GUARDIANSHIP AND CUSTODY RIGHTS OF UNWED MOTHERS -THE LEGAL PERSPECTIVE
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Abstract
Children are the future of the society, and their upbringing is indirectly, very crucial to the development of any society. The law has recognized this over a period of time, and has made necessary provisions to ensure that in the family system, a child’s interest is protected. International, domestic and personal laws have made attempts to secure the same. We have come up with various principles and doctrines, such as the Tender Years Doctrine, and the Best
Interest Principle, to ensure that a child’s development is not compromised by the circumstances he is brought up in. The welfare of the child is a universally recognized principle that cuts across different ideologies. The environment in which a child is being brought up is very crucial to his development, and is the underlying factor to influence the laws of guardianship and custody.
Traditionally, in Common law, the father was the sole guardian of the person and property of the child. A mother did not have any authority over children, since women did not have independent legal status; their identities being forged with that of their husbands upon marriage.It was the Custody of Infants Act, 1839, in the UK which empowered the mother to claim custody over minor children. However, the rights of the father continued to remain supreme.
In India, the Guardians and Wards Act was enacted in 1890 by the colonial state, which continued the legacy of Common law and provided for the supremacy of the paternal right in guardianship and custody of children. While Sections 7 and 17 of the Act provided that courts should act in furtherance of the welfare of the minor, Sections 19 and 25 of the original Act, subordinated the same to the supremacy of the father. It is only the Hindu Minority and Guardianship Act, 1956, enacted by the independent Indian state that provides that welfare of the minor shall be the paramount consideration superseding all other factors.
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