Authored By: Thato Malebana
University of Johannesburg
ABSTRACT
This article critically examines the gender bias inherent in Section 6 of the Hindu Minority and Guardianship Act, 1956, which designates the father as the primary “natural guardian “ and the mother only “after him”. Despite progressive judicial interpretations in cases such as Githa Hariharan v Reserve Bank of India (1999) and Jijabai Vithalrao Gajre v Pathankhan (1970), the statutory language continues to reflect patriarchal assumptions that conflict with Constitutional principles of equality and child welfare. By comparing India’s guardianship framework with South Africa’s gender-neutral Children’s Act of 2005, the article argues for urgent legislative reform to replace discriminatory terminology with gender-equal provisions.
INTRODUCTION
The Hindu Minority and Guardianship Act still prioritizes the father as the “natural guardian,” is this not considered unconstitutional? The Hindu Minority and Guardianship Act, 1956,[1] section 6(a), (from hereon the HMGA) says that the natural guardians of a Hindu minor; in respect of the minor’s person as well as in respect of the minor’s 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. This means that the father is recognized as the primary guardian, while the mother’s rights arises only after the father’s death, unless the father is deemed unfit. India’s diverse religious and cultural communities are governed by different personal laws for family matters like marriage, divorce, inheritance, and child custody. During British rule, the Guardians and Wards Act of 1890,[2] (from hereon the GWA) was introduced, giving courts the power to appoint guardians for minors from any community. A guardian has the responsibility and authority to care for a child, make decisions about their upbringing, and manage their property.[3] The traditional Hindu law remained in force throughout British India and most Indian states until the passing of the Hindu Minority and Guardianship Act 1956.[4] The laws on guardianship in India have evolved over time. Originally, they were meant to manage the property of minors during British rule and later focused on education and legitimacy issues. Over time, the idea of the “best interests or welfare of the child” became the main guiding principle in guardianship cases.[5] Although courts have interpreted guardianship laws in a more gender-equal manner, the statutory preference for fathers as natural guardians continues to reflect discrimination and weakens the constitutional ideals of equality and child welfare.
LEGAL FRAMEWORK
the law governing guardianship among Hindus is primarily contained in the HGMA, 1956.[6] Section 6(a) of the Act designated the father as the natural guardian of a minor and only recognizes the mother “after him”, thereby creating a clear gender hierarchy. Although Section 13 of the Act emphasizes that the welfare of the child should be the paramount consideration, the statutory preference for fathers reflects the patriarchal bias inconsistent with Constitutional guarantees. The discriminatory part lies in Section 6(a), which gives priority to the father, contradicting the Constitutional outline of gender equality. This conflicts with Articles 14 and 15 of the Constitution,[7] being the right to equality before the law and the prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth.
In the case of Githa Hariharan v Reserve Bank of India,[8] the Court explains that the validity of Section 6 of the HGMA, was being challenged because it was seen as discriminating against women and violating the Constitutional right to gender equality and dignity as stated in the Constitution of India, 1950.[9] The petitioners argued that the law unfairly gives fathers preference over mothers as natural guardians of their children. To show this, two cases were presented: In the first, Ms. Githa Hariharan applied to buy bonds for her son, but the Reserve Bank of India refused, saying only the father could sign or she needed a court guardianship certificate. In the second, another mother sought custody of her child while the father (though uninvolved in the child’s care) claimed he was the only natural guardian. Both women went to the Supreme Court under Article 32 of the Constitution,[10] claiming that this legal preference for fathers violated Articles 14 and 15 of the Constitution, which guarantee equality and prohibit discrimination based on sex. This case suggested that only when the father has abdicated his responsibility or has consented to elevating the mother’s status to a natural guardian, would the mother’s status as a natural guardian then be recognized. This case attempted to reconcile this inconsistency by interpreting “after him” to mean “in the father’s absence,” yet the provision itself remains unchanged. Thus, the existing legal framework continues to privilege fathers in guardianship matters, undermining both gender equality and the child’s best interests.
