Laws have an air of universality, as though they are the voice of a suprahuman wisdom. This is partly a result of the style in which laws are scripted; there is certainly a universal dimension to the principles that laws are based on, justice being the most obvious. But the reasons for and ways in which justice is sought to be delivered are related to a society’s ideal vision of itself. But society keeps changing, which is why amendments to older laws are a sign of a dynamic approach to the understanding of justice. The National Commission for Women has reviewed the provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardianship and Wards Act, 1890. One of its recommendations was that the word “illegitimate” be removed from Section 6(b) of the 1956 Act. This section says that in the case of an illegitimate boy or an illegitimate unmarried girl, the natural guardian is the mother and then the father. Now this is exactly the reverse of Section 6(a), which makes first the father and then the mother the natural guardian of any Hindu minor for all children born ‘within wedlock’.

The provisions lay bare the prejudices of the society behind the law. Within a marriage, a father’s right is given primacy. The NCW is recommending a change in this section in line with the rights to equality and against discrimination enshrined in Articles 14 and 15 of the Constitution. The natural guardian, says the NCW, shall be the father or the mother, not the father and after him the mother. This would give women deserted by their partners and rape survivors with children recognition and respect as natural guardians. In keeping with new possibilities, the NCW wishes to broaden the definition of natural guardian to include grandparents and adoptive parents. The recommendation to remove the word “illegitimate” from Section 6(b) must be seen in the context of the overall effort to give the law a more humane as well as a gender-equal thrust. No child is illegitimate, says the NCW, in a laudable acknowledgment of the changing status of marriage and an assertion of the equality of all children before the law. The NCW’s recommendations will be submitted to the government. If accepted, they will make the guardianship law truly progressive and inclusive. So far the NCW has not addressed the injustice implicit in the situation of the woman made solely responsible for the child born outside marriage. Maybe next time it will.