Guardianship can be defined as a relationship between a person and his child/ward, who has not attained the age of majority or is of unsound mind. A guardian has a full-fledged right to look after the child as well as the associated properties. In early times, there was not any specific rule or norm regarding guardianship under the Hindu religion as all the members stayed together as a joint family.

After independence, as the size of the families was truncated and the idea of nuclear families came up, there arose a need for a legislation in this regard. Therefore, after independence, the Hindu Code Bills of 1950 were presented by the Indian National Congress which comprised the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act and Hindu Adoption and Maintenance Act. In India, the Guardianship Law finds its codification under Hindu Minority and Guardianship Act (hereinafter The Act of 1956). The act defines the guardian-minor relationship, power of guardian vis-à-vis the property of minor and other related rights.

Who is a Natural Guardian Under the Hindu Law?

Under the Act of 1956, one who takes care of the person of minor or his property or of both his person and property is termed as a guardian. Three types of guardians recognized under the Act are: Natural Guardians, Guardians appointed or declared by the court, and Testamentary guardians.

Section 6 of the Act accounts for the natural guardian of the minor. Three types of natural guardians enlisted under the act include father, mother or husband. Father is considered to be the natural guardian of a minor under the aegis of the Act of 1956 and generally the mother can become natural guardian only after the father. No person, other than the mother and father, can become a guardian of a minor.

Guardianship is deemed to take into consideration the welfare of the child, morally as well as legally. Section 13 of the Act accounts for the welfare of the minor. It is also asserted that Section 6 should be always read with Section 13 of the Act of 1956. Money or mere physical comfort cannot be the lone factors to determine a minor's welfare and the moral and ethical welfare of the child is also taken into consideration with the physical well-being. The principle of parens' patriae is also applied by the court while establishing the custody of the child. Is the father is found unfit for the guardianship of the minor child, then the mother becomes the guardian of the minor.

Guardianship After Father

The father is pronounced to be the natural guardian of the minor by the Act of 1956 and after him the mother becomes the natural guardian. Since the inception of the Act till 1999, the word after him was interpreted literally such that the guardianship to the mother was given only after the father expired.

But after 1999, the Supreme Court, in the two landmark cases Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya held that the mother can act as a natural guardian of the minor during certain circumstances even if the father is alive.

The words after him were interpreted as in the absence of, such absence can be from the person or property of the minor, whatsoever. So, if the father is unable to look after the minor or is unconcerned with regards to the welfare of the minor, then the father is considered to be absent and the mother takes over the guardianship.

Gender Discrimination While Determining Guardianship Under Hindu Law

Since early times, women are considered as secondary in the family arrangements without having any say in the important issues. Various laws in India are labeled as gender-biased. On the lines of this, many people evaluate the Hindu Minority and Guardianship Act, 1956 to be gender biased because of section 6 which declares father to be the natural guardian of minor and mother can become guardian only after father.

There are examples of case laws where the judge was of the opinion to consider mother as a natural guardian during the life of the father, but such amendments have not been incorporated in the Act. A recommendation was suggested in the 133rd Law Commission Report to eliminate the inequality on the basis of gender and work on welfare principle. Providing legal guardianship status to both parents is not against any custom but is a step towards better upbringing of a child. The parent Act i.e. Guardians and Wards Act, 1890 was turned out to be gender discriminatory, but by amending the section 19 (b) of the act, gender discrimination was done away with.

But the Minority and Guardianship Act, 1956 still awaits such an amendment. In the 257th Law Commission Report, it was proposed to eliminate this disparity by stating that along with roles and responsibilities, equality should also be in the terms of rights and legal position of the parents.  Hence, the inequality should be removed but until now any amendment in this respect has not seen the light of the day.

In 2019, after analyzing the 2015 Law Commission Report, a set of recommendations were directed to the Ministry of Women and Child Development by NCW chairman Ms. Rekha Sharma. This was done to protect the interests of women, especially rape survivors and single mothers. The major alteration required in The Act of 1956 is that it should not be father, after him the mother, but it should be father or mother as per the circumstances.

Both of them should be the natural guardians of the minor child. The preference given to the father over mother violates the Article 14 and 15 of Constitution of India. The Commission also made a point that the word illegitimate must be axed from wording of the Act. It was also suggested to amend Section 7 of the Act by changing the term adopted son to adopted child in order to remove the discrimination between son and daughter.

Conclusion
A revamp is much needed in the concept of guardianship as defined under Section 6 of the Hindu Minority and Guardianship Act, 1956. For many, maternity is merely a matter of fact, but paternity is perceived as a matter of belief. In its report on Reforms in Guardianship and Custody Laws in India, the Law Commission of India advocated for amending the required sections of the Act to make it compatible with the equality principle enshrined in the Article 14 of the Constitution. Both the parents should be regarded as the natural guardians simultaneously so that the best interest of the minor is preserved in all circumstances.

Mothers play an undeniable and consequential role in the child's upbringing and development. A mother should not be treated as secondary to anyone, not even the child's father, based on orthodox pedagogy. The judiciary has mulled upon this provision on numerous occasions, yet it is incessant. The need of the hour is to weed out the deadwood, declare it unconstitutional and efface it from the statute books.
 
References:

1. Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228
2. Vandana Shiva v. Jayanta Bandhopadhaya, AIR 1999 SC 1149
3. Hindu Minority and Guardianship Act, 1956
4. Guardians and Wards Act, 1890