Guardians for good

July 08, 2015 12:32 am | Updated 12:32 am IST

Under the Hindu Minority and Guardianship Act, a child’s natural guardian, both of person and property, is first the father and then the mother. The law thus buttressed the patriarchal structure. With its recent judgment allowing unwed mothers to apply for sole guardianship of minor children, the Supreme Court has removed one more brick from this edifice. In this case, an educated and employed mother wanted to make her five-year-old the nominee for investments. The paperwork stipulated that she either provide the name of the father or get a guardianship certificate. When she approached the court, she was directed under Section 11 of the Guardians and Wards Act, 1890 to disclose the name and whereabouts of the father, and when she refused to do so, her claim was rejected. The High Court upheld the order, with the reasoning that a natural father could have an interest in the child even if there is no marriage. The Supreme Court bench headed by Justice Vikramjit Sen has now given a seminal ruling that recognises, first that the interests of the child are supreme, and it is therefore imperative to name the mother as guardian; and second, that the woman has a fundamental right on grounds of privacy to not disclose the father’s identity. It notes that the mother has taken responsibility for the child, with the father, a married man, possibly even unaware of the existence of this son.

This ruling will have far-reaching implications for women in India, who have fought long for equal rights in the matter of guardianship. From school admission and bank account opening forms to investment papers, official documentation insists on the father’s name. In 1999, writer Githa Hariharan appealed to the Supreme Court when she could not make an investment in her son’s name as his guardian because of the stipulation that she include the father’s name, though the couple was separated and Ms. Hariharan was the child’s caretaker. The court then declared that both parents must be considered equally as natural guardians, and the word ‘after’ in the Hindu Minority and Guardianship Act should not be construed as making the mother’s position secondary. However, most public and private institutions still insist on the father’s name or signature on forms. In many countries, the law gives both parents equal guardianship. The new ruling not only gives single mothers a strong legal standing but also protects the rights of children born out of wedlock. It is of special significance to children born to sex workers. It gives a fillip to single women who want to adopt. Though the Guardianship Act names the mother first as guardian in the case of an illegitimate child, unwed mothers face harassment on all fronts. This judgment will go a little further in safeguarding their rights.

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