Open Access Research Article
RIGHTS OF MOTHERS AS NATURAL GUARDIANS - CASE ANALYSIS OF GITHA HARIHARAN V. RESERVE BANK OF INDIA
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RIGHTS OF MOTHERS AS
NATURAL GUARDIANS - CASE ANALYSIS OF GITHA HARIHARAN V. RESERVE BANK OF INDIA
AUTHORED BY - AFTAB SINGH
Brief Facts
Githa Hariharan, the
Petitioner in this case, tied the knot with Dr. Mohan Ram in 1982. Their son,
Rishab Bailey, was born in 1984. The husband and wife jointly applied for 9%
Relief bonds for Rs. 20,000 in their son’s name before the respondent, the
Reserve Bank of India (RBI). They expressly agreed that the child's mother
would represent as the guardian for investments in the name of their son.
Accordingly, the mother signed the application form as the minor's guardian.
The Reserve Bank of India rejected her application and asked the couple to
either submit the application form with the child's father listed as the
domestic guardian or furnish a certificate issued by a competent authority
affirming the standing of the mother as the “natural guardian”.
It argued that, as per
Section 6(a) of the Hindu Minority and Guardianship (HMG) Act, 1956[1],
the mother cannot be considered the “natural guardian” of a minor. An
application for child’s custody arising from a divorce case had been pending in
a District Court in Delhi. The father sought custody of the child during
the proceedings. In response, the petitioner submitted an application seeking
maintenance support for both herself and her minor son, claiming that the
father displayed complete indifference regarding the child and was unconcerned
about the child’s well-being, and that he was demanding to be the “natural
guardian” without fulfilling any duties towards the child.
Consequently, a petition
was filed was before the court with the plea for repealing Section 6(a) of the
1956 Act and Section 19(b) of the Guardian and Wards (GW) Act, 1890[2],
as they identify the father as the only “natural guardian” and hence infringe
the constitutional right to equality of women guaranteed under Articles 14 and
15[3]
and to nullify and overturn the decision of the RBI to reject the petitioner's
deposit and to issue a mandamus instructing the RBI to accept the deposit with
the petitioner recognised as the “natural guardian” of the minor.
Legal Issues
·
Whether, according to Section 6(a) of the HMG Act, ‘after’
implies the mother becoming “natural guardian” only after the father's death,
if she can be the “natural guardian” of a minor son's property, and if she can
obtain custody and guardianship while the father is alive and fit.
·
Whether Section 6(a) of the HMG Act and Section 19(b) of the
GW Act violate the right to equality guaranteed to women under Articles 14 and
15 of the Constitution.
- Whether 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.
Rules
·
INDIA CONST. art. 14 & art. 15
·
Hindu Minority and Guardianship Act., 1956, § 6, No. 32, Acts
of Parliament, 1956 (India).
·
Guardians and Wards Act., 1890, § 19, No. 80, Acts of
Parliament, 1890 (India).
Judgement
In this case, the court
ruled that the term “natural guardian” includes both the father and the mother
of the minor and that the definition of “guardian” and “natural guardian” under
the Hindu Minority and Guardianship (HMG) Act., 1956 did not make any
discrimination between fathers and mothers. The common understanding of the
phrase “the father, and after him, the mother” suggests that the father is seen
as the primary “natural guardian” of the child, and only if he's not available
or alive, then the mother assumes the role of “natural guardian”. However,
according to the definition provided in Section 4(c)[4],
the term “natural guardian” includes the guardians listed in Section 6 of the
1956 Act. Both the child's father and mother are among the three classes of
guardians specified in Section 6 of the Act. Since the mother is mentioned as a
guardian in the Act, it cannot be argued that she is not a “natural guardian”.
As a result, the right of the mother to be “natural guardian” is not
eliminated while the father is living, and the court can replace him as
the guardian even when he is alive.
