This Article has been written by Mr. Yash Prashar, a 2nd year Student of Rizvi Law College, Mumbai
ABSTRACT:
When the historical midnight came and India made a tryst with destiny, the millions of people who chose to be an Indian, saw a ray of hope in the leaders who were sitting in the Central Hall of the Parliament in Delhi at midnight. The Country needed reforms at the earliest. The drafting committee had already started their work of making the Constitution of India. Dr. B.R. Ambedkar emphasized adding the Uniform Civil Code in the draft but he could not do that, he stressed putting in the Hindu Code Bill but failed to do so yet again. After becoming the Law Minister, he once again tried to bring those laws but he did not get support from the Parliament. After Dr. Ambedkar’s resignation, PM Nehru understood that the motion of the Hindu Code Bill in the Parliament would not be easy. Subsequently, after 8 years of Independence, he decided to break the Hindu Code Bill into four different parts and bring those to the Parliament accordingly. The process started in 1955 when the Hindu Marriage Act was brought and the year after, three other parts were passed which included The Hindu Minority and Guardianship Act. The Hindu Marriage Act shaped the marriage norms and gave numerous rights to Hindu women, which included Divorce as well. The Hindu Minority and Guardianship Act determined certain laws that govern the life and destiny of children after their parents get separated. The Act is said to be an additional version of The Guardianship and Wards Act 1890 for the Hindus and the sub-sections of Hindus. The Act elucidates the different kinds of custody that are taken into consideration by the Court while granting custody of the child.
INTRODUCTION:
PM Nehru’s whole campaign during the 1951-52 elections revolved around making people understand the Hindu Code Bill. And after getting the huge mandate, Pt. Nehru showed his preponderance in front of the Parliament and the Congress party. Notwithstanding, He knew that the introduction of the Hindu Code Bill would not be easy so he divided the bill into four parts and brought them into the Parliament in 1955 and 1956. The Hindu Marriage Act of 1955 created a lot of uneasiness among the conservative leaders of India. The Hindu Minority and Guardianship Act 1956 successfully followed that. The Act stated who should be called a ‘minor’ as per the law and also expounded the meaning of ‘Guardian’ and under what scenarios the custody of the child would be given to which parent or both. The Hindu laws are different from other religions’ laws in India. So it is important to understand the difference as well. The Courts also interpreted the Acts in some of the most important judgments related to the role of Guardians and the rights that they get for the children after their separation from their better half.
BODY:
India became a Republic on 26th January 1950 and the Constitution was implemented throughout the Country. Dr. B.R. Ambedkar became the first Law Minister in the government of Pt. Jawaharlal Nehru. Earlier, as the chairman of the Drafting Committee, Dr. Ambedkar wanted to encompass the Hindu Code Bill in the Constitution. However, he failed to do so. After Dr. Ambedkar’s resignation in September 1950, Prime Minister Nehru put in all his efforts to bring every senior Congress leader on the same page to pass the Hindu Code Bill but even he could not succeed.
Pt. Nehru focused majorly on the reforms in the Personal laws during the whole election campaign of 1951-52. With the whooping majority that Congress got in the election results, Pt. Nehru became the most supreme leader in terms of citizens’ support. Howbeit, he knew the significance of the Parliamentary debates which led to him dividing the Hindu Code Bill into four different yet related parts. The major and most controversial part was The Hindu Marriage Act 1955.
The Hindu Marriage Act 1955 granted certain rights to women which created a lot of rift among certain groups of people. Women got the right to move to Court if they wanted to get a divorce from their husbands. And under certain grounds, the Court can grant divorce. However, the question arose that under those circumstances, what would happen to the child born from that couple? One year after the implementation of the Hindu Marriage Act 1955, on 25th August 1956, the Parliament passed The Hindu Minority and Guardianship Act 1956. This Act clarified all the concerns and made several provisions to manage such circumstances.
The Hindu Laws:
The Hindu Minority and Guardianship Act, 1956 described the gist of the word ‘minor’ and also explained the Guardianship rights of the religions and the communities mentioned in the Hindu Minority and Guardianship Act 1956. As per the law, anybody and everybody below the age of 18 years is considered a ‘minor’. The laws for adults differ from the laws for minors.
