CITATION: AIR (1999) 2 SSC 228
BENCH:-J.S,A. S Anand ,A. S Anand, CJI., M.Srinivasan and U. C. Banerjee, JJ.
JUDGEMENT :- 17th February, 1999
Introduction :-
In the landmark case of Githa Hariharan v. Reserve Bank of India, the Supreme Court redefined the traditional understanding of guardianship under the Hindu Minority and Guardianship Act, 1956. This pivotal ruling acknowledged the mother’s right to be recognized as the natural guardian of her child, challenging the conventional interpretation that prioritized the father’s role. By emphasizing the child’s best interests and considering principles of equality, the court highlighted the importance of harmonizing legal provisions with evolving societal norms, thereby reshaping the landscape of parental rights and responsibilities in India
Githa Hariharan, the petitioner, married Dr. Mohan Ram in 1982, and they have a son named Rishab Bailey.
Facts :-
A pending divorce case in the District Court of Delhi involves Dr. Mohan’s claim for custody of Rishab, despite his apparent disinterest in the child’s affairs. Ms. Hariharan filed for maintenance for herself and Rishab. In 1984, Ms. Hariharan applied to the RBI for 9% relief bonds in Rishab’s name, designating herself as his natural guardian.The application was rejected, and the petitioner was directed by the Court to submit the application signed by the minor son’s father along with a certificate of guardianship issued by a competent authority in her favor. The petitioners file a writ petition, challenging Section 6(a) of the Hindu Minority and Guardianship Act, which designates the father as the natural guardian, with the mother having guardianship rights “after” the father.
and seeking relief from the court. Ms. Hariharan challenged the constitutionality of Section 6(a) in the Supreme Court, arguing violations of Articles 14 and 15 of the Indian Constitution The petitioners jointly applied for relief bonds for Rishab, explicitly stating Ms. Hariharan as the guardian. Dr. Mohan, in his counter-affidavit, asserts his exclusive natural guardianship rights over Rishab. Ms. Hariharan’s petition under Article 32 seeks to invalidate Section 6(a) and Section 19(b) of the Guardian and Wards Act, alleging discrimination and seeking affirmation of her guardianship rights.
Issue:-
Whether the Constitution of India violates Section 6(a) of the Hindu Minority and Section 19(b) Guardianship Act on grounds that it violated the right to equality guaranteed under Articles 14 and 15 of the Indian Constitution?
Arguments of the parties
Petitioner’s Arguments
The Petitioner argued that the Father of the minor son was neglectful and had blatant disregard and disinterested in the welfare and well-being of his child on one hand, but repeatedly wrote to the Petitioner for the sole purpose of asserting that he was the only natural guardian of their minor son and that no decision regarding the son may be taken without his permission. It was argued that the father asserting his right to guardianship over the minor child while otherwise not showing concern amounts to a blatant misuse of the provision of Section 6(a)8 which specifically mentions that she can be considered as the natural Guardian only after the neglectful father’s death. Section 19(b)9 of the Guardians and Wards Act, 1890 as of the date of this Writ The petition was similarly drafted.
Respondent’s Arguments
It must be noted that though the judgment does not explicitly state the arguments raised by the Respondents, the following arguments are inferred. It was contended that the lawmakers had considered and conformed with the Ancient Hindu Law, the Law as modified under British Rule including the Indian Majority Act of 1875 and Guardian and Wards Act of 1890 while drafting this Act. Hence, aligning with the erstwhile position in law.
Judgement :-
The court held that the phrase used in section 6(a) of hindu minority and guardianship act 1956, the father and after him mother doesn’t necessary means after the existence ( after death ) of father Allowing the mother to be the natural guardian in exceptional circumstances during the lifetime of the father, the Court held that the words of the impugned section be interpreted in consonance with the Constitution.
The judgment and the reasoning given have been broken down systematically as follows Directions to Authorities: The Reserve Bank of India authorities were hereby directed to formulate an appropriate methodology to decide such issues based on the facts or context.
Welfare of the child: The Court referred to the Theory of Paramountcy of the Welfare of the Child, to interpret the impugned sections from the perspective of the child’s welfare. Drawing reference from English and Indian cases, the court while admitting the inequality of this provision, threw light on the practice of Courts to generally accord the Child’s welfare the utmost importance while deciding matters of natural guardianship. Some of the cases referred to this point are as follows the welfare of the child above all other factors, in determining natural guardianship. Welfare here was to be given the widest meaning, including the moral, religious, and physical welfare of the child, with due regard given to ties of affection and the child must be considered before the child is taken away.
