Section 6 violates section 14 because it gives natural guardianship to the father of the child without regard to the mother. Both parents, who are equal partners in parenting, must have an equal voice in their child`s well-being. The concept of guardianship must be gender-neutral. By granting the mother preferential custody, the law recognizes her as a caregiver, but not as a decision-maker. In India`s patriarchal society, men have a dominant position within households, through which they have access to and control over all resources. However, this should not entitle them to preferential treatment in matters of care and guardianship. The law gives women the right to custody, but when it comes to authority such as guardianship, men have priority. This needs to change. A mother`s control over her children is axiomatic. Laws must not be allowed to remove them from their legitimate position. Both parents should have the same right to make decisions concerning the best interests of the child and should have the same right to guardianship of their children.

Previously, this meant that the mother could only be a virtue after her husband`s death or when he was excluded from guardianship, because she had converted and thus ceased to be a Hindu; Or if he had finally and completely renounced the world. But our judiciary seized the opportunity and used the interpretive instrument to uphold the constitutional principle of equality. In Geeta Hariharan v. RBI (AIR 1999 SC 1149), the Supreme Court interpreted the word “after” in the provision broadly, stating that “.. The word did not necessarily mean after the death of the father, on the contrary, it means “in the absence” temporary or not, or the total apathy of the father towards the child or even the incapacity of the father due to illness or otherwise. The court held that the mother could not only be called the biological guardian after the father`s death, as this would not only be discriminatory but also contrary to the best interests of the child, which is the intention of the HMGA legislature 1956. Thus, the natural guardian can be the father or mother, anyone who is able and available to care for the child and who has a deep interest in the well-being of the child. Previously in Jijabai Vithalrao Gajre v. Pathankhan (1970 2 SCC 717), the mother and father had quarreled and lived separately and the minor daughter was under the care and protection of her mother, the mother was classified as the natural guardian of her minor daughter, although the father was alive because he was not interested in the child`s affairs. A guardian is a person who is responsible for a child`s well-being, needs, education, and other basic requirements. In most cases, the father is the natural guardian of the child and, in the event of absence or death, the mother becomes the guardian of the child. Apart from the mother and father, no one can be the natural guardian of the child.

If a person other than the child`s father and mother has custody of the child, it is an established guardianship. A guardian is responsible for a child and has the authority to make all decisions affecting the child. The guardian is therefore legally responsible for the child. They accepted the recommendations of their 133rd report, stated that they would endeavour to eliminate the superiority of one parent over the other and recommended that the welfare of the minor be of paramount importance in all cases, and that the father and mother should at the same time be considered as the natural guardians of a minor. A natural guardian is a type of guardianship in which the father and mother or adoptive parents are the guardians. They will do so because of their natural relationship with the minor. The natural guardian of a minor boy or unmarried girl is a father. After the death of the father, the mother is next, who becomes a natural protector. Under Shia and Sunni law, only the father is recognized as the natural guardian.

In Muslim law, even after the death of the father, the mother is not recognized as a guardian, either naturally or otherwise. The mother cannot be the natural guardian of her children, even if they are illegitimate, but she has the right to their custody. Section 6 of the Act defines natural guardians and section 8 of the Act deals with the powers of a natural guardian. Article 6 provides that the father is the natural guardian and, after his death, the mother becomes the natural guardian. This meant that it was only after the father`s death that the mother could become the natural guardian and both could not be natural guardians at the same time. It was only after Gita Hariharan v. Reserve Bank of India that the interpretation of the word “after him” was extended to “in the absence of”. It was found that there was discrimination on the basis of sex in the article, as the father had been privileged in the first place. Many reports of the Legal Affairs Commission recommended the elimination of discrimination on the basis of sex, but the law had never been amended. In ancient India, there were no laws on guardianship of a child.

It was not until British times that guardianship laws were developed by the courts. A guardian is a person officially appointed by the court to care for a child after the death of his or her parents until the child reaches the age of majority. The Guardianship Laws are codified in the Hindu Minority and Guardianship Act 1956 (`the 1956 Act`). Section 4 (b) defines a “guardian” as a person who has custody of the person of a minor or his property, or of both his person and his property. (4) The court may not authorize the biological guardian to perform any of the above-mentioned acts until it is proved that it is in the best interests of the minor. According to the Law Commission`s 2015 report, NCW President Rekha made a number of recommendations to the Ministry of Women and Child Development in 2019. Recommendations were made to ensure that women, especially rape victims and single mothers, were not discriminated against. The most significant changes in the 1956 legislation, the commission determined that it should not be father after him, but it should be father or mother, depending on the circumstances. Both are the natural guardians of the minor child. The 1956 Act gives preference to the father over the mother, in violation of Articles 14 and 15 of the Indian Constitution.