In the complex world of legalities, understanding guardianship laws can be a daunting task. These laws concern the pivotal role parents play in their child’s life, often deciding on a range of factors like the child’s surname, property rights, and upbringing. Recently, an important ruling by the Supreme Court of India shed light on the nuances of these laws, bringing them to public attention.
Supreme Court’s Recent Judgment on Guardianship
The Supreme Court recently ruled that a mother, as the only natural guardian after the father’s demise, has the right to decide her child’s surname. The case saw the apex court challenging a 2014 Andhra Pradesh High Court judgment that ordered the restoration of the late husband’s name in the child’s records. The court argued that a surname is not just a matter of lineage or tradition, but a vital component of the child’s identity within his or her social environment. Furthermore, it reinforced that the mother, being the sole natural guardian, also has the right to give up the child for adoption.
Guardianship Laws in India
India’s guardianship laws are largely dictated by the Hindu Minority and Guardianship Act (HMGA) of 1956 and the Guardian and Wards Act (GWA) of 1890. The former generally positions the father as the superior guardian, while the latter deals with the appointment of a third party as a child’s guardian. Both acts prioritize the best interests of the child in any custody dispute, with the mother typically holding custody of children below five years of age.
‘Best Interests of the Child’: An Explainer
As a signatory to the United Nations Convention on the Rights of the Child (UNCRC), India upholds “the best interests of the child” as a fundamental guiding principle in all custody battles. This concept aims to ensure the fulfillment of the child’s basic rights and needs, which includes their identity, social well-being, and overall development.
Guardianship Under the Muslim Law
According to the Muslim Personal Law (Shariat) Application Act of 1937, guardianship is governed by religious law, which upholds the father as the natural guardian. However, custody remains with the mother until the child reaches certain age thresholds (seven for sons and puberty for daughters). Here, the welfare of the child takes precedence over all else.
Snapshot of Supreme Court Guardianship Judgments
Notable Supreme Court judgments have shaped the course of Indian guardianship laws. The ground-breaking Githa Hariharan v. The Reserve Bank of India case in 1999 challenged the HMGA’s gendered equality, asserting both parents’ equal rights to guardianship. Although the judgment constituted a major legal precedent, it did not lead to any amendments to the HMGA.
The Future of Guardianship Laws: A Balanced Perspective
The path forward involves a child-centric approach rooted in human rights jurisprudence. It prescribes shared or joint parenting as an optimal solution for the child’s growth. In its 257th report on “Reforms in Guardianship and Custody Laws in India”, the Law Commission of India recommended that both the mother and father be considered concurrent natural guardians. It proposed amending the HMGA to position both parents as ‘jointly and severally’ responsible for the minor and his/her property.
While these discussions continue, one thing remains certain: in matters of guardianship and custody, the child’s welfare must always be at the forefront.
