FAMILY LAW I

PROJECT

(WINTER SEMESTER)
Guardianship and Custody laws in India with
respect to changing familial roles

SUBMITTED BY:
SAINA S. MOHAPATRA
ID: 216040
SECTION: A
FIRST YEAR.
TABLE OF CONTENTS
Contents
INTRODUCTION......................................................................................................................................3

[A] GLIMPSE AT THE PRESENT LEGISLATIONS RELATING TO GUARDIANSHIP AND CUSTODY AND
THE PROBLEMS ASSOCIATED WITH IT : A NEED FOR GENDER JUSTICE.........................................4

[B] RECENT DEVELOPMENTS IN LAW IN CONNECTION WITH CHANGING FAMILIAL ROLES FROM
GITHA HARIHARAN V RBI TO ABC V UNION OF INDIA......................................................................6

CONCLUSION........................................................................................................................................10

Guardianship and Custody law in India

with respect to changing familial roles
 INTRODUCTION
India is a land of multiple religions having their respective personal laws as a result of which
there exist different guardianship and custody laws in India. No laws relating to guardianship
and custody of children exists in shastric Hindu law because of the existence of the Hindu
joint family system where the father as the Karta enjoyed all the powers including
guardianship of the children and their property. 1 Being a never ending system , even if the
Karta died , the management of the affairs of the children rests with the next male elder as a
result of which the minor (both his person and property) remains under the care of the joint
family. 2 On the other hand , in Muslim law there is no such thing as a Hindu joint family,
therefore they have detailed personal laws regarding custody and guardianship of minors
person and property respectively. Custody in Muslim law is called Hizanat . Father is
dominant as the sole guardian of the child while the mother has the custody of children in the
tender years. 3

The guardianship and custody laws of the Hindus is mainly governed by the Hindu Minority
and Guardianship Act, 1956 whereas the Guardianship and Wards Act 1890 is more of a
secular law relating to guardianship and custody which covers minority and guardianship
laws relating to non-Hindus and is also supplementary.4 The most remarkable feature of the
Indian law of guardianship and custody is that by progressive interpretation by the courts ,
according to the dynamic nature of our society. There has been a transformation of parental
power to parental care and responsibility. The following project will aim at discussing the
origin and development of laws relating to guardianship and custody along with addressing
the problems related to supremacy of father in natural guardianship and gender bias in
custody disputes in general . In light of the law commission report which has raised the
issue unequal legal position of parents,, this project aims to discuss two landmark judgements
regarding the same.

1 PARAS DIWAN ,LAW OF ADOPTION, MINORITY GUARDIANSHIP AND CUSTODY ,8 ( 4th edition, 2010) ( Herein
after, DIWAN)

2 Id
3 Id
4 KUSUM, FAMILY LAW LECTURES, (2003)
 [A] GLIMPSE AT THE PRESENT LEGISLATIONS RELATING TO
GUARDIANSHIP AND CUSTODY AND THE PROBLEMS ASSOCIATED WITH
IT : A NEED FOR GENDER JUSTICE
The Shashtric Hindu law didnt mention about natural guardian as the supreme guardianship
was vested in the hands of the King. On the basis of some texts on guardianship, the idea of
natural guardianship of parents, first father and the mother developed 5. Before 1956, as
between the two parents , the fathers position was superior . Not merely that the mother has
no say during his life time , but father was also able to exclude her from guardianship even
after his death by appointing someone else. 6 The superior position of the father in every
aspect of the minors life, including its conduct, education , religion and maintenance was
considered absolute and even the courts didnt intervene in such matters and mothers did not
have any authority over children, since mothers did not have independent legal position, their
identities being merged with that of their husbands upon marriage 7

