Githa Hariharan v. Reserve Bank of India
Supreme Court of India · 17 February 1999 · 3 judges
The Court read the word 'after' in Section 6(a) of the Hindu Minority and Guardianship Act, 1956 as 'in the absence of', so that a mother can act as natural guardian during the father's lifetime, and upheld the provision.
Facts
Two writ petitions under Article 32 were heard together. In the first, a mother and father jointly applied to the Reserve Bank of India for Relief Bonds in the name of their minor son, stating that both agreed the mother would act as guardian for the investment. The Bank asked for an application signed by the father or a guardianship certificate in the mother's favour. In the second, a wife whose husband had sued for divorce and custody of their son in the District Court, Delhi, said he kept asserting that he was the only natural guardian while showing no interest in the child. Both petitions sought to strike down Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardians and Wards Act, 1890 as violating Articles 14 and 15, because the mother is natural guardian only 'after' the father.
Questions before the Court
- Does the word 'after' in Section 6(a) of the Hindu Minority and Guardianship Act, 1956 mean only 'after the lifetime' of the father?
- Are Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardians and Wards Act, 1890 void for discriminating against the mother on the ground of sex?
- Was the Reserve Bank of India right to refuse the application signed by the mother as guardian?
What the Court held
- If 'after' meant only 'after the lifetime' of the father, Section 6(a) would violate gender equality and have to be struck down. Since the provision can be construed to stay within constitutional limits, the Court prefers that construction, presuming that Parliament acted in accordance with the Constitution.
- 'After' in Section 6(a) means 'in the absence of', referring to the father's absence from the care of the minor's person or property for any reason: indifference, an agreement that the mother take exclusive charge, living away, or physical or mental incapacity. In such cases the mother, a recognised natural guardian, can act validly during the father's lifetime.
- This reading follows from a harmonious construction of Sections 4 and 6 of the Act and gives effect to CEDAW and the Beijing Declaration. Section 19(b) of the Guardians and Wards Act, 1890 is to be construed in the same way.
- The Reserve Bank was not right in insisting on an application signed by the father or a court order when both parents had jointly agreed in writing; it ought to accept the mother's application. The Bank and similar organisations may formulate a suitable methodology.
- The judgment operates prospectively and does not reopen past decisions or transactions. The custody and guardianship dispute in the second petition is to be decided by the District Court in the light of this judgment.
Why it matters
The Court saved Section 6(a) of the Hindu Minority and Guardianship Act, 1956 by reading 'after' as 'in the absence of', allowing a mother to act as natural guardian while the father is alive. It applied the presumption of constitutionality and used CEDAW to construe domestic law, and expanded the principle in Jijabai Vithalrao Gajre v. Pathankhan. It extended the same reading to Section 19(b) of the Guardians and Wards Act, 1890.
In the Court's words
Copied from the official judgment; each passage links to its page.
“We are of the view that the Section 6(a) (supra) is capable of such construction as would retain it within the Constitutional limits. The word 'after' need not necessarily mean 'after the life time'.”
“Be it noted further, that gender equality is one of the basic principles of our Constitution and in the event the word 'after' is to be read to mean a disqualification of a mother to act as a guardian during the lifetime of the father, the same would definitely run counter to the basic requirement of the constitutional mandate and would lead to a differentiation between male and female. Normal rules of interpretation shall have to bow down to the requirement of the Constitution since the Constitution is supreme and the statute shall have to be in accordance therewith and not de hors the same.”
“We are conscious of the fact that till now many transactions may have been invalidated on the ground that the mother is not a natural guardian, when the father is alive. Those issues cannot be permitted to be reopened.”
Provisions interpreted
Case and bench
- Parties
- Githa Hariharan v. Reserve Bank of India
- Case
- Writ Petition (C) No. 489 of 1995 with Writ Petition (C) No. 1016 of 1991
- Decided
- 17 February 1999
- Bench
- Dr. A.S. Anand, C.J., M. Srinivasan, J., Umesh C. Banerjee, J.
- Opinions
- Unanimous in result. Dr. A.S. Anand, C.J. wrote for himself and M. Srinivasan, J. (the majority of the Bench), agreeing with the conclusion of Umesh C. Banerjee, J. but adding their own reasons; Banerjee, J. wrote a separate opinion.
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