Tag: hindu guardianship

INTRODUCTION

Gender inequality in India evinces itself in a diversities of ways, but the most prevalent is in the area of legitimate property rights. Numerous laws have been eventuated to abolish women’s economic beliefs and furnished their high status and equality. In addition, the Constitution of India establishes equality, invigorating women’s property rights and ingress to economic resources. Despite all of this, the affairs of women remain consistent due to a lack of education and knowledge, and non-compliance with the rights of women’s law. Due to family norms, societal humiliation, and related prospects, even women themselves are not so much interested in executing their rights. The empowerment of Indian Women by Dr. Babasaheb Ambedkar invariably convinced movements headed by women.

He persisted that every married woman must participate in her husband’s activities as a friend. But she ought to show the audacity to contradict the life of slaves. She should hold on to the rules of equality. If every woman sticks to it, she will acquire genuine respect and recognition. He said, “We shall have good days ahead and our progression will be greatly hastened if male learning is persuaded side by side with female learning ”. He initiated a strong gesture against the Hindu social order and introduced a journal Mook Nayak in 1920 and Bahiskrit Bharat in 1927. He laid due emphasis on gender equality and the demand for education. In January 1928, a women’s organization was established in Bombay with Ramabai, Ambedkar’s wife (president). The emboldened Dr. Ambedkar empowered women to express themselves, it was glimpsed when Radhabai Vadale addressed a press conference in 1931.

MARRIAGE AND DIVORCE LAW

According to Vedas, a Hindu marriage is an imperishable alliance till eternity. It is known as a fusion of “flesh with flesh, skin with skin and bones with bones, the husband and wife grace as if they were a single person. The Hindu Marriage Act, of 1955 has eliminated these imbalances to a large stretch. It has created monogamy the principle for both men and women. A woman can break down her marriage and easily enter into another marriage as per to law. The Hindu Marriage Act, of 1955 has specified the causes for divorce. The Hindu Marriage Act, 1955 Section 5 lays down the circumstances for marriage. It opines that both parties to the marriage should have the position to obtain consent to the marriage.

The Hindu marriage is a sacrament; sacred and eternal. It is perpetual and pursues life cause she can’t have a second husband even after his demise. Husband and wife become individual as she cannot have any originality of her own. But the husband could set his foot into the sacramental crimp of marriage many numbers of times because polygamy was not banned under Hindu law before the enforcement of the Hindu Marriage Act, 1955. However, the views regarding the nature of Hindu marriage are evolving.

LAW OF ADOPTION

The law of adoption in the ancient Hindu tradition is different from one creed to another. The Hindu Adoption and Maintenance Act, of 1956 established uniformity in the principle of adoption among Hindus. A Hindu woman was empowered to adopt a child only under exquisite circumstances under the Shastric Hindu Law. The women’s rights to adopt a child were restricted. Through the Hindu Adoption and Maintenance Act, 1956 the authorization of a woman to adopt a child is granted, but bigotry against women continues. A married man can adopt but a married woman can’t during the maintenance of the marriage under the Hindu Adoption and Maintenance Act, 1956. Now, this inequality has been removed by the Personal Laws Amendment Act, 2010.

PROPERTY RIGHTS

To eliminate all these conflicts and to secure women as equal to men, the then government sanctioned the Hindu Succession Act in 1956. The Act passed in 1956 was the fundamental law to provide an absolute and uniform structure of inheritance for Hindus and to label gender inequalities in the patch of inheritance. Therefore, it was a procedure of codification as well as an amendment at the same time. The Hindu Succession Act was the initial act of property privileges and rights among Hindus after independence. The Hindu Succession Act, 1956 was sanctioned to codify creeds statute relating to deliberate succession among Hindus.