In India, the Guardians and Wards Act was brought in 1890 by the British , which continued
the legacy of Common law of the supremacy of the paternal right in guardianship and
custody of children.8 While 7 and 17 of the Act provided the judiciary should act in
accordance with the welfare of child principle. However, 19 and 25 of the original Act,
subordinated the same to the supremacy of the father. 9 19 of the GWA deals with cases
where the court may not appoint a guardian.10 The earlier Section 19(b) prevented the court
from appointing a guardian in case the father of the minor was alive. The guardianship of
adopted children also first belonged to the father and then mother. 11 Under Hindu Minority
and Guardianship act, It was held by some high courts that because of the provision of
section 6(a) , the father has superior right to the guardianship of his child 12 . The place of
mother is after him . Narada as cited in Modern Hindu law book says,

5 RAMESH CHANDRA NAGPAL, MODERN HINDU LAW , (2ND EDITION, 2008) ( herein after , MODERN HINDU
LAW)
6 DIWAN, SUPRA
7 Law commission of India , Reforms in Guardianship and Custody Laws in India, Report No 257 ( May 2015 )
Available at http://lawcommissionofindia.nic.in/reports/Report%20No.257%20Custody%20Laws.pdf ( Last
accessed on 03/03/17)
8 MULLA, DINSHAH FARDUNJI ,PRINCIPLES OF HINDU LAW 17TH EDN (2000)

9 Supra Note 7
10 Guardianship and Wards Act , 1890
11 7, The Hindu Minority and Guardianship Act, 1956
12 MODERN HINDU LAW, Supra, 585.
 The father is preferred among the parents because of the superiority of the seed . In
absence of the progenitor, mother is the guardian and in the absence of both of them , the
ancestor 13

Under all schools of Islamic Law , the fathers right of sole guardianship is established and
although the custody is with the mother or any other female entitled to custody, the father's
right of general supervision and control exists. 14 Even a woman who is financially not sound,
15
may still retain custody of her child, if the child's welfare is in question
In addition, the mother is the preferred custodian of very young minors under both Hindu and
Muslim laws, even though the father is the natural guardian.16 According to legal scholar
Archana Parasar , Courts, often stick to the stereotypes that are attached to different gender in
deciding such cases ie. a mother should completely fit into the conventional idea of good
mother so as to be qualified as a guardian.17 In the light of this, in Thirty Hoshie Dolikuka v.
H.S. Dolikuka,18 , The High Court had refused to give the mother custody of the daughter
mainly on the ground that the mother was a working woman, although the father worked,
too .However the SC held that whether a woman works or not is irrelevant in judging her
ability to take care of her child. The mother's fitness to act as a custodian of her child was
unaffected by whether she worked outside the home for a living or was a housewife. It has
now become an established principle that a mother cannot be denied custody just because she
is working.

The problem that can be seen above is the superior position of the father in case of
guardianship, though not necessarily in case of custody19 In Padmaja Sharma v. Ratan Lal
Sharma 20the Supreme Court held that the mother was equally responsible to pay towards the
maintenance of the child. It is ironic because, in the statute mother isnt guven importance
13. P.N Ramachandra Iyer v S.V Annapurni Ammal , AIR 1964 Ker 269 . She doesnt become the natural
guardian of her child during the lifetime of his father even if she has been a next friend of the minor - Narain
Singh v Sapurna Kuer, AIR 1968 Pat 318) The Orissa Highcourt has held in Sobha Dei v bhima AIR 1975 Ori
180) , that when the father is the natural guardian of a minor , the mother is incompetent to represent the minor
as a next friend against the father.
14 ASHA BAJPAI , Custody and Guardianship of Children in India, 39 Fam. L.Q. 441 2005-2006

15 Suharabi v. D. Mohammed, AIR 1988 Ker 36

16 Id
17 ARCHANA PARASHAR, Welfare of Child in Family LawsIndia and Australia, 1(1) NALSAR LAW
REVIEW 49, 49 (2003).
18Thirty Hoshie Dolikuka v. H.S. Dolikuka, A.I.R. 1982 S.C. 1276 (India).
19 Supra, Note 7
20 Padmaja Sharma v. Ratan Lal Sharma, 2000 (2) SCR 621
while when it comes to maintenance , she is supposed to contribute. Similarly, in a 2004
judgment, commenting on a judgment 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
21
mother should not have been made.

