The Paradox of Personal Laws

Ashlesha Pandey

Personal laws in India have often been contested on their Constitutionality- usually having been considered violative of Article 14. However, the key reason behind it is enshrined in the fact that personal laws are deeply rooted in ancient scriptures and derive meaning from customs and legislations that existed aeons back. The onus thus rests on the legislature for a holistic revision- an act desired but not carried out.

However, as of now, personal laws come to the fore during battles of custody and guardianship. The current contention here challenges Section 6 of the Hindu Minority and Guardianship Act and how it rests on an archaic and patriarchal perspective. The text of the Section reads as such-

At the outset, it becomes apparent that this provision rests on the Hegelian concept of separate spheres- where fathers, owing to their "breadwinning" capacities, are preferred over the "caregiving" mothers as natural guardians. Such a perception reinforces patriarchal norms of gendered roles and gives mothers the status of the "second" choice.

However, the corollary of this inference needs to be discussed as well. If the latter part of Section 6 (a), along with 6 (b), is read, the idea of gendered norms becomes reinforced. Courts in various custody battles have iterated that it is the "welfare of the child" that is of paramount importance when it comes to providing custody. A child under the age of five does not have the mental faculties to make an informed choice for themselves; this is where the Court intervenes. In most custody battles, the mother is naturally preferred over the child in the initial years of growth.

As much as this idea rests on welfare, the statutory imposition that it is rooted in reinforced the idea that motherhood is something "natural" to women, that only a woman can afford to provide a child with due care in their initial years. Such a stance is detrimental to the individual identity of women- something that is often reduced to just being mothers or wives. This clause is also detrimental to fathers, where, despite being better situated, the mothers are preferred simply because they are women. The idea of specified gender roles, the concept that men cannot provide due care or raise children- re-establishes what has long been questioned- questions of gender justice.

The only situation where a father may be preferred over the mother for the custody of a child below the age of 5 is when the father proves that the custody with the mother would be "exceptional[ly] derogating", as established in Nil Ratan Kundu v. Abhijit Kundu. This ambiguous test is arbitrary, to say the least- the standard of exceptionally derogating may be interpreted widely and often wrongly. The threshold fathers may have to justify to disprove the natural bias towards women as caregivers would be extremely high. Such an imposition downplays the ambitions and career choices of women too, where their primary duty is expected to be child-rearing- an ideology being enforced by the judiciary as well, where it chooses to stick to the absolute letter of the law, as seen in Roxann Sharma v. Arun Sharma, Meenakshi v. the State of U.P., among many others.

The same concept can be furthered while discussing Section 6 (b). The proposition that the mother's primary duty is to raise a child owing to its "illegitimacy" rings hollow. Bringing a child into this world is a conscious decision two consenting adults make. Thus, the onus is equally on both to raise a child and be called its guardian.

Further, the specification of the term "unmarried" girl highlights a new set of issues- how a woman stands as an object whose possession is to be transferred from her father to her husband. This same concept can be read with Section 6 (c), which rests on the idea that one spouse possesses some "right of ownership" over the other. It undermines a woman's status as a human being and reduces it to mere chattel. Why is a minor male's natural guardian his father irrespective of his marital status, and why does this change only promulgate for women is a question unanswered but misted with the age-old notions of objectification and commodification of women.

In conclusion, it can be said that it is high time that the legislature takes some overdue revision of such patriarchal, archaic and ancient laws. The beauty of law rests in its dynamism, rendering it etched in stone as centuries and customs change only render it myopic and shallow. Therefore, the onus is on the judiciary to have a more open mind while interpreting inherently questionable statutes and thus, put the Constitution first.