Life is unequal, and for women it is more unequal. This is broadly true across social classes and social strata of all description, and across the regions of India, to such a degree that the gender question was mostly left unattended even by mainstream Marxists who otherwise sought to address issues relating to fundamental inequality and discriminations. Reform movements aimed to ameliorate the plight of the sufferer and applied balm, but did not move in the direction of remedy through thought and action.
In light of such a tradition, the recent decision of the Supreme Court to permit mothers to be the natural guardians of their children without having to disclose the identity of the biological father in all matters that may be subjected to the test of law, may be considered nothing less than revolutionary. It is also evident that the judgment of Justice Vikramjit Sen and Justice Abhay Sapre strikes a blow for the individual, and does not leave the fate of the relationship of a mother — no matter in which religious denomination her origin may lie — with her child to be determined by any ancient custom or existing law that frames issues within the bounds of the personal laws of different religious faiths — all of which, without exception, are driven by a patriarchal and feudal mindset on the whole, and are niggardly toward accepting the individuality of women for what it is.
The case that yielded the historic judgment concerned a mother of the Christian faith, but the benefit that accrues will apply across the board to all. Henceforth, a woman who chooses to be put down as the natural guardian of her child without reference to her husband, or the child’s biological father if it is born out of wedlock, may do so unfettered.
In effect, having to fill in one’s father’s name as a compulsory entry in passport or bank applications, or in the context of education, employment or any other context, is now a thing of the past.
In 1999, the writer Geetha Hariharan had successfully challenged the law that regarded the father alone as the natural guardian. The Supreme Court permitted the mother equal right with a child’s father to be regarded as the natural guardian responsible for its well-being, and to take all decisions on its behalf. The present judgment goes much farther as it is transformative of traditional gender relations as well as roles in a family. The Guardians and Wards Act of 1890 has, thus, been stood on its head.
Left to itself, either the executive or the legislature was less likely to contemplate such a far-reaching step. Through several decisions in recent years, the judiciary has shown itself capable of transcending old mindsets.
