FATHERING is different from PARENTING. Every person who “fathers” may not take up the responsibility of “parenting”, which is a sustained responsibility. There are umpteen examples to prove my point. It is to impose this responsibility of “parenting” on the father of the child that this “guardianship” was granted. Of course, in olden times women and children were thought of as chattels of the man and therefore did not have the legal standing in the society to represent their cases or causes, except through their husbands or fathers. But now things have changed although the LAWS have not kept up with the changes which have been accepted by the society at large.
What is the effect of GUARDIANSHIP?
THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956
6.Natural guardians of a Hindu Minor. The natural guardians of a
Hindu minor, in respect of the minors person as well as in respect of the minors 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;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father; (c) in the case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.-In this section, the expressions ” father ” and
“mother” do not include a step-father and a step-mother.
THE GUARDIANS AND WARDS ACT,1890
19. Guardian not to be appointed by the court in certain cases
Nothing in this Chapter shall authorize the court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person-
(a) of a minor who is married female and whose husband is not, in the opinion of court, unfit to be guardian of her person; or
(b) 15[* * *] of a minor whose father is living and is not in the opinion of the court, unfit to be guardian of the person of the minor; or
(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.
So, as per both the Acts, the ‘father” of the child is the NATURAL GUARDIAN of the child.
No doubt, the mother spends more time with her children, than the father who goes out attending to his occupation. But should she be made the guardian merely because she spends more time with the child? I DO NOT THINK SO.
The Guardianship envisaged in all the Acts, have split up the responsibilities in terms of the ‘person’ of the minor and the ‘property’ of the minor. The mother, no doubt, would be able to provide better EMOTIONAL SUPPORT to the child, but when it comes to the property of the child, would the father be better equipped or would the mother be better equipped to handle the properties of the minor? In our country, where the female literacy levels are appallingly low, would they be able to deal with it or would the men folk be better equipped? I THINK A MAN WOULD BE BETTER EQUIPPED TO DEAL WITH PROPERTY ISSUES.
IN my opinion, making the mother the NATURAL GUARDIAN seems another tokenism, which would remain in the statutes, yet the menfolk would have to function as guardians of the minor’s properties without being de jure guardians of minors!