There has been a whirlwind of actions on the personal law front in our nation in the recent past. A change looking to include ‘irretrievable’ breakdown of marriage as a ground for separation to the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 is in the wings. There are likewise procurements on imparting marital property and waiving the statutory cooling period before a legitimate disintegration of marriage. Surely, personal law change is a need given that the majority of our laws are obsolete.
The laws governing child custody in India are part of the Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act 1956. The Hindu Minority and Guardianship Act states that the 'characteristic watchman of a Hindu minor, in appreciation of the minor's individuality and also in admiration of the minor's property... on account of a kid or unmarried young lady, the father, and after him, the mother, gave that the guardianship of a minor who has not finished the age of five years might usually be with the mother.
There are various undertones that it can take, some of these are: that the law reflects our patriarchal social structure and that little young ones are constantly better off with the mother... matters are additionally confounded by a lawful process that does not see legitimate guardianship to be co- end with physical care of a kid.
The Supreme Court of India has consistently held that “while deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute’’. As if to dispel any doubts on the matter the Court held (vide supra) ‘no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor’.
In a noteworthy judgement the SC driving home the equality of the mother to fulfil the role of a guardian held that ‘gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category. To the lay person, this was akin to the highest Court in the country saying gender was not a consideration in deciding matters of child custody and guardianship.
It is unjustifiable that ladies will or ought to surrender their professions to stay at home with baby kids it is similarly uncalled for that men ought to be disentitled on the premise of statute. The need of great importance is a sexually unbiased care law; there is however no real way to second figure which way our authority laws are headed.
Inside the domain of legal intercession I would sincerely argue that our higher legal articulate a particular set of rules on the matter. Without these kid care matters basically rest on the watchfulness of an individual judge, who drawn from our general public is not generally free from one or different generalizations.
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