Rules of Guardianship and documentation in India

In the recent past, there have been changes to the rules for passport and PAN card that allow an applicant to furnish their mother’s name if she is a single parent.

• But this continues to be a niggling issue when it comes to school certificates and umpteen other documents that insist on the father’s name as the guardian.

The Law

• Section 6 of India’s Hindu Minority and Guardianship Act, 1956 provides that the natural guardian of a Hindu minor boy or unmarried girl is the father, and only after him, the mother.
  • It also provides that the guardian of a married minor girl is her husband.

• The Muslim Personal Law (Shariat) Application Act, 1937 says that the Shariat or the religious law will apply in case of guardianship according to which the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty though the father’s right to general supervision and control exists.
  • The concept of Hizanat in Muslim law states that the welfare of the child is above all else.
  • This is the reason why Muslim law gives preference to the mother over father in the matter of custody of children in their tender years.
• The Supreme Court’s landmark judgment in Githa Hariharan v. Reserve Bank of Indiain 1999 provides partial relief.
  • In this case, the HMGA was challenged for violating the guarantee of equality of sexes under Article 14 of the Constitution of India and the court held that the term “after” should not be taken to mean “after the lifetime of the father “, but rather “in the absence of the father”. 
  • But the judgment failed to recognise both parents as equal guardians, subordinating a mother’s role to that of the father. Though the judgment sets a precedent for courts, it has not led to an amendment to the HMGA.
• The Law Commission of India in its 257th report on “Reforms in Guardianship and Custody Laws in India” in May 2015 recommended that the “superiority of one parent over the other should be removed and that both the mother and the father should be regarded, simultaneously, as the natural guardians of a minor.”
• Before this, in its 133 report too, the Commission had recommended that the HMGA be amended to “constitute both the father and the mother as being natural guardians ‘jointly and severally,’ having equal rights in respect of a minor and his property.”

What are the rights of guardian of person?

• The natural guardian has the following rights in respect of minor children:
  (a) Right to custody,
  (b) Right to determine the religion of children,
  (c) Right to education,
  (d) Right to control movement, and
  (e) Right to reasonable chastisement

These rights conferred on the guardians in the interest of the minor children. Therefore of each- of these rights is subject to the welfare of the minor children. Hence, the natural guardians have also the obligation to maintain their minor children.

What is the attitude of Government departments on documentation of minors with single mothers?

• There have been changes to the rules for passport and PAN card that allow an applicant to furnish their mother’s name if she is a single parent.
• But this is not followed when it comes to school certificates and many other documents were mention of father’s name as the guardian is insisted.
• Last year in September, a PIL in Madras High Court sought that all documents must also require the mother’s name to be mentioned along with the father’s.

What are the rules for issuing of passport and PAN cards to those with single parents?

• The rules for the issuance of passports were liberalised by Ministry of External Affairs in recent years.
• Certain changes were made following the recommendations of a three-member committee comprising of the Ministry of External Affairs and the Ministry of Women and Child Development that examined various concerns pertaining to passports for children after a divorce or in case of adoptions.
• Following this changes, applicants could provide the name of either parent instead of providing details of both the father and mother.
• The new passport application form also does not require the applicant to provide the name of spouse when the person is divorced and is also not required to provide the divorce decree.
• Similarly, in November 2018, the Central Board of Direct Taxes amended Income Tax Rules, 1962, so that the father’s name was not mandatory when a mother was a single parent.
• The new PAN application form also seeks the mother’s name alongside the father’s. Applicants can also choose whether they want their father’s name on the PAN card or their mother’s name.

What is the way forward?

Various Government departments must proactively amend their rules to ensure that they are in sync with the Githa Hariharan judgment as amending laws can be a challenging exercise. Until that happens individuals will have to continue to flock courts to seek relief.