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Father is Natural guardians of a Hindu minor

Supreme Court of India

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.

8. It has been contended that on a true and proper
interpretation of section 4 and the various provisions
thereunder and having due regard to the legislative intent,
which is otherwise explicit, question of putting an embargo
for the mother in the matter of exercise of right over the
minor as the guardian or ascribing the father as the
preferred guardian does not arise, but unfortunately
however, the language in section 6 of the Act runs counter
to such an equality of rights of the parents to act as
guardian to the minor child. 9. For convenience sake
however section 6 of the Act of 1956 is set out herein
below: “6. Natural guardians of a Hindu minor- 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:

Provided that no person shall be entitled to act as the

natural guardian of a minor under the provisions of this section-

(a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation-In this section, the expressions `father’ and `mother’ do not include a step-father and a step-mother.”

See also  Moral and ethical values of Guardian considerd over physical comforts

10. Be it noted that the Hindu Minority and
Guardianship Act of 1956 has been engrafted on the statute
book by way of an amendment and codification of certain
parts of the law relating to minority and guardianship among
Hindus. It is not out of place to mention also that Hindu
law being one of the oldest known system of jurisprudence
has shown no signs of decrepitude and it has its values and
importance even today. But the law makers 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. It is on this
perspective however certain aspects of the law as it stood
prior to the codification ought to be noted.

11. As regards the concept of guardianship both the
parents under the Hindu law were treated as natural
guardians, of the persons and the separate property of their
minor children, male or female except however that the
husband is the natural guardian of his wife howsoever young
she might be and the adopted father being the natural
guardian of the adopted son. The law however provided that
upon the death of the father and in the event of there being
no testamentary guardian appointed by the father, the mother
succeeds to the natural guardianship of the person and
separate property of their minor children. Conceptually,
this guardianship however is in the nature of a sacred trust
and the guardian cannot therefore, during his lifetime
substitute another person to be the guardian in his place
though however entrustment of the custody of the child for
education or purposes allying may be effected temporarily
with a power to revoke at the option of the guardian.

12. The codification of this law pertaining to
guardianship however brought about certain changes in regard
thereto, of which we will presently refer, but it is
interesting to note that prior to the enactment, the law
recognised both de facto and de jure guardian of a minor: A
guardian-de- facto implying thereby one who has taken upon
himself the guardianship of a minor-whereas the guardian
de-jure is a legal guardian who has a legal right to
guardianship of a person or the property or both as the case
may be. This concept of legal guardian includes a natural
guardian: a testamentary guardian or a guardian of a Hindu
minor appointed or declared by Court of law under the
general law of British India.

13. Incidentally, 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, to wit, Guardian and Wards Act of 1890 and Indian
Majority Act of 1875. Be it further noted that the Act of
1956 does not as a matter of fact in any way run counter to
the earlier statutes in the subject but they are
supplemental to each other as reflected in Section 2 of the
Act of 1956 itself which provides that the Act shall be in
addition to and not in derogation of the Acts as noticed
above.

14. Before proceeding further, however, on the
provisions of the Act in its true perspective, it is
convenient to note that lately the Indian Courts following
the rule of equality as administered in England have refused
to give effect to inflexible application of paternal right
of minor children. In equity, a discretionary power has
been exercised to control the father’s or guardian’s legal
rights of custody, where exercise of such right cannot but
be termed to be capricious or whimsical in nature or would
materially interfere with the happiness and the welfare of
the child. In re Mc Grath (1893, 1 Ch.143) Lindley, L.J.,
observed: “The dominant matter for the consideration of the
Court is the welfare of the child. But the welfare of a
child is not to be measured by money only, nor by physical
comfort only. The word `welfare’ must be taken in its
widest sense. The moral and religious welfare of the child
must be considered as well as its physical well being. Nor
can the ties of affection be disregarded.” Lord Esher, M.R.
in the Gyngall (1893) 2 Q.B.232 stated: “The Court has to
consider therefore, the whole of the circumstances of the
case, the position of the parent, the position of the child,
the age of the child, the religion of the child so far as it
can be said to have any religion , and the happiness of the
child. Prima facie it would not be for the welfare of the
child to be taken away from its natural parent and given
over to other people who have not that natural relation to
it. Every wise man would say that, generally speaking, the
best place for a child is with its parent. If a child is
brought up, as one may say from its mother’s lap in one form
of religion, it would not, I should say be for its happiness
and welfare that a stranger should take it away in order to
alter its religious views. Again, it cannot be merely
because the parent is poor and the person who seeks to have
the possession of the child as against the parent is rich,
that, without regard to any other consideration, to the
natural rights and feelings of the parent, or the feelings
and views that have been introduced into the heart and mind
of the child, the child ought not to be taken away from its
parent merely because its pecuniary position will be thereby
bettered. No wise man would entertain such suggestions as
these.” The English law therefore has been consistent with
the concept of welfare theory of the child. The Indian law
also does not make any departure, therefrom.. In this
context, reference may be made to the decision of this Court
in the case of J.V. Gajre vs. Pathankhan and Ors. (1970
(2) SCC 717) in which this Court in paragraph 11 of the
report observed:

