MS. GITHA HARIHARAN & ANR. Vs. RESERVE BANK OF INDIA & ANR.
UMESH C. BANERJEE
1999 AIR 1149, 1999( 1 )SCR 669, 1999( 2 )SCC 228, 1999( 1 )SCALE490 , 1999( 1 )JT 524
Disposing of the petition, this Court HELD : (Per Umesh C. Banerjee, J.) : 1. The whole tenor of the Hindu Minority and Guardianship Act, 1956 is to protect the welfare of the child and as such the interpretation ought to be in consonance with the legislative intent in engrafting the statute on the Statute Book and not de hors the same and it is on this perspective that the word `after' appearing in Section 6(a) of the HMG Act shall have to be interpreted. [684-C] 2.1. It is an axiomatic truth that both the mother and the father of a minor child are duty bound to take due care of the person and the property of their child and thus having due regard to the meaning at-tributed to the word `guardian' both the parents ought to be treated as guardians of the minor. As a matter of fact the same was the situation as regards the law prior to the codification by the Act of 1956. The law, therefore, recognised that a minor has to be in the custody of the person who can sub- serve his welfare in the best possible way - the interest of the child being the paramount consideration. The father and mother, there-fore, are natural guardians in terms of the provisions of Section 6 read with Section 4(c). [685-C-D, F] J.V. Gajre v. Pathankhan,  2 SCC 717, relied on. Mc Grath, Re :  1 Ch. 143 and Gyngall  2 QB 232, referred to. 2.2. Incidentally, it is to be noted that in the matter of interpretation of the statute the same meaning ought to be attributed to the same word used by the statute as per the definition Section. The word `guardian' in the definition Section means and implies both the parents. Therefore, the mother's right to act as the guardian does not stand obliterated during the lifetime of the father and to read the same on the statute otherwise would tantamount to a violent departure from the legislative intent. Sec-tion 6(a) itself recognises both the father and the mother ought to be treated as natural guardians and the expression `after', therefore, shall have to be read and interpreted in a manner so as not to defeat the true intent of the legislature. [685-F-H] 3. Further, gender equality is one of the basic principles of our Constitution and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category and in that view of the matter, the word `after' shall have to be interpreted in terms of the constitutional safe-guard and guarantee. Therefore, the word `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 the absence of - 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 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 accord-ance with the intent of the legislation viz., welfare of the child. Hence, question of as scribing the literal meaning to the word `after' in the context does not and cannot arise. [686-A-C; D-F] Panni Lal v. Rajinder Singh,  4 SCC 38, relied on. 4. The Reserve Bank authorities are directed to formulate ap-propriate methodology in the light of the observations, as above, so as to meet the situation as called for in the contextual facts. [686-H] 5. In the light of the above observations the matter of custody and guardianship of the minor child in the other petition should be decided by the District Court. [687-A] 6. The law relating to minority and guardianship amongst Hindus is to be found not only in the old Hindu law as laid down by the smritis, shrutis and the commentaries as recognised by the Courts of law but also statutes applicable amongst others to Hindus, viz, Guardian and Wards Act, 1890 and Indian Majority Act, 1875. [687-B] 7.1. It is settled law that a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided unless of course, the same makes a violent departure from the Legislative intent - in the event of which a wider debate may be had having due reference to the contextual facts. [684-D] 7.2, Validity of a legislation is to be presumed and efforts should always be there on the part of the law courts in the matter of retention of the legislation in the statue book rather than scrapping it and it is only in the event of gross violation of constitutional sanctions that law courts would be within its jurisdiction to declare the legislative enactment to be an invalid piece of legislation and not otherwise. [684-H; 685-A] 8. Hindu law being one of the oldest known systems of jurisprudence has shown no signs of decrepitude and it has its values and importance even today. But the lawmakers, however, thought it prudent to codify certain parts of the law in order to give a fruitful meaning and statutory sanction to the prevailing concept of law having due regard to the social and economic changes in the society. [680-C] (Per Dr. A.S. Anand, C J.I., for himself and M. Srinivasan, J. (Sup- plementing) : 1. The definitions of `guardian' in Section 4(b) of the Hindu Minority and Guardianship Act, 1956 and `natural guardian' in Section 4(c) of the HMG Act do not make any discrimination against the mother and she being one of the guardians mentioned in Section 6 would undoubtedly be a natural guardian as defined in Section 4(c). The expression "the father, and after him, the mother" does give an impression that the mother can be considered to be the natural guardian of the minor only after the lifetime of the father. But it is not in dispute and is otherwise well settled also that the welfare of the minor in the widest sense is the paramount consideration and even during the lifetime of the father, if necessary, he can be replaced by the mother or any other suitable person by an order of court, where to do so would be in the interest of the welfare of the minor. The question, however assumes importance only when the mother acts as guardian of the minor during the lifetime of the father, without the matter going to court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of Section 6(a). In the present case, the Reserve Bank of India has questioned the authority of the mother, even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the lifetime of the father and not during his lifetime. However, such an interpretation violates gender- equality, one of the basic principles of our Constitution. Where two interpretations are possible, the Court will lean in favour of the constitutionality of the statutory provision on the ground that Legislature is presumed to have acted in accordance with the Constitution. [689-E-H; 690-A-B] 2.1. Now Section 6(a) is capable of such construction as would retain it within the Constitutional limits. The words `after' need not necessarily mean `after the lifetime'. In the context in which it appears in Section 6(a), it means `in the absence of, the word `absence' therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual under-standing between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor are either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognized natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of harmonious construction of Section 4 and Section 6 of the HMG Act, without causing any violence to the language of Section 6(a). [690-F-H] Jijabai Vithalrao Gajre v. Pathankhan,  2 SCC 717, relied on. Pannilal v.Rajinder Singh,  4 SCC 38, held inapplicable, 2.2. Further, the above interpretation gives effect to the principles contained in the Convention on the Elimination of All Forms of Discrimina- tion Against Women, 1979 "(CEDAW)" and the Beijing Declaration, which directs all State parties to take appropriate measures to prevent dis- crimination of all forms against women. The domestic courts are under an obligation to give due regard to International Convention and Norms for construing domestic laws when there is no inconsistency between them. [694-D-E] Apparel Export Promotion Council v. A.K. Chopra,  1 SCR, relied on. 2.3. Similarly, Section 19(b) of the Guardians and Wards Act, 1890 would also have to be construed in the same manner in which Section 6(a) has been construed. [694-F] 3.1. While both the parents are duty bound to take care of the person and property of their minor child and act in the best interest of his welfare, in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as a natural guardian of the minor and all her actions would be valid even during the lifetime of the father, who would be deemed to be `absent' for the purposes of Section 6(a) of the HMG Act and Section 19(b) of the GW Act. [694-G-H; 695-A] 3.2. Hence, the Reserve Bank of India, was not right in insisting upon an application signed by the father or an order of the Court in order to open a deposit account in the name of the minor particularly when there was already a letter jointly written by both petitioners evidencing their mutual agreement. The Reserve Bank ought to accept the application filed by the mother. [695-B] 4. It is possible that till now many transactions may have been in- validated on the ground that the mother is not a natural guardian, when the father is alive. Those issues cannot be permitted to be reopened. This judgment, it is clarified, will operate prospectively and will not enable any person to reopen any decision already rendered or question the validity of any past transaction, on the basis of this judgment. [695-C-D] 5. The Reserve Bank of India and similarly placed other organisa-tions, may formulate appropriate methodology in the light of the observa-tions made above to meet the situations arising in the contextual facts of a given case. [695-F] 6. The matter regarding the custody and guardianship of the minor son in the second petition pending in the District Court shall be decided in the light of the above. [695-F] CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 489 of 1995 Etc.