The Court ruled on the
constitutionality of the challenged sections, stating that a legislation is
presumed to be valid and should be upheld unless it is in gross violation of
constitutional principles. It emphasised avoiding narrow interpretations that
contradict constitutional principles unless such interpretations drastically
deviate from legislative intent. The intention of legislature behind the HMG Act was to recognize
the welfare of the minor and thus words under the Act can be interpreted
narrowly or widely depending upon the circumstances of the case to ensure the welfare
of a minor. Hence, to rectify the inconsistency in the law and align it with
constitutional principles, the Apex Court offered a harmonious, ensuring it
conforms with constitutional principles. Section 6(a), when interpreted
in conjunction with Articles 14 and 15, can be construed in a manner that
ensures no discrimination between the rights of fathers and mothers. It was
determined that interpreting “after” in Section 6 of HMG to mean post
the lifetime of the father would infringe the principle of gender
equality enshrined in the Indian Constitution, therefore the word “after” was
understood to be referring to the “absence of”, where absence implies the
father's absence from the property or person of the minor. Regarding parental
responsibility[5],
the court asserted that both parents should be considered guardians, and any
interpretation favouring the father is unconstitutional. However, it was also
stated that in exceptional circumstances, the mother could assume guardianship
only during the father's lifetime without removing specific language from the
statute.
The Court also ruled that
both the parents of the minor are equally liable to take care of the minor and
in case the father is deceased, uninterested in the child's affairs, or has
agreed with the mother to let her handle them, or for any other reason does not
attend to the child, the mother becomes the “natural guardian”. The Supreme
Court instructed the Reserve Bank of India to accept letters signed by the
mother alone without requiring the father's signature. This is a prospective
judgement which means that the earlier cases cannot be reopened on the grounds
of this judgement of the Supreme Court. The Court dismissed the Writ Petition,
stating that matter regarding the guardianship and custody of the minor should
be decided by the District Court of Delhi.
Critical Analysis
Prior to the ruling in
Githa Hariharan v. RBI, the Courts typically viewed the father as the “natural
guardian” of a minor child, meaning he had authority over the child's affairs
as long as he was alive. However, there was a significant shift in this
perspective due to previous legal cases.
In Re Mc Grath[6],
the English court emphasized the paramount importance of the child's welfare in
determining natural guardianship, defining welfare broadly to include moral,
religious, and physical aspects, along with affectionate ties. Similarly, in Gyngall[7],
the court instructed authorities to assess the circumstances, parental and
child positions, age, religion, and happiness of the child, while considering
the natural rights and feelings of both parents and child before making
guardianship decisions. In the Jijabai Vithalrao Gajre[8]
case, the Supreme Court ruled in favour of a mother who had leased her minor
daughter's property while the father was alive but missing from the child’s
life. The court established the mother as the “natural guardian” because she
was solely responsible for the child's care and well-being.
However, the Githa
Hariharan case brought about a broader change in interpretation. While the
decision in the Gajre case was specific to its circumstances, the verdict in this
case established a general interpretation of certain legal provisions.
Specifically, it changed how Section 6(a) of HMG Act and Section 19(b) of GW
Act were to be interpreted in similar cases moving forward. In this case, the
Supreme Court acknowledged that a mother can indeed serve as the “natural
guardian” of a minor child even while her husband is alive. The Court
reinterpreted the term “after” to signify “in the absence of”, thereby shifting
the balance of power towards mothers. This reinterpretation has significant
implications, empowering mothers with greater authority in guardianship matters
concerning their minor children. It was held that the word “after” if read
literally, would be violative of basic principles of gender equality as guaranteed
in the articles of the Constitution[9],
CEDAW[10],
and UDHR[11]. The
directive to interpret the impugned sections in consonance with the
Constitution highlights the Court's commitment to upholding constitutional
principles, including gender equality. By challenging the traditional
interpretation that prioritizes the father's role as the “natural guardian”,
the Court acknowledges the need to rectify discriminatory practices embedded in
the law.
