Githa Hariharan v. Reserve Bank of India

Two mothers challenged Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which names the father as natural guardian and the mother after him. The Supreme Court did not strike the section down. It read the word after to mean in the absence of the father, so a mother can act as natural guardian while the father is alive.

Quick Revision

Parties

Ms. Githa Hariharan — petitioner No. 1 in Writ Petition (Civil) No. 489 of 1995; a mother who applied for a bond in her minor son's name.

Dr. Mohan Ram — husband of the petitioner in that petition; the child's father.

Reserve Bank of India (RBI) — respondent No. 1; asked for the father's signature or a guardianship certificate.

Petitioner in Writ Petition (Civil) No. 1016 of 1991 — a mother seeking a declaration on Section 6(a). The source does not name her.

First respondent in Writ Petition No. 1016 of 1991 — her husband, who claimed to be the only natural guardian. The source does not name him.

Ms. Indira Jaisingh — counsel for the petitioners.

Procedural History

1. The petition in Writ Petition (Civil) No. 489 of 1995 was filed under Article 32 after the RBI's reply to the mother's application (para 4).
2. The petition in Writ Petition (Civil) No. 1016 of 1991 was filed under Article 32. A divorce proceeding and the father's custody application were pending in the District Court of Delhi (para 5).
3. The two petitions were heard together, as both challenged the constitutionality of Section 6 of the Act (para 6).
4. The Court decided both on 17 February 1999 (paras 27-28).

Facts

1. The petitioner and Dr. Mohan Ram were married at Bangalore in 1982. Their son, Rishab Bailey, was born in July 1984 (para 4).
2. In December 1984 the petitioner applied to the RBI for a 9% Relief Bond to be held in the name of Rishab. She said she would act as his natural guardian (para 4).
3. The RBI returned the application. The petitioner called this communication arbitrary and opposed to the basic concept of justice. The RBI asked her to produce an application signed by the father, or a certificate of guardianship in her favour from a competent authority (para 4).
4. In the second petition, the petitioner and the first respondent were lawfully married and had a minor son. A divorce proceeding was pending in the District Court of Delhi (para 5).
5. The first respondent asked for custody of the son in that proceeding. The petitioner filed an application for maintenance for herself and the son (para 5).
6. The first respondent repeatedly wrote to the petitioner that he was the only natural guardian and that no decision should be taken without his permission (para 5).
7. The son was staying with the mother. She said the father had shown total apathy towards the child and claimed to be natural guardian without meeting any corresponding obligation (para 5).
8. She prayed for a declaration that Section 6(a) of the Act, read with Section 19(b) of the Guardian and Wards Act, is violative of Articles 14 and 15 of the Constitution (para 5).

Issues Raised

1. Does Section 6 of the Hindu Minority and Guardianship Act, 1956 discriminate against women in guardianship, contrary to the constitutional guarantee of equality (paras 2, 7)?
2. Does the word after in Section 6(a) mean that the mother's right as natural guardian is suspended during the father's lifetime (paras 16, 18)?
3. Is the section void and ultra vires the Constitution, or can it be read so that it survives (paras 22-26)?

Arguments Contended

For the petitioners (Ms. Indira Jaisingh):

• Section 6 seriously disadvantages women. It discriminates against them in guardianship rights, responsibilities and authority over their own children (para 7).
• On a proper reading of Section 4 and the legislative intent, the mother cannot be barred and the father cannot be the preferred guardian. The language of Section 6 runs counter to that equality (para 8).
• The word after in Section 6(a) cannot run against the constitutional safeguards of gender justice. Otherwise the section is void and ultra vires the Constitution (para 16).
• The classification rests on marital status. It deprives a mother of guardianship during the father's lifetime, which is a prohibited ground under Article 15 (para 18).

For the respondents: the judgment records no separate submissions for the respondents.

Court's Reasoning

The judgment is by Banerjee, J. (single judge). Paragraph numbers are those of the judgment.

