GITHA HARIHARAN AND ANOTHER VS. RESERVE BANK OF INDIA AND ANOTHER, 1999

Author: Thirunavukarasar, III year of B.Sc.,LL.B. from PRIST University, Madurai campus, Tamil Nadu

Co-author: Nishtha, II year of B.A.,LL.B. from University of Allahabad

ABSTRACT

This research made an attempt to evaluate the well-known Githa Hariharan decision. We'll start by learning the fundamental principles behind notions like guardianship and parental responsibility. We'll examine how some laws are still based on patriarchal notions, and how this is harmful to society. The natural guardian's rights and responsibilities will be discussed. In this article, we will analyse how the court failed torecognise the underlying issue and relied on ratios from other cases to judge the case, which were not similar to the current one.

In both the Indian and English contexts, there will be some discussion of the rights available to a natural guardian as regards the minor's person. By the end, we will have shown how this judgement fails to address the gender imbalance in the statutes in question, and a few alternative approaches to dealing with difficulties comparable to those raised in this case will be given.

Keywords-AFTER constitution of india; gender justice; gender discrimination; judicial interpretation;

INTRODUCTION

A Guardian is someone who is responsible for the protection of a minor's person and possessions. There's a distinction to be made between custody and guardianship. Custody refers to the minor's day-to-day physical care, whereas guardianship refers to the minor's right to make crucial and major decisions about his life and property.

This case is significant because it established for the first time that a natural guardian, as defined by the HMGA, 1956, can be either a father or a mother: whoever is capable of and available for taking care of the child and is deeply interested in the child's welfare, regardless of whether or not that person is the father.

This is a watershed moment in Indian legal history when it comes to guardianship issues. This decision interpreted and established that the word "after" in Section 6(a) of the Hindu Marriage and Guardianship Act, 1956, does not mean that the mother is the guardian of the minor child only after the father's death; rather, it means that a natural guardian can be both a mother and a father, whoever cares for the child's welfare and is interested in the child's benefit.

Githa Hariharan v. Reserve Bank of India (1999 2 SCC 228), in this case court was deciding the constitutional validity of Sec 6 of Hindu Minority and Guardianship act. The challenge was based on discrimination with women as the father is considered natural guardian of the minor, not the woman.

BRIEF FACTS OF THE CASE

The case revolves around the mother's entitlement to be legally recognised as the son's natural guardian while the husband is away. The first petitioner, Ms Githa Hariharan, married DR. Mohan Ram in 1982. They had an unmarried child named Rishab Bailey in July of 1984. The petitioners jointly applied to the Reserve Bank of India (RBI) in December 1984 for a Rs. 20,000 9 percent Relief Bond to be held in the name of her minor son. The petitioner, as the child's mother, applied to be the minor's natural guardian in connection to the administration of funds held in her son's name for investment reasons.

The Reserve Bank of India rejected Ms. Githa Hariharan's application, requesting that the couple either present an application form with the child's father listed as the domestic guardian or a certificate from a competent body confirming the mother's guardianship.

Ms. Githa Hariharan responded by filing a writ petition seeking to have Section 6(a) of the Hindu Minority and Guardianship Act (HMG), 1956 and Section 19(b) of the Guardian and Wards Act (GW), 1890 declared unconstitutional on the grounds that they violate Articles 14 and 15 of the Indian Constitution. Because she entered the identical plea in her divorce case, the court combined the two cases and heard them simultaneously.

ISSUES OF THE CASE

1. Is it legal for a minor's mother to be recognised as her natural guardian?

2. Whether a mother has an equal guardianship right over the minor as the father?

3. Violation of the right to equality guaranteed under Articles 14 and 15 of the Indian Constitution and Prohibition of Discrimination guaranteed under Article 14 and Article 15 of the Indian Constitution

Guardianship in the Dark Ages
 We should delve at the origins of current guardianship laws before analysing various rules in modern-day India. India's guardianship laws are strongly influenced by English common law and colonial laws from pre-independence India. These laws reflect society's patriarchal and gendered values. Even if custody is shared, the father is ideally suited to have sole guardianship of his children. This was due to the patriarchal belief that males have a greater understanding of the outside world and are more able to make judgments about property and children's education. The father's right to guardianship was deemed absolute. We must remember these gendered beginnings in order torecognise the reforms in the legislation that have been made to include the rights of child.

ARGUMENTS FROM THE PETITIONER SIDE

The constitutional validity of the provision mentioned in section 6 (a) of the Hindu Minority and Guardianship Act, 1956 was challenged in the Supreme Court on the grounds that it violated Article 14 and Article 15 of the Indian Constitution, which guarantee the right to equality and prohibition of discrimination.

The petitioner claimed that the Reserve Bank of India's disclosure was arbitrary and in violation of the Indian Constitution's basic principle of fairness. As a result, the legitimacy of Section 6 (a) of the Hindu Minority and Guardianship Act, 1956 is being questioned. It was also claimed that the provision is discriminatory in nature, putting women at a disadvantage in child-related affairs. Acts that severely disadvantage women and discriminate against them when it comes to guardianship rights, obligations, and power over their own children.

ARGUMENTS FROM THE RESPONDENT SIDE

The bank's claim was based on Section 6(a) of the HMG Act, which states:

"The natural guardians of a Hindu minor, in respect of the minor's person as well as his or her property (excluding his or her undivided interest in joint family property), are- in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that custody of a minor under the age of five years shall ordinarily be with the mother;"

It cannot be denied that, at the time, the accurate meaning of this clause was that a mother could not be a natural guardian of a minor in the presence of the father.

