india

Updated: Oct 12, 2019 13:36 IST

The National Commission for Women has recommended to the Union ministry of women and child development a review of the Indian child guardianship laws in order to ensure that women, especially rape survivors and single mothers, are not discriminated against, HT has learnt.

The set of recommendations, reviewed by HT, moot changes in the 1956 Hindu and Guardianship Act and asks that mothers be considered the default legal guardian in cases where the woman has been deserted by the husband or divorced.

The quasi-judicial body also recommended that while rape survivors are automatically considered the legal guardian of any children born after the crime, the father should share parenting responsibilities.

Currently, if a child is born of wedded parents, the father is considered the natural guardian and if the child is born out of wedlock, the mother is seen to the natural guardian. But the NCW has recommended the mother should be declared natural guardian in conventional cases. In the case of children born out of wedlock, the body recommended that the law make the father equally responsible for the child’s upbringing.

“The mother is dependent on the father of the child for all legal incidences related to the child even when father does not take interest in child’s welfare (sic),” the NCW has written in its report to the WCD ministry.

The report was prepared after a day-long consultation on the review of guardianship laws on August 31. The report was submitted in the last week of September.

In its report, the NCW contended that the law was in contravention of the constitutional provision that accords gender equality under Article 14 (right to equality) and Article 15 (right against discrimination).

Section 4B of the Hindu and Guardianship Act 1956 states that the guardian has the care of “the person of a minor or of his property or of both his person and property”.

Guardian can be natural (by birth, which is usually the father as per the act), testamentary (after natural guardians give up their guardianship or have passed away) and those appointed or declared by the court (in cases when guardianship matters are decided legally).

In the NCW deliberations, the issue of women filing divorces and facing discrimination in child custody matters also came up. “The law allows the father to easily claim custody citing his superior guardianship rights,” the NCW’s report read.

The NCW also recommended the removal of the word “illegitimate” from the Hindu Minority and Guardianship Act 1956 when it came to describing children born to unmarried parents.

As part of its international obligations, India is bound to address the lacunae as Article 3 of the United Nations Convention on the Rights of the Child (UNCRC) lays emphasis on the “best interests” of a child in all matters. And, under Article 16 of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) stresses on the elimination of discrimination to women. India is signatory to both.

The Supreme Court of India, too, has ruled in certain instances on the apparent discrimination. In 1999, the apex court ruled that to uphold gender equality, the father cannot be given preferential right of guardianship. The court was hearing a petition by writer Geeta Hariharan, who challenged the refusal of the Reserve Bank of India to acknowledge her as her minor son’s legal guardian when she wanted to buy bonds for him.

Around the world, guardianship laws confer equal rights to men and women. In the United Kingdom, laws are based on gender equality and in the United States, most states confer joint guardianship of children and both parents share custody rights after divorce. In the European Union as well as New Zealand, both parents are considered natural guardians of the child.