Banerjee, J.

Background

1. Noted: The cry for equality of women is no longer dormant. Article 2 of the Universal Declaration of Human Rights bars distinction on grounds such as race, sex or religion. The United Nations adopted CEDAW in 1979 and India ratified it in June 1993. (para 1)
2. Noted: The basic structure of the Constitution permeates equality of status and negates gender bias. The validity of Section 6 is challenged on the ground that dignity of women is a right inherent under the Constitution. (para 2)
3. Noted: The facts of the two petitions are set out as in Facts. (paras 3-5)
4. Noted: Both petitions were heard together, and counsel's arguments are recorded as in Arguments. (paras 6-8)
5. Noted: Section 6 names the natural guardians of a Hindu minor, in respect of the person and property (excluding undivided interest in joint family property). (para 9)
6. Noted: For a boy or an unmarried girl, it names the father, and after him the mother. The custody of a minor under five years is ordinarily with the mother. (para 9)
7. Noted: For an illegitimate boy or unmarried girl, it names the mother, and after her the father. For a married girl, it names the husband. (para 9)
8. Noted: A person cannot act as natural guardian if he has ceased to be a Hindu, or has renounced the world as a hermit (vanaprastha) or ascetic (yati or sanyasi). Father and mother do not include a step-father or step-mother. (para 9)

The law before and after codification

1. Noted: The 1956 Act is an amendment and codification of parts of Hindu law on minority and guardianship. Hindu law has shown no signs of decrepitude. The lawmakers codified parts of it to reflect social and economic changes. (para 10)
2. Noted: Under old Hindu law both parents were natural guardians of the person and separate property of minor children. The husband was the natural guardian of his wife, and the adoptive father of the adopted son. (para 11)
3. Noted: On the father's death, without a testamentary guardian, the mother succeeded. Guardianship is in the nature of a sacred trust, and the guardian cannot substitute another person during his lifetime. Custody may be entrusted temporarily for education or similar purposes, with a power to revoke at the guardian's option. (para 11)
4. Noted: The old law recognised a guardian de facto (one who has taken guardianship on himself) and a guardian de jure (a legal guardian). The legal guardian includes a natural guardian, a testamentary guardian and a guardian appointed or declared by a court under the general law of British India. (para 12)
5. Noted: The law is found in the smritis, shrutis and commentaries, and in the Guardian and Wards Act, 1890 and the Indian Majority Act, 1875. (para 13)
6. Noted: The 1956 Act does not run counter to the earlier statutes. Section 2 says it is in addition to, and not in derogation of, them. (para 13)
7. Noted: Indian courts have lately refused to apply the rule of paternal right inflexibly. Following the equity rule in England, they control the father's legal rights of custody where the exercise is capricious or whimsical, or interferes with the child's welfare. (para 14)
8. Noted: In re McGrath ((1893) 1 Ch. 143), Lindley, L.J. said "The dominant matter for the consideration of the Court is the welfare of the child". Welfare is taken in its widest sense and includes moral and religious welfare and ties of affection. (para 14)
9. Noted: In the Gyngall case ((1893) 2 Q.B. 232), Lord Esher, M.R. said the court considers all the circumstances, including the parent's position, the child's age, religion (so far as it can be said to have any) and happiness. A child brought up in one religion should not be taken by a stranger to alter its religious views. Prima facie the child's best place is with its parent, but a parent's poverty is not a ground to remove the child. (para 14)
10. Noted: English law is consistent with the welfare theory of the child, and Indian law does not depart from it. (para 14)
11. Noted: J.V. Gajre v. Pathankhan ((1970) 2 SCC 717) was a case where the mother had lived separately for over 20 years and managed the minor daughter's properties. The father took no interest in the minor. This Court agreed that on those facts the mother could be treated as natural guardian. (para 14)
12. Noted: Gajre also said that normally, when the father is alive, he is the natural guardian, and only after him does the mother become natural guardian. (para 14)
13. Noted: A rigid insistence on strict statutory interpretation may not be conducive to the growth of the child. With welfare the predominant criterion, it is a plain exercise of judicial power to interpret the law for the child's fuller development. (para 15)

