The PAN allotment process is perhaps not as cumbersome as it used to be. But for Suvam Sinha, it took seven years to get his PAN card and other documents — the way he wished them. That is, without his father’s name on them.
On February 11, the 23-year-old celebrated his victory with a silent prayer on his lips and an emotional long distance chat with his mother, Smriti Sinha, who works as the country manager of a pharmaceutical company in Kathmandu, Nepal. Suvam studies and works as a linguist in Adelaide, Australia.
Suvam fought an embittered battle to get all his primary identity cards, which he is entitled to as an Indian citizen, printed with only his mother’s name as the legal guardian. The PAN card was the last government document he was waiting for after facing multiple rejections.
Though the Income Tax department changed its rules in 2018 to allow taxpayers with single parents to provide their mother’s name instead of mandatorily providing their father’s name as well as the choice between mother’s or father’s name appearing on the card, the e-application till last month didn’t accept the same. When Suvam applied online on February 2, it asked for his father’s name yet again, before the system was updated following the intervention of the National Commission for Protection of Child Rights (NCPCR).
Suvam’s struggle over the years was fraught with frustration — ever since he wished to exercise his right as a child to decide which parent’s name he wanted in his documents.
“Why should father’s name be the only measure of identity. My father was never present in my life, I have never had any relationship with him,” he said.
After completion of High School in Kolkata, when Suvam approached his school principal for the School Leaving Certificate (SLC) without his father’s name, little did he realise the battle was going to be a long drawn one. His father is from Nepal and mother from Bhagalpur, Bihar, and his parents separated when he was two years old.
After much debate, Suvam — who uses his mother’s maiden name — got his SLC as a special case. But, hurdles popped up between 2015 and 2017, when he applied for Aadhaar card and passport. “My application was repeatedly rejected and I realised it was not normal but perceived strange when a single woman raises a child independently in a patriarchal society like ours,” he said.
Each time we went to the respective offices with the application, we were welcomed with dirty looks and snide remarks, Smriti recalled. The mother and son were apparently driven to such humiliation that they dashed off a mail to then External Affairs Minister Sushma Swaraj and then Minister for Women and Child Development Maneka Gandhi.
Change in passport rules
Following similar complaints and a petition on Change.org by another single mother, passport rules were amended in December, 2016 requiring the applicant to provide the name of father or mother or legal guardian.
Suvam wonders why something so simple as his right was made so hard for him but this is a common grievance that often forces single mothers to go to courts. A public interest litigation (PIL) petition in the Madras High Court in September last year by advocate B. Ramkumar Adityan sought that it be made mandatory to furnish the mother’s name in addition to the father’s name in all deeds, affidavits, government documents, school and college certificates, licence, etc.
Indian laws accord superiority to the father in case of guardianship of a minor. Under the religious law of Hindus, i.e. the Hindu Minority and Guardianship Act (HMGA), 1956, the natural guardian of a Hindu minor in respect of the minor’s person or property “is the father, and after him, the mother: provided the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.”
In Islamic law, the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty though the father’s right to general supervision and control exists. The concept of Hizanat in Muslim law states that the welfare of the child is above all else. This is the reason why Muslim law gives preference to the mother over father in the matter of custody of children in their tender years.
Githa Hariharan case
In a landmark judgment in Githa Hariharan v. Reserve Bank of India in 1999, the HMGA was challenged for violating the guarantee of equality of sexes under Article 14 of the Constitution and the Supreme Court held that the term “after” should not be taken to mean “after the lifetime of the father “, but rather “in the absence of the father”. But the judgment failed to recognise both parents as equal guardians, subordinating a mother’s role to that of the father. Though the courts are bound to follow this under the Law of Precedents, the HMGA has not yet been amended.
The Law Commission in its 257th report on “Reforms in Guardianship and Custody Laws in India” in May 2015 recommended that the “superiority of one parent over the other should be removed and that both the mother and the father should be regarded, simultaneously, as the natural guardians of a minor.”
“The government departments have this old notion that the father is the guardian despite the Githa Hariharan judgment. Passport offices may ask for a court order or a custody order. Even schools have been difficult and will not admit the child without the signature of the father. The need is for different government departments to revise their rules based on the Gita Hariharan judgment,” says senior lawyer Geeta Ramaseshan.