Guardianship law under NCW review
NEW DELHI: A broad consensus over doing away with the discriminatory reference to a child as “legitimate” or “illegitimate”
and ensuring that mother is considered a natural guardian just as the father, emerged at the consultation on “guardianship
rights of the mother” organised by the National Commission for Women in the capital.
This consultation was part of a review by NCW of certain provisions of the Hindu Minority and Guardianship Law
(https://timesofindia.indiatimes.com/topic/Hindu-Minority-and-Guardianship-Law) 1956 and Guardianship and Wards Act
(https://timesofindia.indiatimes.com/topic/Guardianship-and-Wards-Act), 1890. NCW chief Rekha Sharma said that now the
final recommendations will be put together and submitted to the ministry of women and child development for
consideration. The NCW is also planning to address concerns over status of guardianship rights of transgender persons
raised at the consultation.
The Hindu Minority and Guardianship Act, 1956 as of now categories a child as “legitimate and illegitimate.” It is stated that
in case of a boy or an unmarried girl, the guardian will be the father and after him the mother. The custody of a minor up to
age five shall ordinarily be with the mother. In case of an “illegitimate boy or/and illegitimate unmarried girl - the
guardianship will rest with the mother and after her with the father. It is this provision that evoked concern at the
consultation.
“Since the guardianship laws under review gives preference to father over mother, it does not
conform with the right to equality and right against discrimination as per Article 14 and 15 of
the Constitution of India,” NCW chief Rekha Sharma added. The review is seen to be critical
by NCW especially keeping in mind cases of women deserted by husbands or live-in partners and even cases where a
woman may be a victim of rape and has a child. Sharma said that the consultation also saw a very strong view emerge on
dropping the word ‘illegitimate’ children from the law.
The consultation was attended by the NCW’s top officials, chairpersons and members from state women’s commissions of
UP, Punjab, Jharkhand, J&K, NCPCR member, CEO of Central Adoption Resource Agency, experts like additional solicitor
general of Supreme Court Pinki Anand, academics and social activists working for the legal rights and empowerment of
women and children.
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