he Supreme Court on Wednesday sought the Centre’s response to a PIL which challenged validity of a provision of Hindu Minority and Guardianship Act (HMGA) that prefers father as a natural guardian of sons and daughters till they attain majority.
A bench headed by Justice Arun Mishra issued notice to the Centre after petitioner’s counsel Neela Gokhale argued that the 1956 law’s gender-based discrimination for grant of guardianship of children violated constitutional right to equality guaranteed to Hindu women.
Petitioner, retired Army officer, Sakshi Bhattacharya felt heat of the “gender-biased” Section 6 of HMGA after her husband initiated divorce proceedings before a family court. Section 6 says: “natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property excluding his or her undivided interest in joint family property, are (a) in the case of a boy or an unmarried girl – the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother….”
The petitioner said this provision contradicts the object of the Act, which is welfare of the minor child. “The Act came into force in 1956 when men exercised more financial power and social sanction to control and dominate women and children in a family. After more than six decades, it would be natural, reasonable and advantageous for the welfare of the child if her/his guardianship is entrusted with the mother,” she said.
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Emphasising that right to equality is one of the fundamental rights, the petitioner has said the court should interfere in making the provision gender neutral by providing equal guardianship rights to both parents over their minor children.
Despite Hindu women leaving their parental homes to be in matrimonial homes, the law continued to discriminate against her by allowing the husband to dominate even in the guardianship rights of her minor children, she said. Citing the English Guardianship Act of 1973, Bhattacharya said the English law provides same right and authority to both parents in matters of guardianship of minor and administration of his/her properties.
Gokhale requested the court to read down Section 6, 7 and 9 of the Hindu Minority and Guardianship Act to declare that both parents as equals in respect of natural guardianship of their children.
via Why Guardianship Act prefers father as natural guardian: PIL | India News – Times of India
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