Mother- the prime Nurturer

Since the evolution of humanity towards civilization, genders have been bound in pre-defined roles for centuries but slowly things have changed for the better. Speaking of today, people are challenging and changing the old norms of society and both genders prefer to work in every sphere of life. Having said that, there is one role we all will agree which is still, quite dependent on the females in the society, unimaginable without her involvement i.e. a mother.

A mother is the one responsible for the primary care and nourishment of the children. Accordingly, various courts have accepted and 90% of the times, the custody of a child is awarded to the children. Also, nowadays many independent women are embracing motherhood through adoption. But, the question still remains the same? What is the legal status of such a child? Are there any special rights granted to her as a result of such adoption?

General principles of law in this regard-

As a general rule of law, till the age of five, the mother is the natural guardian of the child but after the age of five, the father of the child is the natural guardian. And, a mother shall gain full guardianship rights after the death of the father.

In Geeta Hariharan vs. RBI (AIR 1999 SC 1149) the Supreme Court of India widely interpreted the word “after” in the provision and stated that the word did not necessarily mean after the death of the father, on the contrary means “in absence of it” be it temporary or total apathy of the father towards the child or due to any inability of the father.

Jijabai Vithalrao Gajre vs. Pathankhan (1970 2 SCC717) where the father and mother of the child were living separately and the minor daughter was under the due protection of the mother, the mother was held to be the natural guardian of the minor daughter even though the father was alive as the father didn’t show any interest in the affairs.

Such conditions include-

1. Mother of the child & the father never married each mother;

2. Father or mother was never married to anyone else to when the child was born;

3. No court orders giving anyone custody or visitation with the child.

  • An unmarried mother who gives birth to a child is the sole residential parent and legal custodian of a child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian.
  • A court designating the residential parent and legal custodian of a child described in this section shall treat mother & father as standing upon the equality when making the designation.
  • An unmarried woman who gives birth to a child has custody of the child automatically.

Let’s discuss in depth the legal status of the women as a mother with the help of some provisions and case studies-

1. What is the legal definition of custody? Who may adopt?

a. In a legal sense, custody signifies the following –

1. Right to enroll the child in school.

2. The right to obtain medical treatment.

3. The right to get legal benefits, maintenance, inheritance for the child.

4. The right to do things that a parent in legal custody can do.

5. Right to decide who sees the child and for how long;

b. Who may adopt the child? – Under Hindu law, it has been stated that-

Any female Hindu who is-

  • Mentally sound;
  • Not a minor by age;
  • Who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption;

2. Common Considerations to be taken into consideration before deciding the custody of children-

The factor which the court considers while deciding the custody of the Child-

  • Mental and physical well -being of the parent.
  • Track record of the parent- Is there any criminal case pending or settled against the petitioner or not.
  • Social relationship of the parents– The relationship between the family members etc.
  • Sound financial position of the parent.
  • Wishes of the child concerned.

3. What do the various laws in the Country provide for the rights of an unmarried mother?

1. Under the Guardian& Wards Act 1890-

The Guardian& Wards Act 1890 is a secular law related to provisions related to guardianship and custody of the children within the territory of India irrespective of religion.

2. Custody of child under the Hindu Law-

As we all know, the Hindu Law is applicable to a person who is a Hindu, Sikh, Jain, or Buddhist by religion. Some of the laws which include provision related to custodial rights of children are as below-

i. The Hindu Minority & Guardianship Act 1956– This law is a part of the modern Hindu law as the Hindu Minority & Guardianship Act provides various provisions concerned to the matters related to Guardianship & custody of the minor Hindu children.

ii. Hindu Marriage Act 1955– Section 26 of the Hindu Marriage Act empowers the courts to pass interim orders related to the custody and maintenance costs of the children along. Not only can this, subject to the satisfaction of the court any order related to matters provided above be revoked, suspended, or varied.

3. Islamic Law-

The Islamic law provided that a father is the natural guardian of his children, but the custody of the child vests with the mother until the son reaches the age of seven years and the daughter reaches puberty. The rules provide that no mother could be deprived of the custody of her children up to a certain age whether during the subsistence of a marriage and even on its dissolution unless she is disqualified on the account of any misconduct or where her custody is found to be unfavorable.

4. Parsi & Christian Law-

Under section 49 of the Parsi Marriage & Divorce Act 1936 & section 41 of the Divorce Act 1869, courts are sanctioned to pass interim orders on the account of custody & maintenance related rights in the favor of any proceedings under these Acts.

5. Marriages Registered Under the special Marriages Act- 

Under the Special Marriages Act, 1954 prescribes provisions for a special form of Marriage which allows marriage between such people without taking into consideration their culture or religion. Therefore, interim orders related to Custody of the children has been provided to the district courts under section 38 of the Act.

6. Children born out of Live-in relationships-

Taking note of the fact that live-in relationships are quite common nowadays, but generally, the issue arises for the issues of legitimacy and custody rights of children born out of the relationships. In Tulsa & others vs. Durghatiya & others, the Supreme Court of  India held that the children born out of such relationships shall not be illegitimate but the existence of certain conditions are necessary to prove their legitimacy such as they must have been cohabitated for a certain amount of time so that the society recognizes them as husband & wife.

7. Rights to mother of an Adopted Child-

A woman who adopts a child shall for the purpose of the law, shall be deemed to have all the rights of custody and guardianship of the child concerned with effect from the date of the adoption and from such date all the ties of the child to the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.

Any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property including the obligation to maintain relatives in the family of his or her birth. Adoption does not deprive the adoptive mother of the power to dispose of his or her property by transfer inter vivos or by will.

No adoption which has been validly made can be canceled by the adoptive mother, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.

8. Court Rulings on the Rights of custody & Guardianship

1. Case- Sheoli Hathi vs. Somnath Das 2019 7 SCC 490

In this case, the Supreme Court of India held that while deciding the custody rights for a child, rather than the rights of the parents involved, the welfare & well-being of the child shall be the paramount consideration for the decision of the court.

2. Gayatri Bajaj vs. Jiten Bhalla( 2012) 12 SCC 471  For deciding on a matter of custody, the desire of the child coupled with the availability of a conducive and appropriate environment for upbringing together with the ability and means of the parent concerned shall be taken into account.

3. Gaurav Nagpal vs. Sumedha Nagpal (2009) 1 SCC 42

In case of a dispute between the mother & a father is expected to strike a healthy balance between the requirements of the welfare of minor children and the rights of respective parents over them.

4. ABC vs. NCT of Delhi( 2015 )10 SCC 1

It is the unwed mother who has the primary custodial rights with regard to her children and that the father is not conferred an equal status merely by virtue of his having fathered the child.

5. Athar Hussain vs. Syed Siraj Ahmed (2010) 2 SCC 654

The second marriage of either of the parent is a factor while granting custodial rights, but disentitle him/her to the custody of his/her children.

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