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In this article, the author discusses discrepancies in the Hindu Minority and Guardianship Act and how it is affecting our society. In the Hindu Dharamshastras, not much has been said about the guardianship. This was due to the concept of joint families where a child without parents is taken care of by the head of the joint family.
Thus no specific laws were required regarding the guardianship. In modern times the concept of guardianship has changed from the paternal power to the idea of protection and the Hindu Minority and Guardianship Act, codifies the laws regarding minority and guardianship with the welfare of the child at the core.
Under the Hindu Minority and Guardianship Act, a person who is a minor i. Then, under such a situation a guardian has been appointed for the care of his body and his property. The Hindu Minority and Guardianship Act was established to empower the Guardians and Wards Act of and provide better right and protection to children instead of acting as a replacement of already prevalent act. This act was passed with a motive of defining rights, obligations, relationships between adults and minors.
In other words, Muslims, Christians, Parsis and Jewish are not covered under this act. Minority of a particular person is defined according to the age of that person. Attainment age for being a major varies according to religion and time, for instance, in old Hindu law age of 15 or 16 years was the age of majority but now it has been increased to 18 years, for Muslims, age of puberty is considered as the age of majority.
Both legitimate and illegitimate minors who have at least one parent that meets the stipulations outlined above fall under the jurisdiction of this Act. Irrespective of personal laws followed by individual communities a common act majority is known as Indian Majority Act, applies to all communities. Under this act attainment of age of majority is 18 years but if a person is under the care of guardian attainment of age of majority increases to 21 years. The Guardians and Wards Act, applies to everyone irrespective of their caste, creed or community unlike Hindu Minority and guardianship act which applies to Hindus and religion considered as Hindus only.
Be it noted that the Hindu Minority and Guardianship Act of has been engrafted on the statute book by way of an amendment and codification of certain parts of the law relating to minority and guardianship among Hindus. It is not out of place to mention also that Hindu law being one of the oldest known system of jurisprudence has shown no signs of decrepitude and it has its values and importance even today. But the lawmakers, however, thought it prudent to codify certain parts of the law in order to give a fruitful meaning and statutory sanction to the prevailing concept of law having due regard to the social and economic changes in the society.
It is on this perspective however certain aspects of the law as it stood prior to the codification ought to be noted. Incidentally, the law relating to minority and guardianship amongst Hindus is to be found not only in the old Hindu law as laid down by the smritis, shrutis and the commentaries as recognised by the Courts of law but also statutes applicable amongst others to Hindus, to wit, Guardian and Wards Act of and Indian Majority Act of Be it further noted that the Act of does not as a matter of fact in any way run counter to the earlier statutes in the subject but they are supplemental to each other as reflected in Section 2 of the Act of itself which provides that the Act shall be in addition to and not in derogation of the Acts as noticed above.
Before proceeding further, however, on the provisions of the Act in its true perspective, it is convenient to note that lately, the Indian Courts following the rule of equality as administered in England have refused to give effect to the inflexible application of the paternal right of minor children.
It is this interpretation which has been ascribed to be having a gender bias and thus opposed to the constitutional provision. It is now settled law that a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided unless of course, the same makes a violent departure from the Legislative intent in the event of which a wider debate may be had having due reference to the contextual facts.
Click Here. Accordingly, this report of the Law Commission reviews the current laws dealing with custody and guardianship and recommends legislative amendments to the Guardians and Wards Act, and the Hindu Minority and Guardianship Act, These amendments are necessary in order to bring these laws in tune with modern social considerations.
Major amendments are recommended to the Guardians and Wards Act, , by introducing a new chapter on custody and visitation arrangements. The Commission believes that the Guardians and Wards Act, , being a secular law, will be relevant for all custody proceedings, besides any personal laws that may apply. The new chapter opens with a set of objectives, to clarify that the welfare of the child is the primary guiding factor in all such matters. For the first time in India, the amendments also introduce several concepts relating to joint custody and child welfare, such as child support, mediation processes, parenting plans, and grand-parenting time.
The commission has suggested the following amendments in Hindu Minority and Guardianship Act-. In the case of a boy or an unmarried girl, this section clearly states that the natural guardian of a Hindu minor is the father and after him the mother. The welfare of the minor must be the paramount consideration in every circumstance.
It has recommended changes to Section 7 as well. This section provides that the natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother. The language of this section is incongruous in that it refers only to the natural guardianship of an adopted son, and does not refer to an adopted daughter.
The Hindu Minority and Guardianship Act, came into force at a time when the general Hindu law as administered by the courts did not recognise the adoption of a daughter. Thus, at the time of passing of the Act, the adoption of daughters was only allowed under custom and not under codified law.
It was also enacted before the Hindu Adoptions and Maintenance Act, , which corrected the legal position of adoption of a daughter statutorily. It hence recommends that now the Act should include both an adopted son and an adopted daughter within the scope of natural guardianship. Further, the Commission recommended that the natural guardians of an adopted child should include both the adoptive parents, in keeping with its recommendations to Section 6 a provided above.
According to section 7 of Hindu minority and guardianship act , the natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother. This provides natural guardianship in case of adoption only for son because of the traditional notion that adoption is meant for couples who do not have a son. Hindu Minority and Guardianship Act is, for now, silent on this issue. Over the time as the society has developed many legal measures are taken for empowerment of females as a gender and sex ratio but this legal lacuna has not been fixed due to the deeply enrooted preference of son over a daughter.
The law commission of India in its report has highlighted the gender anomalies prevalent in the society which have affected the gender ratio and discrimination and why there is a need of women empowerment.
