Hindu Minority and Guardianship Act 1956: Entrenched Patriarchal Notions

This article deals with The Hindu Minority and Guardianship Act, 1956 and the entrenched patriarchal notions involved, to legislate situations involving a minor. It was in tandem with other legislations such as the Hindu Marriage Act, Hindu Succession Act, and Hindu Adoption and Maintenance Act.

They were all a part of the Hindu Code Bill, as an attempt to codify the traditions and act as a source of personal family law for the Hindu Community. As per the Hindu Minority and Guardianship Act 1965, someone who is a minor[1], i.e. under Eighteen years of age is not considered fit to care for himself and is believed to require protection and support by an adult who will have responsibilities towards them.

This adult is known as a Guardian[2] and is appointed to look after the body and property belonging to the minor. The Hindu Minority and Guardianship Act was drafted to further the intent of the Guardians and Wards Act of 1890 and not in derogation of the previously enacted Act[3]. The law of guardianship has evolved keeping in view the incapacity of the minors to look after the matters of their interest and to take proper care of their welfare.

Introduction

The objective of this act was to define the rights, duties, responsibilities, and relationships between adults and minors to protect the interests of the minors. The applicability of this act[4] extends beyond Hindus and brings the Arya Samaj followers, Lingayat, Brahmo followers, Prarthana Samaj followers, Virashiva, Sikhs, Jains, and Buddhists under its ambit. It is understood that other religious communities of India, like Muslims, Christians, Jews, and Parsis are not included.

The age to attain the majority differs based on religion. For instance, in old Hindu law, the age of majority was considered 15-16 and for Muslims, it was the age of majority. Regardless of the personal laws, the Indian Majority Act 1875 is applicable to everyone.

As per this Act, 18 years is the age to attain majority. However, if an individual is under a guardian’s care, then the age to attain majority is 21 years. The Guardians and Wards Act 1890 is generally applicable to everyone, without any bar on caste or religion, unlike the Hindu Majority and Guardianship Act which is only meant for Hindus.

As per Section 13 of the Act, the welfare of the minor is of paramount importance and every other rule or law is subordinate to this principle. If any law is implemented in such a way that it may infringe upon the child’s rights or be detrimental to his interests, that law will be revoked, removed or re-interpreted in such a fashion that the minor’s welfare is not neglected.

It is also essential to note that Section 6 bars anyone from being considered the natural guardian of a minor if that person ceases to be a Hindu or has renounced Hinduism, for any purpose. Also, it must be noted that the step-father or step-mother cannot qualify to be a natural guardian.

I. Kinds of Guardians

As per Section 4(b) of the Act,

“guardian” means a person having the care of the person of a minor or of his property or of both his person and property and includes—

1. a natural guardian,
2. a guardian appointed by the will of the minor’s father or mother,
3. a guardian appointed or declared by a court, and
4. a person empowered to act as such by or under any enactment relating to any Court of wards.

The two Guardians as per the Hindu Minority and Guardianship Act are:

1. Natural guardian:

The natural guardian has the responsibility of the minor’s person as well as the minor’s property. The natural guardian is the father of the minor, and after him, the mother is the natural guardian. Unless there is an exceptional situation, if a minor is below 5 years of age, he is supposed to be under the care of his mother. It is traditionally believed that the child at such an early age is dependent on his mother and needs her more.[5]

In the case of Jijabai v. Pathan Khan AIR 1971 SC 315, the Supreme Court held that where a mother is living separately from the father for over twenty years and managing the affairs of her daughter, who was under her care and protection, will be regarded as her natural guardian. In such cases, the father would not be considered alive. The mother alone would be entitled to exercise the right of the natural guardian with respect to her person and property and she could bind the minor’s property by lease.

