{"id":207,"date":"2009-03-18T13:57:39","date_gmt":"2009-03-18T08:27:39","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=207"},"modified":"2009-03-18T13:57:39","modified_gmt":"2009-03-18T08:27:39","slug":"natural-guardian","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/natural-guardian\/","title":{"rendered":"Father is Natural guardians of a Hindu minor"},"content":{"rendered":"<p style=\"text-align: center\"><strong>Supreme Court of India <\/strong><\/p>\n<p style=\"text-align: center\">PETITIONER:MS. GITHA HARIHARAN &amp; ANR.<br \/>\nVs.<br \/>\nRESPONDENT:RESERVE BANK OF INDIA &amp; ANR.<\/p>\n<p>DATE OF JUDGMENT: 17\/02\/1999<\/p>\n<p>BENCH:Umesh C. Banerjee<\/p>\n<p>JUDGMENT:BANERJEE,J.<\/p>\n<p>Though nobility and self-denial coupled with tolerance<br \/>\nmark the greatest features of Indian womanhood in the past<br \/>\nand the cry for equality and equal status being at a very<br \/>\nlow ebb, but with the passage of time and change of social<br \/>\nstructure the same is however no longer dormant but<br \/>\npresently quite loud. This cry is not restrictive to any<br \/>\nparticular country but world over with variation in degree<br \/>\nonly. Article 2 of the Universal Declaration of Human<br \/>\nRights [as adopted and proclaimed by the General Assembly in<br \/>\nits resolution No.217A(III)] provided that everybody is<br \/>\nentitled to all rights and freedom without distinction of<br \/>\nany kind whatsoever such as race, sex or religion and the<br \/>\nratification of the convention for elimination of all forms<br \/>\nof discrimination against women (for short CEDAW) by the<br \/>\nUnited Nations Organisation in 1979 and subsequent<br \/>\nacceptance and ratification by India in June 1993 also amply<br \/>\ndemonstrate the same.<\/p>\n<p>2. We the people of this country<br \/>\ngave ourselves a written Constitution, the basic structure<br \/>\nof which permeates equality of status and thus negates<br \/>\ngender bias and it is on this score, the validity of Section<br \/>\n6 of the Hindu Minority and Guardianship Act of 1956 has<br \/>\nbeen challenged in the matters under consideration, on the<br \/>\nground that dignity of women is a right inherent under the<br \/>\nConstitution which as a matter of fact stands negatived by<br \/>\nSection 6 of the Act of 1956.<\/p>\n<p>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:-<\/p>\n<p>4. The petitioner and Dr. Mohan Ram were married<br \/>\nat Bangalore in 1982 and in July 1984, a son named Rishab<br \/>\nBailey was born to them. In December, 1984 the petitioner<br \/>\napplied to the Reserve Bank of India for 9% Relief Bond to<br \/>\nbe held in the name of their minor son Rishab alongwith an<br \/>\nintimation that the petitioner No.1 being the mother, would<br \/>\nact as the natural guardian for the purposes of investments.<br \/>\nThe application however was sent back to the petitioner by<br \/>\nthe RBI Authority advising her to produce the application<br \/>\nsigned by the father and in the alternative the Bank<br \/>\ninformed that a certificate of guardianship from a Competent<br \/>\nAuthority in her favour, ought to be forwarded to the Bank<br \/>\nforthwith so as to enable the Bank to issue Bonds as<br \/>\nrequested and it is this communication from the RBI<br \/>\nauthorities, which is stated to be arbitrary and opposed to<br \/>\nthe basic concept of justice in this petition under Article<br \/>\n32 of the Constitution challenging the validity of section 6<br \/>\nof the Act as indicated above.<\/p>\n<p>5. The factual backdrop in WP c No.1016 of 1991 centres round a prayer for custody of<br \/>\nthe minor son born through the lawful wedlock between the<br \/>\npetitioner and the first respondent. Be it noted that a<br \/>\ndivorce proceeding is pending in the District Court of Delhi<br \/>\nand the first respondent has prayed for custody of their<br \/>\nminor son in the same proceeding. The petitioner in turn,<br \/>\nhowever, also has filed an application for maintenance for<br \/>\nherself and the minor son. On further factual score it<br \/>\nappears that the first respondent has been repeatedly<br \/>\nwriting to the petitioner, asserting that he was the only<br \/>\nnatural guardian of the minor and no decision should be<br \/>\ntaken without his permission. Incidentally, the minor has<br \/>\nbeen staying with the mother and it has been the definite<br \/>\ncase of the petitioner in this petition under Article 32<br \/>\nthat in spite of best efforts of the petitioner, the father<br \/>\nhas shown total apathy towards the child and as a matter of<br \/>\nfact is not interested in welfare and benefit of the child<br \/>\nexcepting however claiming the right to be the natural<br \/>\nguardian without however discharging any corresponding<br \/>\nobligation. It is on these facts that the petitioner moved<br \/>\nthis Court under Article 32 of the Constitution praying for<br \/>\nde claration of the provisions of Section 6(a) of the Act<br \/>\nread with Section 19(b) of the Guardian Co nstitution. and<br \/>\nWards Act as violative of Articles 14 and 15 of the<\/p>\n<p>6.Since,challenge to the constitutionality of Section 6 of the Act is involved in both the matters, the petitions were heard together.