[B] RECENT DEVELOPMENTS IN LAW IN CONNECTION WITH CHANGING FAMILIAL

ROLES FROM GITHA HARIHARAN V RBI TO ABC V UNION OF INDIA
Section 19 of the GWA deals with cases where the court may not appoint a guardian.27
Section 19(b) states that a court is not authorized to appoint a guardian to the person of a
minor, whose father or mother is alive, and who, in the opinion of the court, is not unfit to be
a guardian.22 The earlier Section 19(b) prevented the court from appointing a guardian in case
the father of the minor was alive. This clause was amended by the Personal Laws
(Amendment) Act, 2010 and was made applicable to cases where even the mother was alive,
thus removing the preferential position of the father.23 Under English Law ,the
developments which helped in dismantling of paternal dominance over children was first, in
a number of judicial decisions, the courts claimed the parens patriae jurisdiction an even
higher parental authority of the state to supersede the natural guardianship of the father and
award custody depending on what promoted the welfare of the child. 24 and second, through
a series of legislations, the British Parliament shifted the emphasis from paternal rights to the
welfare of the child and conferred equal legal status to the father and the mother in
determining guardianship and custody. The Custody of Infants Act, 1873, allowed the mother
to have custody of the child till the age of sixteen and removed the restriction on petitions
made by mothers who had committed adultery. 25 sGender-based stereotypese.g., that a

21 Supra Note 7
22 19(b)., Guardian and Wards Act, No. 8 of 1890
23 2., Personal Laws (Amendment) Act, No. 30 of 2010,
24 In re, OHara, (1990) 2 IR 232
25 Supra, Note 7
girl child should be raised by the mother and a boy child by the fatherare out dated. Both
parents have valuable contributions to make in the lives of children of either gender. 26

One of the landmark judgement of India reinterpreting the gendered nature of guardianship
laws was Githa Hariharan v/s RBI and Ors 27 and a recent 2015 case ABC v The state (NCT,
Delhi) 28which was covered by media extensively and lauded as a progressive judgement .
Following is the case analysis of the judgements.

GITHA HARIHARAN V/s RBI AND ORS

This case is a landmark case on gender justice with regard to guardianship of minors . The
facts of the case are as follows. The petitioner and Dr Mohan Ram were married and had a
son together .The petitioner applied to the reserve Bank of India for 9% relief bond in the
name of her minor son and an intimation that she , being the mother would act as the natural
guardian of her minor son. However the application was rejected and sent back to her by the
RBI asking her to produce the application signed by the father or get a guardianship
certificate from a competent authority. The minor has been staying with the mother and it has
been the definite case of the petitioner in this petition under Article 32 that in spite of best
efforts of the petitioner, the father has shown total apathy towards the child and as a matter of
fact is not interested in welfare and benefit of the child excepting however claiming the right
to be the natural guardian without however discharging any corresponding obligation The
petition challenged 6 (a) of the Hindu Minority and Guardianship Act 1956 and 19(b) of
the Guardians and Wards Act 1890, under article 32 of the Indian Constitution as
unconstitutional and against the basic concept of gender equality under the Article 14 and 15
the constitution.

As the use of the word after was alleged to give inferior place to mothers on the ground of
sex alone, the court tried to interpret the word after in a way which would not let a
provision in the legislation be contrary to constitution. The general meaning which was
ascribed to the word after was after the death of the husband. However the court took the
view that after necessarily doesnt mean after the death , rather it means in the absence of
29 This interpretation has already been adopted by the Supreme Court in Jijabhai Vithalrao

26 Id
27 Githa Hariharan v/s RBI and Ors AIR 1999, 2 SCC 228
28 ABC v The state (NCT, Delhi), 2015 SCC OnLine SC 609

29 MODERN HINDU LAW, Supra , 586

Gajre v Pathankhan 30 . If this interpretation is accepted then, the mother has a chance of
becoming the guardian even during the lifetime of her husband ie in exceptional
circumstances. U.C Banerjee introduced his judgement by stating that the basis of UN
declaration of Human Rights , the convention for the elimination of All forms of
discrimination Against Women (CEDAW) and the constitution of India will be defeated if
according to the given legislations , the mothers guardianship is ignored during the lifetime
of the father. He therefore held that, in matters such as this welfare of child must be taken
into account before contesting who should get which right. He referred to the Gajre case
where the SC accepted the mother as the natural guardian as the father had been ignoring the
welfare of the daughter for 20 years.

