19(2) Guardianship and Wards Act

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The President has assented to the Personal Laws (Amendment) Act, 2010. The Act has amended the Guardians and

Wards Act, 1890 and the Hindu Adoptions and Maintenance Act, 1956.

ThePIBreports that the Act aims at bringing gender equality, in the matter of guardianship under the Guardians and

Wards Act, 1890 and in the matter of giving in or taking in adoption of a son or a daughter by father or mother underthe Hindu Adoptions and Maintenance Act, 1956.

Speaking with Bar & Bench,Senior Advocate Geeta Luthra said, Its an amendment which is begging the issue.

Earlier the law provided that a man can adopt with the consent of his wife. This is saying a woman can adopt if she is

going through divorce proceedings, but then she should not need the consent of the husband.

Consent of husband cant be required if you are going through divorce proceedings. Husband is not going to give his

consent. The moment you ask for your husbands consent, you are begging the issue. If you are going through these

proceedings for one year or six months to show there is some seriousness in the proceedings, then a women who

wants to go for adoption should be allowed to do so on her own, because if you get back together then that child

becomes your legal child and would have rights to both of the parents estate. Therefore, one has to look at the

repercussions. In case the couple is childless, the women should be allowed to adopt and she need not take the

consent of her husband. Therefore, consent of husband should not be required and in case a moratorium was

required by the law to make sure that nobody can file a frivolous petition and thereby take a child in adoption. You

could put a six-month moratorium that proceeding for divorce have been pending for six-months, to show that there is

something in the matter, but consent should not be required from the husband.

Geeta Luthra added regarding the second part of the amendment, which makes both parents as guardians, there is

a judgment of the Supreme Court in Githa Hariharan case, which says that when a man has abandoned his wife and

where a man is not taking care of his child then the mother is deemed to be the legal guardian, but its nice that its

being codified. Although law laid down by the Supreme Court is the law of the land, next is the legislation, which says

both parents are equal as guardians.

A client of mine, Neena Deshmukh had challenged in the Supreme Court that once Article 14 and Article 15 are

there, you cant discriminate against a person on the ground that shes a woman, then the Guardian and Wards Act

cannot make the father the natural guardian. It should be the parent. It is bringing into force what the constitution

envisages, she said.

She added on to say, My only feeling is that it should not only be for Buddhists, Jains, Hindus and Sikhs, but it

should be across the board for all. This is a time and period when the country cannot distinguish laws pertaining to

human beings on the basis of personal laws. The time has come when we should slowly try and make the laws,

without taking into account any religion, as long as you are not hurting the religious sentiments. The legislation today

in 2010 has to be progressive, you cant distinguish between religions in India.

Under the Guardians and Wards Act, 1890 Section 19 (b) a mother was not included as a guardian along with the

father. The Law Commission of India in its 83rd

Report on the Guardians and Wards Act, 1890 and certain provisions

of the Hindu Minority and Guardianship Act, 1956, had inter alia recommended amendments in clause (b) of Section

19 of the said Act to include mother along with the father for the purpose of removing the gender inequality.

By amending the 120 year-old Guardians and Wards Act, allows the mother along with the father can be appointed

as a guardian, making the entire adoption process gender neutral. The Act provides for the mother to be appointed as

a guardian along with the father so that the courts do not appoint anyone else in case the father dies. Also, in the
http://pib.nic.in/release/release.asp?relid=65503http://pib.nic.in/release/release.asp?relid=65503http://pib.nic.in/release/release.asp?relid=65503http://pib.nic.in/release/release.asp?relid=65503


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Hindu Adoption Maintenance Act, the new amendment would allow a married woman separated from her husband to

adopt with the consent of her husband even during the time of divorce proceedings. However, if he changes his

religion or is declared to be of unsound mind, no consent from the estranged husband will be required.

TheAsian Agealso, reports that the Personal Laws Amendment Bill, 2010 - introduced in the Rajya Sabha on April

22 by Minister of Law and Justice Veerappa Moily. The Bill was referred to the Parliamentary Standing Committee onLaw and Justice for eliciting public opinion. In its Report tabled before the Parliament, the committee recommended

that the Personal Laws (Amendment) Bill, 2010 be passed in the same form. The Committee report said, The

committee is of the view that the amendments proposed in the Bill would place the mother on an equal footing with

the father with respect to the right of guardianship and the right to adopt".

The Personal Laws (Amendment) Act, 2010 on 31st August, 2010 as been assented by the president of India. It has

been published in the Gazette of India as Act 30 of 2010 on 1st September, 2010. The Act has amended theGuardians and Wards Act, 1890 and the Hindu Adoptions and Maintenance Act, 1956.

The Act is aimed at bringing gender equality in the matter of guardianship under the Guardians and Wards Act, 1890

and in the matter of giving in or taking in adoption a son or a daughter by father or mother under the Hindu Adoptions

and Maintenance Act, 1956.

Under Clause (b) section 19 of the Guardians and Wards Act, 1890, mother was not included as Guardian along with

father. The Law Commission of India in its Eighty-third Report on the Guardians and Wards Act, 1890 and certain

provisions of the Hindu Minority and Guardianship Act, 1956, vide paragraph 6.83, had inter alia recommended

amendments in clause (b) of section 19 of the said Act to include mother along with the father for the purpose of

removing the gender inequality. The recommendations has been accepted and implemented by the enactment.

