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By The Planning Commission and the ministry of women and child development have recommended revising all laws that do not treat the guardianship rights of the mother on a par with that of the father. Will it happen anytime soon, asks Hemchhaya De
  • Published 29.02.12

The Planning Commission of India has just drawn up an ambitious blueprint to ensure that women enjoy a greater degree of empowerment. A panel formed by the commission and headed by the ministry of women and child development has put forth some game-changing recommendations in its Report of the Working Group on Women’s Agency and Empowerment as part of the Commission’s 12th Five Year Plan.

Among other things, the panel recommends that all laws need to be reviewed to make mothers equal guardians of their children and “to recognise that since it is the mother who primarily looks after the children, she should be listed as the first guardian”. Furthermore, it suggests that all relevant rules and regulations be revisited so that a mother’s signature as a guardian of her child can be accepted in all offices and institutions.

Hence, if implemented, the recommendations would ensure that mothers have an equal say not only in caregiving but also in crucial decision-making processes, financial or otherwise, in their minor children’s lives. It also means that mothers, particularly single mothers, could sign on official documents — be it passports or school admission forms or medical permission forms — automatically as first guardians and they need not be subjected to bureaucratic red tape to prove their guardianship status.

“On the face of it, the suggestions of the Planning Commission are not only sensible, they are overdue,” says author Githa Hariharan who took her fight for her right to be the “natural guardian” of her minor son to the Supreme Court in the 1990s. When she applied to the Reserve Bank of India (RBI) for a 9 per cent relief bond to be held in her minor son’s name along with an intimation that she was the “natural guardian” of her son for investment purposes, the RBI returned the application asking for the father’s signature.

This led Hariharan to file a writ petition at the Supreme Court, challenging the constitutional validity of Section 6 of the Hindu Minority and Guardianship Act (HMGA) of 1956. While ruling that the mother is also the natural guardian even when the father is living, the apex court observed: “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.”

Despite that ruling, some provisions of the HMGA, along with certain sections of the existing Guardian and Wards Act, 1890 (which debars courts from appointing the guardian of a minor whose father is living), continue to undermine a mother’s right to be the guardian of her minor child.

For example, Section 6 of the HMGA deals with who could be the “natural guardians” of Hindu minors. Among other things, it says that the mother could be the “natural guardian” of a minor who hasn’t completed five years. It also says that the father is the first guardian of a boy or an unmarried girl and the mother could be the natural guardian “after” him. More interestingly, the section goes on to say that mothers are the “natural guardians” of “illegitimate” children.

As Hariharan puts it, “I could be considered the natural guardian of ‘illegitimate’ children (as per Section 6 of the HMGA), not ‘legitimate’ ones! And that I was legally fit only to be a caregiver, not a recognised decision-maker on matters concerning my child’s welfare!”

Ranjana Kumari, prominent women’s activist and director of the Delhi-based Centre for Social Research, says all patriarchal and archaic laws like the HMGA should be changed and purged of their gender biases. “Till the child becomes an adult and gets his or her right to choose, the mother is the natural guardian. So laws which say that the mother could be the natural guardian till the child completes five years need to be reviewed.”

Even legal experts feel the need for sweeping changes in such laws. “The existing laws are archaic and were conceptualised with a patriarchal mindset. Fathers were granted exalted status as they were the bread earners,” says Niloy Pyne, partner, Amarchand & Mangaldas, the law firm. “All that has changed so much since then. Anyway, the law is not about economics, it’s about setting humane parameters upon due consideration of actual social responsibilities borne by the subjects. And who takes greater responsibility than a mother?” He adds that existing rules that create an unequal status vis-à-vis guardianship rights are contrary to the principles of equality as enshrined in Article 14 of the Constitution of India.

“I am all for the changes,” says Jay Sengupta, senior advocate with the Calcutta High Court and the Supreme Court of India. “A benefit of the change would be that at all points of time the mother would start as the natural guardian in any litigation. The onus will be on the father to prove her incompetence as a guardian.”

However, he says that one perhaps shouldn’t cite the Supreme Court judgment on the Githa Hariharan case at all times. “The verdict doesn’t say that it’s applicable to all cases,” says Sengupta. “Everything depends on the merits of individual cases.”

That said, most legal experts feel that the courts do take into consideration what would benefit a child most and do not generally pronounce a gender-based decision. Even the HMGA (Section 13) says, “In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.” It also says that the court “shall not appoint or declare any person to be a guardian against his (a child’s) will”, if the minor is old enough to make an “intelligent preference”.

In fact, even before the Githa Hariharan case, the Supreme Court has delivered judgments which have established mothers’ rights as first guardians. Deciding on the Jijabai Gajre vs Pathankhan in 1970, for instance, the court ruled that a separated woman could be deemed her children’s “natural guardian”.

Ranjana Kumari points out that even the Planning Commission’s recent recommendations are not new. But a lack of political will and deeply entrenched patriarchal values in our society are a hurdle to implementing any such reform, she feels. “Look how women-oriented bills like the Sexual Harassment at Workplace Bill are being stalled in Parliament,” says an exasperated Ranjana Kumari.

But experts feel that there could be other hurdles to reforms in guardianship laws. The primary one could be resistance from certain minority communities which are governed by un-codified personal laws. “The changes proposed by the Planning Commission would necessitate their incorporation into the corresponding provisions of the personal laws,” says Sengupta. “The issue has to be handled carefully and should only be implemented after taking all sections into confidence. Any undue haste could do more harm than good.” Agrees Hariharan. “The law is wary of opening the Pandora’s box of personal laws, even the Hindu one,” she says.

Still, most experts and activists feel that that the unfair laws need to change. It remains to be seen if the Planning Commission’s recommendations will remain only on paper or if the government will make an effort to bring about legislation based on them.