<\/p>\n<p>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.<\/p>\n<p>8. It has been contended that on a true and proper<br \/>\ninterpretation of section 4 and the various provisions<br \/>\nthereunder and having due regard to the legislative intent,<br \/>\nwhich is otherwise explicit, question of putting an embargo<br \/>\nfor the mother in the matter of exercise of right over the<br \/>\nminor as the guardian or ascribing the father as the<br \/>\npreferred guardian does not arise, but unfortunately<br \/>\nhowever, the language in section 6 of the Act runs counter<br \/>\nto such an equality of rights of the parents to act as<br \/>\nguardian to the minor child. 9. For convenience sake<br \/>\nhowever section 6 of the Act of 1956 is set out herein<br \/>\nbelow: &#8220;<em>6. Natural guardians of a Hindu minor- The natural<br \/>\nguardians of a Hindu minor, in respect of the minor&#8217;s person<br \/>\nas well as in respect of the minor&#8217;s property (excluding his<br \/>\nor her undivided interest in joint family property), are<\/em>&#8211;<\/p>\n<p>(a) <em><strong>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;<\/strong><\/em><\/p>\n<p>(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;<\/p>\n<p>(c) in the case of a married girl-the husband:<\/p>\n<p>Provided that no person shall be entitled to act as the<\/p>\n<p>natural guardian of a minor under the provisions of this section-<\/p>\n<p>(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).<\/p>\n<p>Explanation-In this section, the expressions `father&#8217; and `mother&#8217; do not include a step-father and a step-mother.&#8221;<\/p>\n<p>10. Be it noted that the Hindu Minority and<br \/>\nGuardianship Act of 1956 has been engrafted on the statute<br \/>\nbook by way of an amendment and codification of certain<br \/>\nparts of the law relating to minority and guardianship among<br \/>\nHindus. It is not out of place to mention also that Hindu<br \/>\nlaw being one of the oldest known system of jurisprudence<br \/>\nhas shown no signs of decrepitude and it has its values and<br \/>\nimportance even today. But the law makers however thought<br \/>\nit prudent to codify certain parts of the law in order to<br \/>\ngive a fruitful meaning and statutory sanction to the<br \/>\nprevailing concept of law having due regard to the social<br \/>\nand economic changes in the society. It is on this<br \/>\nperspective however certain aspects of the law as it stood<br \/>\nprior to the codification ought to be noted.<\/p>\n<p>11. As regards the concept of guardianship both the<br \/>\nparents under the Hindu law were treated as natural<br \/>\nguardians, of the persons and the separate property of their<br \/>\nminor children, male or female except however that the<br \/>\nhusband is the natural guardian of his wife howsoever young<br \/>\nshe might be and the adopted father being the natural<br \/>\nguardian of the adopted son. The law however provided that<br \/>\nupon the death of the father and in the event of there being<br \/>\nno testamentary guardian appointed by the father, the mother<br \/>\nsucceeds to the natural guardianship of the person and<br \/>\nseparate property of their minor children. Conceptually,<br \/>\nthis guardianship however is in the nature of a sacred trust<br \/>\nand the guardian cannot therefore, during his lifetime<br \/>\nsubstitute another person to be the guardian in his place<br \/>\nthough however entrustment of the custody of the child for<br \/>\neducation or purposes allying may be effected temporarily<br \/>\nwith a power to revoke at the option of the guardian.