Patriarchy of Paperwork: Did he, or did he not?

by Ragamalika Karthikeyan

(Also read Part I and Part II of the ‘Patriarchy of Paperwork‘ series.)

On the 11^th of August 2014, Lok Sabha’s Unstarred questions list featured a query from the Prime Minister of India, Narendra Modi. For the few people who noticed, the fact that a sitting Prime Minister had asked a question in Lok Sabha was only less surprising than the question itself – and the answer it got.

The question, accessed in late October 2014, read[1]:

(a) whether it is mandatory to write the name of the father while writing the full name of an individual in Government documents;
(b) if so, the details thereof and state the provision of relevant law;
(c) whether an individual can write the name of his /her mother, instead of father, in Government document;
(d) if so, the details thereof and if not, the reasons therefor along with the provision of law;
(e) whether the Government proposes to enact/amend relevant law to enable the citizens to write the name of the mother or father, as per the wish of an individual; and
(f) if so, the details thereof and the time by which it is likely to be amended.?

The Law Ministry, to which the question was addressed, gave a reply that most MPs are familiar with – but one, that no one expected the Prime Minister to get: “The information is being collected and will be laid on the Table of the House.”[2]

While working on the Partriarchy in Paperwork series, we tried to access the question again, to see whether this has been answered at all. And surprisingly, we found that instead of Shri Narendra Modi and Shri Saumitra Khan (of TMC), the same question is now attributed to Advocate Narendra Keshav Sawaikar, a BJP MP from Goa.[3] This seems to have happened after some news reports in February 2015 talked about how even the Prime Minister couldn’t get his questions answered in Parliament![4]

And while one Narendra has been replaced by another, the second MP whose name was on the question initially seems to have disappeared from the document altogether!

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[1] Inclusion of Parents Name in Documents, Unstarred Question No. 4604, Answered on 11.08.2014; accessed on Oct 29, 2014 at 02:46am IST

[2] Answer to “Inclusion of Parents Name in Documents”, Unstarred Question No. 4604, Answered on 11.08.2014; accessed on Oct 29, 2014 at 02:46am IST

[3] Inclusion of Parents Name in Documents, Unstarred Question No. 4604, Answered on 11.08.2014; accessed on December 1, 2015 at 11:00am IST

[4] Parents’ name in documents: PM Modi seeks clarification from Law Ministry, Times of India, February 25, 2015; http://timesofindia.indiatimes.com/india/Parents-name-in-documents-PM-Modi-seeks-clarification-from-law-ministry/articleshow/46362745.cms accessed on December 1, 2015 at 11:00am IST

Patriarchy of Paperwork: Who does an adult woman belong to?

by Ragamalika Karthikeyan

This Women’s Day, Prajnya focuses on ‘Patriarchy of Paperwork‘ through a series of posts on our PSW blog. In Part II of the series, we look at whether Government paperwork respects the legal autonomy of adult women. (Read Part I here)

The Preamble of our Constitution secures to all its citizens, Equality of status (and of opportunity), among other things. Article 15 prohibits the state from discriminating against citizens on the grounds of religion, race, caste, sex or place of birth. But, while the societal reality of gender equality is far from the ideal, equally disheartening is the legal status of women in the country. Do women really have ‘equal status’, if at every turn, their identity as adults depends on their father, until it depends on their husband instead?

Are we full citizens, as the Constitution promises, or are we the ‘responsibility’ (property?) of our husbands and fathers, for all practical purposes?

Guardians for adults?

As per the Hindu Minority and Guardianship Act[1], the natural guardian of an unmarried minor girl is her father, but for a married minor girl, the natural guardian is the husband. In an age where child marriage has been legally abolished, this sounds like one of those benign leftovers from a forgotten era. But for many children in India, child marriage is a reality, and this law could still dictate who takes important life decisions regarding her education, health and life.

In the case of adult, married women on the other hand, this law for ‘married minors’ seems to have morphed into the unwritten convention for ‘guardianship’. Barring a few, Govt paperwork still expects a woman to check in ‘Husband’s name’ in the same column as a father or a guardian. As the application for the Voter ID[2] helpfully explains, “In case of an unmarried female applicant, name of Father / Mother is to be mentioned. In case of a married female applicant, name of Husband is to be mentioned. Strike out the inapplicable options in the column.”

The application for a driving license in Tamil Nadu requires you to identify whether you’re the ‘Son/Wife/Daughter’ of someone.[3] The form to get a PAN card, on the other hand says, “Even married women should give Father’s name only.”[4] What all of them imply is that for an adult women, her husband holds the same place as her father would.

Proof of Identity vs Ownership

The logic behind filling the name of any relative on Govt paperwork – or any paperwork – is to establish a proof of your identity, in the case of adults, and to fix responsibility in the case of minors.

While it makes sense for a married adult to establish their identity through their spouse, a blatantly sexist demand for ‘Father’s name’ or ‘Husband’s name’, with no similar requisition for a ‘Mother’s name’ or ‘Wife’s name’ (excepting a few cases), seems to have little to do with identity, and much more to do with ownership. (The Aadhar application seems very progressive in this regard, and has a column for the details of father/mother/guardian/husband/wife.)[5]

We all belong to our fathers, the paperwork patriarchy seems to say, except when we’re women and we’re married – in which case we belong to our husbands. It is the husband who is the decision maker in your life, irrespective of your actual distribution of income and labour, your lived reality, or any notions of equality.

Women’s Independent Identity

If it is proof of identity we’re concerned with, then, logically, it makes sense to ask for the name of the person who is currently around and closest to you. Whether that’s a mother or a father, a sister or a brother or a cousin, a husband or a wife or a child, or a roommate, partner or friend.

But when it comes to identity itself, shouldn’t women – indeed, all adults – have the freedom to decide? Whether they want to take their father’s name or a patrilineal surname as the last name, or their mother’s name instead, whether they choose to be identified by their husband’s name, or last name, or a name of their own – should Govt be in the business of pre-deciding at all? 

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[1] Section 6a, The Hindu Minority and Guardianship Act, 1956

[2] Section 6, Guidelines for filling up the application form 6, Election Commission of India; http://eci.nic.in/eci_main/forms/FORM6.pdf accessed on December 1, 2015 at 10:00am IST

[3] Form 4, Form of Application for Licence to Drive a Motor Vehicle; http://www.tn.gov.in/sta/form4.pdf accessed on December 1, 2015 at 10:00am IST

[4] Form 49a, Application for Allotment of Permanent Account Number; https://www.tin-nsdl.com/download/pan/form49a.pdf accessed on December 1, 2015 at 10:00am IST

[5] Aadhar Application Form, UIDAI https://uidai.gov.in/images/uid_download/enrolment_form.pdf accessed on November 18, 2015 at 11pm IST

Patriarchy of Paperwork: The ‘Superior’ Guardian

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]

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[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