Clause (c) of section 8 of the Hindu Adoptions and Maintenance Act, 1956 incapacitates a married woman from

taking in adoption merely on the basis of her marital status and is discriminatory in nature. Therefore, section 8 has

been amended to give similar right to a female Hindu, irrespective of her marital status, as that of a male Hindu.

Similarly, sub-section (2) and (3) of section 9 curtails the right of mother to give in adoption if father is alive or is of

sound mind or has not renounced the world completely and finally. The rights of father and mother under sub-

sections (2) and (3) are discriminatory in nature. Therefore, section 9 of the Hindu Adoptions and Maintenance Act,

1956 has been suitably amended to give similar right to a female Hindu.

19. Guardian not to be appointed by the court in certain cases

Nothing in this Chapter shall authorise the court to appoint or declare a guardian of the property

of a minor whose property is under the superintendence of a Court of Wards or to appoint or

declare a guardian of the person-

(a) of a minor who is married female and whose husband is not, in the opinion of court, unfit to

be guardian of her person; or

(b) 15[* * *] of a minor whose father is living and is not in the opinion of the court, unfit to be

guardian of the person of the minor; or
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(c) of a minor whose property is under the superintendence of a Court of Wards competent to

appoint a guardian of the person of the minor.

STATEMENT OF OBJECTS AND REASONS

As per the census held in 2001, the female population in India constitutes about

48.26 per cent. of the total population of the country. The empowerment of women by various

legislative as well as other measures is an avowed policy of the Government and bringing

complete equality for them in all spheres of life is, therefore, a matter of utmost concern. This

objective and policy of the Government have also been reiterated in the President's Address

to the first session of both Houses of Parliament held on the 4th June, 2009. The National

Common Minimum Programme of the then Government (2004-2009) also enunciated that

complete legal equality for women in all spheres of life will be made a practical reality,

especially by removing discriminatory legislation and by enacting new legislation that gives

women, for instance, equal rights of ownership of assets like houses and land.

2. The Constitution of India guarantees equality of status and equality of opportunity

to all citizens, irrespective of the fact, whether they are men and women. It provides that the

State shall not deny to any person equality before the law or the equal protection of the laws

within the territory of India and prohibits discrimination solely on the ground of sex. There is

a growing demand for making laws free from gender bias and to provide legal equality to

women in all spheres of life. It directs that women shall have equal rights and privileges along

with men and that the State may make special provision for the welfare of women.

3. With the above objectives in view, it is proposed to amend certain personal laws,

namely, the Guardians and Wards Act, 1890 and the Hindu Adoptions and Maintenance

Act, 1956, so as to bring in gender equality therein. Accordingly, it is proposed to make the

following amendments, namely:

(a) to amend clause (b) of section 19 of the Guardians and Wards Act, 1890 on


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the basis of the recommendation of the Law Commission of India contained in paragraph 6.83 of its

Eighty-third Report on the Guardians and Wards Act, 1890 so as to

include the mother along with the father as a fit person to be appointed as guardian so

that courts shall not appoint any other person as a guardian of minor if either of the

parents is fit to be the guardian of such minor;

(b) to amend section 8 of the Hindu Adoptions and Maintenance Act, 1956 so as

to remove the incapacity of a married woman to take in adoption of a son or daughter

merely on the basis of her marital status;

(c) to amend section 9 of the Hindu Adoptions and Maintenance Act, 1956 so as

to provide that the mother with the consent of the father and the father with the

consent of the mother, shall have equal right to give in adoption of their children.

4. The Bill seeks to achieve the above objects.

NEW DELHI; M. VEERAPPA MOILY.

THE PERSONAL LAWS (AMENDMENT) BILL, 2010

A

BILL

further to amend the Guardians and Wards Act, 1890 and the Hindu Adoptions and

Maintenance Act, 1956.

BE it enacted by Parliament in the Sixty-first Year of the Republic of India as follows:

CHAPTER I

PRELIMINARY

1. This Act may be called the Personal Laws (Amendment) Act, 2010.

CHAPTER II

AMENDMENT TO THE GUARDIANS AND WARDS ACT, 1890

2. In section 19 of the Guardians and Wards Act, 1890, for clause (b), the following


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clause shall be substituted, namely:

"(b) of a minor, other than a married female, whose father or mother is living and

is not, in the opinion of the court, unfit to be guardian of the person of the minor, or"

CHAPTER III

AMENDMENTS TO THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

3. In the Hindu Adoptions and Maintenance Act, 1956 (hereafter in this Chapter referred

to as the Hindu Adoptions and Maintenance Act), for section 8, the following section shall

be substituted, namely:

"8. Any female Hindu who is of sound mind and is not a minor has the capacity

to take a son or daughter in adoption:

Provided that, if she has a husband living, she shall not adopt a son or daughter

except with the consent of her husband unless the husband 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.".

4. In the Hindu Adoptions and Maintenance Act, in section 9,

(i) for sub-section (2), the following sub-section shall be substituted, namely:

"(2) Subject to the provisions of sub-section (4), the father or the mother,

if alive, shall have equal right to give a son or daughter in adoption:

Provided that such right shall not be exercised by either of them save with

the consent of the other unless one of them 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.";

(ii) sub-section (3) shall be omitted.

Substitution of

new section for


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section 8.

78 of 1956.

Amendment

of section 9.

C a p a c i t y o f a

f ema l e Hi n d u

t o t a k e i n

adopt ion.

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19(2) Guardianship and Wards Act

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