Abstract
The aim of the paper is to scrutinise the complicated aspects dealing with parental rights and guardianship disputes in Modern India. The study examines various legislations, critical judgments to bring out the fact as to how the judicial system of India has balanced the traditional values with forward thinking systems of law navigating contentious family issues.
The paper traces the movement from hierarchical preference of the male parent to the concept of the “well-being of the child.” While deciding such cases, the judiciary often faces challenges such as gender inequality, socio-economic biases and the impact of religion in the realm of personal law.
This paper aims at contributing to the mindful understanding of the Family law system in the diverse structure of India and initiates recommendations that aim to serve the better welfare of families and children.
Key Themes Highlighted
- Parental rights and guardianship disputes in Modern India
- Balance between traditional values and forward-thinking legal principles
- Shift from paternal preference to the well-being of the child
- Judicial challenges including gender inequality, socio-economic bias, and religion
- Welfare-oriented recommendations for families and children
Introduction
Child custody, parental and guardianship disputes are the most complex conflicts. It becomes even more intense as the societal norms are swiftly transforming from conventional family systems towards a progressive view of gender equality, welfare and wishes of the child and the duties of the parents towards their ward.
Changing Societal Norms
A unique challenge is posed where the family structures in India are governed by religious leanings. The judicial system has to walk the thin line of maintaining the sanctity of the cultural system along with providing the constitutional rights that guarantee equality, and being of the child.
Scope of the Study
The study will evaluate the current status of parental rights and guardianship in the Indian legal framework, by analysing the obstacles that prevail in equitable resolution of conflict and highlighting landmark judgments that have played an influential role in providing the best interest of the child.
Historical Background And Legal Reforms
Evolution Of Custody Laws In India
The custody laws in India are deeply influenced by its colonial past. In the pre-independence era, the custody laws were governed by religious personal law that held patriarchy as paramount. According to this norm, the father is the natural and the sole guardian, granting him and his family sole rights of the child.
The Muslim personal law carried different provisions depending on the child’s age and gender.
The first step towards a reformative legislation in post-independent India was the “Hindu Minority and Guardianship Act” 1956. It addressed the inequalities that prevailed in the society and provided a structured guideline of guardianship while still upholding the parental preference.
The Section 6 of HMGA designated “Father” as the natural guardian, with the mother being accorded as the guardian only after the father. This provision was later challenged as the societies transformed towards equal rights.
Current Legislative Framework
The modern legal framework that governs parental rights and guardianship in India can be analysed through these breakthrough legislations:
The Guardians And Wards Act, 1890
This legislation of the colonial era still serves as the foundational secular law that applies to all communities in India. The law rests the power with district courts to appoint guardians for minors and their property, which is largely guided by the principle of welfare and the best interest of the child.
This colonial-era legislation continues to serve as the primary secular law applicable to all communities. It empowers district courts to appoint guardians for minors and their property, guided by the welfare principle.
Personal Laws
Religious communities are governed by their respective personal laws:
- Hindus, Buddhists, Jains and Sikhs are guided by the HMGA, 1956
- Muslim Personal Law is derived from the Sharia.
- Christians are governed by the “Indian Christian Marriage Act”, 1872 and the HMGA, 1956
- “The Parsi Marriage and Divorce Act”, 1936
The Protection Of Women From Domestic Violence Act, 2005
In this legislation, about custody orders, the court may temporarily grant custody of the child or children to the aggrieved partner, in this case, the mother. The father during the process may be granted visitation rights.
However, if the Court feels that the welfare of the children at any point may be compromised, then the visitation rights may stand withdrawn.
The Juvenile Justice (Care And Protection Of Children) Act, 2015
This legislation provides for those children who have been in conflict with the law, as well as abandoned children, providing for their well-being and welfare.
Summary Of Key Legislations
| Legislation | Primary Focus |
|---|---|
| The Guardians And Wards Act, 1890 | Appointment of guardians based on welfare of the child |
| Hindu Minority And Guardianship Act, 1956 | Structured guardianship under Hindu personal law |
| The Protection Of Women From Domestic Violence Act, 2005 | Temporary custody and visitation rights |
| The Juvenile Justice Act, 2015 | Care and protection of children in conflict or abandoned |
Journey of Evolution
The legislative reforms and judicial processes that have been taken stride, where judgments have moved away from parental preferences and the welfare of the child is seen as paramount.
Landmark Judicial Strides
Land Breaking Judgement: The First Stride
The first positive shift was the case between “Githa Hariharan v. Reserve Bank of India”. The landmark judgment was made in this case, which paved an important path in the case of child custody disputes.
The Supreme Court sought to reinterpret Section 6 of the HMGA, under which in case of any dispute the “Father” held the natural privilege of having the child’s custody.
The court interpreted the term “after” as “in absence of” thereby breaking the hierarchical and the patriarchal privilege given to the father.
This significant groundbreaking ruling for the first time recognized “Mother” as equal guardians while the father is still around.
Theory of “Best Interest”
This doctrine is best reaffirmed by the “Roxann Sharma v. Arun Sharma” case. The court superseded traditional presumptions and parental claims.
Its judgement reiterated that the custody of the child must be best determined by the factor that primarily serves the betterment and the welfare of the child.
The Court ascertained:
“The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and paramount consideration is the welfare and interest of the child”.
Another point in the case was of “ABC v. State (NCT of Delhi)” (2015). The court proclaimed the right of guardianship of an unwed mother without requiring the presence of the father.
This was an exceptionally path breaking judgement that moved away from the traditional societal norms and blazed the path for future reforms.