Hindu Law : Hindu Minority and Guardianship Act, 1956 : Section 6(a)-Provided that mother had the right to become a natural guardian of a minor only `after' the father-Discrimination on ground of sex alone-Constitutionality of-Mother and father of a minor jointly applied to the Reserve Bank of India (RBI) for opening a deposit account in the name of the minor-Mother, in agreement with the father, signed the application as the guardian of the minor-But RBI refused to accept the application on the ground that the mother, during the lifetime of the father, was not the natural guardian of the mother-Held, legislature is presumed to act in accordance with the Constitution-Hence, Section 6(a) can be construed in such a manner so as to retain it within constitutional limits-Moreover, if Ss. 4 and 6 of the HMG Act are construed harmoniously, the word `after' means `in the absence of thereby referring to the father's absence from the care of the minor's property or person for any reason whatever-Hence, in such situa-tions the mother can validity act as the natural guardian of the minor even during the lifetime of the father who is considered to be absent-Therefore, RBI was not right in refusing to accept the said application-However, this judgment is to operate prospectively-All organisations are directed to formu-late appropriate methodology accordingly-Same decision to apply in respect of guardianship under S. 19(b) of the GW Act-Constitution of India, 1950, Arts, 14 and 15-Guardians and Wards Act, 1890, S 19(b)-Convention on the Elimination of All Forms of Discrimination Against Women, 1979 ("CEDAW")-Beijing Declaration. Section 2-Scope and ambit of-Held, the law relating to minority and guardianship amongst Hindus is to be found not only in the old Hindu law as laid down by the smritis, shrutis and the commentaries as recognised by the Courts of law but also statutes applicable amongst others to Hindus viz., Guardian and Wards Act, 1890 and Indian Majority Act, 1875. Jurisprudence of-Importance of-Held, Hindu law has shown no signs of decrepitude and it has its values and importance even today-However, certain parts of Hindu law is codified to give fruitful meaning and statutory sanction to the prevailing concept of law having due regard to the social and economic charges in the society. Constitution of India, 1950 : Article 51-Scope of-Held, when there is no inconsistency between domestic and international laws, courts are obliged to give due regard to international conventions and norms while construing domestic laws. Interpretation of Statutes : Basic rules-Held, where two interpretations are possible the Court should lean in favour of the statutory provision. General rules-Held, narrow pedantic interpretation running counter to the constitutional mandate ought to be avoided always-If such interpretation departs from the legislative enactment, a wider debate is called for having due regard to contextual facts. Subsidiary rules-Presumptions-Held, validity of a legislation is to be presumed-Only in the event of gross violation of constitutional sanctions that the law courts would be within its jurisdiction to declare the legislative enactment to be an invalid piece of legislation and not otherwise. Internal aids-Definition clause-Scope of-Held, same meaning ought to be attributed to the same word used by the statute as per the definition Section. Words and Phrases: "After"-Meaning of-In the context of S.6(a) of the Hindu Minority and Guardianship Act, 1956. "Guardian"-Meaning of-In the context of S.4(b) of the Hindu Minority and Guardianship Act, 1956. "Natural Guardian"-Meaning of-In the context of S.4(c) of the Hindu Minority and Guardianship Act, 1956. The first petitioner and her husband, the second petitioner, jointly applied to the Reserve Bank of India, the first respondent, for issue of Relief Bonds in the name of their minor son. The petitioners stated expressly that both of them agreed that the mother of the child, i.e., the first petitioner would act as the guardian of the minor for the purpose of investments made with the money held by their minor son. Accordingly, in the prescribed form of application, the first petitioner signed as the guardian of the minor. The first respondent replied to the petitioners advising them either to produce the application form signed by the father of the minor or a certificate of guardianship from a competent authority in favour of the mother and refused to accept the deposit from the petitioners. Being aggrieved the petitioners filed a writ petition No. 489/95 before this Court with prayers to strike down Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMG Act) and Section 19(b) of the Guardian and Wards Act, 1890 (GW Act) as violative of Articles 14 and 15 of the Constitution and to quash and set aside the decision of the first respon- dent refusing to accept the deposit from the petitioners and to issue a mandamus directing the acceptance of the of the same after declaring the first petitioner as the natural guardian of the minor. In writ petition No. 1018/91 filed before this Court, the petitioner is the wife of the first respondent. The first respondent instituted a proceed-ing for divorce against the petitioner and it was pending in the District Court. The first respondent had also prayed for custody of their minor son in the same proceeding. The petitioner had in turn filed an application for maintenance for herself and the minor son. The first respondent had been repeatedly writing to the petitioner and the school in which the minor was studying, asserting that the first respondent was the only natural guardian of the minor and no decision should be taken without his permission. The minor son was staying with the petitioner and, in spite of the best efforts of the petitioner, the father had shown total apathy towards the child and as a matter of fact was not interested in the welfare and benefit of the child excepting, however, claiming the right to be the natural guardian without, however, discharging any corresponding obligation. The petitioner, there-fore, filed the present writ petition before this Court challenging the constitutionality of Section 6(a) of the HMG Act and Section 19(b) of the GW Act. On behalf of the petitioner it was contended that the two Sections i.e. Section 6(a) of HMG Act and Section 19(b) of GW Act were violative of the equality clause of the Constitution, inasmuch as the mother of the minor is relegated to an inferior position on the ground of sex alone since her right, as a natural guardian of the minor, was made cognisable only `after' the father, and, therefore, both the Sections must be struck down as unconstitutional. On behalf of the respondents it was contended that the mother was not the natural guardian of the minor son and that it was also stated under Section 6(a) of the HMG Act that the father of a Hindu Minor was the only natural guardian of the minor.
