Report No. 133

Removal of Discrimination against Women in Matters Relating to Guardianship and Custody of Minor Children and Elaboration of the Welfare Principle

Chapter I

Introduction

1.1. It was in the pre-independence and pre-constitution era that women's protest against unequal treatment and social injustice took the form of a cry of anguish-woman, thy name is misery. In the post-independence and post-constitution era, the protest has taken an activist turn and women's organisations have been vigorously demanding equality and clamouring for their rights. The community has responded positively to their just demands in several spheres. The Legislature and the Judiciary have also shown awareness of the problem in their respective domains. The Law Commission of India on its part has been making and is engaged in making endeavours for redressal of the just grievances of women. The present is yet another step in this direction.

1.2. In the field of growth and development of "women's rights jurisprudence" in the post-independence period, even though several legislative measures have been adopted to accord equal rights to a woman vis-a-vis a man, there are still areas where the invidious discrimination continues to exist. According to the existing law in regard to the custody of a minor child (whether a boy or an unmarried girl), the natural guardians are first the father and thereafter the mother.

The question arises whether the preference to the father as against the mother, notwithstanding the welfare principle, is justified in the light of the provisions of the Constitution which ordain the State not to discriminate against any citizen on grounds of religion, race, caste, sex, place of birth, or any one of them. The fact that a woman continues to be treated on unequal terms vis-a-vis a man or inferior to a man in regard to the matter as regards the custody of a minor provides the necessary justification for considering and recommending revision of the law on the subject.

1.3. The law relating to the custody of children, the law according recognition to the 'father' (in preference to the 'mother') as a natural guardian, and provisions which in effect treat the woman as a second class citizen call for close scrutiny. Is it fair to give preference to the father as against the mother, disregarding the basic fact that it is the mother who suffers physical discomfort for nearly nine months even before the birth of the child whereas the father experiences no such discomfort, as also it is the mother who sacrifices her time, other pursuits, and comforts, in bringing up the child for a couple of years during the infancy of the child who demands constant attention and affection?

Should a woman, a mother, even so be considered less suitable in the matter of custody or guardianship of the person and property of the minor child merely on account of her gender? There would appear to be no rational basis for according statutory recognition to such invidious discrimination in the law of the land. The explanation to account for this anomaly is traceable to the traditional belief that a female is an inferior being and a male is a superior being. That such a pro-male bias and an anti-female prejudice should have persisted even after the ushering in of the Constitution of India on 26th Jan., 1950, is somewhat unfortunate because the constitutional command etched in Article 15(1) frowns upon such gender-based discrimination:

"15. (1) The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them."

And, as a matter of fact, by implication approves of making special provisions for reversing the prevalent injustice to women and children vide Article 15(3):-

"15. (3) Nothing in this article shall prevent the State from making any special provision for women and children."

That is why it has been considered eminently desirable to suo mote examine this issue and to make appropriate recommendations in order to unload the dice which is presently loaded against the woman.

1.4. The life-aim of this report is, therefore, to erase the injustice to the woman in this sensitive area in obeisance to the letter and spirit of the Constitution. And to this end, the relevant provisions of the Hindu Minority and Guardianship Act, 1956, as also the pertinent provisions of the Guardians and Wards Act, 1890, and working of the 'welfare principle' are being scrutinized and suitable recommendations are being made by this report.