As per Section 4(b) of the Act, “Guardian” means a person having the care of the person of a minor or his property or both his person and property. Different people can be considered as a Guardian as per the Act.
The most common term is a “Natural Guardian”. If the child has not completed the age of 5 years, the mother shall take the child with her. After that, the switch can be interchanged. The Act states in Section 6(a) that the father would be considered as a natural guardian of a boy or an unmarried girl and after him, the mother shall be considered as the same. However, In the case of Githa Hariharan v. Reserve Bank of India, the Supreme Court of India clearly stated that the word ‘after’ in the Act does not mean ‘after the death of the father’, it rather means if the father is unfit or in the absence of father, the mother would be considered as a ‘Natural Guardian’ of the child. In the case of Jijabai v. PathanKhan, the minor daughter was living with her mother after the separation of her parents, and the mother was considered the natural guardian
Section 6(c) states that after the marriage, the Husband becomes the Natural Guardian of the wife. After divorce, this guardianship right ends but alimony and maintenance prevails in the majority of the cases. The ex-husband would still be liable for the maintenance of the ex-wife as per Section 25 of the Hindu Marriage Act 1955. The husband would be held liable to pay a certain amount of money from time to time to the wife for her living or permanent alimony of a bigger amount to the wife.
The rights of Natural Guardian of a minor can also be taken away from the person if he has ceased to be a Hindu or if he has attained hermit(vanaprastha) or an ascetic(yati or sanyasi) as per Section 6 of The Hindu Minority and Guardianship Act, 1956.
As per Section 3(b)(ii) of The Hindu Adoption and Maintenance Act 1956, a person is also liable for the marriage’s reasonable expenses of the unmarried daughter’s wedding.
The Custody of a Child after divorce is broadly defined in Section 26 of The Hindu Marriage Act 1955. Most of the time, a father is considered to be a ‘natural guardian’ and takes the burden of the maintenance of the minor child but in the exceptional case of Padmja Sharma v. Ratan Lal Sharma, the Mother had to pay the maintenance for her minor child. Even though it may look advancing, it cannot provide equality, as a mother isn’t showcased as a natural guardian before the father.
As the laws got interpreted after coming into force, there have been several stances that the different Courts have taken at different points in time. Taking a view of the judgments, custody has been classified into a few parts and the Court tries to apply those after hearing the arguments of both sides and thinking about the welfare of the child.
- a) Physical Custody:- Under this, the child gets to live with one parent, and the other parent is given visitation rights so that the child can meet the other parent as well.
- b) Joint Custody:- This is the most appropriate way for the upbringing of the child after divorce. This system allows the child to live with each parent for a fixed duration.
- c) Sole Custody:- If the situation arises that either of the parents is considered incapable of upbringing the child, then the Court grants the other parent full custody of the child.
- d) Legal Custody:- In this, the court grants one or both parents to take all the major life decisions of the child till the ward turns 18. The rights include financial, religious beliefs, educational, medical needs, etc.
- e) Third-party custody:- Under the unfortunate circumstances of the death of both parents, the court grants third-party custody to either grandparents or relatives of the child. This custody can also be granted if the parents are abusive to the child.
In certain cases, there have been incidents in one of the parents dying so that the child lives with the relative because the other parent does not manage to spend time with the child. In the case of Essakkayal Nadder v. Sreedharan Babu, the mother died and the father was not residing with the children. The children were looked after by their aunty. This led to confusion regarding the natural guardian and the minor’s property’s guardianship. The Court stated the above circumstances did not mean that the father was not the ‘natural guardian and alienated the minor’s property as he was not declared an unfit guardian for any other reason.
The Guardianship and Wards Act 1890
66 years before the introduction of The Hindu Minority and Guardianship Act 1956, The Guardianship and Wards Act was implemented to govern the guardianship laws for all the religions in India. Unlike The Hindu Minority and Guardianship Act 1956 which is only applicable to Hindu and sub-sections of Hindu that are Sikh, Buddhist, Jain, Virashaiva, Lingayat, Brahmo, Arya and Prarthana Samaj, The Guardianship and Wards Act 1890 is a secular law and applies to every citizen residing in India. It is pertinent with certain codified and uncodified laws.
