ABSTRACT
The author of this paper wanted to achieve an understanding of the intrinsic details of the Personal Laws (Amendment) Act, 2010 which includes the amendment of the provisions of the two statutes namely the “Guardians and Wards Act, 1890” and the “Hindu Adoptions and Maintenance Act, 1956”. The author tried to relate every minute changes with the previous provisions and tried to achieve the best possible reason of why the change has been made by the parliament. The author also tried to relate the effects of the changes with different case laws, which were filed and decided before and after the statute got amended and even tried to map the difference of the judgements and its effects on the development of the societal norms. The prospect of equality in the personal laws of that of the Hindus, Muslims, Christians, etc in the Indian context is very oblivion in nature. Thus, the author tried to decipher the reality of the society and the laws and tried to analyse it. The paper lately achieves the conclusion in accordance to the analysis of the author the reality of the personal laws in correspondence to equality and the benefits that the Personal Laws (Amendment) Act, 2010 had helped in recognition of the consent of the mother in an equal footing of that of the father.
INTRODUCTION
India is a very diverse country. The country from its very beginning possessed of different sections and strata of people. Thus, it’s very evident that their norms and customs would be very different to each other in terms of governing them and to get themselves maintain in accordance to it. The very fact is that personal laws can be traced back from the ancient time, such as the background of Hindu Personal Laws can be traces from the Manusmriti, the background of the Muslim Personal Laws can be traced from the Sharia which is also known as al-Quran al-Islam which consists of Fiqh which further means the legal term. In actual words these two are the most evident and prominent religions present in the Indian subcontinent. Though there exist many other personal laws in regard to many other different religions and sections, such as Christian Personal Laws and Parsi Personal Laws. The society is dynamic in nature. The Indian society has evolved a lot from the past to the present, it has evolved so much that the we now study this evolution from ancient times to the modern times. This process of evolution needs modification, in the ancient time this process of modification can be understood through overtaking of dynasties and kingdoms, in the medieval period in the context of Indian historical society, it can be understood through the process of agitations and revolts which pressurized the colonial rulers to mould their laws, in the modern times the society has become more civilized and their way of demanding and processing a change has developed to a far extent. This process follows the system of amendment. The very base of the society is bounded by some rules and regulations, earlier these rules were very orthodox in nature later the society opened itself and adopted new styles of living which led to incorporation and elimination of certain parts of the laws. Similarly, the family norms, rules and regulations have to be amended so as to incorporate certain new adaptive laws and to eliminate certain orthodox laws.
The Personal Laws (Amendment) Bill, 2010 was introduced in the Rajya Sabha on 22nd April, 2010 by the Ministry of Law and Justice, the bill was initially propounded by Shri. “Veerappa Moily”. Then, the bill was forwarded to and referred to the Standing Committee on 23rd April, 2010 on Personnel, Public Grievances, Law and Justice, which was expected to give its report within two months. The Standing Committee presented its report on 4th August, 2010. The bill was passed in the Rajya Sabha on 17th August, 2010 and then was subsequently passed in the Lok Sabha on 21st August, 2010. Finally on the very date of 31st August, 2010 the president assented to the “Personal Laws (Amendment) Act, 2010” and it got published in the “Official Gazette of India as act 30 of 2010” on 1st September, 2010. This amendment bill was introduced by Veerappa Moily as he was persuaded by the Eighty-third Report of The Law Commission (26th April, 1980) of India which talk about amendments in the “Guardians and Wards Act, 1890” and certain provisions of the “Hindu Minority and Guardianship Act, 1956”, in regard to gender equality.
