Report No. 133
'What' Changes are Required to be made in the Existing Law and 'Why'?
Mother to have same and equal rights (and not inferior to the father) in respect of the custody of minor's person as well as property
4.1. The most serious infirmity in the existing law is revealed by section 6(a) of the Hindu Minority and Guardianship Act of 1956. It is provided by the said provision that the natural guardian of a Hindu minor in respect of his person as well as his property, in the case of a boy or an unmarried girl, will be "the father and after him, the mother". 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-a-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 that 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 light 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 prevision 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. As the law stands today, if the father as well as the mother are equally fit persons to have the custody of the child, the father will secure the custody of the child in preference to the mother, unless the child is of the troublesome and inconvenient age of less than 5 years.
It is interesting to realise that the British Parliament woke up to this problem 25 years before the Constitution of India came into force, and enacted the Guardians and Infants Act of 1925 to eradicate this injustice at their end. The Preamble reads:
"Whereas Parliament, by the Sex Disqualification (Removal) Act of 1919 and various other enactments, have sought to establish equality in law between the sexes and it is expedient that this principle should obtain with respect to the guardianship of infants and the rights and responsibilities conferred thereby:
Be it enacted......... ."
Section 1 of the said enactment provides that the court shall decide the questions regarding the custody of infants without regard to concepts regarding father's superior right to custody from the common law standpoint. And like power is given under section 2 to the mother as the father, to move the court for the custody of the infant. The status of the mother was improved from time to time under the British law and finally in 1973, the mother and the father were given equal rights and authority in relation to the custody, upbringing and administration of the property of the children. Section 1 of the Guardianship Act of 1973, which was enacted to amend the law of England and Wales as to the guardianship of minors so as to make the lights of a mother equal with those of a father, provides:-
"In relation to the custody and upbringing of a minor and in relation to the administration of any property belonging to or held in trust for a minor or the application of income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other."
4.2. The history of the law in United Kingdom relating to the custody of a child, particularly in its later stages, would go to show two important trends. The first is the gradual equalisation of the parental status of the mother and father of a child born in wedlock. In the second development, the parental lights of both mother and father have become less important as the welfare of the minor has reason to be the first and paramount in any litigated issue relating to the custody or upbringing and administration of the property of the child.
4.3. It is thus manifest that the provision contained in section 6(a) of the Hindu Minority and Guardianship Act is extremely unfair and unjust and has become irrelevant and obsolete with the changing times. The concerned provision, therefore, deserves to 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 a minor and his property. The provision according preferential treatment to the father vis-a-vis the mother has to be deleted and has to be substituted by a provision according equal treatment to the mother on the lines indicated hereinbefore. The custody of a minor child who has not completed 12 years of age shall ordinarily be with the mother
4.4. As per the proviso to section 6(a) of the Hindu Minority and Guardianship Act, "the custody of a minor who has not completed the age of five years shall ordinarily be with the mother". Till what age the custody of the minor should ordinarily be with the mother was the question which came to be examined by the Law Commission of India (LCI) in its 83rd Report presented in April 1980. After examining-the matter closely and carefully, the LCI recommended that the concerned provision should be amended so that the age up to which the custody should ordinarily be with the mother is raised from 5 years to 12.
It appears that for one reason or the other, this recommendation has not been accepted and acted upon so far. We are of the opinion that the recommendation made by the LCI in its 83rd Report deserves to be implemented without any further delay. We, therefore, reiterate the recommendation. We do not propose to give additional reasons of our own for reiterating the recommendation as we feel that the reasons articulated in the 83rd Report cannot be bettered. We, therefore, rest content by reproducing paragraph 6.50, 6.51 and 6.53 of the 83rd Report:-