PETITIONER: MS. GITHA HARIHARAN & ANR. Vs. RESPONDENT: RESERVE BANK OF INDIA & ANR. DATE OF JUDGMENT: 17/02/1999 BENCH: Umesh C. Banerjee JUDGMENT: BANERJEE,J. Though nobility and self-denial coupled with tolerance mark the greatest features of Indian womanhood in the past and the cry for equality and equal status being at a very low ebb, but with the passage of time and change of social structure the same is however no longer dormant but presently quite loud. This cry is not restrictive to any particular country but world over with variation in degree only. Article 2 of the Universal Declaration of Human Rights [as adopted and proclaimed by the General Assembly in its resolution No.217A(III)] provided that everybody is entitled to all rights and freedom without distinction of any kind whatsoever such as race, sex or religion and the ratification of the convention for elimination of all forms of discrimination against women (for short CEDAW) by the United Nations Organisation in 1979 and subsequent acceptance and ratification by India in June 1993 also amply demonstrate the same. 2. We the people of this country gave ourselves a written Constitution, the basic structure of which permeates equality of status and thus negates gender bias and it is on this score, the validity of Section 6 of the Hindu Minority and Guardianship Act of 1956 has been challenged in the matters under consideration, on the ground that dignity of women is a right inherent under the Constitution which as a matter of fact stands negatived by Section 6 of the Act of 1956. 3. In order, however, to appreciate the contentions raised, it would be convenient to advert to the factual aspect of the matters at this juncture. The facts in WP c No.489 of 1995 can be stated as below:- 4. The petitioner and Dr. Mohan Ram were married at Bangalore in 1982 and in July 1984, a son named Rishab Bailey was born to them. In December, 1984 the petitioner applied to the Reserve Bank of India for 9% Relief Bond to be held in the name of their minor son Rishab alongwith an intimation that the petitioner No.1 being the mother, would act as the natural guardian for the purposes of investments. The application however was sent back to the petitioner by the RBI Authority advising her to produce the application signed by the father and in the alternative the Bank informed that a certificate of guardianship from a Competent Authority in her favour, ought to be forwarded to the Bank forthwith so as to enable the Bank to issue Bonds as requested and it is this communication from the RBI authorities, which is stated to be arbitrary and opposed to the basic concept of justice in this petition under Article 32 of the Constitution challenging the validity of section 6 of the Act as indicated above. 5. The factual backdrop in WP c No.1016 of 1991 centres round a prayer for custody of the minor son born through the lawful wedlock between the petitioner and the first respondent. Be it noted that a divorce proceeding is pending in the District Court of Delhi and the first respondent has prayed for custody of their minor son in the same proceeding. The petitioner in turn, however, also has filed an application for maintenance for herself and the minor son. On further factual score it appears that the first respondent has been repeatedly writing to the petitioner, asserting that he was the only natural guardian of the minor and no decision should be taken without his permission. Incidentally, the minor has been staying with the mother and it has been the definite case of the petitioner in this petition under Article 32 that in spite of best efforts of the petitioner, the father has shown total apathy towards the child and as a matter of fact is not interested in welfare and benefit of the child excepting however claiming the right to be the natural guardian without however discharging any corresponding obligation. It is on these facts that the petitioner moved this Court under Article 32 of the Constitution praying for de claration of the provisions of Section 6(a) of the Act read with Section 19(b) of the Guardian Co nstitution. and Wards Act as violative of Articles 14 and 15 of the 6.Since, challenge to the constitutionality of Section 6 of the Act is involved in both the matters, the petitions were heard together. 7. Ms. Indira Jaisingh, appearing in support of the petitions strongly contended that the provisions of section 6 of the Act seriously disadvantage woman and discriminate man against woman in the matter of guardianship rights, responsibilities and authority in relation to their own children.