<\/p>\n<p>12. The codification of this law pertaining to<br \/>\nguardianship however brought about certain changes in regard<br \/>\nthereto, of which we will presently refer, but it is<br \/>\ninteresting to note that prior to the enactment, the law<br \/>\nrecognised both de facto and de jure guardian of a minor: A<br \/>\nguardian-de- facto implying thereby one who has taken upon<br \/>\nhimself the guardianship of a minor-whereas the guardian<br \/>\nde-jure is a legal guardian who has a legal right to<br \/>\nguardianship of a person or the property or both as the case<br \/>\nmay be. This concept of legal guardian includes a natural<br \/>\nguardian: a testamentary guardian or a guardian of a Hindu<br \/>\nminor appointed or declared by Court of law under the<br \/>\ngeneral law of British India.<\/p>\n<p>13. Incidentally, the law<br \/>\nrelating to minority and guardianship amongst Hindus is to<br \/>\nbe found not only in the old Hindu law as laid down by the<br \/>\nsmritis, shrutis and the commentaries as recognised by the<br \/>\nCourts of law but also statutes applicable amongst others to<br \/>\nHindus, to wit, Guardian and Wards Act of 1890 and Indian<br \/>\nMajority Act of 1875. Be it further noted that the Act of<br \/>\n1956 does not as a matter of fact in any way run counter to<br \/>\nthe earlier statutes in the subject but they are<br \/>\nsupplemental to each other as reflected in Section 2 of the<br \/>\nAct of 1956 itself which provides that the Act shall be in<br \/>\naddition to and not in derogation of the Acts as noticed<br \/>\nabove.<\/p>\n<p>14. Before proceeding further, however, on the<br \/>\nprovisions of the Act in its true perspective, it is<br \/>\nconvenient to note that lately the Indian Courts following<br \/>\nthe rule of equality as administered in England have refused<br \/>\nto give effect to inflexible application of paternal right<br \/>\nof minor children. In equity, a discretionary power has<br \/>\nbeen exercised to control the father&#8217;s or guardian&#8217;s legal<br \/>\nrights of custody, where exercise of such right cannot but<br \/>\nbe termed to be capricious or whimsical in nature or would<br \/>\nmaterially interfere with the happiness and the welfare of<br \/>\nthe child. In re Mc Grath (1893, 1 Ch.143) Lindley, L.J.,<br \/>\nobserved: &#8220;The dominant matter for the consideration of the<br \/>\nCourt is the welfare of the child. But the welfare of a<br \/>\nchild is not to be measured by money only, nor by physical<br \/>\ncomfort only. The word `welfare&#8217; must be taken in its<br \/>\nwidest sense. The moral and religious welfare of the child<br \/>\nmust be considered as well as its physical well being. Nor<br \/>\ncan the ties of affection be disregarded.&#8221; Lord Esher, M.R.<br \/>\nin the Gyngall (1893) 2 Q.B.232 stated: &#8220;The Court has to<br \/>\nconsider therefore, the whole of the circumstances of the<br \/>\ncase, the position of the parent, the position of the child,<br \/>\nthe age of the child, the religion of the child so far as it<br \/>\ncan be said to have any religion , and the happiness of the<br \/>\nchild. Prima facie it would not be for the welfare of the<br \/>\nchild to be taken away from its natural parent and given<br \/>\nover to other people who have not that natural relation to<br \/>\nit. Every wise man would say that, generally speaking, the<br \/>\nbest place for a child is with its parent. If a child is<br \/>\nbrought up, as one may say from its mother&#8217;s lap in one form<br \/>\nof religion, it would not, I should say be for its happiness<br \/>\nand welfare that a stranger should take it away in order to<br \/>\nalter its religious views. Again, it cannot be merely<br \/>\nbecause the parent is poor and the person who seeks to have<br \/>\nthe possession of the child as against the parent is rich,<br \/>\nthat, without regard to any other consideration, to the<br \/>\nnatural rights and feelings of the parent, or the feelings<br \/>\nand views that have been introduced into the heart and mind<br \/>\nof the child, the child ought not to be taken away from its<br \/>\nparent merely because its pecuniary position will be thereby<br \/>\nbettered. No wise man would entertain such suggestions as<br \/>\nthese.