Guardianship of Minors: All about it.
~Preet
Recently, a Public Interest Litigation (PIL) filed in Madras High Court requested that all records include the mother's name in addition to the father's. Changes to the requirements for Passport and Permanent Account Number (PAN) cards have recently occurred, allowing an applicant to provide their mother's name if she is a single parent. However, this remains an annoyance when it comes to school certificates and other paperwork that require the father's name as the guardian. PAN is a method of recognising different types of taxpayers in the country.
The Ministry of External Affairs liberalised its passport issue procedures and took a number of initiatives in December 2016. Certain amendments were made in response to the suggestions of a three-member committee comprised of the Ministry of External Affairs and the Ministry of Women and Child Development that investigated different issues with passports for children following divorce or adoption. Following the modifications, applicants might submit the name of either parent instead of both the father and mother's names. The revised passport application form also does not need the applicant to submit the name of her or his divorced spouse, nor does it require them to produce the divorce decision. The Central Board of Direct Taxes changed the Income Tax Rules, 1962, in November 2018, so that the father's name was no longer required when a woman was a single parent. The new PAN application form asks for the mother's name in addition to the father's. Applicants can also select whether they want their father's or mother's name on the PAN card.
In the instance of guardianship of a minor, Indian law gives the father precedence (below the age of 18 years). The natural guardian of a Hindu minor in respect of the minor's person or property "is the father, and after him, the mother," according to Hindu religious law, or the Hindu Minority and Guardianship Act, (HMGA) 1956. "Provided, however, that custody of a youngster under the age of five years is generally with the mother." According to the Muslim Personal Laws, the Shariat or religious law will apply in cases of guardianship, in which the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty, though the father retains the right to general supervision and control. In Muslim law, the principle of Hizanat asserts that the wellbeing of the child comes first. This is why, in the case of custody of children in their infancy, Muslim law gives priority to the mother over the father.
In 1999, the Supreme Court issued a significant decision in Githa Hariharan v. Reserve Bank of India, which gave some relief. In this case, the HMGA was accused of breaching Article 14 of the Indian Constitution's provision of gender equality. According to Article 14, no one should be denied treatment of equality before the law or equal protection of the laws within the territory of India. The court ruled that the phrase "after" should not be interpreted as "after the father's lifetime," but rather "in the absence of the father." However, the decision failed to recognise both parents as equal guardians, thereby subordinating a mother's position to that of the father. Despite the fact that the decision establishes a precedent for courts, it has not resulted in a revision to the HMGA.
In its 257th report on "Reforms in Guardianship and Custody Laws in India," published in May 2015, the Law Commission of India advised that the "superiority of one parent over the other be abolished." Both the mother and father should be recognised as the natural guardians of a minor at the same time." The HMGA should be modified to "recognise both the father and the mother as natural guardians 'jointly and severally,' with equal rights over a child and his property."
Though courts may prefer to award custody of a kid to the mother following a marital conflict, guardianship in the law is predominantly with the father, and this paradox illustrates that moms are seen as caretakers but not decision makers for children.
Various government offices must proactively alter their policies to guarantee compliance with the Githa Hariharan decision, as changing legislation may be a difficult process. Individuals will continue to flood the courts in search of remedy until that happens.
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