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UCC and Child’s Interest UPSC NOTE

 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.


  • 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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Learnerz IAS | Concept oriented UPSC Classes in Malayalam: UCC and Child’s Interest UPSC NOTE
UCC and Child’s Interest UPSC NOTE
Learnerz IAS | Concept oriented UPSC Classes in Malayalam
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