Thus at the end the supreme court reached the conclusion that 6(a) is to be interpreted
keeping in mind the principle that the welfare of the child is supreme 31 and that it is not in
contravention with the constitution as the word after doesnt mean after the death .
Therefore the mother can be the natural guardian even during the lifetime of the child.

CRITICISM

First, the father continues to have a preferential position when it comes to natural
guardianship and the mother becomes a natural guardian only in exceptional circumstances,
as the Supreme Court explained in Gita Hariharan.32 Gita Hariharan, therefore, does not
adequately address the original problem in Section 6(a) of the HMGA. Second, all statutory
guardianship arrangements are ultimately subject to the principle contained in Section 13,
that the welfare of the minor is the paramount consideration. In response to the stronger
guardianship rights of the father, this is the only provision that a mother may use to argue for
custody/guardianship in case of a dispute.33

ABC V/s THE STATE ( NCT DELHI )

This is a landmark case decided recently in the supreme court of India which shows
progressiveness of the Indian Judiciary in matters of granting guardianship rights to women.

30 Jijabhai Vithalrao Gajre v Pathankhan , 1970 , 2 SCC 717

31 13(1)
32 Supra, Note 7
33 Id
In this judgement by Vikramjit Sen 34, an unwed woman (name undisclosed) was given
guardianship rights over her minor child without any requirement of fathers consent. The
facts of the case are as follows : An unwed Christian woman , who was well educated ,
employed and financially secured gave birth to a son in 2010 and raised him without any
involvement of his biological father . She wanted for her son to be her nominee in all her
savings and other insurance policies. However , she was directed that she must either
declare the name of the father or get a guardianship/adoption certificate from a competent
court. However, the Guardian Court directed her to reveal the name and whereabouts of the
father and consequent to her refusal to do so, dismissed her guardianship application. Learned
Senior Counsel for the Appellant, has argued before the court that the Appellant does not
want the future of her child to be marred by any controversy regarding his paternity, which
would indubitably result should the father refuse to acknowledge the child as his own. This is
a brooding reality as the father is already married and any publicity as to a declaration of his
fathering a child out of wedlock would have pernicious repercussions to his present family.
As per Section 7 of the Act, the interest of the minor is the only relevant factor for appointing
of a guardian, and the rights of the mother and father are subservient thereto. The court
visited different legal line of thoughts in different jurisprudences and even other legislations
in India regarding the rights of an unwed mother. 6 (b)35 provides that mother of an
illegitimate child is presumably the natural guardian. Same is in Muslim law. 8 states that
the domicile of illegitimate child is same as his/her mother. According to 2(2) of the
childrens act of 1989 in UK , custody and guardianship is preferably granted to mothers
until the putative father strongly establishes paternity.

Taking into consideration the present case , the court said that giving legal recognition to a
father who has exhibited no concern for the child would be a futile attempt. Further it held

In todays society where women are increasingly choosing to raise their children alone, We
see no purpose in imposing an unwilling and unconcerned father on an otherwise viable
family36

It is contended on behalf of the State that Section 11 requires a notice to be given to the
parents of a minor before a guardian is appointed; and that as postulated by Section 19, a

34 Judgement Available at http://onelawstreet.com/wp-content/uploads/2015/07/ABC-v.-NCT-of-Delhi.pdf

35 Hindu Guardianship and minority Act, 1956
36 Supra, Note 27
guardian cannot be appointed if the father of the minor is alive and is not, in the opinion of
the court, unfit to be the guardian of the child. With regard to the interpretation 11 of GWA ,
the court added that the word parent in the article should be wide and in case of illegitimate
children , the sole caregiver should be granted the custody and guardianship rights. With
regard to the issuance of birth certificate , the court said that

The law is dynamic and is expected to diligently keep pace with time and the legal
conundrums and enigmas of the present . 37

Thus directing that if a single unwed mothe applies for the issuance of a birth certificate for
her child then the authorities concerned should issue the birth certificate by following the due
process and shouldnt engage in a hassle with regard to the identity of the father if not desired
by the applicant.

