Case Analysis: Githa Hariharan v. Reserve Bank of India. (1999) 2 SCC 228.

Author: Lovish Singal.

CITATION

AIR 1999 2 SCC 228

NAMES OF PARTIES

Petitioner: Githa Hariharan

Respondent: Reserve Bank of India

JUDGES

Justice A.S. Anand;

Justice M Srinivasan;

Justice Umesh C Banerjee.

INTRODUCTION

In this case, a writ petition was filed under Article 32 of constitution of India stating that Section 6(a) of the Hindu Minority and Guardianship Act¹ and Section 19(b) of the Guardians and Wards Act² is unconstitutional as it is violative of Article 14 and 15 of the Constitution of India. Article 32 gives power to the citizens to file a petition against the law made by the government which is against the constitutional provisions. Section 6(a) of the HMG Act says that the father is the natural guardian of the minor and property of minor, after father, mother is the natural guardian of the minor and property of minor. Section 19(b) of GW Act says that the court cannot appoint a guardian of the minor whose father is not fit to be the guardian.

As Section 6(a) of the HMG Act and Section 19(b) of GW Act both of them give father the position of a guardian of the minor on priority but not to mother this is said to be gender bias which is discouraged of article 14 and 15 of the Constitution. In this case, it will be discussed whether Section 6 (a) of the HMG Act and Section 19(b) of the GW Act are unconstitutional or constitutional and the reason behind the decision of the supreme court.

FACTS

Writ Petition No. 1016 of 1991 was heard with Writ Petition No. 489 of 1995 because both petitions demanded to strike down Section 6 (a) of the HMG Act and Section 19(b) of the GW Act.

Facts in Writ Petition No. 489 of 1995:

• Petitioner 1 and Petitioner 2 are wife and husband, respectively. They were married in 1982. They had a son in July 1984. When the son was born, they decided to purchase some securities in his name.
• They both agreed that the mother will be the guardian of all the securities of the son. Mother applied to RBI to get the bonds issued in her son’s name.
• RBI officials replied that the only father can apply for the issue of bonds in the son’s name, if the father is not alive then they have to show the certificate of court for the appointment of a guardian or if the father and mother both have agreed then the mother has to produce the document of the consent that she is the guardian of properties of the minor.
• Both husband and wife filed a petition for mandamus, to plead the court to issue directions to RBI officials to issue bonds with the mother’s signatures for her son without asking for the consent document of the father.
• The petition also includes that Section 6 (a) of the HMG Act and Section 19(b) of the GW Act should be held unconstitutional on the grounds of gender discrimination.

Facts in Writ Petition No. 1016 of 1991:

• Petitioner and respondent 1 are wife and husband, respectively. Petitioner and respondent are living separately. They had a minor son, staying with his mother. Respondent has been writing to the school repeatedly that any decision regarding his son should not be taken without his permission.
• In the Delhi District court, divorce proceedings are pending between Petitioner and respondent 1. Petitioner has filed an application for her and her son’s maintenance in the same divorce proceedings in Delhi District court.
• Respondent 1 doesn’t have any apathy towards the child neither willing to perform any of his obligations as a father but wants custody and guardianship of the minor because he is the father of the minor.
• This petition is filed by the mother in the supreme court to strike down Section 6 (a) of the HMG Act and Section 19 (b) of the GW Act because they give father the right to be the natural guardian of the child which is gender discrimination. So, these provisions are violative of Article 14 and Article 15 of the Constitution of India.

ISSUES

1. Are Section 6(a) of the HMG Act and Section 19(b) of the GW Act gender-biased?
2. What does the term ‘After’ in Section 6(a) of the HMG Act implies to? Does that mean after the death of the father, the mother will be the natural guardian or it is just father is prioritized over the mother for the position of natural guardian of the child?
3. Can a mother be made natural guardian of the property of the minor son when the father is alive and fit to be a guardian?
4. Can a mother get custody and guardianship of a minor son when the father is alive and fit to be a guardian?
5. Does Section 6(a) of the HMG Act and Section 19(b) of the GW Act should be interpreted literally or the intent of the legislator should be considered?
6. For the welfare of the minor can Section 6(a) of the HMG Act and Section 19(b) of the GW Act be interpreted narrowly or widely depending upon the circumstances of the case?

JUDGMENT

Section 4 of the HMG Act defines a guardian as the person who takes care of the minor and his property. Section 4(b) of the HMG Act defines the term “Guardian” which also includes “Natural Guardian”. So, there is no difference between a guardian and a natural guardian. Section 4(c) of the HMG Act says that the natural guardian is defined under section 6. So, Section 4 of the HMG Act does not make any discrimination between father and mother. Section 6(a) of the HMG Act does discriminate when interpreted literally because it says that Natural Guardian is the father and after him, mother is the natural guardian, which means that the mother cannot be the natural guardian of her child till father of the child is alive.

But when it was constructed harmoniously with the Articles 14 and 15 of the Constitution. Section 6(a) of HMG Act can be interpreted in such a way that it makes no discrimination in the rights of father and mother. The word “after” used under Section 6(a) of HMG Act will not be interpreted as after the life of father only, the mother can become the natural guardian of her child. Instead it will be interpreted as when the father is not fit or unwilling to be the guardian. Based upon the circumstances, father can no longer be treated as natural guardian of the child and the mother will be the natural guardian of the child. It is not necessary that for a mother to be the natural guardian of the child, the father must not be alive.

