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Article Published in the Express Magazine Dated
February 25, 2001
General Attorney : Rajiv K. Luthra
My husband and I have parted ways and my
six-year-old son is living with him. Since I
wanted custody of my child, I approached my
lawyer. He told me that mine is a weak case as
under the law, the father is the natural guardian,
and it is after him that the mother has a right. I
am sad to learn that our legal system entertains
gender biases.
Chitra, New Delhi
Gender equality is one of the basic principles of
our Constitution as provided under Article 15. It
has been held by the apex court that the normal
rules of interpretation shall have to bow down to
the requirement of the Constitution as the latter
is supreme. Although section 6 (a) of the Hindu
Minority and Guardianship Act, 1956 describes the
mother as the natural guardian of a Hindu minor in
respect of the minor’s person and property only
after the father, the Supreme Court has clarified
in a recent judgement that the word "after" need
not necessarily mean “after the lifetime" of the
father but "in the absence" of the father. As
regards "absence" the Supreme Court has
interpreted that the father's absence from the
care of the minor's property or person for any
reason whatever will be deemed if the father is
wholly indifferent to the matters of the minor.
This would be held true even if he is living with
the mother or if by virtue of a mutual
understanding between the parents, the mother is
put exclusively in charge of the minor, or if the
father is physically unable to take care of the
minor either because he lives in a different place
to where the mother and the minor live or because
of mental incapacity. In all such situations the
father can be considered to be absent and the
mother, being a recognized natural guardian, can
act validly on behalf of the minor. It is well
settled that the welfare of the minor is of
paramount consideration. Even during the lifetime
of the father, if necessary, the mother can
replace him, if it is found that the interest of
the minor is better served. The Supreme Court has
taken a strong view in this regard and upheld that
whenever a dispute between the father and mother
concerning the guardianship of a minor is raised
in a court of law, the word "after" in the section
would have no significance. Under Hindu law both
parents are bound to take care of the person and
property of their minor children, and have to act
in the best interest of their minor children. The
whole tenor of the Act is to protect the welfare
of the child and, as such, the interpretation
ought to be in consonance with the legislative
intent. Thus, the question of custody of your
child will be enquired into by the Court keeping
in mind the welfare and benefit of the child
without unduly privileging the father as a male.
I work in the sales department of an
international car dealer and was falsely and
vindictively accused for committing fraud.
Although the prosecution has been dismissed after
my lawyer, clearly proved my innocence, I have
suffered a major set back. Besides the legal
expenses, I have suffered a loss of reputation,
both socially and professionally, and undergone
serious mental trauma. I am very inclined to sue
the man who destroyed my life and need to know my
legal chances.
V. Gupta, Mumbai
You may file a suit for malicious prosecution
against the person who you believe abused the
process of Court by wrongfully setting the law in
motion for an improper purpose. However, the onus
of proof that you were maliciously prosecuted by
the other party without any reasonable or probable
cause lies on you. It is relevant to note that
although the case against was dismissed, this does
not create any presumption of the absence of
reasonable and probable cause. Further, you have
to prove that the prosecution was instituted with
a malicious intent. If you are able to prove loss
of reputation, mental pain and humiliation, damage
to your person and damages for litigation expenses
incurred, you may succeed in your claim for
pecuniary and non-pecuniary damages.
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