Similar to The Hindu Minority and Guardianship Act 1956, this act’s top priority is also the welfare of the child. The act defines the guardianship relation between adults and minors.
As per Section 19(b) and Section 25 of the Act, there used to be a sole superiority of the father in terms of custody but the Personal Laws Amendment that came in 2010 changed the scenarios and gave equal powers to the mothers as well. This Amendment enhanced the role of mothers in the view of guardianship.
Guardianship Rights in Other Religions:
Muslim Laws:- As per Hizanat under the Muslim Personal laws, the child’s custody rights remain with the mother till the child is 7 years of age, except if she is considered unfit or incapable of raising the child. After that, the father is shown as the dominant figure and is the sole guardian as per the ‘Wilayat’ mentioned in the Quran.
Christian Laws:- Due to the absence of child custody rights under Christian law, these are governed by Section 41 of the Indian Divorce Act 1869. By this, the Court decides the custodianship of the child by keeping the child’s welfare at heart. The court can even deny the rights to each parent if it does not consider them fit enough to raise the child.
CONCLUSION:
When Parents get separated, the child’s welfare is the prime concern of the parents and the Court. Parents put in all their efforts and fight with each other in the Court to get custody of the child but the Court grants custody by only thinking about the good future of the child. Before 1890, there was no such law that defined guardianship and child’s rights however, after the Guardianship and Wards Act 1890 came into being, the laws got simplified and made it easier for all religions to understand the concept and relationship between guardian and child. The Act was secular. After the independence, the government tried its best to implement necessary reforms in the society and make every law uniform. To some extent, the government succeeded in doing so with the implementation of the Hindu Minority and Guardianship Act 1956. The Act took the essence of the latter Act and made some necessary changes. The acts defined the importance of the father and the mother in the life of the child even after their separation.
REFERENCES:
Articles:-
This article was originally written by Shaveta Dua and published on The Economic Times website. The link for the same is herein: https://m.economictimes.com/wealth/legal/will/who-gets-childs-custody-after-a-divorce/a-bone-of-contention/slideshow/92761559.cms
This article was originally written by Oishika Banerji and published on the Blog iPleaders website. The link for the same is herein: https://blog.ipleaders.in/understanding-guardianship-under-hindu-law-through-judicial-precedents/
This article was originally written by Param Mansinghka and published on the Legal Wires website. The link for the same is herein: https://legal-wires.com/lex-o-pedia/study-notes-guardianship-under-hindu-law/
This article was originally written by Amay Bajaj and published on the Indian National Bar Association website. The link for the same is herein: https://www.indianbarassociation.org/sc-redefined-hindu-guardianship-law/
This article was originally written by Yuvraj and published on the Legal Service India website. The link for the same is herein: https://www.legalserviceindia.com/legal/article-6579-custody-and-guardianship-of-a-minor-child.html
This article was originally written by Rohit Dhankar and published on the Law Offices of Kr. Vivek Tanwar Advocates and Associates website. The link for the same is herein: https://advocatetanwar.com/key-differences-between-the-guardian-and-wards-act-1890-and-the-hindu-minority-and-guardianship-act-1956/
This article was originally written by Thiruthi Ashokan and published on the Blog iPleaders website. The link for the same is herein: https://blog.ipleaders.in/minority-guardianship-guardian-wards-act-1890/
Case Laws:
Githa Hariharan v. Reserve Bank of India [1992] 2 SCC 228. The link for the same is herein: https://indiankanoon.org/doc/1241462/
Padmja Sharma vs Ratan Lal Sharma, AIR 2000 SC 1398. The link for the same is herein: https://indiankanoon.org/doc/1810824/
Essakkyal Nadar Michayel Nadar vs Sreedharan Babu And Ors., AIR 1992. The link for the same is herein: https://indiankanoon.org/doc/1081860/
Jijabai Vithalrao Gajre vs Pathankhan & Ors, 1971 AIR 315, 1971 SCR (2) 1. The link for the same is herein: https://indiankanoon.org/doc/1377832/
Acts referred:
The Constitution of India, 1950
The Guardian and Wards Act, 1890
The Hindu Marriage Act, 1955
The Hindu Minority and Guardianship Act, 1956
The Hindu Adoption and Maintenance Act, 1956