JUDICIAL INTERPRETATION
Through progressive interpretation, the Judiciary has sought to reconcile the patriarchal structure of guardianship laws with modern principles of equality and child welfare. In Jijabai Vithalrao Gajre v. Pathankhan (1970),[11] when Jijabai attained majority, she tried to recover possession of her land, but the tenant argued that the lease made by her mother was invalid because, under Hindu law, the father is the natural guardian when alive, not the mother. the Supreme Court addressed gender bias in guardianship under the Hindu Minority and Guardianship Act, 1956. The Court held that although Section 6(a) names the father as the natural guardian “and after him, the mother,” this does not exclude the mother when the father is indifferent or absent. In this case, the father had abandoned his duties, so the mother was recognized as the lawful guardian of her minor daughter. This judgment marked a progressive step toward gender equality by interpreting the law in favour of the child’s welfare rather than patriarchal hierarchy. The case thus represents an early step toward gender-neutral guardianship and paved the way for later cases like Githa Hariharan v. RBI (1999), where the Supreme Court more explicitly linked the issue to constitutional equality stipulated in Articles 14 and 15 of the Constitution.
In Rosy Jacob v. Jacob A. Chakramakkal (1973)[12], paragraphs 8-13 states that the Supreme Court of India reaffirmed that the welfare of the child is the paramount consideration in custody and guardianship disputes, superseding parental rights under the GWA. The Court held that even if a father is not “unfit,” he cannot claim an automatic or indefeasible right to custody. Instead, custody must depend on what best serves the child’s welfare, health, education, and emotional needs. The Court emphasized that children are not the property of their parents, and guardianship laws must prioritize their well-being over parental entitlement or gender-based preference.
CRITICAL ANALYSIS
Despite this progressive judicial interpretation, the statutory language of Section 6 remains unchanged, continuing to reflect a gendered hierarchy in guardianship. This has led to calls for legislative reform to explicitly recognize both parents as equal natural guardians, thereby eliminating the inherent gender bias in the statute. While judicial decisions have mitigated the impact of the statutory gender bias in Section 6 of the HMGA, the unchanged statutory language continues to perpetuate a patriarchal presumption regarding guardianship. Comprehensive legislative reform is necessary to ensure that both parents are recognized as equal natural guardians, reflecting contemporary understandings of gender equality and the best interests of the child.[13]
In contrast, South Africa’s Children’s Act, 2005,[14] provides a more gender-neutral approach to guardianship. Section 18(2) of the Act grants both parents equal rights and responsibilities regarding the care, contact, and guardianship of their children, irrespective of their marital status. The Act emphasizes the best interests of the child as the paramount consideration in all matters concerning children, as stipulated in the Constitution of South Africa, 1996.[15] This principle guides decisions related to guardianship, custody, and other parental responsibilities, ensuring that both parents are recognized as equal partners in child-rearing.
RECENT DEVELOPMENTS
During the British period, the courts developed the law of custody and guardianship. The Guardians and Wards Act was passed in 1890 and conferred on the district courts the power to appoint guardians for minor children belonging to any community.[16] In Hindu law, the concept of guardianship appears to date back to the time of the Vedic age, when for all practical purposes, the Hindu family was a patriarchal unit with considerable powers resting with the head of the family. The law of Guardianship and custody of minors in India is governed by: the Guardians and Wards Act, 1890,[17]the personal laws of the parties, which are partly customary and partly codified in statutes such as the Hindu Minority and Guardianship Act, 1956,[18]the marriage and divorce laws of Hindus, Muslims, Parsis and Christians, which lay down the principles relating to the custody and guardianship of children among matrimonial proceedings. Under the HGMA, the Supreme Court has now also made the mother the natural guardian, therefore the father can no longer deprive the mother of guardianship after his death by appointing a guardian in his will.
The Hindu Code Bill was a composite body of laws, made up of distant sets of legal enactment, the Hindu Marriage Act passed in 1955, and the Hindu Succession Act, the Hindu Minority and Guardianship Act and the Hindu Adoption and Maintenance Act, all of which were passed in 1965. Together they covered legal issues pertaining to Hindu family law.[19] In independent India, one of the many developments that occurred was the discussion of the Hindu Code Bill as personal law was politicized. The efforts to pass Hindu Code Bill were constantly interrupted for the need to perpetuate the patriarchal customs, having violated the religious foundations of Hindu society.[20]The Convention on the Elimination of all forms of discrimination against women,1979,[21] seeks to eliminate all forms of discrimination against women In all matters pertaining to marriage and family relations.
