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Report No. 257

(i) Superior Position of the Father

2.3.5 We have noted above, that under the GWA, the discrimination between the mother and the father in terms of guardianship has been removed by the 2010 amendment to Section 19(b). But discrimination between the parents continues under the HMGA. As far back as 1989, regarding the preferential position given to the father under Section 6(a) of the HMGA, the Law Commission of India had stated that:

Thus, statutory recognition has been accorded to the objectionable proposition that the father is entitled to the custody of the minor child in preference to the mother. Apart from the fact that there is no rational basis for according an inferior position in the order of preference to the mother vis-à-vis the father, the proposition is vulnerable to challenge on several grounds. In the first place, it discloses an anti-feminine bias.

It reveals age-old distrust for women and feeling of superiority for men and inferiority for women. Whatever may have been the justification for the same in the past, assuming there was some, there is no warrant for persisting with this ancient prejudice, at least after the ushering in of the Constitution of India which proclaims the right of women to equality and guarantees non-discrimination on the ground of sex under the lofty principle enshrined in Article 15.

In fact, clause (3) of Article 15, by necessary implication, gives a pre-vision of beneficial legislation geared to the special needs of women and children with a pro-women and pro-children bias. It is indeed strange that in the face of the said constitutional provision, the discrimination against women has been tolerated for nearly four decades.49

49 Law Commission of India, 133rd Report, August (1989), ¶ 4.1, available at:
http://lawcommissionofindia.nic.in/101-169/Report133.pdf

2.3.6 The Commission had recommended amending Section 6(a) to "constitute both the father and the mother as being natural guardians 'jointly and severally,' having equal rights in respect of a minor and his property."50

50 Law Commission of India, 133rd Report, August (1989), ¶ 4.3, available at:
http://lawcommissionofindia.nic.in/101-169/Report133.pdf

2.3.7 The problem is further highlighted by the inconsistency between the superior position of the father in statutory law and recent judicial thinking on parental roles. In Padmaja Sharma v. Ratan Lal Sharma, AIR 2000 SC 1398 the Supreme Court held that the mother was equally responsible to pay towards the maintenance of the child. While pursuing the goal of equality in parental responsibility is laudable, the decision leads to an ironic result-the mother is not deemed a natural guardian and therefore does not have a say in significant decisions affecting the child, but she has equal financial responsibility towards the child.

Similarly, in a 2004 judgement, commenting on a judgement of the Karnataka High Court that reversed a Family Court order and allowed the mother to retain custody of the minor daughter, the Supreme Court noted, We make it clear that we do not subscribe to the general observations and comments made by the High Court in favour of mother as parent to be always a preferable to the father to retain custody of the child. In our considered opinion, such generalisation in favour of the mother should not have been made. Kumar v. Jahgirdar v. Chethana Ramatheertha, SLP (Civil) 4230-4231/ 2003, Supreme Court of India, Judgement dated 29 January, 2004.

2.3.8 Equality between parents is a goal that needs to be pursued and, indeed, the law should not make preferences between parents based on gender stereotypes. However, such equality cannot be only in terms of roles and responsibilities, but must also be in terms of the rights and legal position of the parents. Thus, the first step towards reform in this area is to dismantle the preferential position of the father in the HMGA, and make both the mother and the father natural guardians.



Reforms in Guardianship and Custody Laws in India Back




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