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The hand that rocks the cradle PDF Print E-mail
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Written by The Telegraph   

India’s courts are finally recognising the right of mothers to be awarded guardianship and custody of their children, reports Saheli Mitra

Lekha separated from her husband within two and a half months of her marriage and subsequently gave birth to a baby boy. When she obtained a divorce on grounds of harassment, a trial court in Kerala granted her custody of her son.

But all hell broke loose when she remarried. This time, the Kerala High Court granted her ex-husband the custody of the child all because she had married again. The case moved to the Supreme Court and on November 21 this year, the apex court gave a landmark judgement, declaring that a divorced mother can be granted custody of her minor child even if she remarries, notwithstanding the fact that the father is the natural guardian under Hindu law. Justices A.R. Lakshmanan and Altamas Kabir reversed the Kerala High Court verdict and observed: “Remarriage of the mother cannot be taken as a ground for not granting custody of the child to the mother. The paramount consideration should be the welfare of the child.”

So is India’s judicial system finally becoming more sensitive to the interest of mothers? Says attorney Sunil Mitra, president of the Incorporated Law Society and a former professor of Calcutta University, “The fact that the mother has married again is no ground for depriving her of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she does not deserve to enjoy the custody of the child.”

Indeed, the laws of natural guardianship are anything but gender just. According to Section 6(a) of the Hindu Minority and Guardianship Act: “The natural guardian of a minor, in respect of the minor’s person as well as the minor’s property are: a) in the case of a boy or an unmarried girl — the father, and after him, the mother, but the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

b) In case of an illegitimate boy or unmarried girl the mother, and after her the father.”

Legal experts agree that this law is unfairly weighted in favour of fathers and is a violation of the constitutional right to equality. Says legal activist and convenor of Lawyers Forum for Human Rights, Tapas Kumar Bhanja, “Our Constitution has been quite emphatic in proclaiming an equal status for men and women. And here we have a law that says that natural guardianship belongs to the father and ‘after him the mother’. This clearly means that the mother is being unequally treated for no reason at all.”

Again, if the mother enjoys custody of her child for the first five years, why should she be deprived of that right the moment the child attains five years of age, asks Nibedita Dasgupta, a lawyer with the National Federation of Indian Women.

The words ‘in the best interest of the child’ as mentioned in the Act, are also open to misuse, say legal experts. “In cases where the father is wealthy and the mother has no source of income, fathers try to avoid paying maintenance for the children to create pressure on the woman to give up their custody,” says Ramkrishna Roychowdhury, a specialist in matrimonial cases.

In countries like the US and the UK where single parenthood is quite common, the welfare of the child is given prime importance. For instance, US legal policy makes sure that minor children are in touch with both parents and encourages both to take the responsibility of child rearing.

However, in India too times are changing. Despite the antiquated laws, there is now a perceptible trend favouring mothers in custody battles. Alok Mitra, criminal lawyer, Calcutta High Court, recalls the landmark judgement passed in 2004 by Justice P.N. Sinha of Calcutta High Court, in the Bindiya Mondal case. Bindiya was six years old when her parents died in a cable car accident in Darjeeling. A legal battle for her custody began between her maternal and paternal grandparents. When her paternal grandparents got her custody by a magistrate’s directive, ‘being the rightful legal guardian of the orphan,’ Bindiya refused to leave her maternal grandparents. However, the high court overturned that judgement and granted Bindiya’s custody to the maternal grandparents.

Even the Geetha Hariharan case of 1999-2000 bore signs of a gradual change in the attitude of the legal system. Hariharan, a well known writer, had applied for some RBI bonds in the name of her minor sons and had signed on them as their guardian. She was denied the bonds as the authorities did not consider a mother to be the rightful guardian for the minor boys. Hariharan moved the apex court which eventually granted her the right to sign for her sons as their guardian.

Kanika Roy, a marketing manager, who got custody of her children after a long legal battle recently, feels: “At least the courts are now admitting that mothers and their parents too have a say in managing a child’s affairs. Under the circumstances, shouldn’t the provisions of the blatantly lopsided Guardianship Act be scrapped?”

A repeal or a thorough overhaul of the law may not be on the cards right now, but with single parenthood becoming increasingly common in India, both public and private bodies are recognising the rights of mothers. The latest instance is that of the CBSE board which announced that a student’s school leaving certificate could bear the name of the mother alone. Clearly, the law too has to move to accommodate India’s changing social mores.


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