Guardianship Law in India: Examining the Principle of ‘Best Interests’ of Minors and the Rights of Single Mothers as Sole Guardians

Shalu Nigam

Indian Journal of Gender Studies, 2024, vol. 31, issue 3, 308-327

Abstract: Motherhood is glorified in history, literature, mythology and the media. Yet, despite the tenets of equality promised by the Constitution of India, the guardianship law upholds the rights of fathers, not mothers, as the natural guardians of minors. However, these rights are not absolute. This essay analyses the case law over decades, wherein single mothers have used their agency to knock on the courts’ doors to claim their rights based on the principle of ‘the best interests of the minor’, and in the process have compelled the courts to interpret the law in such a way that mothers are appointed as the sole guardians of minor children while the claims of ‘unfit’ fathers are rejected. It also examines the parameters used by the courts to determine which parent is ‘fit’, the courts’ reasoning behind this and how the process has led the courts to acknowledge diverse family forms. This suggests that the state needs to recognise the rights of single mothers as equal citizens and do away with the outdated concept of heterosexual families and the binary of legitimate versus illegitimate child. The law needs to conceive reform alongside changing socio-legal and technological advancements.

Keywords: Single mothers; guardianship law; illegitimate children; Guardian and Ward Act; Hindu Minority and Guardianship Act (HMGA); sole guardians; heterosexual family (search for similar items in EconPapers)
Date: 2024
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Persistent link: https://EconPapers.repec.org/RePEc:sae:indgen:v:31:y:2024:i:3:p:308-327

DOI: 10.1177/09715215241262137

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