The Hindu Minority and Guardianship Act, 1956
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“Natural guardianship“ only for an adopted son
The Times of India, Jun 25 2015
Manoj Mitta
Guardianship Act also discriminates against parents who adopt girls
Even after mother of all battles, dad gets preference as guardian
Though adoption of female orphans is on the rise, the statute book still contains a provision that mocks this very trend. Section 7 of the Hindu Minority and Guardianship Act, 1956 (HMGA) provides “natural guardianship“ only for an adopted son. This is in keeping with the traditional notion that adoption was meant exclusively for those who didn't have a biological son. HMGA is completely silent on the status of somebody having an adopted daughter.Such a glaring legal lacuna hasn't so far been fixed despite all the measures taken over the years to shake off the deeply ingrained prejudice of “son preference and daughter aversion“.
Conflicting laws
The “incongruous“ discrimination in HMGA against the adoptive parents of girls is among the gender anomalies highlighted last month by the latest report of the Law Commission. The saving grace is that shortly after the enactment of HMGA, another law -the Hindu Adoption and Maintenance Act, 1956 (HAMA) -conferred recognition on adoption of daughters too. Since HMGA was Act No 32 of 1956 and HAMA was Act No 78 of 1956, it would appear that the Nehru government's gender consciousness had evolved a great deal in the span of a few months.
According to the Law Commission, HMGA “came into force at a time when the general Hindu law as administered by the courts did not recognize the adoption of a daughter“. Though HAMA “corrected the legal position of adoption of a daughter statutorily“, the conflicting signals from the two laws remain unresolved. The commission therefore recommended that Section 7 of HMGA be amended to bring it “in consonance“ with HAMA.
Fathers first
What is even more important is the commission's recommendation on another retrograde provision of HMGA, Section 6, as the proportion of women affected by it is far greater. For Section 6 deals with natural guardianship of a biological child in respect of their person as well as property .Rather than treating the father and the mother alike, Section 6 displays the pernicious influence of patriarchy . It clearly establishes a hierarchy saying that the natural guardian of a Hindu minor is “the father, and after him, the mother“. This formulation was interpreted to mean that as long as the father was alive, the mother could not aspire to the status of a natural guardian of her children.
But the influence of patriarchy was evidently so pervasive that even when the Law Commission first dealt with Section 6 of HMGA in 1980, it found nothing amiss with the privileging of the father over the mother on the issue of natural guardianship. The Law Commission could see Section 6 for what it was only when it returned to the subject in 1989 with the express intent of removing “discrimination against women in matters relating to guardianship and custody of minor children“.True to its object, the commission recommended that Section 6 be amended “so as to constitute both the father and the mother as being natural guardians jointly and severally having equal rights in respect of the minor“.
MUM CHALLENGE
Successive governments, however, paid little heed to this long overdue recommendation. The next push for reform came in 1999 when the Supreme Court ruled on a petition filed by author Githa Hariharan challenging the validity of the stipulation that the mother could be the natural guardian of her minor child only after the father. Though it did not strike down any part of Section 6, the Supreme Court sought to lessen its severity. It held that the term “after“ in Section 6 should not be literally interpreted to mean “after the lifetime of the father“ but instead be taken to mean “in the absence of the father“. It clarified that “absence“ in turn could extend to situations where the father was away for a long time or was totally apathetic to the child or was rendered unfit because of an illness.
Thus, under the Supreme Court judgment, the father continues to have a preferential position when it comes to natural guardianship and the mother becomes a natural guardian only in exceptional circumstances. In the event, this provided hardly any relief to Hariharan as none of the exceptional circumstances envisaged by the Supreme Court applied to her case. She had no dispute with her husband nor did he fall into any of the problem categories. The author's challenge to Section 6 was purely on the principle of equality. The provocation was that when she had applied to the Reserve Bank of India for a bond on behalf of her 11-year-old son, she was told that only his father could sign the application. Constrained as it was by Section 6 of the HMGA, the bank did not give in even after Hariharan and her husband had jointly written to it saying that for the purpose of the bond she would function as guardian.
The unresolved issue of guardianship was mitigated to an extent in 2010 by Parliament. But the amendment that was made then was not to the Hindu law but to the secular law enacted during the colonial era.Section 19 of the Guardians and Wards Act, 1890 (GWA) had barred the court from appointing a guardian for a minor whose father was alive and was not unfit to assume that responsibility.The 2010 amendment applies this clause to cases where even the mother is alive, thus removing the preferential position of the father under GWA which is applicable to all communities.
Sharing custody
Building on this le gislative breakthrough, the Law Commission in its 2015 report reiterated the need to amend Section 6 of HMGA, saying its recommendations were “merely removing (such) anomalies in one law that have already been removed in another“. This report has however been noticed more for its radical suggestion on the related issue of custody . As a corollary to the proposal of giving equal rights to the father and the mother in regard to guardianship, the commission for the first time suggested joint custody. Since this is fraught with the risk of further friction, the commission also proposed elaborate guidelines to ensure that joint custody is ordered keeping the welfare of the minor as the paramount consideration. The same welfare principle also requires India to show greater urgency in updating its laws on guardianship, custody and adoptions.
