The upper house of the parliament in a recent session passed the Guardians and Wards (Amendment) Act 2020 bill, which stipulates that the real mother is entitled to get the custody of a male child until the age of seven and until the age of 16 or until she attains puberty for a female child. The passage of the bill is a significant development in our patriarchal family system, where in case of divorce the father tries to attain custody of his children or in case of death of a spouse the in laws try to get the custody.
But if the bill becomes law after its passage in the lower house, it will help many distraught mothers from running pillar to post for the custody of their children. Though the civil courts often grant the custody to mothers if the children are under the age of seven, owing to the absence of a law we have far too many cases of fathers kidnapping their own children, following divorce, to get their unlawful custody. It is then important for such a law to be in place.
The bill further maintains that “in absence of the real mother, or if she renounces her right or her right is legally held to have lapsed, the custody of her son less than seven years of age and of her daughter who has not attained the age of puberty or 16 years shall vest successively in the female relatives in the following order: maternal grandmother however so high in degree, paternal grandmother however so high in degree, full sister,” and so on and so forth, clearing the confusion of who gets the custody of the children.
However, where the bill proves to be a landmark it also falls short in defining ‘real mother’. Our family system is only looked through the lens of biological parents and falls short in accommodating the concept of step parents or legal guardians. But we have many parents who choose to adopt orphans or those who marry a spouse with children. It is then important for the law of the land to provide for their rights as well. The bill needs to clearly define the term ‘real mothers’ while keeping in mind the different family setups in our society.