IN A move that, if accepted, would require an amendment in all personal laws, the Ministry of Women and Child Development (WCD) has suggested that the mother should be made the natural guardian of the child instead of the father. The ministry made the recommendation as part of its submission before the expert committee set up by the Ministry of External Affairs (MEA) to examine issues pertaining to women married to Non-Resident Indians (NRIs).
Explaining the move, officials said that since it is the mother who bears the child, she should have first right. “With the father as the natural guardian, in the event of a divorce, the woman has to apply for child custody in court. She often ends up compromising on her maintenance or withdrawing criminal complaints in case of domestic violence so that she can have the child. Courts too have, at times, interpreted the principle of ‘best interest of the child’ as handing over custody of the child to the father because he earns more. If the mother is made the natural guardian, it is the father who will have to apply for custody,” said an official who attended the committee’s meetings.
Saying that the ministry’s recommendation is in keeping with the “best interest of the child” principle, the official said it will also hit the “fundamental core of patriarchy”.
Currently, the father is deemed to be the sole natural guardian of the child, with some religious laws giving the mother custody rights up to a certain age.
The ministry is also considering a separate proposal on the possibility of giving joint custody of a minor child to both parents. “We are looking at joint custody issues. The Law Commission, under Justice A P Shah, had given a report; we are examining how we can move ahead with that,” WCD Minister Maneka Gandhi told The Indian Express.
The 2015 Law Commission report defines guardianship as a “bundle of rights and powers that an adult has in relation to the person and property of a minor”. It states that custody is a “narrower concept relating to the upbringing and day-to-day care and control of the minor”. The report says in case of a divorce, both parents should share physical custody of the child under specific circumstances, such as both being mature and willing to cooperate.
The report, however, also notes that “a large number of women continue to disproportionately bear the burden of housework and childcare, even when they have a paid employment outside the home. Thus, when during the subsistence of marriage, there is no equality in parental and caregiving responsibilities, then on what ground can one claim equality in parental rights over children after the dissolution of the marriage?”
Under the Muslim personal law, the father is the natural guardian and mother has “hizzanat” or custody of a female child till puberty and of a male child till seven years of age in the case of Sunnis and two years of age for Shias.
Section 6 of The Hindu Minority and Guardianship Act 1956 states that the father is the sole natural guardian of a minor and his/ her property, provided the custody of a minor less than five years of age will ordinarily be with the mother. The mother becomes the natural guardian only “after him”.
This was challenged in the Githa Hariharan versus Reserve Bank of India case in the Supreme Court as being violative of constitutional guarantee of gender equality. The court interpreted “after” as not necessarily the death of the father but also absence, total apathy, or inability due to ailment or otherwise. “The mother still wasn’t given equal guardianship rights,” said the official.
The Law Commission report notes how this allows the father to easily claim custody citing his superior guardianship rights. A recent WCD ministry-commissioned report of the high-level committee on status of women, headed by Pam Rajput, had recommended that all personal laws have to be amended so as to confer natural guardianship of the child to both parents, and that while deciding on custody of a minor child, it should ordinarily be given to the mother till the child is at least 12 years old.