J.V. Gajre v Pathankhan and Ors:18 In a similar case, where the mother had been managing the person and property of the minor daughter in the absence of the father, the court clarified that as per the Hindu Law before and after the enactment the father normally when alive is considered the natural guardian first and only after his death the mother takes this position. Here, the Supreme Court, however, agreed that there may be exceptional circumstances where despite the father being alive, the mother can be the natural guardian of the minor child on grounds of the welfare of the child.
Gender equality: It was held that the word ‘after’ if read literally, would be violative of basic principles of gender equality as enshrined in the articles of the Constitution and UDHR The Constitution being supreme, such a discriminatory and unequal statutory provision would be violative and void. Hence, the word ‘after’ should not be interpreted to accord a dominant position to the father. It further reasoned that interpretation of this section as obliterating the mother’s right to act as the guardian during the lifetime of the father would run counter to the
legislative intent and would be void and ultra vires the constitution. Interpretation of ‘after him’: The judgment held that a literal interpretation of the words ‘after him’ is not conceivable in the context of the constitutional guarantee of gender equality and legislative intent. Furthermore, it declared that the word ‘after’ should not be interpreted as after the death of the father. Here, ‘after’ shall be interpreted as ‘in the absence of the father in circumstances including and limited to:
Temporary absence of the father;
Total apathy of the father toward the child;
The inability of the father because of ailment or otherwise.
Ratio Decidendi:- The Supreme Court held that the interpretation of “natural guardian” should be non-discriminatory, ensuring that both father and mother are equally considered as natural guardians in the eyes of the law.The welfare of the minor is of utmost importance in deciding guardianship and overrides any notion of parental superiority.
Analysis :-
This judgement is a significant milestone in Indian legal history, particularly in the area of family law and gender justice. The Supreme Court’s interpretation of Section 6(a) of HMGA in terms of constitutional values is a major move towards the attainment of substantive equality. It reflects the judiciary’s ardent efforts to revisit, interpret and alter (wherever necessary) personal law provisions in the light of modern social realities and the constitutional value against any kind of discrimination.Perhaps one of the most striking features about this case is that the hon’ble court eased the tension between constitutional rights (fundamental rights) and personal laws. It is an open secret that earlier courts have been slightly reluctant to intervene in personal laws under the veil of the sanctity of religious and cultural practices. But the judgement in this case points towards a refined modern judicial approach of revisiting and checking that all the laws, including personal ones such as those relating to guardianship, are consistent to the constitutional values and fundamental rights.The hon’ble court’s reasoning regarding the welfare principle of the minor grabs significant attention as by this court justifies its authority which is challenged by the learned counsel for respondents under the light of Section 19 (b), Guardians and Wards Act, 1890
Criticism :-
The judgment in Githa Hariharan v. Reserve Bank of India was an important step towards gender equality, but it was not completely free from criticism. Instead of changing the law, the Supreme Court only gave a broader interpretation of the existing provision. Because of this, the wording of Section 6(a) remained the same and can still cause confusion in some cases. The law also continues to mention the father before the mother as the natural guardian, which does not reflect complete equality. Many legal experts believe that Parliament should have amended the law to clearly recognise both parents as equal guardians.
Conclusion :-
Concludingly, this case stands as a cornerstone in the Indian legal system that redefined and altered the narrow and positivistic interpretation of Section 6(a) of the Hindu Minority and Guardianship Act, 1956. The first issue identified in this analysis was could a mother be awarded the guardianship of a Hindu minor when his father is alive? The Hon’ble Supreme Court, rightly held that the expression “after him” cannot be limited to the death of the father but must include situations where the father is absent, non interested or unfit to act as a guardian Secondly, the Court addressed the issue i.e. whether this gender hierarchy of natural guardianship under HMGA is violative of Articles 14 and 15 of the Indian Constitution, which unequivocally and explicitly guarantees equality and prohibit discrimination in its all forms.
Author: Komal Rani
Year of Study: Second Year
College: Arya Kanya Degree College, Prayagraj