Shortly after the Hindu Minority and Guardianship Act was enacted, the Hindu Adoption and Maintenance Act of was also enacted which had recognized the adoption of daughters.
Commission has also recommended on another outdated provision of Hindu Minority and Guardianship Act, section 6, this section deals with natural guardianship of a child and its property. According to this section, the first natural guardian is the father and then after him, the mother is the natural guardian of a child. This means that as long as the father is alive mother cannot claim the status of a natural guardian. Our patriarchal society is so prevalent that our laws reflect its hint.
Law commission found out that the issue of natural guardianship is not that small that it should be ignored and the influence of patriarchy is so strong that it is suppressing the rights of a mother. Complying with the object The Law Commission recommended the amendment of section 6 so that mother and father can have equal rights of being a natural guardian and enjoy guardianship jointly and severally.
This matter came into limelight in the year when the supreme court ruled on a petition filed by Geeta Hariharan for challenging the validity of the stipulation that only father can be first natural guardian after him, the mother is considered as natural guardian.
Even though it did not amend any part of section 6 but the supreme court interpreted in such a way that its severity should be mitigated. Herein, absence means that father was away for a long duration or inconsiderate towards the child or unfit due to illness. Therefore, the Apex court had delivered the judgements where the father is always preferred in case of natural guardianship but in extraordinary circumstances mother is considered as natural guardian.
This was seen in case of Gita Hariharan famous writer when she wanted to invest some money for her son but stipulations required her to mention details of the father but she was separated and sole guardian of her son. The principle of equity was challenged here and this unresolved issue of guardianship was mitigated to some extent in by parliament. When parliament amended section 19 of Guardians and Wards Act, The amendment applies this clause to cases where even the mother is alive, thus removing the preferential position of the father under GWA which is applicable to all communities.
The law commission of India in its report of the year has restated that section 6 of Hindu minority and guardianship act should be amended stating that if one law has removed such discrepancy then other should also accept that implement the same.
This report has also highlighted the related issues related to custody of a child and status of mother and father in that custody and have proposed that for giving equal rights to father and mother with regards to guardianship the commission has suggested joint custody of the child.
Keeping in mind this same principle our laws relating to guardianship, custody and adoption should be updated. A glimpse of patriarchal society can be seen from our Hindu Minority and Guardianship Act where the first natural guardian of a child for both property and person is father and second is a mother.
But as society is modernizing, its laws have to change accordingly so that people a change and develop, the apex court had understood this proposition very well. Consequently, in recent judgements supreme court allowed an unwed mother to apply for sole guardianship of minor children. In case of Ms. The district court rejected her claim because under section 11 of the Guardians and Wards Act, she needs to disclose the information of the father of that child which she was not willing to do.
When this case was transferred to the high court, they gave the reasoning for upholding this judgement that even if the mother is unmarried, father of that child could have an interest in the child. In this case, the couple was separated and the mother was the guardian of the child. This new ruling had benefitted the society in two ways, firstly protection of rights of a child born out of wedlock and secondly provided a legal status to single mother especially for the children of sex workers.
This judgement will at least do some good and safeguard the rights of unwed mothers or illegitimate child which Guardianship act had mentioned but society had still not accepted. Implications of the ruling-. India is a country where people tend to believe that children are exemplar of god.
But every ideology, every belief, and every tradition has two sides one is good and another one is bad. While goods side being, a child raised in India is being pampered, taken care of and provided with healthy environment to grow. On the contrary, bad side being, there are more than 60, children who abandoned every year in India. In most of the cases, these children are pushed into a vicious cycle of forced labour, human trafficking or prostitution. In order to save the lives of these children and mitigate the harm they have suffered, a child is gifted with a second life through adoption.
In its simplest of senses, adoption is a process whereby a person assumes the parenting for another and, in doing so, permanently transfers all rights and responsibilities, along with filiation, from the biological parent or parents. Now take a look at gender discrimination and gender gap, the concept of treating natural born child and adopted child on same footing is followed by Hindu law in India.
Reason being traditional, spiritual and material being of the family can be maintained only because of a son. Not only this a hint of patriarchy can be seen in laws stated above where father is first natural guardian and mother is considered a first guardian only in the absence of the father. Sign in Join. Sign in. Log into your account. Sign up. Password recovery. Recover your password. Forgot your password? Get help. Login with your social accounts:. Create an account.
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The Hindu Minority and Guardianship Act, 1956
Three other important acts were also created during this time and they include the Hindu Marriage Act , the Hindu Succession Act , and the Hindu Adoptions and Maintenance Act All of these acts were put forth under the leadership of Jawaharlal Nehru , and were meant to modernize the then current Hindu legal tradition. The Hindu Minority and Guardianship Act of was meant to enhance the Guardians and Wards Act of , not serve as its replacement. This act specifically serves to define guardianship relationships between adults and minors, as well as between people of all ages and their respective property. The Hindu Minority and Guardianship Act delineates the policies regarding minors according to Indian Hindu personal law. This Act is intended to be an addendum to the Guardians and Wards Act of , not its replacement. Any former law that is inconsistent with this law is declared legally void.
Hindu Minority and Guardianship Act
In this article, the author discusses discrepancies in the Hindu Minority and Guardianship Act and how it is affecting our society. In the Hindu Dharamshastras, not much has been said about the guardianship. This was due to the concept of joint families where a child without parents is taken care of by the head of the joint family. Thus no specific laws were required regarding the guardianship.
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