused to move out of her maternal grandparents’ home.

There’s, however, a happy twist in the tale. In a landmark judgment late last month, Justice P.. Sinha of Calcutta High Court overruled the lower court verdict (and went against a well-known apex court precedence) by giving the child’s custody to her maternal grandparents, keeping in mind “the welfare of the child”.

Happier days are ahead for Bindiya, no doubt. But the verdict has been hailed by the legal fraternity, too, for its progressive connotations. Sunil Mitra, professor of law, Calcutta University, is one of the celebrants. “The laws governing guardians in our country don’t give equal status to men and women,” he opines. “That’s because the provisions of the Hindu Minority and Guardianship Act and the Muslim Personal Law are paternalistic.” (Section 6 (a) of the Hindu Minority and Guardianship Act, for instance, states that the “natural guardian of a minor, in respect of the minor’s person as well as minor’s property are: (a) in the case of a boy or an unmarried girl — the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. And section (b) holds that in case of an illegitimate boy or unmarried girl, it’s the mother and after her the father.) “It’s time the laws were changed,” adds Mitra. “Why should there be a difference between the powers enjoyed by men and women? Is there any gender difference in the quality of love and affection bestowed on a child?”

Chandrima Bhattacharya, a senior lawyer and women’s activist (she’s the president of the West Bengal Pradesh Mahila Congress), is jubilant. To her, the laws stood as a “gross violation” of one’s constitutional rights, supposed to ensure equality. “Our Constitution and the courts have been quite emphatic in giving equal status to both men and women,” she says, “yet these archaic laws are still continuing. It’s hard to understand why the mother would be the ‘natural guardian’ only ‘after’ the father.” Debamitra Adhikary, a Calcutta High Court lawyer, agrees. “Even going by the Act, it is logical to give the mother more priority as the guardian as she enjoys custody of her child for the first five years,” she asserts. “Why then is she suddenly deprived of it after the child attains five years of age?”

“At last, courts are admitting that mothers and their parents, too, have a say in managing a child’s affairs,” exclaims Sneha Majumdar, a marketing manager who got custody of her children after a long legal battle. “So many women are forced to give up their careers in order to look after children. It’s unjust to arbitrarily deny mothers and maternal grandparents their legal rights,” she fumes. “Though I got the custody of my children (both were above five at that time), I had to fight tooth and nail for six long years. Just to prove my legal status as the guardian of my own children.”

Ace barrister, Shivaji Sen, adds yet another angle: “Though, nowadays, both parents can sign for a child in schools etc., the reality is often otherwise with many public and government organisations insisting on the father’s name as the guardian.” The new progressive court precedents, he feels, can lead up to fresh and more realistic laws.

The verdict also indicates that much water has flowed under the bridge of legal thinking in the country since the Githa Hariharan case of 1999, considered a turning point so far as women’s rights over guardianship are concerned. Hariharan, the prize-winning author, had bought some RBI (Reserve Bank of India) bonds in the name of her minor sons and signed in those as their guardian. But she was denied the bonds as according to RBI regulations, only a father could be the legal guardian. Hence, as a mother she had no right to sign as the children’s guardian. Hariharan had fought back and in the much-publicised case, the apex court had come up with a ruling that allowed a mother to sign as the natural guardian of a child, even when the father was alive.

But even this verdict had its own limitations. “Though the case was quite encouraging, it was limited in many ways,” says Sunil Mitra. According to the apex court judgment, the mother can act as the guardian even when the father is alive. But only when the father is not in actual charge of the affairs of the minor, because of his indifference; or there’s an agreement between the father and the mother; or when the minor is in exclusive care and custody of the mother; or the father is unable to take care of the minor because of physical or mental incapacities. “The apex court just interpreted Section 6 (a) in a new light, but nowhere did it accept that the mother is the natural guardian along with the father,” Mitra points out.

The Bindiya Mandal case is a more significant victory for women. Hats off to the Calcutta High Court for deviating from the constricted path of legal interpretation and setting a new trend.