The constitutional challenge and the statute

1. Noted: The Constitution has an equality code prohibiting discrimination on the ground of sex. The question is whether it is justifiable to decry the mother's right to be a natural guardian, or to have the father as preferred guardian. Ms. Jaisingh answers emphatically no. (para 16)
2. Noted: Section 4(b) defines guardian as a person having the care of the person of a minor or his property. It includes a natural guardian, a guardian appointed by the will of the father or mother, a guardian appointed or declared by a court, and a person empowered under an enactment on courts of wards. (para 17)
3. Noted: Section 4(c) says a natural guardian means a guardian mentioned in Section 6. (para 18)
4. Noted: On a plain literal reading, the mother's right to act as natural guardian stands suspended during the father's lifetime. It is this reading that is said to carry gender bias. (para 18)
5. Noted: The tenor of the Act is to protect the welfare of the child. The word after in Section 6(a) must be read in line with the legislative intent. (para 19)
6. Held: It is settled law that a narrow pedantic interpretation running counter to the constitutional mandate should be avoided. The exception is where it makes a violent departure from the legislative intent. (para 19)
7. Noted: In Gajre the High Court allowed the mother to act as guardian because the father took no interest. It expressed no opinion on the word after or on the constitutionality of Section 6(a). Its findings stand accepted and approved by this Court. (para 20)
8. Held: Strictly, Gajre does not help here, except that it recognised the welfare concept. (para 20)
9. Noted: Panni Lal v. Rajinder Singh ((1993) 4 SCC 38) noted Gajre, but it concerned protection of a minor's properties. (para 21)
10. Held: Panni Lal does not help in the matter in issue. (para 21)

Constitutionality and interpretation of Section 6

1. Held: A legislation is presumed valid. Courts should try to retain it rather than scrap it. Courts may declare it invalid only on gross violation of constitutional sanctions. (para 22)
2. Held: The word guardian in Section 4(b) is not restrictive. It includes both father and mother, since both are duty bound to take due care of the person and property of their child. (para 22)
3. Held: The law before codification also treated both parents as guardians. A minor must be in the custody of the person who can best serve his welfare, and "the interest of the child being paramount consideration". (para 22)
4. Noted: Section 6 refers to three classes of natural guardians, the father, the mother and, for a married girl, the husband. The father and mother are natural guardians under Section 6 read with Section 4(c). (para 23)
5. Held: The same word must have the same meaning throughout the statute. The word guardian in the definition includes both parents, so it has the same sense in Section 6(a). The mother's right does not stand obliterated during the father's lifetime. (para 23)
6. Held: To read it otherwise would be a violent departure from legislative intent. Section 6(a) itself recognises both father and mother as natural guardians. So after must be read so as not to defeat the legislature's intent. (para 23)
7. Held: Gender equality is one of the basic principles of the Constitution. If after meant a disqualification of the mother during the father's lifetime, it would run counter to the constitutional mandate and differentiate between male and female. (para 24)
8. Held: "Normal rules of interpretation shall have to bow down to the requirement of the Constitution". The father, by a dominant personality, has no preferential right over the mother, since both fall in the same category. (para 24)
9. Held: The word after must be interpreted in terms of the constitutional safeguard so as to give the words proper and effective meaning. (para 24)
10. Held: The word after must serve the welfare of the minor, and courts try to retain a legislation instead of declaring it void. So the word after "does not necessarily mean after the death of the father". (para 25)
11. Held: It means in the absence of the father, whether temporary or otherwise. It covers the father's total apathy towards the child, or inability from ailment or otherwise. (para 25)
12. Held: Only with such a meaning is the section in accordance with the legislative intent, the welfare of the child. (para 25)
13. Held: Giving the literal meaning to the word after does not arise, given the object of the statute and the constitutional guarantee of gender equality. Any other interpretation would render the statute void, which should be avoided. (para 26)