2. Testamentary Guardian:

A testamentary Guardian is the one appointed through a will. He or she has the right and responsibility to be the minor’s guardian after the death of the natural guardian of the minor-father or mother, depending on the situation. The testamentary guardian has the authority to exercise the same rights as that of a natural guardian as per this Act. If any restrictions or limitations are mentioned in the Act or the Will, then they are subject to that.[6]

It is also essential to note that the De Facto Guardian[7] has no authority to deal with the Hindu minor’s property, simply on the grounds of being a de facto guardian.

The powers of the testamentary guardian and the natural guardian are the same except that the power of a testamentary to deal with property belonging to the minor is also subject to the restrictions imposed by the will. [Section 9(5) of the Hindu Minority and Guardianship Act, 1956]

II. Critical analysis

As per Section 7 of the Hindu Majority and Guardianship Act, the natural guardianship of the adopted minor son, upon adoption, is delegated to the father and after him to the mother. The avenue for natural guardianship is limited to the adoptive son, due to the underlying assumption that adoption is taken up by couples when they are unable to conceive a son.

This is one critical flaw steeped in patriarchal notion. Since then, there have been significant steps taken in order to empower women and make society as a whole, more progressive. Although many laws have been created to promote gender equality, this particular flaw lies unaddressed so far.

Secondly, Section 6 of the Act states that the guardian of a married minor girl is her husband. This is another reflection of our patriarchal society where the husband is seen as the ‘protector’, and this problematic notion tends to dismiss the wife’s autonomy and individuality.

III. Conflict of Laws

The 2015 report[8] by the Law Commission of India emphasized the gender inequalities that continue to dominate our culture. The report stated the importance of uplifting women in society, through legal structures put in place to combat gender discrimination.

In the same year when the Hindu Minority and Guardianship Act came into power, so did the Hindu Adoption and Maintenance Act 1956 which acknowledged the adoption of daughters. This was a small but significant step towards progress.

It is essential to note that the Hindu Minority and Guardianship Act was the 32^nd Act of 1956 and the Hindu Adoption and Maintenance Act was 78^th Act of the same year[9]. The Nehru Government’s thoughts on women empowerment progressed quickly.

The conflict between these two laws was not addressed until the Law Commission of India suggested amending Section 7 of the Hindu Minority and Guardianship Act.

IV. Paternal Rights Superseding Maternal rights

As per Section 6 of the Act, the first natural guardian is the father, and after him, the mother is the second natural guardian. The Law Commission recommended an amendment for this section as well, as this section prioritizes the father over the mother. In an extremely patriarchal notion, this section states that the mother cannot achieve the status of the natural guardian till the time that the father is alive.

Unfortunately, patriarchy is entrenched so deeply in all aspects of our society that law tends to reflect those same problematic ideologies. The Law Commission believed that this section was suppressing the rights of the mother. In 1989, the Law commission intended to remove “discrimination against women in matters relating to guardianship and custody of minor children’’[10].

A change in Section 6 of the Act was suggested so that mothers and fathers could be placed on an equal pedestal and given equal rights and status. In 1999 a petition was filed to challenge the validity of the specification that only the father is considered the first natural guardian and the mother does not qualify to be the natural guardian unless the father passes away.

This petition, filed by Githa Hariharan, brought the issue into the limelight. The Supreme Court interpreted the meaning of the section in a progressive light, instead of amending the section itself. It held that the term ‘after’ in Section 6 meant “in the absence of the father” instead of the earlier interpretation that claimed ‘after’ meant ‘after the death of the father’.

Absence was understood as the father being away for an extended while, a father who has neglected his parental responsibilities toward the child or is unfit to care for the child due to illness. The prioritization of the father over the mother as a natural guardian continued, yet this was a landmark judgment because at least it opened up the possibility of the court taking into account exceptional circumstances, where the mother can be seen as the first natural guardian, even if the father is alive.

In this case, Gita Hariharan[11], a renowned author was interested in investing money for her son, and the pre-requisite to do that was to fill details about the father of the child, although she was separated and the sole caretaker of her son.

