Hindus & Guardianship

Today morning, in the newspaper I read an article which really baffled me. The article said that as per  act and law the father is the natural guardian of the sons and daughter till they attain majority. This is as per the provision (Section 6) of Hindu Minority and Guardianship Act (HMGA) of 1956. I always thought that natural guardian of the child is always a mother because I have always observed that the custody of the minor child is generally given to mother in the case of divorce and the father is asked to provide child’s maintenance expenses to the mother, but it is not that way as per the law. What does this section 6 of HMGA says

Section 6 of HMGA 1956

Natural Guardians of a Hindu minor- The natural guardian of Hindu minor in respect of minor as a person, as well as in respect of minor’s property (excluding his or her undivided interest in joint family property), are

1. In case of a boy or unmarried girl-the father, and after him the mother: provided that the custody of minor who has not completed the age of 5 years shall ordinarily be with mother.
2. In case of an illegitimate boy or an illegitimate unmarried girl-the natural guardian is the mother, and after her, the father.
3. In the case of married girl- the husband

Provided that no person shall be entitled to act as the natural guardian of minor under the provisions of this section-

• If he has ceased to be Hindu, or
• If he has completely and finally renounced the world by becoming hermit (vanaprastha) or an ascetic (Sanyasi)

In this section the expression ‘father’ and ‘mother’ do not include step father and step father.

Application of act

1 This act applies

1. To any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingyat or a follower of Brahmo, Prathana or Arya Samaj.
2. To any person who is Buddhist , Jain or Sikh by religion.
3. To any other person domiciled in the territories to which this act extends who is not Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any matters dealt with herein if this act has not been passed.

Explanation-The following persons are Hindus, Buddhists, Jains, Sikhs by religion, as the case maybe-

1. Any child legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion
2. Any child legitimate or illegitimate, one of whose parent is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as member of that tribe.

• Any person who is convert or reconvert to the Hindu, Buddhist , Jain or Sikh religion.

Now friends, you may ask what prompted me to write about this act.

Yesterday a case came up in Supreme Court where a retired Lady army officer is going on with her divorce proceedings in family court put her point regarding this section 6 of HMGA through her advocate. The advocate argued that the 1956 law’s gender based discrimination for grant of guardianship of children violated constitutional right to equality guaranteed to Hindu women. The petitioner said this  provision contradicts, the object of the Act, which is welfare of the minor child. “ The Act came into force in 1956, when men exercised more financial power and social sanction to control and dominate women and children in a family. After more than 6 decades, it would be natural, reasonable and advantageous for the welfare of child if his/her guardianship is entrusted with mother.”

After reading about this news item, I was forced to find out this Act, and the salient features are mentioned above.

In the above mentioned case in SC, the petitioner also quoted the English Law-English Guardianship Act of 1973, which provides the same right and authority to both the parents in matters of guardianship of minor and administration of his/her properties.

The SC has sought the Centre’s response to this petition which challenged validity of provision of HMGA of 1956.

In my opinion, during the present times the rights of guardianship should be same for both the genders (men & women). The father should not become natural guardian as per law. It is for the court to decide who will be better natural guardian for the child.

What you say my friends.

Waiting for your comments/views/feed backs on this blog.

Anil Malik

Mumbai, India

14^th Nov 2019