UCC and Child’s Interest
A Uniform Civil Code (UCC) cannot confine itself to merely changing the rule of the father being the natural guardian.
It must go beyond this and provide for, in unequivocal terms, the ‘best interests of child’ principle in all custody disputes.
It must deny absolute rights of biological parents vis-à-vis adoptive parents.
Child custody:
The Guardians and Wards Act, 1890 considers the welfare of the child as the prime consideration in the determination of custody.
Section 6 of the Hindu Minority and Guardianship Act, 1956 declares the father as the natural guardian and ‘after him’ the mother; the mother would ordinarily have custody till the child attains five years of age.
The person would lose custody if she/he ceases to be Hindu.
In Githa Hariharan (1999), the Supreme Court of India held that the expression ‘after him’ does not necessarily mean ‘after life-time’ of the father but, instead, ‘in the absence of’.
Custody under Islamic law is the right of the child and not of the parents.
In fact, the father is at number six in terms of the right to custody after the mother, mother’s mother howsoever high, paternal grandmother, sister, maternal aunt and paternal aunt.
Under the Hanafi school, the mother does not lose custody after she ceases to be a Muslim.
Islamic law gave custody to the mother till a boy attains seven years and a daughter till she is 17, under the Hanafi school.
The Shafii and Hanbali schools gave custody to the mother till a daughter is married.
Under the Maliki school, the mother gets custody of even a male child till puberty and female child till her marriage.
Thereafter, the child gets the right to make a choice.
Child custody and the biological link:
Issues that are far more complex than custody claims between father and mother — i.e., the claims of biological parents after adoption, and of an ‘accused of rape’ biological father.
Indian courts are attaching greater importance now to the claims of biological parents in preference to adoptive parents without due consideration to the best interests of the child.
Concerns:
The trauma which a child and its adoptive parents would undergo was not given much consideration.
though the court did acknowledge that the child would ‘undergo some difficulty’ in the beginning due to separation from the adoptive parents.
Way forward:
A progressive UCC should not overemphasise biological ties.
It must protect the rights of adoptive parents; otherwise people would not adopt children.
Similarly, it should not insist on the matrimonial bond between parents and should ideally make provision of guardianship even for a single parent, surrogate parent and queer parents.
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