Some recent recommendations made by the National Commission for Women have made a welcome attempt to address the problem of prejudice that is seen in many laws on parenting and children and to bring them in line with new social thinking and economic realities. The commission has reviewed the provisions of the Hindu Minority and Guardianship Act, 1956, and the Guardianship and Wards Act, 1890, and proposed amendments which would better serve the interests of both women and children, especially if they are in vulnerable situations. Section 6(a) of the 1956 Act makes the father the natural guardian of any Hindu minor child “born within wedlock’’. The mother gets the guardianship rights only in the absence of the father. But the next section, Section 6(b), says that in the case of an “illegitimate’’ boy or girl, the natural guardian is the mother, and then the father.
The commission has recommended that either the father or the mother should be treated as the natural guardian, with equal rights for both of them in line with the right to equality granted by Article 14 of the Constitution and the right to protection against discrimination granted by Article 15. The existing law reflects the prejudices of the society when it was enacted and gives primacy to the man’s rights within a marriage. The law has to be aligned with the changes in society and ideas of shared parenting which are being accepted now. Deserted women and rape survivors with children will also get legal rights and recognition as natural guardians. The commission has also proposed a broader definition of natural guardians to cover grandparents and adoptive parents in certain situations. Another welcome recommendation is to remove the word “illegitimate’’ from Section 6(b). The commission has done well to state that no child is illegitimate, and all children are equal before the law. The recommendation makes the law gender-neutral and more humane and reflects the changed legal status of marriage and partnership. The idea that the burden of illegitimacy, as defined by notions of right and wrong in a patriarchal society, should be carried only by women should have no place in modern society.
The guardianship laws need to be amended in accordance with the commission’s recommendations. The Law Commission has made similar recommendations in the past. In July, the Supreme Court also told the government to respond to a petition seeking changes in the laws for shared or joint parenting. The existing laws and regulations need changes, and the government should go in for the best ideas which will take them forward from the 19th and 20th centuries when they were formulated.
