At a time when the government may bring in a Uniform Civil Code (UCC) by holding a special session of Parliament on September 18-22, 2023, there is a need to think beyond polygamy and divorce and other such issues. A UCC cannot confine itself to merely changing the rule of the father being the natural guardian. It must go beyond this and provide for, in unequivocal terms, the ‘best interests of child’ principle in all custody disputes. It must deny absolute rights of biological parents vis-à-vis adoptive parents.
The Guardians and Wards Act, 1890 considers the welfare of the child as the prime consideration in the determination of custody. Section 6 of the Hindu Minority and Guardianship Act, 1956 declares the father as the natural guardian and ‘after him’ the mother; the mother would ordinarily have custody till the child attains five years of age. The person would lose custody if she/he ceases to be Hindu. In Githa Hariharan (1999), the Supreme Court of India held that the expression ‘after him’ does not necessarily mean ‘after life-time’ of the father but, instead, ‘in the absence of’.