“We have already referred to the fact that the father
and mother of the appellant had fallen out and that the
mother was living separately for over 20 years. It was the
mother who was actually managing the affairs of her minor
daughter, who was under her care and protection. From 1951
onwards the mother in the usual course of management had
been leasing out the properties of the appellant to the
tenant. Though from 1951 to 1956 the leases were oral, for
the year 1956-57 a written lease was executed by the tenant
in favour of the appellant represented by her mother. It is
no doubt true that the father was alive but he was not
taking any interest in the affairs of the minor and it was
as good as if he was non-existent so far as the minor
appellant was concerned. We are inclined to agree with the
view of the High Court that in the particular circumstances
of this case, the mother can be considered to be the natural
guardian of her minor daughter. It is needless to state
that even before the passing of the Hindu Minority and
Guardianship Act, 1956 (Act 32 of 1956), the mother is the
natural guardian after the father. The above Act came into
force on August 25, 1956 and under section 6 the natural
guardians of a Hindu minor in respect of the minor’s person
as well as the minor’s property are the father and after him
the mother. The position in the Hindu Law before this
enactment was also the same. That is why we have stated
that normally when the father is alive he is the natural
guardian and it is only after him that the mother becomes
the natural guardian. But on the facts found above the
mother was rightly treated by the High Court as the natural
guardian.”

See also  Custody to Father

15. Obviously, 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 gro wth of the child.

16. Incidentally the
Constitution of India has introduced an equality code
prohibiting discrimination on the ground of sex and having
due regard to such a mandate in the Constitution, is it
justifiable to decry the rights of the mother to be declared
a natural guardian or have the father as a preferred
guardian? Ms. Indira Jaisingh answers it with an emphatic
`no’ and contended that the statute in question covering
this aspect of the Personal law has used the expression
`after’ in Section 6 (a) but the same cannot run counter to
the constitutional safeguards of gender justice and as such
cannot but be termed to be void and ultravires the
Constitution.

17. Be it noted here that the expressions
`guardian’ and `natural guardian’ have been given statutory
meanings as appears from Section 4(b) wherein guardian is
said to mean a person having the care of the person of a
minor or his property and includes: (i) natural guardian;
(ii) a guardian appointed by the will of the minor’s father
or mother; (iii) a guardian appointed or declared by court,
and

(iv) a person empowered to act as such by or under any
enactment relating to any court of wards;

18. It is pertinent to note that sub-section (c) of
section 4 provides that a natural guardian means a guardian
mentioned in section 6. This definition section, however
obviously in accordance with the rule of interpretation of
statute, ought to be read subject to Section 6 being one of
the basic provisions of the Act and it is this Section 6
which records that natural guardian of a Hindu minor, in the
case of a boy or an unmarried girl, is the father and after
him the mother. The statute therefore on a plain reading
with literal meaning being ascribed to the words used,
depicts that the mother’s right to act as a natural guardian
stands suspended during the lifetime of the father and it is
only in the event of death of the father, the mother obtains
such a right to act as a natural guardian of a Hindu minor –
It is this interpretation which has been ascribed to be
having a gender bias and thus opposed to the constitutional
provision. It has been contended that the classification is
based on marital status depriving a mother’s guardianship of
a child during the life time of the father which also cannot
but be stated to be a prohibited marker under Article 15 of
the Constitution.