SUGGESTIONS
India could take the legislative reform path and amend Section 6 of the HGMA. The most urgent reform is textual, the words “the father, and after him, the mother” must be replaced with gender-neutral language to make it clear and concise. It is irrelevant to keep the wording as it is, if when interpreting the law and making judgments on cases, the read it to mean something different, whereas changing the wording makes it clear and concise, there will be no misunderstandings and the law will be direct as well as interpreted correctly. This would codify what courts have already been interpreting in practice since Githa Hariharan v Reserve Bank of India, 1999.
CONCLUSION
Therefore the issue of gender bias under Section 6 of the Hindu Minority and Guardianship Act, 1956, highlights the ongoing conflict between patriarchal traditions and the Constitutional promise of equality. Although landmark judgments such as the Githa Hariharan case, Jijabai Vithalrao case and Rosy Jacob case, have sought to reinterpret the law to reduce its discriminatory impact, the wording of the statute still places fathers above mother’s in matters of guardianship. This persistent legal hierarchy not only reinforces outdated gender roles but also weakens the fundamental principle that child’s welfare should take precedence in all guardianship decisions. Ultimately, retaining the phrase “the father, and after him, the mother” sustains outdated patriarchal assumptions that are incompatible with the spirit of the Indian Constitution. Amending Section 6 to adopt gender-neutral language would not only bring legislative clarity but also affirm India’s commitment to substantive equality and child welfare.
Reference(S):
Constitution
- The Constitution of India, 1950.
Case law
- Githa Hariharan v Reserve Bank of India, AIR 1999 SC 1149.
- Jijabai Vithalrao Gajre v Pathankhan, AIR 1971 SC 315 (1970).
- Rosy Jacob v Jacob A. Chakramakkal 1973 AIR 1973 SC 3.
Journal Articles
- Bajpai, A. Custody and Guardianship of Children in India, 39. F.L.Q. 441, 441-57 (2005).
- Majumdar, R. Marriage, family and property in India: the Hindu Succession Act of 1956, 1 S.A.H.C. 397- 415 (2010).
- Punj, A. and Samarnath, N. Guardianship of Hindu Minor: A Critique of the Law, 63 I.L.I. 172-89(2021).
Legislation
- Hindu Minority and Guardianship Act, 1956, §6(a).
- The Guardians and Wards Act, 1890.
- The Constitution of the Republic of South Africa, 1996.
[1] Hindu Minority and Guardianship Act, 1956, §6(a).
[2] The Guardians and Wards Act, 1890.
[3]Bajpai, A. Custody and Guardianship of Children in India, 39. F.L.Q. 441, 441-57 (2005).
[4] Hindu Minority and Guardianship Act, 1956.
[5] Uddin M. Constitutional interpretation and gender equality: analysing the High Court Division’s landmark decision on maternal guardianship in Bangladesh, 4.S.267-77(2014).
[6] Hindu Minority and Guardianship Act, 1956.
[7] India Const. art 14 and 15.
[8] Githa Harihan v Reserve Bank of India, AIR 1999 SC 1149.
[9] The Constitution of India, 1950.
[10] India Const. art. 32, cl. 1.
[11] Jijabai Vithalrao Gajre v Pathankhan, AIR 1971 SC 315 (1970).
[12] Rosy Jacob v Jacob A. Chakramakkal 1973 AIR 1973 SC 3.
[13] Punj, A. and Nikita, S. Guardianship of Hindu Minor: A Critique of the Law, 63 J.I.L.I. 172-89 (2021).
[14] Children’s Act 38 of 2005.
[15] The Constitution of the Republic of South Africa, 1996.
[16] Asha, B. Custody and Guardianship of Children in India.
[17] Guardians and Wards Act, 1890.
[18] Hindu Minority and Guardianship Act, 1956.
[19] Majumdar, R. Marriage, Family and property in India: the Hindu Succession Act of 1956,1 S.A.H.C. 397-415(2010).
[20] Punj, A. and Samarnath, N. Guardianship of Hindu Minor: A Critique of the Law, 63 I.L.I. 172-89(2021).
[21] The Convention on the Elimination of all forms of Discrimination against women, 1979.