Advocate Indira Jaisingh filed the petition on her behalf, claiming that Section 6 was in violation of Article 14 and 15 of the Constitution[12], which guaranteed equality. Although the amendment of the section would’ve been a far more progressive outcome, the court held that as per Hindu law, the mother is also the guardian of the minor child, in addition to the father.

In 2010, the Parliament amended Section 19 of the Guardians and Wards Act 1890[13]. This section previously prohibited appointing a guardian for a minor if his father was alive and capable of handling that responsibility. The amendment broadened the ambit of this clause to include cases where the mother is alive, and consequentially removed the preferential status of the father under the Act. This Act is applicable to all religious communities, and this was a necessary step in the right direction.

V. Addressing Inequality

The 2015 Law Commission report[14] once again emphasized on amending Section 6 of the Hindu Minority and Guardianship Act 1956. It raised an important question – if the law had already fixed the inequality, then what prevented them from amending that in the statute itself? It also spoke of the differing positions of the mother and the father in custody battles. The report recommended granting equal rights to both parents regarding the guardianship.

VI. Position of Single Mothers

To understand the position of single mothers, we must once again take a look at the case of Ms Githa Hariharan v. Reserve Bank of India[15], where an educated and financially independent single mother intended to make her son a nominee for her investments but was prevented from doing so unless she complied with the paperwork obligations by giving details about the child’s father, or proving her status as the primary guardian.

The lower courts stated that it was mandatory for her to give details of the father, as per Section 11 of the Guardians and Wards Act 1890. Upon appeal, the High Court stated that even if she was a single mother, it was necessary to determine if the father has a potential interest in the child.

However, the Supreme Court did not uphold the judgments of the earlier courts and instead stated two essential principles to govern such cases in the future –
1. The first and foremost priority is the welfare of the child, and in furtherance of that, a mother can be seen as the natural guardian.
2. The mother has the right to refuse to disclose information about the father because she has a right to privacy.

This case was a landmark judgment, given that in India, all administrative work ranging from school forms, bank details, to official documents are all in the father’s name. This judgment not only sought to protect the interests of a child born out of wedlock but also enabled single mothers to receive a legal standing as the guardian of their child.

Conclusion

This Act has certain patriarchal notions that need to be amended in the interest of gender equality and laws, must be updated with changing times, as society adapts to modernity. At the same time, one must understand that at the time when this Act came into force, it was a reflection of societal norms of that era, and consequently, many judgments have attempted to give interpretations in such a manner that they help the empowerment of women.

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[1] Section 4(a) of the Hindu Minority and Guardianship Act 1956

[2] Section 4(b) of the Hindu Minority and Guardianship Act 1956

[3] Section 3 of the Hindu Minority and Guardianship Act 1956

[4] Section 3 of the Hindu Minority and Guardianship Act 1956

[5] Section 6 of the Hindu Minority and Guardianship Act 1956

[6] Section 9(5) of the Hindu Minority and Guardianship Act 1956

[7] Section 11 of the Hindu Minority and Guardianship Act 1956

[8] The Law Commission of India – Report No. 257 on “Reforms in Guardianship and Custody Laws in India’’

[9] Dhingra A, ‘All About Hindu Minority And Guardianship Act, 1956’ (iPleaders, 2019) Available Here accessed 23 June 2020

[10] The Law Commission of India – Report No. 133 on “discrimination against women in matters relating to guardianship and custody of minor children’’

[11]Ms. Githa Hariharan v. Reserve Bank of India AIR1999SC1149

[12] The Constitution of India

[13] Dhingra A, ‘All About Hindu Minority And Guardianship Act, 1956 (iPleaders, 2019) Available Here, accessed 23 June 2020

[14] The Law Commission of India – Report No. 257 on “Reforms in Guardianship and Custody Laws in India”

[15] Ms Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149

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1. Hindu Law
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