This appeals to both Mitakshara and Dayabhaga creeds. Preserving the Mitakshara inheritance without women being involved in it indicated that women could not bequest ancestral property rights as men do. If a joint family diverged, each male beneficiary takes his share, and the women acquire nothing. The Hindu Succession (Amendment) Act, 2005, enveloped inequalities on different appearances: parental dwelling house; agricultural land; Mitakshara joint family property; and certain widows. From history to the present, there is an extreme change in the lifestyle of women, now women with their domiciliary work also play a part in the earning of their family and the economy of the nation. She absences nowhere at the back of the man. Women must never be contemplated the delicate part of society as their household tasks are more difficult than the office work of the man.

WHY DO RULES FOR WOMEN’S SUCCESSION NEED TO CHANGE?

The law approves heirs of the father or husband to inherit properties of women who die unheard, but properties of men who die unheard don’t delegate to a woman’s heirs. A three-judge Supreme Court bench headed by Justice DY Chandrachud is trialing a petition testing the provisos of the Hindu Succession Act, 1956, specifically sections 15 and 16 relating to female succession. The appeal challenges the constitutionality of the provisos for being “overly discriminatory and infringing the procedure of the Constitution”. Although the lawsuit was filed four years ago in 2018, an amendment bill recommending changes retrieving the same had been already found in Parliament in 2015, but there was no conversation on it, leading to the sequential lapse of the bill.

The Hindu Succession Act gives the principles for the property succession of a Hindu woman who dies unheard. It comes up with a hierarchy heeding to which the property is to delegate.

1. Prakash v. Phulvati¹ – In this case, a two-judge bench headed by Justice A. K. Goel held that the interests of the 2005 amendment could be permitted only to living daughters of living inheritors as of September 9, 2005 (The date when the amendment came into power). The Apex Court had held that Section 6 was prospective in nature and would apply only if the coparcener and daughter were both alive as on 9 September 2005.

2. Danamma v. Amar² – In this case, the honorable Supreme Court of India stated that if the father is a coparcener who demised before 9 September 2005 and a prior suit has been unsettled for partition by a male coparcener, then the female coparceners are sanctioned to a share. The court remarked that the provisions of section 6 (Amendment Act) are functioning in a retrospective manner and they transform absolute rights upon the daughter to be inheritor since birth. This judgment was in contrast to the judgment given in the Phulavati case.

3. Vineeta Sharma v Rakesh Sharma³, the court held that a daughter coheir would have equal coparcenary rights in Hindu undivided family properties or equal privileges to the family property by birth regardless of whether the father coparcener demised before or after 9 September 2005 (The day Parliament acknowledged this right by amending the Hindu Succession Act of 1956). The Supreme Court of India held that Section 6 shall be seen retroactively. Describing the theory of retroactive application of the amendment act, 2005, the court held that the said Act permits women to have the benefits of succession based on their birth.

CONCLUSION

However, despite all the rebellious conditions of the Hindu Succession Act of 1956, Hindu women in the Indian community pursue to be underprivileged property rights in general. It was only a slice of legislation. Even though the Act established insurgent changes, it has been predominantly ignored by family members in fact since the conditions are incompatible with habitual Hindu social essence. There because of a limpid contrast between the law as it is and the law as it is bid. It is frequently tarnished by incidences of unabashed prejudice. All of these are laudable measures in theory, but the challenge leans not in acknowledging women’s property rights but in implementing them.

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CITATIONS

¹ (2016) 2 SCC 36.

² (2018) 3 SCC 343.

³ (2020) 9 SCC 1.

The article is written by Ashmita Dhumas, who has completed her BA LLB from Agra College and is doing a diploma in Corporate Law from Enhelion.

INTRODUCTION

“The term guardianship used here is when legal custody of a minor child under the age of 18  years whose necessities like health, food, safety, education.” The residence is taken care of by the person who has legal custody of the child. The person makes all the prudent decisions on behalf of the minor. Usually, the father is the natural guardian, and in some cases, even the mother might be the natural guardian. The various Guardianship laws owed their existence to the British Era when the significant laws relating to inheritance and Guardianship were formulated keeping in mind the religious customs and perspectives.

