The rules around guardianship of minors

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How are different government departments changing documentation procedures regarding minors?

How are different government departments changing documentation procedures regarding minors?

The story so far: In the recent past, changes have been made to passport and PAN card rules that allow an applicant to provide their mother’s name if they are a single parent. But that continues to be a tricky issue when it comes to school certificates and countless other documents that insist on the father’s name as guardian. Last year, in September, a Madras High Court PIL requested that all documents also require the mother’s name to be mentioned along with the father’s.

What are the rules for issuing passports and PAN cards to single parents?

In December 2016, the Ministry of Foreign Affairs relaxed its rules for issuing passports and took a number of measures. Some changes have been made following recommendations from a three-member committee made up of the Department of External Affairs and the Department of Women and Child Development which considered various concerns relating to passports for children after divorce or in case of adoption. Following the changes, applicants could provide the name of either parent instead of providing details of the father and mother. The new passport application form also does not require the applicant to provide the name of his or her spouse when divorced nor is he required to provide the divorce decree.

Similarly, in November 2018, the Central Board of Direct Taxes amended the Income Tax Rules of 1962 so that the father’s name was not required when a mother was a single parent. The new PAN application form also looks for the mother’s name next to the father’s. Applicants can also choose whether they want their father’s name on the PAN card or their mother’s name.

What do the guardianship laws say in the country?

Indian laws grant superiority to the father in case of guardianship of a minor. Under the Hindu Religious Law, or the Hindu Minority and Guardianship Act (HMGA) of 1956, the natural guardian of a Hindu minor in respect of the person or property of the minor “is the father , and after him, the mother: provided that custody of a minor who has not attained the age of five years is ordinarily with the mother.

The Enforcement of Muslim Personal Law (Sharia) Act 1937 states that Shariah or religious law will apply in cases of guardianship whereby the father is the natural guardian, but custody rests with the mother until that the son reaches the age of seven and the daughter reaches puberty although the right of the father to general supervision and control exists. The concept of Hizanat in Islamic law states that the welfare of the child comes first. This is the reason why Muslim law gives preference to the mother over the father in matters of custody of young children.

Experts say that although the courts tend to award custody of a child following a marital dispute to the mother, guardianship rests primarily with the father in law and this contradiction highlights that mothers are seen as caregivers, but not as decision-makers for children.

The Supreme Court’s historic judgment in Githa Hariharan v. Reserve Bank of India in 1999 brings partial relief. In this case, the HMGA was challenged for violating the guarantee of gender equality under Article 14 of the Constitution of India and the court held that the term “after” should not be construed as meaning “after the life of the father”, but rather “in the absence of the father”. But the judgment did not recognize both parents as equal guardians, subordinating the role of the mother to that of the father. Although the judgment sets a precedent for the courts, it did not lead to an amendment to the HMGA.

The Law Commission of India, in its 257th Report on “Reforms of Guardianship and Custody Laws in India” in May 2015, recommended that “the superiority of one parent over the other be removed and that the mother and the father are considered simultaneously, as natural guardians of a minor.

Earlier, also in Report 133, the Commission had recommended that the HMGA be amended to “establish the father and mother as natural guardians ‘jointly and severally’, having equal rights in respect of a minor and his property “.

What is the way forward?

Senior lawyer Geeta Ramaseshan says various ministries need to proactively change their rules to ensure they are in sync with the Gita Hariharan judgment because changing laws can be a difficult exercise.

Until that happens, individuals will have to continue to flock to the courts to seek redress.

THE ESSENTIAL

In 2016, the Ministry of Foreign Affairs changed its rules for issuing passports. Similarly, in 2018, the Central Board of Direct Taxes changed income tax rules so that the father’s name was not required when a mother was a single parent.

Under the Hindu Minority and Guardianship Act, the natural guardian of a Hindu minor is the father, and after him, the mother.

In the Githa Hariharan v. Reserve Bank of India the HMGA was challenged for violating the Constitution’s guarantee of gender equality.

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