Key Judgments at a Glance
| Case Name | Key Contribution | Legal Impact |
|---|---|---|
| Githa Hariharan v. Reserve Bank of India | Reinterpretation of Section 6 of HMGA | Recognized Mother as an Equal Natural Guardian |
| Roxann Sharma v. Arun Sharma | Reaffirmation of Child Welfare Principle | Best Interest of the Child as Paramount Consideration |
| ABC v. State (NCT of Delhi) (2015) | Guardianship Rights of Unwed Mother | Removed Mandatory Requirement of Father’s Presence |
Challenges in Parental and Guardianship Conflicts
Personal Religious Laws and Their Impact
Despite progressive legislative and judicial strides, many contrasting situations are created that are influenced by the religious personal laws.
Under the Muslim personal law, it is provided that the custody of the child will automatically transfer from the mother to the father once the child attains a certain age.
| Child | Age at Which Custody Transfers to Father |
|---|---|
| Boy | Seven years of age |
| Girl | Age of puberty |
Such situations lead towards inconsistencies in judgments.
Another case is of “Shabnam Hashmi V Union of India” (2014). In this case, the Supreme Court accorded the right to adopt under the Juvenile Justice Act regardless of personal laws that are against adoption.
Gender Inequality and Socio Economic Factors
Despite reforms and groundbreaking judgments in custody battles, the woman has to face a subtle form of bias.
- During the custody disputes, women are questioned about their character
- Mental well-being
- Career choices
- Future plans of remarriage
However, these questions never come up in case of the father.
The court addressed this differentiation and criticized the tendency to apply different moral standards to mothers and fathers.
Another major area of dispute lies in socioeconomic status. While granting custody, the court takes into account the financial ability of the parent to provide for the best interest of the child.
In this case, the mother may be left behind, for she may not be financially in the position to provide the best for her child.
This may be attributed to her decision of prominently being a caregiver and having sacrificed her career for the same after marriage.
This problem area is compounded as custody conflicts have high financial stakes and may severely deplete financial resources, forcing the financially weaker parent to accept unfavourable outcomes of the conflict.
International Custody Disputes
With increased mobility and a global world, a new complex situation is created in the family law custody disputes.
This happens when the child is removed from their original residence and placed in a different country.
Since India is not a signatory of the Hague Convention that looks after the civil aspect of child abduction, this creates significant troubles.
In “V. RaviChandran V. Union of India (2009)”, the Supreme Court underlined principles for governing international custody disputes emphasizing the need to look into foreign court orders with primacy accorded to the welfare of the child.
Emerging Trends and Outlook
Co-Parenting
The recent trend shows an increasing demand for a particularly modern concept of shared parenting or co-parenting in case of divorce or separation of the couple. The parenting arrangement suggests that the child has meaningful relations with both parents.
Mediation and Alternative Dispute Resolution
Custody disputes involve a huge amount of emotional and financial toll; therefore, the courts have highly proposed mediation and alternative counseling as a means of resolving and settling the disputes. The Supreme Court stressed the pros of reaching consensual agreements.
It brought forward the point that:
Mediation as a method of alternative dispute resolution has proven to be an effective tool, particularly in matters concerning family disputes. It helps preserve relationships and focuses on the best interests of children.
Several family courts are now equipped with mediation centres that have trained professionals in child psychology and marriage counseling so that the best interest of the child may be served and a consensual settlement to family issues may be reached.
Participation of the Child and Legal Representation
The wishes of the child are being taken into consideration while deciding the custody issues. In “Sheoli Hati v. Somnath Das” (2019), the Supreme Court told the lower court to find out the preference of the child in an age-appropriate manner, and its preference may be taken into account while granting custody.
The courts have also experimented by appointing legal representatives for the child, where they represent the wishes of the child rather than that of the parents. The main idea of this is to ensure that the custody conflict is resolved, and if the conflict persists, then the focus of the conflict must work towards only the betterment and the welfare of the child.
Conclusion
The judicial system, through its legislation, reforms, and due diligence, has made a progressive shift from the traditional patriarchal family system to a state where preference to a child’s wishes is taken into account while deciding custody issues.
The courts have also moved away from gender bias and played an important role in granting mothers the custody of the child even when the father is around. Last but not the least, legal representatives are being provided so that the preference of the child is accorded and its welfare is met.
Yet, we must take into account that India, being a country of diverse cultures, has personal laws guided by their religious leanings. This may present challenging situations. The need of the hour is a Uniform Civil Code so that contrary judgments may not be passed and the best interest of the child is attained.
References
- P. Diwan, S. Jain & P. Diwan, Law of Adoption, Minority, Guardianship and Custody (2000).
- Aparna Bajpai, Child Rights in India: Law, Policy, and Practice (Oxford Univ. Press 2018).
- Aparna Bajpai, Child Rights in India: Law, Policy, and Practice (Oxford Univ. Press 2018).
- A. Pradhan, Evolution of Child Custody Laws from “Parens Patriae” to the “Welfare of the Child”, 11 Indian J.L. & Just. 158 (2020).
- Githa Hariharan & Ors. v. Reserve Bank of India & Ors., MANU/SC/0117/1999 (India).
- S. Nigam, Guardianship Law in India: Examining the Principle of “Best Interests” of Minors and the Rights of Single Mothers as Sole Guardians, 31 Indian J. Gender Stud. 308 (2024).
- Roxann Sharma v. Arun Sharma, MANU/SC/0165/2015 (India).
- ABC v. State (NCT of Delhi), MANU/SC/0718/2015 (India).
- Shabnam Hashuni v. Union of India & Ors., MANU/SC/0119/2014 (India).
- V. Ravi Chandran v. Union of India & Ors., MANU/SC/1826/2009 (India).
- Sheoli Hati v. Somnath Das, MANU/SC/0897/2019 (India).
