RSTV: THE BIG PICTURE- FAMILY LAWS & CUSTODIAL RIGHT
The Supreme Court has sought Centre’s response to a PIL which challenged validity of a provision of Hindu Minority and Guardianship Act, 1956 that prefers father as a natural guardian of children till they attain majority. A bench headed by Justice Arun Mishra issued notice to the Centre after petitioner’s counsel argued that the 1956 law’s gender-based discrimination for grant of guardianship of children violated constitutional right to equality guaranteed to Hindu women. The apex court had issued a similar notice to centre last month on another petition seeking re-visit of country’s all personal laws with regard to the custody of child in matrimonial disputes. Earlier the 257th report by the Law Commission of India had suggested amendments to the current statutory provisions so as to include the provision for shared custody / joint custody.
What is the issue?
- Petitioner, retired Army officer, Sakshi Bhattacharya felt heat of the “gender-biased” Section 6 of HMGA after her husband initiated divorce proceedings before a family court.
- Section 6 says: “natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property excluding his or her undivided interest in joint family property, are (a) in the case of a boy or an unmarried girl – the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother….”
- The petitioner said this provision contradicts the object of the Act, which is welfare of the minor child.
- The Act came into force in 1956 when men exercised more financial power and social sanction to control and dominate women and children in a family. After more than six decades, it would be natural, reasonable and advantageous for the welfare of the child if her/his guardianship is entrusted with the mother.
- Emphasising that right to equality is one of the fundamental rights, the petitioner has said the court should interfere in making the provision gender neutral by providing equal guardianship rights to both parents over their minor children.
- Despite Hindu women leaving their parental homes to be in matrimonial homes, the law continued to discriminate against her by allowing the husband to dominate even in the guardianship rights of her minor children.
- Citing the English Guardianship Act of 1973, English law provides same right and authority to both parents in matters of guardianship of minor and administration of his/her properties.
- It is requested to the court to read down Section 6, 7 and 9 of the Hindu Minority and Guardianship Act to declare that both parents as equals in respect of natural guardianship of their children.
SC’s Observations and is the law discriminatory?
- The interest of the child should be kept foremost in custody battles between separated parents.
- Family courts should grant visitation rights in such a manner that a child is not deprived of the love and care of either parent.
- The gender bias eliminates the chance of equal opportunity and in some situations.
- Women tend to stay in abusive relationships and suffer from domestic abuse only for the fear of giving up their children.
- Everyone is equal as per Article 14.
- Changed nature of society since the law was made, DOL changed, relation between man and women changed, changed notion of welfare of child. iv. v. Presupposition that father is the natural guardian.
Has the time come now for shared responsibility?
- Our society is changing so fast and the law came in 1956.
- Family dynamics has changed.
- The way both wife and husband look at each other has changed.
- Women have become more economically independent.
- Definition of Division of labour has changed.
- Patriarchal mindset of society are strengthened by such laws.
- Women are not weaker sex now.
- We need to have Gender Neutral Law as law commission has suggested.
- Balancing Act should be brought and protect the welfare of the child.
- The laws also have to be time-friendly.
- Shared parenting within the law
- Child-centric focus has to be maintained.
- Rights of the child should be respected
- India being heterogeneous society and one law will not be applicable to all sections of the societies so proper work should be done in this regard.
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