The legislator behind the HMG Act intends to recognize the welfare of the minor so words under the HMG Act can be interpreted narrowly or widely depending upon the circumstances of the case to ensure the welfare of a minor. In Writ Petition No. 489 of 1995 – Both the parents of the minor are liable to take care of the minor and his property when the father is not alive or interested in the affairs of the minor or in oral or written agreement with the mother that she is responsible for minor’s affairs or for any other reason the father is not able to take care of affairs of the minor, as the case may be, the mother will be treated as natural guardian of the minor child. Supreme Court directed the Reserve Bank of India to consider the letter signed by the mother only and not to demand a letter signed by the father. This is a prospective judgement which means that the earlier cases cannot be reopened on the grounds of this judgement of the Supreme Court. In Writ Petition No. 1016 of 1991 – The Writ Petition was dismissed and it was held that the question regarding the custody and guardianship of a minor shall be decided by Delhi District Court.

ANALYSIS

The decision of the Court in both the writ petition was appropriate and confronts with the existing law. In Writ Petition No. 489 of 1995, Court directed RBI to consider the application with the mother’s signature only and in Writ Petition No. 1016 of 1991, Court directed the matter of custody and guardianship to Delhi District Court where it belongs but it was only appropriate to an extent where the Court interprets the Section 6(a) of HMG Act and Section 19(b) of GW Act harmoniously with Article 14 and 15 of Constitution. The Section 6(a) of HMG Act and Section 19(b) of GW Act are gender biased and violative of Article 14 and 15 of Constitution.

The decision of the court is not in conformity with the literal interpretation of Section 6(a) of the HMG Act and Section 19(b) of the GW Act. Because in literal interpretation, the meaning of the word “after” in Section 6(a) of HMG Act is after the life of father. Which means that mother can only become the natural guardian of the minor child after the death of the father which is indeed gender biased. The reasoning of the court that the provisions under the HMG Act will be interpreted in such a way that the welfare of minor is taken into consideration is in constituency with previous judgements of Supreme Court. Like in Jijabai Vithalrao Gajre v. Pathankhan & Ors.³, it was held that the father was alive but was not taking any interest in the property of minor so for the welfare of the minor, the mother was recognized as natural guardian.

The reasoning of the judgement that when the father is alive, fit and interested in the minor person and its property, he will be treated as a natural guardian is in conformity with the decision of the court in the earlier cases. Like in Panni Lal v. Rajinder Singh and Anr.⁴ where the sale deed of property of minors was executed by their mother and attested by father, it was held that the sale deed is voidable because attestation of a legal document cannot be treated as its execution and the fact that father attested the deed shows that he was interested in the affairs of the minor. So, the mother was not treated as a natural guardian because the father was alive and interested in the affairs of the minor.

The implication of this judgement will be that when deciding a question of law in the HMG Act, the Court will make a decision which is for the welfare of the minor. Also, at the same time, Hon’ble Court should have stuck down section 6(a) of the HMG Act on the grounds of violation of Articles 14 and 15 because Section 6(a) prioritizes the rights of the father over the rights of the mother as a natural guardian of minor and property of minor and affairs related to it. So, the mother and father of the child both together should have the right as the natural guardian.

CONCLUSION

In this case, it was held that Section 6(a) of the HMG Act does not discriminate between genders. Because the word “after” used in this section doesn’t mean that after the life of the father, it just means that when the father is not interested in or because of some other reason father cannot take care of affairs of minor then the mother can act as natural guardian. But it does discriminate among father and mother of the child on the grounds of gender as it gives the first preference to the father and after him, the second preference is given to the mother when it says that “after father mother will become the natural guardian of the minor”. Section 6(a) of the HMG Act, instead of using gender-neutral words, uses the word which discriminate among father and mother of the child like the word “Parent” can be used instead of the word “Father” or “Mother”.

In this case, Court said that the legislator behind this Act intends to seek the welfare of the minor so the provisions of this Act must be interpreted in such a way that the benefit of the minor should be considered. But when the legislator says that “after father mother will be the natural guardian”, the intention of the legislator also signifies that when talking about taking care of minor and his property, father has the first right. After him, the priority will be given to mother which means that the legislature has a stereotype in its mind that the father (man) is more capable than the mother (woman) when it comes to taking care of minor and property of minor. Otherwise, the legislature could have just drafted that “the parents are the natural guardian of the minor child”. When one of the parents alone can’t procreate a child, and it takes two parents to procreate a child. Then why can’t both parents be treated as natural guardian. The judgement will be partially appreciated because more adequate judgement for the society would have been passed only if section 6(a) of the HMG Act would have been stuck down on the basis of gender bias.

FOOTNOTES:

1. Hindu Minority and Guardianship Act (HMG Act) 1956[↩]
2. Guardians and Wards Act (GW Act) 1890[↩]
3. Jijabai Vithalrao Gajre v. Pathankhan & Ors. 1971 AIR 315[↩]
4. Panni Lal v. Rajinder Singh and Anr. 1993 SCR (3) 589 [↩]