Case Study: Ms. Githa Hariharan & Anr. v. Reserve Bank of India & Anr.

By Param Mansinghka 7 Minutes Read

Mother to be the natural guardian of the child in case the father is absent from the care and upbringing of child.

Citation: AIR 1999 SC 1149

Date of Judgement: 17^th February, 1999

Bench: U.C. Bannerjee

Facts:

• Ms. Githa Hariharan (petitioner) was married to Dr. Mohan Ram (respondent) in 1982 and they had a son named Rishab. A divorce case is pending in the District Court of Delhi as the respondent had been living in a state of total apathy towards the affairs of the child. Still he claimed for custody of their minor son in the same proceeding. The petitioner has filed an application for maintenance for herself and the minor son.
• In 1984, she applied to the Reserve Bank of India (RBI) for 9% relief bonds to be held in the name of their minor son Rishab as his natural guardian. The RBI sent back the application to her advising her to either produce the application signed by the father of Rishab or produce a certificate of guardianship from a competent authority in her favour.
• In RBI’s opinion, Dr. Mohan was the natural guardian of Rishab on the basis of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA) which states that the father is the natural guardian of a Hindu minor child and the mother is the guardian “after” the father.
• Ms. Hariharan challenged the constitutional validity of this provision in the Supreme Court on grounds that it violated the right to equality guaranteed under Articles 14 and 15 of the Indian Constitution. As challenge to the Constitutional validity of S. 6 of the Act is involved in both the matters, the petitions were heard together.

Issues

• Whether the mother of a minor be recognized as her natural guardian under law?
• Whether Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA) violated the right to equality guaranteed under Articles 14 and 15 of the Indian Constitution?

Key legal points established in the case

• Whether the mother of a minor be recognized as her natural guardian under law?

Yes

The RBI urged that the word “after” in Sec 6(a) of the Hindu Minority and Guardianship Act could only mean after the lifetime of the father. The Supreme Court held that the word “after” in Section 6(a) of the Hindu Minority and Guardianship Act need not necessarily mean ‘after the lifetime of the father’ but rather ‘in the absence of the father’.

The Supreme Court considered the case of J. V. Gajre v. Pathankhan and Ors.[1]  in which even the

father was alive, and he was not taking any interest in the affairs of the child. In that case the mother made to be the natural guardian of her minor daughter.

Similarly, in this case the father had been living in a state of total apathy towards the affairs of the child and the Supreme Court said that it had powers to reduce the custodial rights of the father in the welfare of the child.

• Whether Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA) violated the right to equality guaranteed under Articles 14 and 15 of the Indian Constitution?

No

It was pleaded that Section 6 of Hindu Minority and Guardianship Act should be interpreted in light of Article 15 of the Indian Constitution. The debatable interpretation of the word “after” would lead to the section being held void on account of being discriminatory against women.

The Court held that both the father and mother are natural guardians of a minor Hindu child, and the mother cannot be said to be natural guardian only after the death of the father as that would not only be discriminatory but also against the welfare of the child.

The Court further states that word “After” in Section 6(a) of the HMG Act need not necessarily mean ‘after the lifetime of the father’ but rather ‘in the absence of the father’ and ‘when the father was not taking any interest in the affairs of the child’. That’s why it doesn’t discriminate man against woman in the matter of guardianship rights.

Judgement

Writ Petition was disposed of as per the above stated observations and the matter pending before the District court, Delhi, as regards custody and guardianship of the minor child, shall be decided in accordance therewith.

[1] 1970 (2) SCC 717.

Param Mansinghka