A mother and father should have equal rights as guardians of their children and the Hindu Minority and Guardianship Act (HMGA), 1956 should be amended as it discriminates against women, a parliamentary panel has recommended in its report.
"The said Act does not provide for joint guardianship nor does it recognise the mother as the guardian of the minor legitimate child unless the father is deceased or is found unfit. The Act gives preference to father over mother, it goes against the right to equality and right against discrimination envisaged under Articles 14 and 15 of the Constitution. The committee feels that there is an urgent need to amend the HMGA and accord equal treatment to both mother and father as natural guardians," says the department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, which tabled its report on Monday on 'Review of Guardianship and Adoption Laws'.
Section 6 of the HMGA lays down that in the case of a Hindu minor boy and a Hindu minor unmarried girl, the father is the natural guardian and ‘after’ him the mother. Section 7 of the same Act provides that the natural guardianship of an adopted son, who is a minor, passes on adoption to the adopted father and ‘after’ him to the adoptive mother.
Marital disputes
The parliamentary panel has also called for a relook at child custody in case of marital disputes and suggested empowering courts to award joint custody to both parents when conducive for the welfare of the child, or award sole custody to one parent with visitation rights to the other.
"As the society is rapidly evolving, conjugal and familial relationships are becoming more and more complex. The basis for ending marriage has shifted from fault-finding divorce to mutual consent divorce. There is a need to lay down a framework within the legislation within which the divorcing parents and children can decide what custodial arrangement works the best for them," the panel has said.
It has also proposed guardianship rights of those differently abled and suffering from autism or cerebral palsy, people suffering from mental health problems as well as senior citizens. In such cases where guardianship of majors is concerned, the panel says the law should consider "supported decision making" as an alternative to guardianship where a person appoints trusted advisers such as friends, family or professionals to serve as supporters.
On adoption, the committee has said the LGBTQ community should also be covered under the law.
Under the Juvenile Justice (Care and Protection of Children) Act, 2015, the prospective adoptive parents should be physically, mentally, emotionally stable, financially capable. While single men can adopt only boys, single women can adopt a child of any gender. It also says that no child should be given in adoption to a couple unless they have at least two years of stable marital relationship.
The committee has also suggested harmonising the provisions of the JJ Act, 2015 and the Hindu Adoptions and Maintenance Act (HAMA), 1956 as adoption under the former is tedious and time-consuming, and the latter has lacunae such as inability to trace the source of the child being given for adoption or lack of post-adoption follow-ups.
The panel has revived an old demand for maintaining an adoption registry of children adopted through the HAMA as many fear it is sometimes used as a conduit for trafficking.
