SC redefined Hindu Guardianship Law
In two recent landmark judgments, the Supreme Court of India redefined the laws relating to guardianship in Hindu community. One of the judgments pronounced by SC deals with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes and the other allows an unwed mother in India to become the sole legal guardian of a child without the consent of the father.
In a remarkable judgment dealing with interim custody of child suffering due to parent’s matrimonial disputes, visitation rights and guardianship, a two judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench laid down very sharp observations and examined various definitions of a ‘guardian’, ‘visitation rights’ and tested the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890. In a custody battle between parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a “chattel”. The court said that under Hindu Minority and Guardianship Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old. The Court said that there can be no objection that when a Court is confronted by severe claims of custody, there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child’s welfare which is the main point for consideration. The apex court quashed the order of Bombay high court which granted custody of a two-year-old child to father on the ground that the Mother had not established her suitability to be granted interim custody of the Infant.
The Act states that the custody of an infant should be given to his/her mother unless the father discloses sufficient reasons that are indicative of and proves the livelihood of the welfare and interest of the child being undermined if the custody is retained by the mother. Section 6(a) of the Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in distinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. The court said that the Act placed the onus on father to prove that it was not in the welfare of the infant child to be placed in the custody of mother and High court order virtually nullifies the spirit of the enactment. The Act immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The use of the word ‘ordinarily’ cannot be over-emphasized. It ordains a presumption, albeit a rebuttable one, in favor of the mother.
In another landmark judgment, the Supreme Court has said that an unwed mother can become the sole legal guardian of a child without the father’s consent. The plaintiff, a government official, approached the Supreme Court in 2011 after a trial court and the Delhi High Court ruled that she needed to disclose the father’s name to get his consent while filing a guardianship petition. The plaintiff had asked the courts for permission to apply for becoming the child’s guardian without informing the father, who, she argued, had stayed with her for two months and did not know the child exists. Following this decision by a Supreme Court bench, an unwed mother is no longer required to disclose the father’s name. In Githa Hariharan vs Reserve Bank of India, which challenged the constitutional validity of Section 6, the Supreme Court deemed both mother and father as natural guardians of a child. The apex court also ruled that ‘after’ cannot be given a literal interpretation, and the child’s welfare has precedence in determining the guardian of a child.
SEC 6 of the Hindu Minority and Guardianship Act, 1956
The natural guardians of a Hindu, minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are –
- 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;
- in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father;
- in the case of a married girl ,the husband;
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section
a) if he has ceased to be a Hindu, or
b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)
Explanation – In this section, the expressions father and mother do not include a step-father and a step-mother.
Consideration for guardianship
The controlling consideration governing the custody of the children is the welfare of the children and not the right of the parents; Rosy Jacob v. Jacob Chakramakkal, AIR 1973 SC 2090: (1973) 3 SCR 918: (1973) 1 SCC 840.
Father as a natural guardian
Father is the natural guardian of a minor. In the absence of father, mother is the natural guardian. The mother of the minor children was dead, but the father was not residing with the children, who were being looked after by the aunty. It was held that though father was not residing with his children, he is still alive, has not ceased to be a Hindu or renounced the world and has not been declared unfit. This does not authorise any other person to assume the role of natural guardian and alienate the minor’s property; Essakkayal Nadder v. Sreedharan Babu, AIR 1992 Ker 200.
Mother as a natural guardian
- In the phrase the father and after him, the mother the word ‘after’ need not necessarily mean after the lifetime of father. In the context in which it appears in section 6(a) it means in the absence of, the word absence therein referring to the father’s absence from the care of minor’s property or person for any reason whatsoever. If the father is wholly indifferent to the matters of the minor or if by virtue of mutual understanding between the parents, the mother is put exclusively in charge of the minor or if the father is physically unable to take care of minor for any reason whatsoever, the father can be considered to be absent and mother being a recognised natural guardian can act validly on behalf of the minor as the guardian. Such an interpretation will keep the statute within the constitutional limits otherwise the word after if read to mean a disqualification of a mother to act as guardian during lifetime of father the same would violate one of basic principles of our constitution i.e. gender equality; Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.
- Where the mother and father had fallen out and were living separately and the minor daughter was under the care and protection of her mother, the mother could be considered as the natural guardian of the minor girl; Jajabhai v. Pathankhan, AIR 1971 SC 315: (1971) 2 SCR 1: (1970) 2 SCC 717.