Guardianship And Parental Rights Welfare Of The Child Principle

Maruti N. Bhattgiri, LL.B, Shree L. R. Tiwari Collage of Law

ABSTRACT

This article aims to analyze the inconsistencies between the Guardians and Wards Act, of 1890 which governs all the citizens, and the Hindu Minority and Guardianship Act, of 1956 which governs the Hindus. There is a discussion on various sections of both laws which collide and the historical references to these Acts. It also focuses on understanding the issues that stem from paternal supremacy given in provisions and the importance of welfare principles in laws pertaining to custody and guardianship.

India is a country where people from diverse cultures and religions reside and so making universal laws that cater to people belonging to different communities is difficult. The custody and guardianship laws are also different for religions and come under the sub-head of personal laws. The laws relating to custody and guardianship are quite interconnected since both topics are quite closely related to each other. Custody is a narrowed-down concept in relation to guardianship which provides an adult with several rights and powers relating to a minor’s person and property. Custody is more focused on the physical presence of a minor and includes making basic day-to-day decisions for a minor.

That is why custody is related to more of a minor’s person and not property. In India, the laws for guardianship and custody include a secular law enacted by the colonial state in 1890, the Guardians and Wards Act which has been applicable on all people, irrespective of the communities they belong to which has been adopted. Apart from that there are statutes that are specific to various religions. The modern statute for the Hindu Law which governs all Hindus under it is the Hindu Minority and Guardianship Act, 1956. There are certain inconsistencies in both these laws on provisions relevant to guardianship and custody with common law derived legacy to give importance to the supremacy of the father’s right in guardianship and custody matters while personal law gives more importance to the welfare of the child. These legislative inconsistencies have brought up certain issues like gender inequality and the welfare of minors into the picture which need to be understood.