Patriarchy of Paperwork: The ‘Superior’ Guardian

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by Ragamalika Karthikeyan

This Women’s Day, Prajnya focuses on ‘Patriarchy of Paperwork‘ through a series of posts on our PSW blog. In Part I of the series, we look at guardianship and custody laws in India. (Read Part II here.)

The Indian Constitution holds up equality for men and women; Indian paperwork on the other hand, hasn’t quite caught up with that ideal. From the application form for a PAN card, to a school report card, everyone wants to know the applicant’s Father’s name (or Husband’s) – but Mother, who plays an equal, if not larger part in the upbringing of a child, is unwanted in these columns.

The justification for needing a father’s name in a document is to establish the identity of a person, in the case of adults. In the case of minors, this detail also establishes who is responsible for the person and property of the child – meaning, who takes care of the well being of the child, and who is responsible for taking important decisions about education, healthcare, property etc of the child.

But by demanding a ‘Father’s name’ instead of a gender neutral ‘Parent’s name’ or ‘Guardian’s name’, we’re stating that the mother is less important than the father for all practical purposes. What’s worse, this paperwork patriarchy is sanctified by Indian law, which insists that the natural guardian of a minor is ‘the father, and after him, the mother.’[1]

Legal Framework

The legal and physical custody of children in India are governed by the following laws:

  • Guardians and Wards Act
  • Hindu Minority and Guardianship Act (HMGA)
  • Hindu Marriage Act
  • Islamic Law
  • Parsi Marriage and Divorce Act
  • Indian Divorce Act.

The HMGA governs Hindus, Buddhists, Jains, Sikhs, and anyone who is not a Muslim, Christian, Parsi or Jew. According to this law, the natural guardian of a minor boy or an ‘unmarried minor girl’ is the father, and ‘after him’, the mother. Evidently, this clause is problematic for several reasons.

Firstly, by putting the mother after the father, the law is in denial of the equality of sexes, a point brought out in the landmark Geeta Hariharan vs Reserve Bank of India case. While this has been traditionally understood to mean that the mother can be considered a natural guardian only after the death of the father, the Supreme Court, in this case, interpreted it differently. The court held that the term ‘after’ in this context should not be interpreted as ‘after the lifetime of’, but instead as ‘in the absence of’. The SC further clarified that ‘absence’ here could mean either ‘temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise’.[2]

But even after this concession, the father ‘continues to have a preferential position when it comes to natural guardianship’.[3] As the Law Commission of India observed in its report on guardianship and custody laws, “Even if a mother has custody of the minor since birth and has been exclusively responsible for the care of the minor, the father can, at any time, claim custody on the basis of his superior guardianship rights.”[4]

The only scenario in which the mother is given preference over the father for natural guardianship is if the child is illegitimate, or if the father has renounced the world and become a hermit. Further, step-fathers and step-mothers don’t count in this argument at all.

(And although Child Marriage has been abolished in India, HMGA considers the ‘husband of a married girl’ her natural guardian.)

Guardianship vs Custody

It’s important to understand that ‘guardianship’ here encompasses both legal custody as well as physical custody. Legal custody is the power to take decisions with regard to the child’s life, whereas physical custody means where and with whom the child will physically live. This distinction is important in case of dispute. As per HMGA, for a minor girl below the age of 5, the mother is responsible for physical custody. As per Islamic Law (Hizanat), the father is the natural guardian (legal custodian) of minors, but the mother holds the custody of boys under the age of 7, and girls until they reach puberty.[5]

Implications

In every day life, these laws translate into paperwork that denigrates the mother to a secondary status, and a system that refuses to look at the changing face of society. For children who are brought up by single mothers, or step-parents, or guardians, this insistence on ‘Father’s name’ completely fails to reflect their reality.

But beyond equality on paper, this father-preference presents a real hurdle for survivors of domestic violence. Consider the case of a woman who has finally decided to leave her abusive husband for a shelter, and a new beginning. For women who decide to take their children along, getting them admitted into a new school is a massive challenge, as schools do not give transfer certificates without the father’s signature.

In case of dispute, courts have interpreted Islamic law to mean that the mother gets neither custody nor guardianship in case the son is over 7 years of age, or the daughter has reached puberty. Alternately, for boys who are under the age of 7 and girls who haven’t reached puberty, courts have automatically granted custody to the mother.[6]

Way Forward

The Law Commission has made the case for granting joint custody and guardianship rights to both parents[7] – a move that the Centre must look at as they review old laws.

But Govt departments and schools, at least, need not wait for a law to modify their practices; some have already started the process of change. The application for a passport in India requires both parents’ names;[8] the Aadhar application form goes one step further, by asking for details of ‘Father/Mother/Guardian/Husband/Wife’.[9]

[1] Section 6a, The Hindu Minority and Guardianship Act, 1956
[2] Geeta Hariharan vs Reserve Bank of India, 1999
[3] Section 2.2.10, Report No. 257, Reforms in Guardianship and Custody Laws in India, Law Commission of India, May 2015
[4] Section 2.2.10, Report No. 257, Reforms in Guardianship and Custody Laws in India, Law Commission of India, May 2015
[5] ‘Custody under Hindu, Muslim, Christian and Parsi Law’, by Mohit Agarwal and Romit Agairwal, Legal Service India http://www.legalserviceindia.com/article/l34-Custody-Laws.html accessed on November 18, 2015 at 11.20pm IST
[6] Section 2.3.3, Report No. 257, Reforms in Guardianship and Custody Laws in India, Law Commission of India, May 2015
[7] Section 3.3.1 to 3.3.5, Report No. 257, Reforms in Guardianship and Custody Laws in India, Law Commission of India, May 2015
[8] Application form for fresh Passport, Ministry of External Affairs http://passportindia.gov.in/AppOnlineProject/online/printForm accessed on November 18, 2015 at 11pm IST
[9] Aadhar Application Form, UIDAI https://uidai.gov.in/images/uid_download/enrolment_form.pdf accessed on November 18, 2015 at 11pm IST

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