Recently a bench headed by Justice Arun Mishra issued notice to the Centre after petitioner’s counsel 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 apex court had issued a similar notice to centre last month on another petition seeking re-visit of country’s all personal laws about the custody of child in matrimonial disputes. Earlier the 257th report by the Law Commission of India had suggested amendments to the current statutory provisions to include the provision for shared custody / joint custody.

What it is all about?

  • The petitioner, Sakshi Bhattacharya, who was a retired Army officer, had felt the heat of the “gender-biased” Section 6 of HMGA after her husband initiated divorce proceedings before a family court.
  • According to Section 6, the natural guardian of a Hindu minor with respect to the minor’s person and with respect of the minor’s property excluding his or her undivided interest in the joint family property is: in the case of a boy or an unmarried girl – the father, and after him, the mother is provided that the custody of a minor who had not completed the age of 5 years shall ordinarily be with the mother….
  • The petitioner said this provision contradicts the object of the Act, which is the welfare of the minor child.
  • The act had come into force in the year 1956 when men exercised more financial power and social sanction to control and dominate women and children in a family. After more than six decades, it would be natural, reasonable, and advantageous for the welfare of the child if her/his guardianship is entrusted with the mother.
  • Emphasizing that right to equality is one of the fundamental rights, the petitioner has said the court should interfere in making the provision gender-neutral by providing equal guardianship rights to both parents over their minor children.

SC’s Observations and is the law discriminatory?

  • The interest of the child should be given priority in custody battles between separated parents.
  • Family courts should grant visitation rights in such a manner that a child is not deprived of the love and care of either parent.
  • The gender bias eliminates the chance of equal opportunity and in some situations.
  • Many women stay in abusive relationships and silently suffer from domestic abuse only for the fear of giving up their children.
  • Everyone is equal as per Article 14.
  • Changing the nature of society since the law was made, DOL changed, the relation between man and women changed, changed the notion of the welfare of the child, and also the presupposition that the father is the natural guardian.

Has the time come now for shared responsibility?

  • Our society is changing so fast and the law came in 1956.
  • Family dynamics have changed.
  • The way both wife and husband look at each other has changed.
  • Women have become more economically independent.
  • The definition of Division of labor has changed.
  • The patriarchal mindset of society is strengthened by such laws.
  • Women are no longer weaker sex now.

Future scope

  • We need to have Gender Neutral Law as law commission has suggested.
  • Balancing Act should be brought and protect the welfare of the child.
  • The laws also have to be time friendly.
  • Shared parenting within the law
  • The child-centric focus must be maintained. 
  • Rights of the child should be respected
  • India being heterogeneous society and one law will not be applicable to all sections of the societies so proper work should be done in this regard.

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