Partners in parenthood

Partners in parenthood

Why does a mother’s gender come in the way of guardianship of her child?



PATH BREAKING All these years mothers could not be guardians of their kids

A Bill that will give Indian women equal rights as men in adopting children, and becoming guardians of minors, including their own children, was introduced in the Rajya Sabha recently. That’s right. All these years, moms couldn’t be legal guardians of their own children. 

Titled the Personal Laws (Amendment) Bill 2010, it seeks to remove the offending clause from the earlier Guardians and Wards Act, 1890. Once it becomes law, a minor’s mother, besides the father, can be appointed its guardian. The GAW Act uses the phrase “either the father or any other person, in case the father is not alive or not fit” to authorise courts to decide guardianship. The amendment will include the mother “so that courts shall not appoint any other person as guardian of a minor if either of the parents is fit”. The PLA 2010 Bill will also make changes to the Hindu Adoptions and Maintenance Act 1956, to give a major Indian Hindu woman of sound mind equal rights as men to adopt (or give away in adoption) a son or daughter. All these years she couldn’t do this. 

The men-only guardianship laws (Section 6, HAMA, Section 19, GAW Act) grabbed national attention when Gita Hariharan (author) went to court over them. In 1994, she applied to the RBI for relief bonds on behalf of her 11-year-old son. She was told only the father could sign the application. ‘No, madam,’ they said, ‘legally you can’t be the guardian.’ If she wanted to sign as her child’s guardian, she had to produce a certificate to prove that her husband “was unfit, or that he was dead, or had taken to vanaprastha.” As long as his lack of fitness wasn’t proved, the child’s welfare rested with the father. 

Quoting sections of the law, she wrote in 1999 ( “High courts have delivered the entire package of the minor’s welfare and guardianship to the father… in effect stripping the mother’s right to be an equal partner in parenthood.” 

Ironically, she fumed. Women can be natural guardians of “illegitimate” children, not “legitimate” ones. We are legally fit to be caregivers, not decision-makers for our children. With help from the Lawyers Collective, she filed a writ petition in the Supreme Court. The petition asked: What disqualifies a mother from making decisions about her child’s welfare? And, if there is no rational basis to this law, what is the sole criterion at work? The mother’s gender? Did this not violate equality promised in the Constitution? 

On February 17, 1999, the Supreme Court ruled: “The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship.” Asked Gita: “Are we so blind that we need the law to tell us a mother has the right to be her child’s acknowledged guardian?” After that, several judgments went the mothers’ way, says lawyer Uma Ramanathan, reminding us of cases relating to Jijabain Vithalrao Gajre, Panni Lal, Anjali Anil Rangari and Kumar Jahgirdar. In 1960, the Supreme Court ruled that a father’s guardianship of his minor children was not a fundamental right. Courts now decide cases around the beneficial interest of the minor. 

Is it time for a guardian-theme party? Well, “even if the minor is in wrongful confinement or taken away without the mother’s consent, she will have to go to court where the minor resides,” points out Uma. Courts tend to leave the custody to the parent who has the child at the time of starting the proceedings. Orders for protection/maintenance for minors are difficult when the child and the father are in different countries. “Generally, in all mutual consent divorces, the mother becomes a legal guardian only if the father agrees. If not, she has to go to him for no-objection.”“The laws today are not (completely) gender-equal. There are questions about surrogate mothers and donor-related issues,” says Uma. “That, of course, is a different ball game.” Still, let’s wish the new Bill a smooth passage. 


Decisions about her future should not be based on fear of losing access to her child 

Mother’s signature should count on application forms for school / college, passport and medical access 

Mothers should be able to invest in children’s names, make legal decisions about their financial welfare



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