Who is a Natural Guardian

Section 6 of the Hindu Minority and Guardianship Act talks about the natural guardian.

1. The father is the natural guardian of a boy and an unmarried girl. After him, the mother becomes the natural guardian of the child.

2. The custody of the child who is five years old or has not completed the age of five shall be with the mother.

3. The mother is a natural guardian of the child who is illegitimate, whether a boy or an unmarried girl.

4. The husband is considered to be the natural guardian of a married girl.

5. If the child is adopted son, then the natural guardian is the adoptive father and after him, the adoptive mother.[1]

LEGAL ASPECTS

• Section 6 of the Hindu Minority and Guardianship Act 1956 (The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are … in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother) [2]

• Guardian Constitution and Wards Act 1879

• Constitution of India, Article 14 (Equality before the law) and Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth)[3]

THE JUDGEMENT

Section 6. Natural Guardian: The natural guardians of a Hindu, minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are – (a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father; (c) in the case of a married girl – the husband.[4]

The constitutional validity of the provision mentioned in section 6 (a) of the Hindu Minority and Guardianship Act, 1956 was challenged in the Supreme Court on grounds that the above-stated provision violated the Right to Equality and Prohibition of Discrimination guaranteed under Article 14 and Article 15 of the Indian Constitution.[5]

The petitioner argued that the disclosure from the Reserve Bank of India was arbitrary and opposed to the basic concept of justice given in the Constitution of India. Thereby, challenging the validity of Section 6 (a) of the Hindu Minority and Guardianship Act, 1956. It was also argued that the provision is discriminatory in nature and keeps women at disadvantage concerning matters related to their children.[6]

Banerjee J, writing for the Court, emphasised the importance of the child's welfare over all other concerns. He addressed the case of Gajre v. Pathankhan (1970 2 SCC 717) in which, despite the fact that the father was alive, he showed no interest in the child's circumstances. The mother was found to be the natural guardian of her minor daughter in that case. He stated that, according to Hindu law and the Act, the father is the natural guardian, followed by the mother, but that this was not the case in the above situation.

The judgment in Gajre v Pathankhan considered that: “… a rigid insistence of strict statutory interpretation may not be conducive for the growth of the child, and welfare being the predominant criteria, it would be a plain exercise of judicial power of interpreting the law so as to be otherwise conducive to a fuller and better development and growth of the child.” Justice Banerjee noted that the judge in Gajre v. Pathankhan allowed the mother to be the natural guardian: “… but without expression of any opinion as regards the true and correct interpretation of the word ‘after’ or deciding the issue as to the constitutionality of the provision as contained in Section 6(a) of the Act of 1956.” He felt strongly that a long-established law should not easily be set aside; that a key point was interpretation of the word “after”; and that: “… the word did not necessarily mean after the death of the father, on the contrary, it [means] ‘in the absence off’ be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise.”

He concluded that ascribing the literal meaning to the word ‘after’ cannot arise having due regard to the object of the Act and the constitutional guarantee of gender equality, since any other interpretation would render the statute void which ought to be avoided.

He then dismissed the petition challenging the Act's constitutionality, but urged the Reserve Bank to develop adequate methodologyin light of his findings. He also told the Delhi District Court to consider his opinions when deciding on the minor child's custody and guardianship.

The Court observed in para 9 says, “Is that the correct way of understanding the section and does the word 'after' in the section only mean 'after the lifetime'? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our Constitution.

The HMG Act came into force in 1956, i.e., six years after the Constitution. Did the Parliament intend to transgress the Constitutional limits and ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on the grounds of sex.

CONCLUSION

Guardianship is a crucial and delicate area of family law. The welfare of the minor should be the most important concern when deciding on guardianship. It's all about the child's well-being. In India, guardianship rules have a shady history dating back to common law and colonial periods. Since then, India has embraced a forward-thinking stance. However, major obstacles to a child's best interests still exist. Patriarchal concepts of natural guardianship and stringent religious grounds are among them. Mother or someone else becomes a guardian only if the father is incompetent to be a natural guardian.

We may learn from the facts, issues, and the Supreme Court's ruling that fighting for our rights is an important part of our lives. The judicial review power, which has been bestowed in the court, must be exercised appropriately and without creating any overrules. Simply declaring any provision of an Act illegal or void is not the proper method of judicial review; instead, determining the intent of the provision in question is an important aspect of determining the constitutionality of any Act. The judiciary plays its duty in the aforesaid matter in a proper and perfect manner, as evidenced by the decision.

 [1] https://timesofindia.indiatimes.com/blogs/legally-speaking/natural-guardianship-under-section-6-of-the-hindu-minority-and-guardianship-act-a-convoluted-and-unconstitutional-provision/
 [2] https://indiankanoon.org/doc/39958047/
 [3] https://www.legalserviceindia.com/legal/article-2754-article-14-and-15-of-the-indian-constitution-eradicate-discrimination-and-bring-equality.html
 [4] https://www.equalitynow.org/discriminatory_law/india_-_the_hindu_minority_and_guardianship_act_1956/#:~:text=Section%206%20of%20India's%20Hindu,minor%20girl%20is%20her%20husband.
 [5] https://indiankanoon.org/doc/1241462/
 [6] https://indiankanoon.org/doc/1241462/