INTRODUCTION.
India is a land abundant with diversified culture and religion. There are many religions prevalent in our country: Hinduism, Islam, Parsi, Christianity and other minorities. Every religion has its own customs and traditions. Some of these customs and traditions are formed into laws which govern their personal or family lives. These laws are categorized as Personal Laws or Family Law, spanning from marriage to divorce, succession to custody, etc. When these laws derived from religious ambit miss some sphere of issues then Secular Law comes into view. Guardianship and Custody are twin factors which complement each other and go hand in hand. Both come under the purview of factors concerning the rights of an individual who is a minor incapable of taking care of oneself.
GUARDIANSHIP AND CUSTODY: MEANING
In Hinduism , the concept of guardianship dates back to the Vedic age. In that age, a typical Hindu family functioned as a patriarchal unit with the majority of the power vested in the hands of the head of the family. Children or infants were essentially considered an asset to the father, who was typically the head of the family. Initially, they couldn’t independently hold any separate property, even if they had the said property; its functioning right was held in the father’s hands. Gradually, this right to hold separate property was recognized by the law.
In ancient times, the supreme guardianship of all the people was vested in the hands of the king. There was no need for the law of guardianship for the person who lived in a joint family. This was because the minors came naturally under the protection of the karta, or the head of that joint family. For minors who were not members of the joint family and also had no parents, the king naturally was the guardian for that minor, as the sole and maximum power of the land was vested in him. This system remained in force in British India, and most Indian states followed it. Then came the Hindu Minority and Guardianship Act of 1956 which prescribed the rights and duties of the guardians.
The term ‘custody’ has not been defined in the Indian Legal system. The law governing it is held closely in link with that of guardianship. Guardianship refers to a set of rights and powers vested in an adult who has the right to act in the care of the person and property of a minor. Custody is a narrower concept relating to the upbringing and day-to-day care and
control of the minor. The term ‘guardian’ has been defined under the Guardians and Wards Act, 1890, as “a person having the care of the person of a minor or his property or both his person and property”.
Muslim Law distinguishes between actual physical custody(i.e., everyday care of a child) or hizanat and the power to make important decisions regarding the upbringing of the minor. Hizanat is similar to the concept of custody under Hindu Law.
Under all Family Laws, the father is the natural guardian of a minor as long as he’s alive and fit. The mother is the preferred custodian for very young minors, even though the father is the natural guardian. That is so because a minor who’s very young is more in need of care and nourishment, which only a mother can provide.
LEGAL FRAMEWORK GOVERNING CUSTODY AND GUARDIANSHIP IN INDIA.
STATUTORY LAWS
- Hindu Law
The section 26 of the Hindu Marriage Act, 1955, empowers the courts to pass interim orders concerning the custody, maintenance, and education of minor children, considering their wishes. This act further provides the court with the power to revoke, suspend, or modify any interim orders passed earlier. The laws relating to minorities and guardianship among Hindus are provided under the Hindu Minority and Guardianship Act, 1956. This act provides for natural as well as testamentary guardians.
- Muslim Law
Islamic law was the first law to differentiate between custody and guardianship. This law dictates that the father is the natural guardian, but the right of custody is vested in the mother until the son reaches the age of seven and the daughter attains puberty. This is called the concept of Hizanat wherein the mother is the most suitable person to have custody of her children up to a certain age, both during the marriage and after its dissolution.
- Parsi & Christian Law
The section 49 of the Parsi Marriage and Divorce Act, 1936, and section 41 of the Divorce Act, 1869, provides the power to the courts to pass interim orders for the
matters of custody, maintenance, and education of minor children. Guardianship for Parsi and Christian children is governed by the Guardians and Wards Act of 1890.
SECULAR LAWS
- The Special Marriage Act, 1954
The section 38 of the Special Marriage Act provides for the custody of children and also empowers the district courts to pass interim orders. These orders can be passed concerning the matters of custody, maintenance, and education of minor children, considering their wishes. It also further empowers the courts to revoke or suspend the earlier passed orders.
- The Guardians and Wards Act, 1890
This act is a secular law. There was no all-India act dealing with the guardianship of minors before the enactment of this act. This comprehensive law provides for all the rights and obligations of the guardians, the procedures for their removal and replacement, and remedies for misconduct by them.
THE WELFARE OF THE CHILD OR THE BEST INTEREST OF THE CHILD.
The section 13 of the Hindu Minority and Guardianship Act, 1956 dictates that, the welfare of the minor shall be the paramount consideration in deciding the guardianship of a Hindu minor and that no person can be appointed as guardian of a Hindu minor if the court is of the opinion that it will not be for the welfare of the minor.
