|
By Laxmi Murthy In a society which reveres motherhood, deifies the mother in mythology and popular cinema, mothers in India have hardly any legal rights over their children. The Tamil Nadu order making it mandatory for schools to list the mother as joint or sole guardian of the child, is a small but significant change
When three-year-old Nitish registered his name in a Salem school in early May, he was, probably unknown to himself, creating history of sorts. Entered in the school register as V Nitish, after his mother Vimladevi and father SR Saravanan decided to opt for the mother's name for their child, the move came three days after the Tamil Nadu government's April 28 order making it mandatory for schools to list the mother as joint guardian or sole guardian of the child, irrespective of whether the father were alive or not. But isn't the mother naturally the guardian of the child? Absurd as it may sound, it is the father who is the 'natural guardian' of his children. In a society which reveres motherhood, deifies the mother in folklore, song, mythology and popular cinema, mothers in India have hardly any rights over their children - a position codified by law. According to Section 6 of the Hindu Minority and Guardianship Act (1956) the father is the 'natural guardian' of his legitimate minor son and his minor unmarried daughter. He is the guardian of the child's 'person and property' to the exclusion of the mother. The mother's rights enter the picture only if the father dies; takes to vanaprastha (renunciation), becomes a sanyasi (ascetic) or if a court deems him 'unfit' for guardianship. According to Muslim personal law, the general rule is that a divorcée is entitled to custody of her children until the age of 7 for males (classical Hanafi position) and puberty for females, subject to some conditions, though there is some flexibility as the ward's best interests are considered paramount under the terms of the Guardians and Wards Act of 1890. This Act, applicable to all religious communities in India, does no better as far as the mother's rights are concerned. Section 19 of this Act prohibits the court from appointing the guardian of a minor whose father is living, and is not, in the court's opinion, unfit to be guardian. As long as this lack of fitness is not proved, the child's welfare 'rests' with the father. Taken together, legal provisions and the interpretation of various high courts have placed the entire onus of the minor's welfare and guardianship on the father. Ironically, the same act recognises the right of a mother to be the natural guardian of her children if she is not married. Marriage, it would appear, divests a woman of her capability of guardianship of her children! The question of guardianship, however, usually arises only when there is a dispute or when there is a breakdown of the marital unit. In a 'happy' marriage, it is assumed that the father is the more 'responsible' parent. "These provisions in effect strip the mother's right to be an equal partner in parenthood. What disqualifies a mother from making decisions about her child's welfare? There is no social, economic, scientific or biological basis to the assumption that a woman is not capable of guardianship. And if there is no rational basis to this law, what is the sole criterion at work? The mother's gender. The use of this criterion in isolation is a blatant violation of the equality promised by Articles 14 and 15 of the Constitution," said Githa Hariharan, award-winning author who in 1995 challenged these provisions in the Supreme Court when the Reserve Bank of India refused to allow her to sign the documents necessary for investment bonds for her minor son. The contentious section of the Act states, "In case of a boy or an unmarried girl... (guardianship rests with) father and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with mother." The word 'after' has been generally interpreted to mean after the lifetime of the father. Lawyer Indira Jaisingh who represented Hariharan argued that the section was violative of the equality clause of the Constitution as the mother of the minor was relegated to an inferior position. The judgement in February 1999 declared that the RBI's order was wrong. It stated that 'after' meant 'in the absence of', the word 'absence' referring to the father's absence from the care of the minor's person or property for any reason. This could be his disinterest in the child's affairs, absence from the city or understanding between the couple where the mother is put in charge of the minor. The ruling, while providing significant relief to mothers who are in abusive or exploitative marriages, and who are afraid to leave their husbands for fear they will lose access to their children, has not, however, changed the perspective of viewing the father as the 'primary' guardian of the children. In earlier judgements, such as the one in the Sarita Sharma case in 1997, the Supreme Court of India overrode Section 6 of the Hindu Minority and Guardianship Act, by declaring, "The provision (whereby the father is the natural guardian) as to what is conductive to the welfare of the minor." The Court with this order thus upheld the welfare of the minor children rather than strictly adhering to the rules under the Hindu Minority and Guardianship Act. Nevertheless, it was concern about the child's welfare, and not gender parity that was the overriding factor. Women activists have not been alone in recommending changes in this archaic notion. This would involve changes in law as well as in policy matters. More than a decade ago, in 1989, the Law Commission in its 135th Report recommended that both the mother and father be declared natural guardians with equal rights over the child. While women are increasingly being recognised as individuals in matters of employment and finances, as mothers they are still struggling for rights as equal parents. It is almost as though mothers do not officially exist. The father's endorsement on every document is still mandatory in schools, colleges, banks, employment matters, domicile and travel documents, licences and all other official identity papers needed by an individual. The order of the Tamil Nadu government will hopefully serve to create small cracks in the rock face of patriliny. (Laxmi Murthy is a freelance journalist specialising in gender and development. She has been active in the women's movement for the past 18 years) InfoChange News & Features, May 2003
|
