HINDU MINORITY AND GUARDIANSHIP ACT
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- Recently the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice tabled its report on the ‘Review of Guardianship and Adoption Laws’ in both Houses of Parliament.
Key Recommendation of Parliamentary panel on guardianship and child custody
- Granting equal rights to mothers as guardians under the Hindu Minority and Guardianship Act (HMGA), 1956 instead of treating them as associates to their husbands.
- Joint custody of children during marital disputes or divorce.
- Courts should grant joint custody to both parents when such a decision is necessary for the welfare of the child, or award sole custody to one parent with visitation rights to the other.
- Allowing the LGBTQI (Lesbian, gay, bisexual, transgender, queer and intersex) community to adopt children.
- Amend the Hindu Minority and Guardianship Act, 1956 (HMGA) and provide equal treatment to both mother and father as natural guardians as the present law violated the right to equality and right against discrimination envisaged under Articles 14 and 15 of the Constitution.
- Need for a new legislation that harmonises the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Hindu Adoptions and Maintenance Act (HAMA), 1956 and that such a law should cover the LGBTQI community as well.
The present law on guardianship
- In the case of guardianship of a minor child, Indian laws accord superiority to the father
- Under the religious law of Hindus, or the Hindu Minority and Guardianship Act, (HMGA) 1956, the natural guardian of a Hindu minor is the father, and after him, the mother.
- The HAMA which applies to Hindus, Sikhs, Jains and Buddhists allows men and women to adopt if they are of sound mind and are not minors.
- The Muslim Personal Law (Shariat) Application Act, 1937 says that the Shariat or the religious law will apply in case of guardianship.
- According to the law, the father is the natural guardian, but custody vests with the mother until the son reaches the age of 7 years and the daughter reaches puberty.
- The Muslim law states that the welfare of the child is supreme to all. This is the reason why Muslim law gives preference to the mother over the father in matters of custody of children in their emotive years.
- In 1999, in the Githa Hariharan vs Reserve Bank of India case, which challenged the HMGA for violating the equality of sexes under Article 14 of the Indian Constitution?
- The Supreme Court held that the term “after” should not be taken as “after the lifetime of the father “, but rather “in the absence of the father”.
- The judgment failed to acknowledge both parents as equal guardians, subordinating a mother’s role to that of the father.
- The Adoption Regulations, 2017 is quiet on adoption by LGBTQI people and neither bans nor allows them to adopt a child.
- It set the eligibility criteria for adoptive parents saying that they should be physically, mentally and emotionally stable, financially capable and should not have any life-threatening medical condition.
- Single men can only adopt a boy while a woman can adopt a child of any gender.
- A child can be given for adoption to a couple only if they have been in a marital relationship for at least 2 years.
- Many Social activists have raised concern that LGBTQI people who seek adoption face institutional discrimination because of stigma.
- The recommendations if accepted, make them eligible candidates even if they apply as non-single parents (However there is no legal recognition in India), but the Supreme Court de-criminalized gay sex in 2018.
- It would ensure that a mother and father should have equal rights as guardians of their children by amending Hindu Minority and Guardianship Act (HMGA), 1956 as it discriminates against women