The issue of guardianship of minors has been at the forefront of public interest litigation recently in India. When it comes to providing identification documents like passports or Permanent Account Numbers (PAN), single mothers often encounter challenges as many forms and paperwork still require the father’s name. However, recent changes to these requirements highlight a shift towards recognizing the role of single mothers and addressing their needs. This article delves into the complexities of guardianship laws in India, recent modifications, and the existing disparities within the system.
Passports and PAN Cards for Single Parents
In December 2016, India’s Ministry of External Affairs relaxed its passport issuance rules. A three-member committee, including representatives from the Ministry of External Affairs and the Ministry of Women and Child Development, recommended these changes after reviewing the issues stemming from divorced or adopting parents securing passports for their children.
These updates permit the applicant to provide either parent’s name, eliminating the need to state both parents’ names. Furthermore, divorced applicants no longer need to provide their ex-spouse’s name or the divorce decree. Similarly, the Central Board of Direct Taxes amended the Income Tax Rules in November 2018, making the father’s name optional if the mother is a single parent on PAN applications.
Guardianship Laws in India
The Hindu Minority and Guardianship Act grants precedence to the father in terms of a minor’s guardianship. According to this act, “the natural guardian of a Hindu minor in terms of the minor’s person or property is the father, and after him, the mother.” In contrast, the Muslim Personal Law assigns custody to the mother until the son turns seven and the daughter reaches puberty, but general supervision and control remain with the father.
The Supreme Court provided some respite with its landmark judgement in Githa Hariharan v. The Reserve Bank of India in 1999. The court interpreted the term “after” not as “after the lifetime of the father”, but “in the absence of the father”. Despite this, the judgement did not equate both parents as equal guardians, relegating a mother’s role to a subsidiary position.
Recommendations by the Law Commission of India
The Law Commission of India, in its 257th report on “Reforms in Guardianship and Custody Laws in India” in May 2015, proposed to dispel the superiority of one parent over the other. Both parents should be considered simultaneously as natural guardians of a minor, with equal rights concerning the minor and their property.
The Major Concern and Way Forward
Despite courts tending to assign custody to mothers after marital disputes, guardianship mainly rests with the father according to the law. This discrepancy indicates that mothers are seen as caregivers but not decision-makers for children.
Various government departments must promptly amend their rules to align them with the Githa Hariharan judgement. However, changing laws can be challenging, which means individuals will continue to resort to courts for relief until successful amendments are implemented.