CONVOLUTION OF THE AMENDMENT BILL, WHICH LATER BECAME AN ACT
It mainly focused to amend the “Guardians and Wards Act, 1890” and the “Hindu Adoptions and Maintenance Act, 1956”. It sought to amend “section 19 of the Guardians and Wards Act, 1890”, where the mother was not included as the guardian of the child (minor) rather the father was only considered to the be the sole guardian of the child. The Law Commission of India in its “eighty – third report on the Guardians and Wards Act, 1890” and certain provisions of the “Hindu Minority and Guardianship Act, 1956” in compliance and referred to paragraph 6.38 which had prescribed to amend the specific “clause (b) of section 19 of the Guardians and Wards Act, 1890” which stated to include mother along with the father to be equally considered to be the guardian of the child. This recommendation was further accepted and incorporated in the proposed bill of “Personal Laws (Amendment) Bill, 2010”. Through the “Personal Laws (Amendment) Act, 2010” the “Hindu Adoptions and Maintenance Act, 1956” has also been amended. The very “clause (c) of section 8 of the Hindu Adoptions and Maintenance Act, 1956” was amended which earlier questions the capacity rather incapacitates a married women from adopting a child. This discrimination was made only on the basis of the marital status of the women as she herself is considered to be under the care of her husband rather is considered to be the dependent family member over the husband. The later version of it was proposed to be that a married women and a married man should both have an equal right to adopt and to give consent to for the process and acceptance of the adoption. Furthermore, the “sub section (2) and (3) of section 9 of the Hindu Adoptions and Maintenance Act, 1956” was also amended as it seemed to curtail the rights of a mother to give in adoption if the father is still alive and is of sound mind. If so then the consent of the father will be considered to be of utmost value. This was changed by the amendment act and the consent of both the mother and father was made equally essential even the absence of one will obstruct the process, reserving exceptions on the ground that if one of them is of unsound mind or has renounced the world or is no more a Hindu. The “Guardians and Wards Act, 1890” is referred to as the act which includes of secular laws[1].
The very right to equality has been tried to be focused on by the amendment act. The proposed bill that became an act tried to focus on maintaining the equality of in the society mainly through focusing on marital ties such as between men and women, husband and wife and mother and father. The very concept of the Indian Constitution had been upheld by this amendment that is “Right to Equality” of religion, caste, creed, gender, etc., “Article 14” of the Indian Constitution. The Indian constitution had made fair and fine efforts to maintain equality in the society. The constitution had also empowered the state through “Article 15(3) of the Indian Constitution[2]” which constitutionally allows the state to amend or make laws in regard to the development of women. The maintenance of equality in the society has been upheld by the judicial pronouncement many a times.
CASE ANALYSIS AND INTERPRETATION OF THE REASONS
Such happened in the case of “Githa Hariharan Vs Reserve Bank of India”[3]. This case was concerned with “Section 6 of the Hindu Minority and Guardianship Act, 1956”. The facts go like that a couple have a minor male child. There had some marital disturbances between the married parties, thus as a result the child stayed with the mother, it was to some extent it was implied that the father was negligent towards the child. The mother thus tried to make the child financially secure for the future, further applied to a bank for this. The Reserve Bank of India informs her through the bank that the guidelines will not allow the mothers signature as the father is still alive. The statute states that the father’s signature is necessary for everything of the child. Henceforth, she challenged “Section 6 of Hindu Minority and Guardianship Act, 1956” [4] on the ground of “Article 15 of the Indian Constitution”[5], which indirectly was gender biased and stated that “the natural guardianship of the child will first lie with the father and then with the mother”[6]. The court doesn’t strike down the law but reinterpreted the law in a new manner and read down that the mother will have the equal right of guardianship and custody over the Hindu minor child. Thus, later on the general interpretation of the law changed and it was upheld that any Indian mother and father will be equally entitled to the guardianship and custody of a minor.
Another case titled “ABC Vs The State (NCT of Delhi)”[7] which was decided by a two judge bench of the Supreme Court of India. The fact of the case is that an “unwed woman belonging to the Christian community” had given birth to a child (son) in the year of 2010. The lady was well educated and raised her child all alone, made him financially secure without any help or assistance from the side of the father. Thus, the mother wanted to make the child nominee in every policy (savings and insurance) of hers. Nonetheless the lady was instructed that to do so she must have to declare the father’s name of the child or has to get and submit the guardianship certificate from the court. the lady filed an application in the Guardian Court, the court claimed for the information about the father, the court therefore declined and dismissed the application as the lady haven’t disclosed the identity pf the father. The women again appealed the decision to the Delhi High Court dismissed the appeal in the very early stage, stating the reason that the father may have specific interest in the child’s custody and welfare, and thus the father’s presence is necessary. The lady further appealed to the Supreme Court of India, where State of Delhi sticked to the ordinary derivation of the statute that is section 11 and “section 19 of the Guardians and Wards Act, 1890”[8] which stated that notice need to be sent to ‘both the parents’ for appointing guardianship and a guardian cannot be appointed to a child if the father of the child is still alive and is of sound mind, respectively but, the court held that above all section “7 of the Guardians and Wards Act, 1890”[9] is kept above which takes into note that guardianship will be provided to that person which according to the court will be judicial and prudent and the court may deem fit for taking up the responsibility of guardianship, and the apex court of law thus granted the lady the legal guardianship of the child, irrespective of the father’s consent.