However, the Court's
decision to keep the phrase 'after him' in the law while allowing for
exceptions poses issues of consistency and coherence. On the one hand, the
Court highlighted gender equality and children's wellbeing. Although, it did
not entirely address the underlying prejudice in the law's phrasing, by
interpreting ‘after’ as ‘in absence of’ the Court effectively maintains the
primacy of fathers in guardianship matters, thereby perpetuating the unequal
treatment of mothers.[12]
This approach, while ostensibly offering some relief to mothers in certain
circumstances, ultimately falls short of recognizing their equal status as “natural
guardians” alongside fathers. Indeed, if the Court had unconditionally recognised
mothers as “natural guardians”, it would have been a more significant step
towards achieving gender equality and acknowledging the invaluable role that
mothers play in the upbringing and care of their children. By confining
mothers' rights to guardianship only in cases where fathers are absent, the
Court continues to limit their autonomy and perpetuate gender-based stereotypes
that undermine their parental authority.
The limited relief granted
to women in the ruling represents a lost chance to challenge set
patriarchal notions and achieve true equality. Instead of establishing equal
rights for both parents from the start, the Court's ruling perpetuates the idea
that fathers are primary caretakers and mothers are secondary figures
whose authority is based on the father's absence. Furthermore, the Court's
reluctance to strike down the discriminatory language outright, citing the
presumption of validity of legislation, may be viewed as a missed opportunity
to assert judicial activism in promoting gender equality. While judicial
deference to legislative intent is important, it should not come at the expense
of fundamental rights and principles enshrined in the Constitution.
In conclusion, while the
Court's decision to reinterpret guardianship laws in light of constitutional
principles is a step in the right direction, the judgment falls short in fully
addressing the underlying gender biases and inconsistencies in the law. A more coherent
approach that prioritises equality, clarity, and consistency in guardianship
matters is essential to ensure the effective safety of children's rights and
the promotion of gender equality in society.
Conclusion
In this landmark case, the
Apex Court recognised the mother's capacity to be appointed the “natural
guardian” of a minor child even when her husband is living, a decision made for
the well-being of the child. It has reinterpreted the word “after” to mean “in
the absence of”, which has led to a change in the balance of power in favour of
mothers and construed that “after” can also mean temporary absence of the
father because of any reason. The court, while considering the right to
privacy of the mother and the well-being of the child, referred to
Section 6 of the HMG Act of 1956, which defines the father as the “natural
guardian” of a minor, and after him, the mother. The significance of the
judgment lies in ensuring equality between the father and mother in
decision-making regarding the minor child. It suggests that neither parent's
decisions regarding the child are to be considered absolute.
Instead, both the father
and mother should be treated equally when making decisions on behalf of the
minor. This interpretation implies that mothers should have the authority to
make investments, their signatures should be recognised on application and
passport forms, or at the very least, they should be actively involved in
decision-making processes. It acknowledges the natural guardianship of mothers
and recognizes their significant role in making decisions regarding their
child's welfare and property. The Githa Hariharan case was indeed a breakthrough
in granting natural guardianship rights to mothers. However, the Supreme Court
could have gone a step further struck down Section 6(a) of the 1956 Act.
Despite the court's understanding of Sections 6(a) and 19(b), and the interpretation
that “after” means “in absence of”, there's still a sense that the rights of
mothers are somewhat limited.
[5] Shilpa Bhandarkar, "Mums
the Word?" - Understanding the Githa Hariharan Judgment, Iss. 1, NLSJ:
Vol. 10: Article 11 (1998)
[10] UNGA, Convention on the
Elimination of All Forms of Discrimination Against Women, United Nations,
Treaty Series, vol. 1249, p. 13, 18 December 1979,
[11] UNGA, Universal Declaration of
Human Rights, 217 A (III), 10 December 1948,
[12] Harpreet Singh Gupta,
Githa Hariharan v. Reserve Bank of India: Impact on Hindu Guardianship Law,
Iss. 7, CNLU LJ 249 (2017-18)
Article Information
RIGHTS OF MOTHERS AS NATURAL GUARDIANS - CASE ANALYSIS OF GITHA HARIHARAN V. RESERVE BANK OF INDIA
Authors: AFTAB SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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