UNDER THE HINDU LAW GUARDIANSHIP

“The Hindu Minority and Guardianship Act,1956 defines a minor person in Section 4(a) of the Act, and Section 4(b) establishes a guardian.”

The Five Types of Guardianship is-

1. Natural Guardianship
2. Testamentary Guardianship
3. Guardianship appointed by Court
4. De-facto Guardianship
5. Guardianship by affinity[1]

• Natural Guardianship

They are also called “the Guardianship of the person’s property. According to Section 6 of Hindu Minority and Guardianship Act 1956”, natural guardians are mother, father and husband.

Some points of “Section of Hindu Minority and Guardianship Act ,1956” are-

• Section 19- that only when the person is deemed unfit for being a guardian can he can be denied natural Guardianship of minor child or wife for that matter.
• Section 13- “that the welfare and upkeep of the minor is the most essential thing according to the court, so if the court finds them not concerned enough of the welfare, they can be removed.”
• Section 7-“the natural Guardianship of the minor child is passed to the adoptive father after the death of the original father ad then to the adoptive mother after death. If the adoptive father is incapable the only, the adoptive mother can take Guardianship of the illegitimate child.”
• Section 6(b)-“ that the mother is the only natural guardian of the illegitimate child even though the father is alive.”
• Section 6(a)- “that the custody of child below or of the 5 years of the age will be given to mother, only in cases otherwise where she is not find fit it shall be given to the father.”

Case Law

P.S. Ramachandra Iyer, Son of P.S. Vs S.V. Annapurni Ammal wife of P.N.,15th January. 1963

The petition is about a seven-year-old girl minor child whose custody was given to the mother against the will of the girl’s father.  The mother left the minor’s father and took the child to Madras; the mother filed a complaint under “Section 25 of the Guardian and Wards Act 1890.”[2]

• Testamentary Guardian

    Natural guardians appoint them through a will.

• Section 9(1)-“ says that the father has testamentary power means appointing a guardian to be there to take care of even after their death.It can be brought to exercise after the passing of the mother of the child.”
• Section 9(2)- “says that before death of mother if she appoints someone as the testamentary guardian of the child, then father’s appointment shall become ineffective.”

Case Law

Krishnaswami Gourden Vs Palani Ammal 27 March 1936 MLJ 417

In this case, the mother requested the court to place the testamentary guardian if the father was also the executor of the minor child. This petition was made under the Guardian and Wards act. Hence, the lower court made an order wherein it imposed certain conditions on the appellant to discharge his duties as a guardian and directed him to give security for a specified amount.[3]

• Guardians appointed by the Court

Under “the Guardians ad Ward Act 1890” they are also called “certified guardians”.The court can appoint guardians for a minor child when parents are deceased or incapacitated or their parental rights have been terminated due to some reason. Another reason can be the voluntary surrender of them for adoption.

• Guardianship by Affinity

Affinity means Guardianship by the closeness of the relation. “The guardian by affinity is the guardian of the minor widow. The husband’s association, if exists within the degree of sapid are the guardians of a minor widow in preference to her father and his relations.”

Case Law

Paras Ram Vs State

In this case, it was raised that where the Guardianship of a widow is taken away by the father-in-law who forcibly marries her away for money to an unsuitable person against her wishes.[4]

• De-Facto Guardianship

A de-facto guardian who’s substantially concerned with the interest of the minor for his operation and keep off his property without any authority of the law. In Hindu justice, there has to be a nonstop interest process and conduct.

UNDER THE MUSLIM LAW GUARDIANSHIP

“The source of the law of Guardianship is taken up from the Quran. All the ahadis and the Quran exhaustively talk of Guardianship of property of the minor and the related care and Guardianship of the child.”

