Absence of joint parentage violates fundamental rights; Plea in SC challenges laws on custody, guardianship of children

A petition has been filed in the Supreme Court contending that absence of shared parentage under Indian laws and entrusting the custody of child exclusively to one parent in case of separation of spouses affects the fundamental rights of parents and child. On this ground, the petitioner has challenged the Constitutional validity of various laws on custody and guardianship in India.

Specifically, the petitioner has assailed Sections 6 (a) and 7 of the Hindu Minorities and Guardianship Act, 1956, Section 25 of the Wards and Guardians Act and Shariat Act, 1937 to the extent of their unconstitutionality.

The petition has been filed by Sulochana Rani, an Indian presently employed in London.

The petitioner has submitted that the legal provisions which currently exist as per various personal laws are in the nature of entrusting the custody of children exclusively to one of the parents in case of separation. The statutes create a strong presumption in favour of exclusive custody. This presumption severely affects the fundamental rights of the spouse who has been denied the custody rights and the fundamental rights of the child who will be deprived of care and love of both parents.

The petitioner has contended that Family Courts currently grant custody and guardianship of the child to one parent and visitorial rights to the other.

Since the provisions expressly provide custody for either of the parents, it raises the presumption in favour of exclusive custody for a single parent, preferring one over the other. Consequently, the children will eventually end up in deprivation of physical proximity, care, love, affection and time of both the parents. This, it has been claimed, adversely affects the overall development of the personality of the children.

Therefore, the petitioner argues that gender-based fixation of right to custody and guardianship is discriminatory and it has to be held as unconstitutional as it violates Article 14 and Article 21 of the Constitution of India.

Thus, it is the petitioner’s case that this statutory scheme requires reformation.

The petition has been drawn by advocates Thulasi K Raj, Aruna S and Maitreyi S Hegde.

It is settled by advocate Kaleeswaram Raj and has been filed through advocate Nishe Rajan Shonker.

The following are the statutory provisions under challenge before the Supreme Court.

Section 6(a) of Hindu Minorities and Guardianship Act, 1956

It reads as follows:

“The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s 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.”

It is the petitioner’s contention that the prescription that natural guardian of a Hindu minor will be the father, is arbitrary and without any basis. The primary guardianship attributed to the father and assigning only secondary one to the mother is in violation of Articles 14, 15 and 21 of the Constitution.

The provision, the petitioner contends, is apparently discriminatory on the basis of sex, a protected ground under Article 15 of the Constitution.

“Mothers and fathers are similarly situated as far as the guardianship of children is concerned. There is neither any intelligible differentia nor rational nexus that will justify giving a superior position to the father against the mother”, the petition states.

The petition also assails the proviso to Section 6(a) which provides that “the custody of a minor who has not completed the age of five years shall ordinarily be with the mother”.

The petitioner submits that the said proviso fails to fulfil the constitutional requirements of equality and non-discrimination. The presumption that the mother shall be the natural guardian of children under 5 years of age is both discriminatory and perpetuates stereotypes. It discriminates against men since they are deprived of guardianship of minors solely on the basis of their sex. It perpetuates the stereotype that women are better equipped to nurture children, the petitioner argues.

Section 7 of the Hindu Minorities and Guardianship Act, 1956

The provision reads:

“The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.”

The petitioner has submitted that primacy to the father in the case of adopted son is arbitrary, irrational and fails to meet the test of Article 14. Moreover, the reference to only the son, without reference to the daughter is lop-sided and arbitrary.

Muslim Personal Law

Muslim law treats the father as the natural guardian of the child. The mother is entitled to get physical custody till a certain age of the child and after that, the physical custody shall also vest with the father. This, the petitioner argues, is totally unjust, illegal and arbitrary.

“Such a fixation, on the face of it, is discriminatory and does not stand the test of Article 14 of the Constitution of India. This again negates the idea of equal access to the parents.”

Though the concept of welfare of a child is applied in the custody issues of Muslim child, it is indeterminable as to what all aspects are relevant for the welfare of the child. The lack of clarity in this regard often amounts to incorrect and even unjust judgments regarding custody of a Muslim child, it has been submitted.

Section 25 of the Guardians and Wards Act

This provision has been challenged to the extent to which it provides for the arrest of the ward (the child) if the ward leaves the custody of the guardian.

The petition states that the wording of this provision seriously offends the concept of child rights and the scheme of child welfare protection. The word ‘arrest, therefore, has to be read down to mean ‘return of custody.’ The concept of arrest must be moulded in the context of child rights, it is contended.

Prayers

The following prayers have been made by the petitioner.

• Strike down Section 6 (a) of the Hindu Minorities and Guardianship Act, 1956 as unconstitutional to the extent to which it includes the words ‘after him’ and ‘provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother’;
• Strike down Section 7 of the Hindu Minorities and Guardianship Act, 1956 as unconstitutional to the extent to which it includes the words ‘after him’;
• Declare that the Shariat Act, 1937 in so far as it recognises the primary custody of the child of the father is unconstitutional;
• Declare that Section 6 (a) of the Hindu Minorities and Guardianship Act, 1956 is unconstitutional to the extent to which it includes the words ‘after him’ and ‘provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother’;
• Declare that Section 7 of the Hindu Minorities and Guardianship Act, 1956 is unconstitutional to the extent to which it includes the words ‘after him’;
• Read down the word ‘arrested’ in Section 25 of Wards and Guardians Act, so as to mean ‘returned’;
• Declare that the right to parentage including the right to custody/guardianship is a fundamental right under Article 21 of the Constitution;
• Declare that in matrimonial disputes, denial of joint custody except in cases where it is not in the best interest of the child, would amount to violation of fundamental rights of the aggrieved parent and the child under Articles 14, 19 and 21 of the Constitution.