On guardianship and adoption of minors
About Hindu Minority and Guardianship Act (HMGA), 1956:
- The act provides for the father as the natural guardian of a Hindu minor in respect of the minor’s person or property “is the father, and after him, the mother: provided the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.”
Githa Hariharan vs Reserve Bank of India in 1999:
- The Supreme Court has held that the term “after” should not be taken to mean “after the lifetime of the father “, but rather “in the absence of the father”.
About Muslim Personal Law (Shariat) Application Act, 1937:
- It says that the Shariat or the religious law will apply in case of guardianship according to which the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty though the father’s right to general supervision and control exists.
What are the issues with current Guardian rules
- A Parliamentary Standing Committee has said that there is an “urgent need to amend the HMGA and accord equal treatment to both mother and father as natural guardians.”
- The Supreme Court’s landmark judgment in Githa Hariharan vs Reserve Bank of India in 1999 failed to recognise both parents as equal guardians, subordinating a mother’s role to that of the father.
- The Hindu Adoptions and Maintenance Act (HAMA), 1956, 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 Adoption Regulations, 2017 says to adopt a child prospective parents 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 two years.
- However, the regulation is silent on adoption by LGBTQI people and neither bans nor allows them to adopt a child.
What can be done
- In case of marital disputes, courts should be empowered to grant joint custody to both parents when such a decision is conducive for the welfare of the child, or award sole custody to one parent with visitation rights to the other.
- A new legislation that harmonises the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Hindu Adoptions and Maintenance Act (HAMA), 1956 is needed and that such a law should cover the LGBTQI community as well.
Source: THE HINDU