Here Charitable Individualism is the key!… nothing less.


FATHERING is different from PARENTING. Every person who “fathers” may not take up the responsibility of “parenting”, which is a sustained responsibility. There are umpteen examples to prove my point. It is to impose this responsibility of “parenting” on the father of the child that this “guardianship” was granted. Of course, in olden times women and children were thought of as chattels of the man and therefore did not have the legal standing in the society to represent their cases or causes, except through their husbands or fathers.  But now things have changed although the LAWS have not kept up with the changes which have been accepted by the society at large.

What is the effect of GUARDIANSHIP?

THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956

6.Natural guardians of a Hindu Minor. The natural guardians of a
Hindu minor, in respect of the minors person as well as in respect of the minors property (excluding his or her undivided interest in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father.
and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;                                                                                                           (c) in the case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.-In this section, the expressions ” father ” and
“mother” do not include a step-father and a step-mother.

THE GUARDIANS AND WARDS ACT,1890

19. Guardian not to be appointed by the court in certain cases
Nothing in this Chapter shall authorize the court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person-
(a) of a minor who is married female and whose husband is not, in the opinion of court, unfit to be guardian of her person; or
(b) 15[* * *] of a minor whose father is living and is not in the opinion of the court, unfit to be guardian of the person of the minor; or
(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

So, as per both the Acts, the ‘father” of the child is the NATURAL GUARDIAN of the child.

No doubt, the mother spends more time with her children, than the father who goes out attending to his occupation. But should she be made the guardian merely because she spends more time with the child? I DO NOT THINK SO.

The Guardianship envisaged in all the Acts, have split up the responsibilities in terms of the ‘person’ of the minor and the ‘property’ of the minor. The mother, no doubt, would be able to provide better EMOTIONAL SUPPORT to the child, but when it comes to the property of the child, would the father be better equipped or would the mother be better equipped to handle the properties of the minor? In our country, where the female literacy levels  are appallingly low, would they be able to deal with it or would the men folk be better equipped? I THINK  A MAN WOULD BE BETTER EQUIPPED TO DEAL WITH PROPERTY ISSUES.

IN my opinion, making the mother the NATURAL GUARDIAN seems another tokenism, which would remain in the statutes, yet the menfolk would have to function as guardians of the minor’s properties without being de jure guardians of minors!

 

Comments on: "Mother as the natural guardian!" (5)

  1. jacobchelraj said:

    Yes, the laws seem archaic, complex, as well as, in my opinion, discriminative of women:
    1. Custody is assigned to a mother if a child’s age is below 5 – *This is when a lot of parenting takes place and crucial emotional bonds are established.
    2. Custody is assigned to a father if a child’s age is above 5 – *So after all the emotional bonds have been established between a child and its mother, the father can still have custody of the child who may be 5-1/2 years old, causing misery to both the woman and the child!?.
    3. Irrespective of any age or sex of the child, illegitimates belong to women!!??

    • Hi Chelraj,
      As regards point 1 & 2, from 5 upwards the responsibilities of educating the child has to be given priority, so naturally the father has to become the guardian after 5 years. Otherwise we may end up having a lot of D H Lawrences without his writing skills! Up to 5, nourishing the child and providing him/her with emotional support is better left with the mother. The law seems to be right on that.
      Regarding ILLEGITIMATE children, it is primarily the mother’s responsibility to name the father of the child and get the courts to recognize it. However, there may be ppl like Nina Gupta who may not want to disclose the “father’s” name. So why compel them? So leave the child in the hands of the mother. In certain cases, the mother herself would have been advised by the father to keep the fact of him having fathered the child a secret. The mother also for reasons best known to her, may acquiesce, without taking the support of the courts. This could be altered by the society by strengthening the woman to disclose, especially if she is in indigent circumstances, and get the man to share parental responsibilities openly.
      We live in a society where even kings were fathering illegitimate children and got the unwed mothers married to convenient men. For example, the Travancore Kings could not legitimately marry and have children, once upon a time. The royal seed had to come from the egg and not the sperm, it is the nephew of the king who had to assume the mantle.
      We have come long way, but let us not forget the long way………………thanks.

  2. now that was something i did not know

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