Disposal

1. Held: Writ Petition (Civil) No. 489 of 1995 is disposed of. The RBI authorities must formulate an appropriate methodology in light of these observations to meet the situation in the contextual facts. (para 27)
2. Held: Writ Petition (Civil) No. 1016 of 1991 is disposed of in the light of these observations. The custody and guardianship matter pending before the District Court, Delhi is to be decided in accordance with them. (para 28)
3. Held: There is no order as to costs. (para 29)

Authorities

• In re McGrath ((1893) 1 Ch. 143): welfare of the child is the dominant matter. Quoted (para 14).
• In re Gyngall ((1893) 2 Q.B. 232): court considers all circumstances of the child and parent. Quoted (para 14).
• J.V. Gajre v. Pathankhan and Others ((1970) 2 SCC 717): mother treated as natural guardian on its facts, without ruling on Section 6(a). Distinguished (paras 14, 20).
• Panni Lal v. Rajinder Singh and Another ((1993) 4 SCC 38): concerned protection of a minor's property. Held of no help (para 21).
• Names as spelt in the source text: Githa Hariharan & Anr v. Reserve Bank Of India & Anr (the case title, printed with vs in the source); Mc Grath (for McGrath); the Gyngall (for In re Gyngall); Gajre's case and Panni Lal's case (short names).

Provisions mentioned

• Section 6, Hindu Minority and Guardianship Act, 1956: natural guardians of a Hindu minor. The father, and after him the mother, for a boy or unmarried girl. The mother for an illegitimate child. The husband for a married girl (para 9).
• Section 4(b) and Section 4(c), Hindu Minority and Guardianship Act, 1956: definitions of guardian and natural guardian (paras 17-18).
• Section 2, Hindu Minority and Guardianship Act, 1956: the Act is in addition to, and not in derogation of, other Acts on the subject (para 13).
• Section 19(b), Guardian and Wards Act, 1890: named in the prayer as read with Section 6(a) (para 5). The Act itself is noted in para 13.
• Indian Majority Act, 1875: a statute on Hindu minority (para 13).
• Article 14 and Article 15, Constitution: equality, and no discrimination on the ground of sex (paras 5, 18).
• Article 32, Constitution: the remedy under which both petitions were filed (paras 4-5).
• Article 2, Universal Declaration of Human Rights, and CEDAW (1979): equal rights without distinction of sex (para 1).

Judgement

1. The word after in Section 6(a) of the Hindu Minority and Guardianship Act, 1956 does not necessarily mean after the death of the father. It means in the absence of the father, including temporary absence, total apathy or inability (para 25).
2. In Writ Petition (Civil) No. 489 of 1995, the RBI authorities must formulate an appropriate methodology in light of these observations, to meet the situation in the contextual facts (para 27).
3. In Writ Petition (Civil) No. 1016 of 1991, the custody and guardianship matter pending before the District Court, Delhi must be decided in accordance with these observations (para 28).
4. There is no order as to costs (para 29).

Legal Principle / Ratio

Section 6(a) of the Hindu Minority and Guardianship Act, 1956 is read to avoid a conflict with gender equality. The word after means in the absence of the father, and welfare of the child is the paramount consideration. In the Court's words, the word after "does not necessarily mean after the death of the father".

Subsequent Treatment

Three later Supreme Court judgments refer to this case. Each is described only as its own text states.

Kaushal Kishor v. State of U.P. (State of Uttar Pradesh & Ors.), Writ Petition (Criminal) No. 113 of 2016 with Special Leave Petition (Diary) No. 34629 of 2017, Supreme Court of India, decided 3 January 2023. Opinion by V. Ramasubramanian, J.

