Allahabad High Court said old guardianship laws favouring fathers are outdated. The Court gave custody of a girl to her mother, saying laws must change with time.
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UTTAR PRADESH: The Allahabad High Court said that India’s old guardianship laws need to be changed, so they match with today’s times and treat men and women equally in child custody cases.
While giving judgment in a custody case, Justice Vinod Diwakar pointed out that Section 6 of the Hindu Minority and Guardianship Act, 1956 says a father is the natural guardian of a minor boy or unmarried girl, before the mother.
The Court said this law was made long back, during a time when patriarchy controlled both society and legal thinking.
The Court clearly said that this part of the law shows gender bias. It said that the law is outdated in today’s modern and progressive India. According to the Court,
“The provision smacks of patriarchal bias and has become obsolete in the progressive realities of 21st-century in India.”
The Court further said that over the years, judges have started giving more importance to mothers in custody cases, especially when it comes to daughters.
But, just relying on such decisions is not enough. The actual written law must also change to support these fair and modern ideas.
“The judicial interpretation has commendably filled the legislative void, especially in recognizing the preferential custodial rights of mothers of girl children. However, true progress demands that the legislature codify these evolving norms to ensure a consistent and gender-neutral approach across the country,”
-the Court said in its judgment dated May 30.
This case was about a woman who wanted custody of her daughter, a Class 6 student. The trial court earlier refused to give her interim custody, so she moved to the High Court.
The High Court checked the facts and found that the father gave wrong and misleading information in court to oppose the mother’s plea. The Court also found that he had taken away the child in a planned and dishonest manner.
“In essence, to retain custody of the girl, the husband first orchestrated a fabricated story to remove her from the mother’s care. Subsequently, by deceitfully gaining his wife’s trust, he compelled her to vacate the government accommodation under the pretext of purchasing a private flat. Through this scheme, he effectively separated the wife from the child’s company and has maintained custody of the child for nearly two years. Although, at that particular time, the husband acted more as a schemer and conniver than as a prudent person, genuinely striving to preserve the marriage,”
-the Court stated.
After reviewing all facts, the Court ordered the father to return the girl to her mother. If he failed to do so, the Child Welfare Committee and police were told to ensure the child is given back to her mother.
The Court also said the man should be watched by the police until the child is returned.
“Prima-facie, it seems that the husband is a conniver may misuse his official position to influence the proceedings and obstruct the applicant-wife’s lawful right, therefore, the Commissioner of Police, Lucknow shall ensure that the opposite party no.2- husband shall be under watch till the compliance of this order, so that he could not frustrate the terms of this order,”
-the Court ordered.
The mother was represented by Advocate Vijeta Singh, and the father was represented by Advocate Chandra Sharma along with Shubham Tripathi.
CASE TITLE:
XXX vs State of U.P. and Another
APPLICATION U/S 482 No. – 41453 of 2024
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