The general motive of this amendment bill which later became an act was to promote and maintain gender equality through the statutes of the “Hindu Adoptions and Maintenance Act, 1956” and the “Guardians and Wards Act, 1890”. The “Hindu Adoptions and Maintenance Act, 1956” prominently delt with the legal process of adopting children by Hindu adults. The very changes made by the Personal Law (Amendment) Act, 2010 is priory in section 8 of the aforementioned act is that the female Hindu (mother) has been given equal footing to that of a Hindu father, where consent of both the Hindu mother and father is important for adopting a child.
Secondly, in section 9 sub – section (2) and (3) of the Hindu Adoptions and Maintenance Act, 1956, the amendment bill changed ‘the father’s singular right to give a son or daughter in adoption, though with consent of the mother’ by giving the “father and the mother equal rights to give a son or daughter in adoption”, and the mother has the full right to give in adoption the child in the absence of the father (if he has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind)[10].
In the case “Bal Krishnan Rastogi and Another Vs. Dr. (Mrs.) Reena Rastogi and Others”[11] there was a husband and a wife and they had a child (son) who was staying with them. The father sent the child his aunt to be taken care of, as the health of the mother was not good and she was not mentally stable to take care of the child. The aunt (paternal) after the cure of the original mother of the child refused to return the custody of the child stating that the child was adopted by them through proper paper works and judicial procedure. The original parents filed a writ petition against the aunt through article 226 of the Indian Constitution[12] in front of the Allahabad High Court. The petitioners argued that after the adoption took place, they cannot claim for the position of natural guardianship but still they are the original parents of the child. He stated that the mental health of the wife of the petitioner was not good at that time so that she can give her consent for the adoption, there was only a consent from the side of the husband and the date of adoption was also not mentioned. The court opined that under “section 9(2) of Hindu Adoptions and Maintenance Act, 1956”[13] it is well mentioned in the statutes that the father or the mother is eligible singularly for the consent of giving their child in adoption if eighter of them have renounced the world, have ceased to be a Hindu or is of unsound mind as not capable to give prudent consent. Henceforth the petition was set aside. To some extent the observation of critique of thus judgement is that the statute states prominently that if eighter of them has been declared by a “court of competent jurisdiction to be of unsound mind”. It was nowhere mentioned that the original mother of the child was mentally ill otherwise than the medical reports presented but their needs a declaration and recognition from the court of competent jurisdiction which was lacking in the fact sheet while the process of adoption was going on. So, to the utmost consideration the court had very liberally interpreted the statute.
Similarly in the case of Hari Ram Vs. Surja and Anr.[14] the defendant took consent from the father of the child for adoption, so that she can also claim the property in the name of the child, but unfortunately haven’t taken into note the consent of the mother. She filed a petition in the court regarding gaining of the property. The Punjab and Haryana High Court then gave its verdict in reference to Section 9 (2) of the Hindu Adoptions and Maintenance Act, 1956[15] with a golden method interpretation that when a father is practicing the authority of his consent for adoption of the child, he should practice it in the absence of the consent of the mother if not the mother had “completely renounced the world or had ceased to be a Hindu or has been declared of unsound mind by the competent court”. The court held that the adoption was not in compliance with the judicial norms thus, is invalid and further no transfer of property can happen.