• Use of the case. It lists Githa Hariharan as a case dealing with a challenge to Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardians and Wards Act, 1890 (item xii of its list).
• Reading of the holding. It says this Court read the obligations under conventions like CEDAW into the right to dignity of women and gender equality, traceable to Articles 21 and 14. It says the Court read down after to mean in the absence of.
• Point made. It says the Court thereby invoked fundamental rights to interpret a word in the sphere of family law. It also says the father was declared natural guardian of the person and property of a minor son and unmarried daughter, the mother being recognised only after the father. These provisions caused hardship to spouses separated from each other while dealing with the wards.

National Legal Services Authority v. Union of India, Writ Petition (Civil) No. 400 of 2012 with Writ Petition (Civil) No. 604 of 2013, Supreme Court of India, decided 15 April 2014. Bench: K.S. Radhakrishnan and A.K. Sikri, JJ.

• Use of the case. The judgment refers to Githa Hariharan ((1999) 2 SCC 228) among decisions on reading international conventions into domestic law.
• Related cases. It groups it with Apparel Export Promotion Council v. A.K. Chopra ((1999) 1 SCC 759), R.D. Upadhyay v. State of Andhra Pradesh ((2007) 15 SCC 337), People's Union for Civil Liberties v. Union of India ((2005) 2 SCC 436) and Vishaka v. State of Rajasthan ((1997) 6 SCC 241). The context is that domestic courts must give due regard to international conventions in construing domestic laws, where there is no inconsistency and a void in domestic law.
• Principle stated. It says an international convention not inconsistent with fundamental rights, and in harmony with their spirit, must be read into Articles 14, 15, 19 and 21 to enlarge their meaning.

Supriyo v. Union of India (Supriyo @ Supriya Chakraborty), Writ Petition (Civil) No. 1011 of 2022 with connected matters, Supreme Court of India, decided 17 October 2023. Opinion of S. Ravindra Bhat, J. (para 91).

• Use of the case. The opinion records that the petitioners relied on Githa Hariharan. It describes the case as construing after in Section 6(a) as in the absence of, which saved the section from the vice of discrimination.
• Limit of the record. The opinion records this as the petitioners' reliance, in the middle of other cases the petitioners cited. It does not, in that paragraph, state a separate holding on the case.

Critical Analysis

Analysis based on the judgment text.

The Court read the section down and did not decide on validity. The Court gave after a new meaning to keep the section alive. It did not say whether the literal reading would be void, only that it would render the statute void and should be avoided.

The absence of the father is not defined. The Court lists temporary absence, total apathy and inability from ailment or otherwise. It does not set a test for how long or how serious the absence must be.

The relief in the first petition was left to the RBI. The Court directed the RBI to formulate a methodology, without setting it out. The judgment also does not describe what the RBI should accept in place of the father's signature.

Significance

• The Court held that a mother can act as natural guardian while the father is alive, where the father is absent in the sense the Court explains.
• It applied the constitutional guarantee of gender equality to interpret a personal law provision.
• It treated the welfare of the child as the predominant criterion.
• It confirmed that courts prefer to keep a statute alive by interpretation over declaring it void.

Exam-Important Points

• Facts in one line: the RBI refused a mother's bond application for her son without the father's signature. The Supreme Court read Section 6(a) to include the mother's right.
• Rule: in Section 6(a), after means in the absence of the father, not only after his death.
• Rule: the word guardian in Section 4(b) covers both parents, and the same meaning applies in Section 6.
• Rule: welfare of the child is the paramount consideration, and the father has no preferential right over the mother by reason of a dominant personality.
• Trap: the Court did not strike down Section 6(a). It read it in line with the constitutional guarantee of gender equality.
• Trap: Gajre and Panni Lal did not decide the meaning of after or the validity of Section 6(a).
• Costs: no order as to costs.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.