CONCLUSION
The Supreme Court of India and almost all of the High Courts have held that, in custody
disputes, the concern for the best interest/welfare of the child supersedes even the statutory
provisions on the subject outlined above.38 A child is not a chattel . It is the pious obligation
of the parents to ensure the best for their progeny . 39 The minors welfare would be seen in
the light of his physical health , educational , emotional satisfaction , moral and spiritual
development , psychological trauma that the child may undergo due to separation from any
parent. 40 Neither the father as the traditional "natural guardian" nor the
mother as the "biologically equipped parent" automatically get custody of the child and
41
Fathers cannot be granted custody only on the ground of economic superiority .

Thus in matters of custody and guardianship, the sole consideration should be the welfare of
the child principle and less emphasis should be given to the battle between both the parents as
in such cases, the child is the most affected entity and their rights prevail over everyone else.

37 Id
38 Mausami Ganguli v. Jayant Ganguli, (2008) 7 SCC 673
39 Sanjiv Sangwan v sangeeta Sangwan , 2004 1 HLR 263 (Del)
40 Chetna Ramatheertha v Jahgirdar ,( 2003 ) 2 HLR 115
41 Supra, Note 14
BIBLIOGRAPHY

Cases

. P.N Ramachandra Iyer v S.V Annapurni Ammal , AIR 1964 Ker 269..................................................4
ABC v The state (NCT, Delhi), 2015 SCC OnLine SC 609....................................................................6
Chetna Ramatheertha v Jahgirdar ,( 2003 ) 2 HLR 115........................................................................9
Githa Hariharan v/s RBI and Ors AIR 1999, 2 SCC 228......................................................................6
Jijabhai Vithalrao Gajre v Pathankhan , 1970 , 2 SCC 717..................................................................7
Mausami Ganguli v. Jayant Ganguli, (2008) 7 SCC 673.......................................................................9
Narain Singh v Sapurna Kuer, AIR 1968 Pat 318.................................................................................4
Padmaja Sharma v. Ratan Lal Sharma, 2000 (2) SCR 621.................................................................5
Sanjiv Sangwan v sangeeta Sangwan , 2004 1 HLR 263 (Del)..............................................................9
Thirty Hoshie Dolikuka v. H.S. Dolikuka, A.I.R. 1982 S.C. 1276 (India)..............................................4

Statutes

Guardianship and Wards Act , 1890.......................................................................................................3

Hindu Guardianship and minority Act, 1956.........................................................................................8

Amendment Acts

2., Personal Laws (Amendment) Act, No. 30 of 2010,......................................................................5

Electronic & Web Sources

Judgement Available at http://onelawstreet.com/wp-content/uploads/2015/07/ABC-v.-NCT-of-

Delhi.pdf............................................................................................................................................8

Books

KUSUM, FAMILY LAW LECTURES, (2003)..............................................................................................2

MULLA, DINSHAH FARDUNJI ,PRINCIPLES OF HINDU LAW 17TH EDN (2000)..........................................3
PARAS DIWAN ,LAW OF ADOPTION, MINORITY GUARDIANSHIP AND CUSTODY ,8 ( 4th edition, 2010)....2
RAMESH CHANDRA NAGPAL, MODERN HINDU LAW , (2ND EDITION, 2008) ( herein after , MODERN
HINDU LAW)......................................................................................................................................3

Reports

Law commission of India , Reforms in Guardianship and Custody Laws in India, Report No 257
( May 2015 )......................................................................................................................................3

Journal Articles

ARCHANA PARASHAR, Welfare of Child in Family LawsIndia and Australia, 1(1) NALSAR LAW
REVIEW 49, 49 (2003).....................................................................................................................4
ASHA BAJPAI , Custody and Guardianship of Children in India, 39 Fam. L.Q. 441 2005-2006......4