In the case of Ghisalal Vs. Dhapubai[16] the defendant (wife) denied to accept that a child was adopted, thus the petitioner (husband) filed a petition in front of the court stating that the adoption was valid. The court upheld that when the ceremonies were performed properly with the execution of registered adoption deed then as a prudent person whoever was present there at the time of the ceremonies, he/she then will have in obvious an implied consent. Thus, there should be no doubt in determining such consent for any further procedure. This case was followed by a landmark case named “Brijerdra Singh Vs. State of MP”[17] which revolves around “section 8 of the Hindu Adoption and Marriage Act, 1956”[18]. The conclusion which can be derived from this case is that a women (mother of Brijendra Singh) lived away from her husband and her marital home from the very next day of her marriage due to her physical deformity. After staying apart for 22 years she adopted Brijendra Singh. Later on, some land dispute occurred between the state and the family, as Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 restrict a single person from holding a mentioned amount of land. The state considered that the lade (Mishri Bai) as a singular person who was exceeding the limit of land, a single person should hold, the state unable to consider them a family of two person as the state officials further stated that the adoption of Brijendra Singh was not a valid one as the consent of father was missing. The councils for Brijendra Singh stated that as the lady was deserted for a very long and considerable period of time thus the marital obligation broke due to the time gap. Thus, no consent should be required from the side of the father. The supreme court after deducing the arguments held that there is a lot difference between a couple living separately after divorce and a couple living separately due to their due problems (marital issues) which they are not legally directed or entitled to do so. Therefore, according to “section 8 (c) of the Hindu Adoption and Maintenance Act, 1956” the lady was not permitted to adopt the child (Brijendra Singh) as there was no presence of consent from the side of the father and his consent was important as the couple was not separated legally or divorced under the eyes of the law. The court in this case very strictly interpreted the statute and lacked in stating the equal importance of the consent of the mother.
COMPARISION OF EQUALITY IN LAW AND IN THE INDIAN SOCIETY
From time and ago women have been considered as a dependent category whose responsibility has always been a part and parcel of the father or husband of the women. The men were considered to be the bearer of the house and the steps of the women had been confined to the corresponding attached four walls. The laws which were made at that time were much patriarchal blowed. The various customary laws made in the previous times during the independence of India were even blown by the same. The family laws are no exception to that as in these statutes the male dominance was there (male as the caretaker of the house) which later also gave rise to different stigmas related to the women which resulted in their social inconvenience. In the light of independence and the inequalities being kept in mind the framers of the law and the specified lawmakers had tried to maintain every aspect of equality including gender equality through the provisions of different statutes and laws. But some orthodox leaders were never ready to compromise with the laws (generally norms) of the society, thus, some inequitable laws got codified in the statutes.
It is a matter of concern that how the Indian society had considered the single mothers as in the heinous position and the abandoned father of the same child as the welfare provider of the child and the supporter of him/her, in actual who never bothered to take care of the child and just left him/her with his/her mother without any due diligence. Thus, a question arises that why the single mother’s position is so much degraded and they face so much inequality and discrimination. “Whenever a child is to be enrolled in a school the authorities doesn’t accept the signature of validation, authorization and consent of the mother instead they ask for the signature of the father of the child and if no signature of the father can be derived then they ask for the no objection certificate of the child’s father.”[19] This is very insulting to a mother who took up all the responsibilities of the child and even after that the father who never took care and abandoned the child has a higher consideration of his consent. This is an inequality and discrimination and a morally inappropriate act at the same time. “Some instances are also got to be known that a mother was again humiliated when the passport officers refused to process her minor child’s passport without the signature of her ex-husband”[20]. “It was thus derived by some feminist scholars that even the constitutional provisions were in favour of the women some narrow-minded officials are present in the positions who bring agonising statements of patriarchy”[21].
In the case of “Shalu Nigam v. Regional Passport Officer”[22] is a case which was decided in the Delhi High Court whose facts state that the mother of a daughter had appealed in the court of law to direct the passport officer to issue the passport of her daughter without the mention of the identity of the lady’s (mother of the daughter) ex-husband, as the passport officers were necessitating it as a essential and mandatory provision to be filled. The court opined that the name of the father is not an essential or mandatory requirement to be imposed on the mother by the passport authorities. As the name of the father is not mentioned in any of the document of the child so linking her suddenly will not be a mandate. The Supreme Court in the case of “ABC Vs. The State (NCT of Delhi)” had acknowledged the single mothers as natural guardians and parents. Thus, in the case of “Shalu Nigam v. Regional Passport Officer” it was also made clear by the honorable court that the assurance and issuance of an unwed mother is enough for the child’s well-being and the presence of father or association of his name is not important[23].
