A mother and father should have equal rights as guardians of their children and the Hindu Minority and Guardianship Act (HMGA), 1956 should be amended as it discriminates against women, a parliamentary panel has recommended in its report.
Why in news now?
- The said Act does NOT provide for joint guardianship.
- NOR does it recognise the mother as the guardian of the minor legitimate child unless the father is deceased or is found unfit.
- The Act gives preference to father over mother.
- Thus it goes against the right to equality and right against discrimination envisaged under Articles 14 and 15 of the Constitution.
What is Guardianship?
- A guardian is a person appointed to look after another person or his property in India, as per the personal laws of the religion into which the minor was born.
- He or she takes on the responsibility of caring for and protecting the person for whom he or she has been appointed guardian.
- On behalf of the ward’s person and property, the guardian makes all legal decisions.
Guardianship under the Hindu law
- The Hindu Minority and Guardianship Act, 1956, regulates guardianship of minor children in Hindu law (covers Hindus, Sikhs, Jains and Buddhists in India).
- A minor is described as anyone under the age of eighteen, according to Section 4(a) of the Act.
- A guardian, according to Section 4(b) of the Act, is an individual who is responsible for the child’s care, property, or both.
- The various forms of guardianship in India include:
- Natural guardian: Only three people are considered natural guardians, according to Section 6 of the 1956 Act: the mother, father, and husband.
- Testamentary guardian: A testamentary guardian is a guardian appointed in a will by the natural guardian. A father has the testamentary right to appoint a guardian for his legitimate children or property or both. If the mother is alive after the father’s death, she will be the guardian of the children, and the fathers will be restored only if the mother dies without appointing a guardian.
- Guardian appointed by the court: The court can appoint a guardian to a child under the Guardians and Wards Act, 1890 who would be called a certified guardian. The powers of the certified guardian are also stated in the Act. The Act confers power to district courts.
- De facto guardian: A de facto guardian is someone who has consistently shown an interest in caring for, handling, or managing the infant, his or her property, or both. A de facto guardian is not a legal guardian, and therefore, has no legal authority over the child or the child’s property, but he has assumed responsibility for the child and the property.
- Guardians by affinity: The guardianship of a minor widow by a relative within the degree of sapinda (generation of ancestors) is known as affinity guardianship.
Guardianship under Muslim law
The law of guardianship in Muslims came from certain verses in the religious texts.
- Natural guardian: The only father is considered the natural guardian of a child under Muslim law, and the mother is not considered a natural or other guardian even after the father’s death.
- Testamentary guardian: The term wali, guardian, amin, or kaim-mukam refers to a testamentary guardian.
- Guardian appointed by the court: When natural and testamentary guardians fail, the court has the right to appoint a guardian for the child. The Guardians and Wards Act of 1890 governs the appointment of a guardian for a child from any group.
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