Based on a study of Family Court orders, Legal academician Asha Bajpai quotes,
“The best interest of the child may have been considered by the courts, but there was no mention of this standard in the orders. The courts did not provide any information regarding the factors considered for awarding custody to a particular parent”.
In Vivek Singh v. Romani Singh, there were two objectives observed for the welfare of the child: to ensure that the child grows and develops in the best environment and to serve the public interest that serves the optimal growth of the children.
In Mohd. Ayub Khan v. Saira Begum, Justice R. S. Garg held that a husband’s noncompliance with maintenance awards can be used in a child custody proceeding to show that the husband does not have the best interest of the child at heart. In this case the appellant, Mohd. Ayub Khan, divorced his wife, Saira Begum, following which she went on to live with her father with her three minor children without any maintenance provided by the said man. As the
respondent was struggling financially, she filed a maintenance petition under section 125 of the Cr.P.C., which the Trial Court allowed. In retaliation, the appellant filed a counter petition under section 25 of the Guardians and Wards Act demanding the custody of the eldest son once he turned seven, weaponizing the concept of Hizanat, which provides for the custody of minors under the Shariat Law by strictly relying on it.
Dismissing the appeal, the Hon’able Chhattisgarh High Court quoted, “No law can be woven without a moral fiber. If the moral fiber is missing, law becomes ruthless”. The court established that section 125 of the Cr.P.C. carries a fundamental moral obligation. The bench ruled that personal law custody provisions are strictly subservient to the “paramount welfare of the minor”. A father cannot exploit the mother’s labor during a child’s tender years and then arbitrarily demand custody later in the veil of law without showing any prior financial and emotional accountability. The principle of the best interest of the child must prevail.
GENDER JUSTICE AND WOMEN’S RIGHT TO GUARDIANSHIP AND CUSTODY.
It is quite explicit that in the case of legitimate children, law accords primary position to father and secondary to the mother to act as their natural guardians. The custodianship is acknowledged to be the prerogative of the mother generally due to the close emotional bonds which generally exists between a mother and her child.
Absolute gender justice in the case of guardianship is still a distant dream. In the landmark case of Githa Hariharan v. Reserve Bank of India(1999), the Hon’able Supreme Court of India delivered a monumental judgement for gender justice by dismantling the patriarchal monopoly over legal guardianship. It focused on section 6(a) of the Hindu Minority and Guardianship Act, 1956, which states that the father is the natural guardian of a Hindu minor, and ‘after him,’ the mother. The Reserve Bank of India had relied on this argument to reject a bond for her minor son while the father was alive. It held that the expression ‘after him’ in section 6(a) does not mean ‘after the death of the father’, but should instead be ‘in the absence of the father’. The Court further explained that ‘absence’ does not merely include just the physical absence, but also where the father is unwilling, incapable, ill, indifferent, or uninterested in fulfilling his responsibilities as a guardian. The Court later emphasised that this gender discrimination in denying a parent their legal right constitutes the violation of the constitutional principles of equality and non-discrimination enshrined in Articles 14 and 15. The Supreme Court of India delivered a progressive and landmark judgement in favour of
Githa Hariharan. The Court concluded that the welfare of the child must always be of the paramount consideration, and that the law must be read and interpreted in a way that reflects modern realities, gender justice, constitutional values, and does not compromise an individual’s rights vested in him. This case paved the way for gender equality, ensuring that the child’s welfare reigns supreme over rigid gender hierarchies.
On 6th July 2015 via Abc v. The State(NCT of Delhi), the Supreme Court of India delivered a monumental judgement in advancing gender equality and ruled that even an unwed mother can be recognized as a legal guardian of her child without forcing her to disclose the name of the child’s biological father. The Court prioritized substantive justice over any legal rigid formalities. This judgement once again dismantled the patriarchal barriers and established the fact that a woman is fully capable of being recognized as a complete and autonomous parent under law.
CONCLUSION
The court tries to keep the welfare and the best interest of the child at the forefront. It weighs various factors such as financial conditions, moral behaviour, mental stability, family support, surroundings, the guardian’s time availability, and most importantly, the child’s wish. The children are the supreme asset of the nation, and hence their welfare is kept at the forefront. Hence, the welfare of the children and their best interest is kept at paramount consideration and importance. Earlier in ancient times men were given much importance, so their rights in the child’s ambit superseded women regardless of their participation in the wards’ rearing. In ancient times, due to deep-seated patriarchal mindset and regulations, women were uneducated and unrecognized, naturally relegated to lower status, and hence held a very low stake in the child’s guardianship. Now, with the advent of new era and advancement of participation of women in the social arena, they go hand in hand with their counterparts. Now men and women can have equal legal status with respect to guardianship and custody.
