GITHA HARIHARAN VS RESERVE BANK OF INDIA : CASE SUMMARY
The Supreme Court in Githa Hariharan Vs. Reserve Bank of India (1999) 2SCC228 held that the word “after” used in Section 6 (a) of Hindu Minority and Guardianship Act, 1956 has to be interpreted in consonance of the legislative intent i.e welfare of the minor child.
FACTS OF THE CASE
Smt. Githa Hariharan and Dr. Mohan Ram was married in July 1984. A son Rishabh Baily was born out of this wedlock. Smt. Githa Hariharan applied to Reserve Bank of India for 9% relief bond in the name of her minor son and mentioned that she will act as natural guardian of her son. The Bank returned the application advising her to file application signed by father or certificate of guardianship issued by competent authority.
The divorce petition between the two parties was also pending before the District Court and application for custody has also been filed in the said petition by the husband. Smt. Githa Hariharan has also filed application for maintenance of herself and her son. The child was staying with Smt. Githa Hariharan.
Smt Githa Hariharan filed Petition before the Supreme Court for declaring Section 6 (a) of Hindu Minority and Guardianship Act, 1956 violative of Article 14 and 15 of the Constitution.
FINDINGS OF THE SUPREME COURT
It was contended by the Petitioners that provisions of Section 6 seriously disadvantage women and discriminate man against women in the matter of guardianship rights, responsibilities and authority in relation to their own children.
Section 6 (a) of the Hindu Minority and Guardianship Act, 1956 provides that the natural guardians of a Hindu minor in respect of minor’s person as well as in respect of minor’s property (excluding his or her undivided interest in joint family property) are in case of boy or an unmarried girl – the father and after him mother, provided that custody of a minor who has not attained age of five years shall ordinarily be with the mother.
The Supreme Court noted that Hindu Minority and Guardianship Act, 1956 has been enacted by codification of certain part of laws related with minority and guardianship among Hindus. Prior to enactment both parents were treated as natural guardians of person and separate property of minors. Husband was treated as Guardian of wife, how young she might be and adopted father was treated as guardian of adopted son. The law provided that after death of the father , the mother succeeds natural guardianship and separate property of the minor. Guardianship was in nature of trust which dis not shift during lifetime of father although custody of child can be given temporarily for education or other purposes.
The Court noted that Constitution of India has prohibited discrimination on the ground of sex. The issue was whether with due regard to the mandate of the constitution will it be justifiable to decry rights of the mother to be declared as natural guardian or have the father as preferred guardian.
The Court observed that a plain and literal reading of Section 6 (a) depicts that the mother’s right to act as natural guardian stands suspended during lifetime of father and it is only on the death of the father the mother obtains such right.
The Court observed that objective of the Act is to protect the welfare of the child. Any interpretation has to be in consonance of legislative intent. The Court observed that it is a settled law that narrow interpretation running counter to constitutional mandate has to be avoided.
The Supreme Court observed that meaning of the word “guardian” under Section 4(b) can not be said to be restrictive in any manner. It is an axiomatic truth that both mother and father of a minor child is are duty bound to take care of person and property of minor child. Both parents have to be treated as guardians. The Court noted that same was situation before enactment of 1956 Act. The law recognized that the minor has to be in custody of the person who can ensure welfare of the minor in the best possible way.
The Supreme Court held that Section 6(a) recognizes that father and mother both should be recognized as natural guardian and expression “after” has to be read and interpreted in manner so as to not to defeat the true intent of the Legislature. The Court held the gender equality is one of the basic principles of the Constitution and the word “after” can not be read to mean any disqualification to mother.
The Supreme Court held that “after’ does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as “in absence of” – be it temporary or otherwise or total apathy of father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word “after” as used in Section 6 then and in that event the same would be in accordance with the intent of legislation viz. welfare of the child.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.