Petitioners have argued that the child custody laws are outdated
The Supreme Court has asked the centre to respond to a petition that tests the validity of laws governing child custody and guardianship. The public interest litigation (PIL) filed by a retired Army officer challenges the Hindu Minority and Guardianship Act (HMGA) which favours the father as the natural guardian of a child whose parents have separated or become estranged until s/he reaches the age of majority. The petitioner has argued that the Act, passed in 1956, amounted to gender-based discrimination and violated the right to equality guaranteed under Article 14 of the Constitution.
According to a report by The Times of India, the petitioner, Sakshi Bhattacharya, has asked the court to strike down Sections 6, 7 and 9 of the Act.
Section 6 of the Act says: "(the) natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property... are 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..."
The petitioner has argued this is against the welfare of the child, explaining the Act had its origins in an outdated milieu in which the father had greater financial and social power.
Last month a top court bench headed by Chief Justice of India Ranjan Gogoi heard a similar petition, filed by London-based activist Sulochana Rani, which said children of separated spouses had the fundamental right to "care and love of both parents".
In that petition it was argued that sections of the Guardianship Act and the Shariat Act of 1937 both violated the mother's right to equality. The petition also noted that current legal provisions, as per various personal laws, entrusted a child's custody exclusively to either one of the parents, which denies the child access to both his parents.
"There is no rational basis in ... violating the fundamental rights of the other spouse and the child. This is done without taking into account the best interest of the child, which the concept of shared parentage will satisfactorily fulfil," last month's petition said.
"This matter certainly requires examination," Tushar Mehta, the Solicitor General, had told the court at the time.