19. The whole tenor of the Act of 1956
is to protect the welfare of the child and as such
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 6A shall have to
be interpreted. It is now a 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 hav ing due reference to the contextual facts..

20.The contextual facts in the decision noticed above, depict
that since the father was not taking any interest in the
minor and it was as good as if he was non-existing so far as
the minor was concerned, the High Court allowed the mother
to be the 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 – it was decided upon the facts of the matter in issue.
The High Court in fact recognised the mother to act as the
natural guardian and the findings stand accepted and
approved by this Court. Strictly speaking, therefore, this
decision does not lend any assistance in the facts of the
matter under consideration excepting however that welfare
concept had its due recognition.

21. There is yet another
decision of this Court in the case of Panni Lal vs Rajinder
Singh and Another (1993 (4) SCC 38) wherein the earlier
decision in Gajre’s case was noted but in our view Panni
Lal’s case does not lend any assistance in the matter in
issue and since the decision pertain to protection of the
properties of a minor.

See also  Under what section Father can file for Child Custody.

22. Turning attention on the
principal contention as regards the constitutionality of the
legislation, in particular Section 6 of the Act of 1956 it
is to be noted that 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 statute 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 and it is on this perspective
that we may analyse the expressions used in section 6 in a
slightly more greater detail. The word `guardian’ and the
meaning attributed to it by the legislature under section
4(b) of the Act cannot be said to be restrictive in any way
and thus the same would mean and include both the father and
the mother and this is more so by reason of the meaning
attributed to the word as “a person having the care of the
person of a minor or his property or of both his person and
property….” 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 attributed 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 paramount consideration.

23. The expression `natural
guardian’ has been defined in Section 4(c) as noticed above
to mean any of the guardians as mentioned in section 6 of
the Act of 1956. This section refers to three classes of
guardians viz., father, mother and in the case of a married
girl the husband. The father and mother therefore, are
natural guardians in terms of the provisions of Section 6
read with Section 4(c). Incidentally it is to be noted that
in the matter of interpretation of statute the same meaning
ought to be attributed to the same word used by the statute
as per the definition section. In the event, the word
`guardian’ in the definition section means and implies both
the parents, the same meaning ought to be attributed to the
word appearing in section 6(a) and in that perspective
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 tentamount to a
violent departure from the legislative intent. Section 6(a)
itself recognises that 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.

24. 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 differenciation 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. 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 so as to give a proper and effective meaning to
the words used.

25. In our opinion the word `after’ shall
have to be given a meaning which would sub-serve the need of
the situation viz., welfare of the minor and having due
regard to the factum that law courts endeavour to retain the
legislation rather than declaring it to be a void, we do
feel it expedient to record that 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 accordance with the
intent of the legislation viz. welfare of the child.

26.In that view of the matter question of ascribing the literal
meaning to the word `after’ in the context does not and
cannot arise having due regard to the object of the statute,
read with the constitutional guarantee of gender equality
and to give a full play to the legislative intent, since any
other interpretation would render the statute void and which
situation in our view ought to be avoided.

27. In view of
the above, the Writ Petition c No.489 of 1995 stands disposed of with a direction that Reserve Bank authorities are directed to formulate appropriate methodology in the light of the observations, as above, so as to meet the situation as called for in the contextual facts.

28.Writ Petition c No.1016 of 1991 also stands disposed of in the light of the observations as recorded above and the matter pending before the District court, Delhi, as regards custody and guardianship of the minor child, shall be decided in accordance therewith.

29. In the facts of the matters under consideration there shall however be no order as to costs.

1 thought on “Father is Natural guardians of a Hindu minor

  1. hi All
    without father child is not gain anything b coz child always ask mother where is my papa, in school in college what mother explaining her, and its not sure that mother is ideal mother take responibility of social life,and shis not involve in prostitution

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