The law of Guardianship has three types-

1. Natural Guardianship
2. Testamentary Guardianship
3. Guardianship appointed by the court

• Natural Guardianship

“The Muslim laws mainly recognize the Father  ‘only’ as the sole and main guardian of the minor child and even in the case of father’s death the guardianship shifts to the grandfather or the appointed executor in some cases and not the mother or any female member of the minor child. The father entire control over the education, religion and upbringing shall be administered by the father itself despite the presence of the mother of the minor child.

In the case of an illegitimate child the Guardianship and custody do not go to the father but in the case of an illegitimate child of the mother the custody shall go to the mother.

In the case of Sunni Muslims, the father is the only natural guardian of the minor child and after the death of the father, the Guardianship and responsibility does to the appointed executor of the minor child and not to the mother even if she is alive.

In the case of Shia Muslims, after the death of the father the Guardianship goes to the grandfather even if there is an executor appointed by the father, still, the Guardianship shall go to the grandfather. And in the absence of the grandfather, it goes to the executor of the grandfather.”

 Case Law

 Imambandi v. Mutsaddi (1918) 45 Cal 887, it was rightly held that until the father is alive, he shall be the natural Guardianship of the minor child.[6]

• Testamentary Guardianship

Mainly in both Shia and Sunni Muslims, the father has the power to determine who shall be the testamentary guardian, the same power is possessed by the grandfather of the minor child as well but not the mother. In the case of Shias, if grandfather is alive, there is no need to appoint a testamentary guardian since he shall already be there to take care of the minor child. In both Shias and Sunnis the mother doesn’t have the power to appoint the testamentary guardian. Only in two circumstances can she appoint the testamentary guardian when she is the executrix of the child or when she has to appoint the executor for her own property.

• Guardian appointed by the court

According to “the Guardians and Wards Act 1890” upon the failure of the testamentary and natural guardians the court shall appoint a guardian for the “welfare and upkeep of the child.”Though the High Court has this power it is exercised seldom.

UNDER THE CHRISTIAN LAW GUARDIANSHIP

Since there is an excess of the heterogeneous family in the western culture it is extremely difficult to make sure of the custody and guardianship of the child. But, according to common practices in the West, the mother has the natural Guardianship and custody of the minor child. She is the primary caretaker of the child. She also has the power to file a petition against the father to prove his paternity and that he is the lawful biological father of the minor child.

“Section 17 of the Guardians and Wards Act 1890” [5] is secular and keeps the welfare of the child above the boundaries of religion. The minor can also state his or her preference when they are old enough to decide for themselves.

UNDER THE PARSI LAW GUARDIANSHIP

There is no separate law to deal with Parsi children, the Guardian and Wards Act 1890 is the determinant in their case as well. Keeping aside religion the secular law talks of the welfare of the child. Once the child becomes an adult he or she can determine the custody for themselves.

CONCLUSION

The various personal laws have been dealt with in the draft above. Hindu laws, Muslim laws, Christian laws and Parsi laws have been talked about in detail and depth substantiating them with case laws as well. : The Guardians and Wards Act, 1890” is the prime document to govern the matters of minor custody and Guardianship. The child is the future of the nation and be it any religion the welfare and upkeep of the minor are prioritized. Whoever be the guardian the main aim is the upbringing of the child and that the necessities like shelter, education and health should be taken care of.

ENDNOTES

1. The Hindu Minority and Guardianship Act,1956
2. P.S. Ramachandra Iyer, Son of P.S. Vs S.V. Annapurni Ammal
3. Krishnaswami Gourden Vs Palani Ammal 27 March 1936 MLJ 417
4. Paras Ram Vs State
5. Guardians and Wards Act 1890
6.  Imambandi v. Mutsaddi (1918) 45 Cal 887
7. https://www.indianalegalservices.org/node/51/general-information-about-guardianship-child
8. http://www.legalserviceindia.com/article/l35-Guardianship.html
9. http://legislative.gov.in/sites/default/files/A1956-32_0.pdf
10. https://blog.ipleaders.in/guardianship-child-different-personal-laws/

This article is written by Astha Deep student at CNLU, Patna