Similarly in the case of “A. Aniswar v. Union of India”[24], the mother wanted the child’s overseas citizenship card thus the mother submitted the minor’s registration application as overseas citizen of India card holder, the application was further rejected by the authorities and it was directed that the mother as she is divorced so she have to present the custody (which she may have got after the divorce) of the child to prove and process the further documentary proceedings for getting the grant. She filed a petition in front of the Madras High Court and the court observed that as already directed in the case of Githa Hariharan and ABC Vs. State, the mother can be considered and had been recognised as the “absolute parent and the natural guardian of the minor” and as the divorce had already granted and the child was staying back with the mother it is again implied that the mother is the natural guardian of the minor child[25]. Thus, also stated that the authorities have to accept the application and any such further applications.
CONCLUSION
Even after the heavy imposition of laws in favour of gender equality in the provisions of family law there still stay back some lacunas[26]. As this Amendment act had taken effort to bring equality in terms of gender in the society the legislature should bring in such more amendments and laws which would bring more and more quality between binary genders. Through incorporating the concept of Article 14 of the Indian Constitution[27] in the paradigm of these personal laws there should be equality between the married couple both male and female. The very concept of upliftment of a stratum to bring them to the line will only be possible by treating them unlike than the others in the sense that by providing them with special provisions. Similarly, the mother should be given special privileges in some circumstances so as to make their importance more prominent in the society and even within the provision of personal laws. The very basics of the society become immensely vague when they starts differentiate between the parents that the father is more competent than the mother and can give more care to the child as the males in the society are considered to be monetarily more stable than the females. The society in the mean time forgets to consider the importance of the mothers present and her role in upbringing the child, the society mistook the women population as less productive though it is not the case. All the laws should grant the mother and father equal rights to natural guardianship of their minor child, and joint guardianship should be the preferable option for married couples in the context of Indian society. Thence the legislature had now been made the in charge of the further actions which will change the societal norms by changing the discriminatory laws still prevalent through its power to amend and to provide equity and justice to the personal laws.
[1] The Personal Laws (Amendment) Act, 2010, NO. 30 OF 2010 [31st August, 2010]
[2] INDIAN CONSTITUTION, Article 15 (3)
[3] Githa Hariharan Vs Reserve Bank of India, AIR 1999 2 SCC 228
[4] Hindu Minority and Guardianship Act, 1956, Section 6
[5] INDIAN CONSTITUTION, Article 15
[6] Ibid at 4
[7] ABC Vs The State (NCT of Delhi), 2015 SCC OnLine SC 609
[8] Guardians and Wards Act, 1890, section 11, 19, 7
[9] Ibid at 4
[10] Hindu Adoptions and Maintenance Act, 1956, section 9 sub – section (2) and (3)
[11] Bal Krishnan Rastogi and Another Vs. Dr. (Mrs.) Reena Rastogi and Others, 10th November, 2004
[12] INDIAN CONSTITUTION, Article 226
[13] Hindu Adoptions and Maintenance Act, 1956, section 9(2)
[14] Hari Ram Vs. Surja and Anr, 1969 24 STC 251 P H
[15] ibid at 5
[16] Ghisalal Vs. Dhapubai, Civil Appeal Nos. 6373- 6374 of 2002
[17] Brijerdra Singh Vs. State of MP, Appeal (Civil) 7764 Of 2001
[18] Hindu Adoption and Marriage Act, 1956, section 8
[19] CRIS, “Single Mothers Fight a Lonely Battle”, Deccan Chronicle (14-4-2018)
[20] Arpita Raj, “Single Women Seeking Kids’ Passports Run into Red Tape”, The Times of India (10-12-2016)
[21] Arpita Raj, “Single Women Seeking Kids’ Passports Run into Red Tape”, The Times of India (10-12-2016)
[22] Shalu Nigam v. Regional Passport Officer, W.P.(C) 155 OF 2016 & CM Appls. Nos. 684-685 of 2016
[23] Ibid at 7
[24] A. Aniswar v. Union of India, W.P. No.15628 of 2016 & W.M.P.Nos.13581 & 13582 of 2016
[25] Ibid at 4
[26] CRIS, “Single Mothers Fight a Lonely Battle”, Deccan Chronicle (14-4-2018)
[27] INDIAN CONSTITUTION, Article 14