After her undergraduate studies, Tara* decided to take an education loan to pursue a Master’s degree. In her loan application forms she named her mother as her guardian and guarantor. The bank, however, insisted that she name her father in both roles and that he sign the form. 

When Tara refused to comply, she was asked to justify her decision. “The bank did not seem keen on finding out which of my parents has the better financial standing to be a guarantor,” she said. The officials had only one question: “Why is the father not there?” Tara finally secured a loan, but with her father named as the guarantor.

To understand how gendered the notion of parenthood is in official work, we scrutinised the education and home loan forms issued by multiple public sector banks. Here is what we found – the name of the father or the husband is usually mandatory for anyone who wishes to do any business with banks. 

As we detail later, numerous court judgments, state orders, and changes to application forms have recognised a single mother as a primary guardian. They also recognise families as entities that are not necessarily defined by tradition and patriarchy. But a mother still cannot be assigned the role of a guardian in official paperwork unless the father is missing from a child’s life for some reason – death, divorce or if the parents were not married. 

The only exception to this is the passport application: the Ministry of External Affairs, in a 2016 order, unconditionally allowed for the provision of just one parent’s name in passport applications. 

This insistence on defining the father as the primary guardian – and the mother only as the primary caregiver – is both oppressive and marginalising for women and children, say gender and legal scholars. 

“These differences in ideas of guardianship reflect a gendered division of roles. For the public aspects of a child’s life, like the identity of the child in documents, the father’s name becomes relevant. But for the private aspects of parenthood, like child care, the responsibility falls on the mother and the same is reflected in the rules and policies on maternity benefits and child care,” said Saptarshi Mandal, associate professor of law at the Jindal Global Global Law School.

Resistance to change

The Supreme Court in the Githa Hariharan judgement in 1999 recognised the mother as a natural guardian, but only in the absence of the father. The ABC v. State (NCT of Delhi) judgement in 2015 stated that a single/unwed mother’s name can be named on documents such as school admission forms and passports, without additional details about the father. 

The latest judgement in this regard came on July 19, 2022 from the High Court of Kerala. It passed an order recognising the right of a child to specify only the mother’s name on identity certificates, birth certificates and other such official documents. The court stated that the rights recognised under Article 21 — the right to privacy, dignity, and liberty – cannot be infringed or curtailed by any authority by demanding details of the father in cases where he is absent or unknown.

This judgement does not confer a new right, but only recognises what has already been held by the apex court in the ABC judgement, said legal scholar Mandal. “The matter that was before the Kerala High Court is an example of a percolation failure, wherein though the law has been changed, authorities refuse to change the requirements on forms. This could be because they may not be aware of the change or there is some resistance to change owing to the patriarchal notions of guardianship.” 

Limited right of guardianship

The popular perception is that the Githa Hariharan judgement recognised the mother’s equal right to guardianship but this is not the case, argued Surbhi Karwa, a researcher on law and gender. 

“The judgment in the case of Githa Hariharan only creates an equalising factor; its scope is limited. The court only called for an expansive interpretation and stated that the father’s absence is not just to be read as his passing or permanent absence but also temporary absence or his apathy or inability to be a guardian,” says Karwa. “In light of this, only a limited right of guardianship is given to the mother – after the father or in his absence. And if the mother’s details are given as guardian, valid reasons are to be given to the concerned authorities.” 

In cases where both parents are present, or the marital status of the parents is undecided, or if the child has been abandoned by the father or if the applicant chooses not to provide the father’s details for any reason, the decision has to be justified through an affidavit.

In 2018, the Ministry of Finance amended the PAN card application form allowing details of just the mother if she is a single parent. However, the mother’s name is optional if the father’s is provided but the reverse does not apply.

Legislative gap

There have been several public interest litigations and petitions (here and here) before the Supreme Court and several high courts challenging the mandatory requirements of father’s details. In all these cases, single mothers were granted relief. The courts also pushed concerned states to amend rules governing the subject. 

The issue of guardianship, like other matters related to familial relationships, is governed by personal laws applicable to a citizen. The Hindu Minority and Guardianship Act, 1956 names the father as the “natural guardian” of a child born to a married couple. The mother becomes the guardian where the father is not present, that is, he cannot or will not take responsibility for the child. 

The mother is also the guardian if the child is born outside of a wedlock. Under the Muslim personal law, the guardian of a child born within a marriage is the father, but for a children born outside of marriage, the mother is the guardian. Christians and Parsis are governed by the Guardians and Wards Act (GWA), 1890 since their personal laws do not provide for guardianship. 

GWA is the general law on the matter, which was amended in 2010 to provide for equal guardianship of both the mother and the father. But the law required that in cases before them, the courts should primarily consider the welfare of the child while also ensuring adherence to the relevant personal law. The personal laws take precedence over the general law under the GWA.

“There still remains a legislative gap in recognising mothers as equal guardians of the child. These petitions have led to some practical solutions to the issues presented before the courts. [But] The larger issue of equal guardianship has remained unaffected and unresolved,” said Mandal.

  • Kanishka Singh is a legal journalist at Behanbox. She is a lawyer and recently completed her master’s in law from NLSIU. Her interests include law, gender, and politics, with a special focus on intersectional theory. She strives to bring a multidisciplinary framework to the understanding of the law.

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