&#8221; The English law therefore has been consistent with<br \/>\nthe concept of welfare theory of the child. The Indian law<br \/>\nalso does not make any departure, therefrom.. In this<br \/>\ncontext, reference may be made to the decision of this Court<br \/>\nin the case of J.V. Gajre vs. Pathankhan and Ors. (1970<br \/>\n(2) SCC 717) in which this Court in paragraph 11 of the<br \/>\nreport observed:<\/p>\n<p>&#8220;We have already referred to the fact that the father<br \/>\nand mother of the appellant had fallen out and that the<br \/>\nmother was living separately for over 20 years. It was the<br \/>\nmother who was actually managing the affairs of her minor<br \/>\ndaughter, who was under her care and protection. From 1951<br \/>\nonwards the mother in the usual course of management had<br \/>\nbeen leasing out the properties of the appellant to the<br \/>\ntenant. Though from 1951 to 1956 the leases were oral, for<br \/>\nthe year 1956-57 a written lease was executed by the tenant<br \/>\nin favour of the appellant represented by her mother. It is<br \/>\nno doubt true that the father was alive but he was not<br \/>\ntaking any interest in the affairs of the minor and it was<br \/>\nas good as if he was non-existent so far as the minor<br \/>\nappellant was concerned. We are inclined to agree with the<br \/>\nview of the High Court that in the particular circumstances<br \/>\nof this case, the mother can be considered to be the natural<br \/>\nguardian of her minor daughter. It is needless to state<br \/>\nthat even before the passing of the Hindu Minority and<br \/>\nGuardianship Act, 1956 (Act 32 of 1956), the mother is the<br \/>\nnatural guardian after the father. The above Act came into<br \/>\nforce on August 25, 1956 and under section 6 the natural<br \/>\nguardians of a Hindu minor in respect of the minor&#8217;s person<br \/>\nas well as the minor&#8217;s property are the father and after him<br \/>\nthe mother. The position in the Hindu Law before this<br \/>\nenactment was also the same. That is why we have stated<br \/>\nthat normally when the father is alive he is the natural<br \/>\nguardian and it is only after him that the mother becomes<br \/>\nthe natural guardian. But on the facts found above the<br \/>\nmother was rightly treated by the High Court as the natural<br \/>\nguardian.&#8221;<\/p>\n<p>15. Obviously, a rigid insistence of strict statutory<br \/>\ninterpretation may not be conducive for the growth of the<br \/>\nchild, and welfare being the predominant criteria, it would<br \/>\nbe a plain exercise of judicial power of interpreting the<br \/>\nlaw so as to be otherwise conducive to a fuller and better<br \/>\ndevelopment and gro wth of the child.<\/p>\n<p>16. Incidentally the<br \/>\nConstitution of India has introduced an equality code<br \/>\nprohibiting discrimination on the ground of sex and having<br \/>\ndue regard to such a mandate in the Constitution, is it<br \/>\njustifiable to decry the rights of the mother to be declared<br \/>\na natural guardian or have the father as a preferred<br \/>\nguardian? Ms. Indira Jaisingh answers it with an emphatic<br \/>\n`no&#8217; and contended that the statute in question covering<br \/>\nthis aspect of the Personal law has used the expression<br \/>\n`after&#8217; in Section 6 (a) but the same cannot run counter to<br \/>\nthe constitutional safeguards of gender justice and as such<br \/>\ncannot but be termed to be void and ultravires the<br \/>\nConstitution.<\/p>\n<p>17. Be it noted here that the expressions<br \/>\n`guardian&#8217; and `natural guardian&#8217; have been given statutory<br \/>\nmeanings as appears from Section 4(b) wherein guardian is<br \/>\nsaid to mean a person having the care of the person of a<br \/>\nminor or his property and includes: (i) natural guardian;<br \/>\n(ii) a guardian appointed by the will of the minor&#8217;s father<br \/>\nor mother; (iii) a guardian appointed or declared by court,<br \/>\nand<\/p>\n<p>(iv) a person empowered to act as such by or under any<br \/>\nenactment relating to any court of wards;<\/p>\n<p>18. It is pertinent to note that sub-section (c) of<br \/>\nsection 4 provides that a natural guardian means a guardian<br \/>\nmentioned in section 6. This definition section, however<br \/>\nobviously in accordance with the rule of interpretation of<br \/>\nstatute, ought to be read subject to Section 6 being one of<br \/>\nthe basic provisions of the Act and it is this Section 6<br \/>\nwhich records that natural guardian of a Hindu minor, in the<br \/>\ncase of a boy or an unmarried girl, is the father and after<br \/>\nhim the mother. The statute therefore on a plain reading<br \/>\nwith literal meaning being ascribed to the words used,<br \/>\ndepicts that the mother&#8217;s right to act as a natural guardian<br \/>\nstands suspended during the lifetime of the father and it is<br \/>\nonly in the event of death of the father, the mother obtains<br \/>\nsuch a right to act as a natural guardian of a Hindu minor &#8211;<br \/>\nIt is this interpretation which has been ascribed to be<br \/>\nhaving a gender bias and thus opposed to the constitutional<br \/>\nprovision. It has been contended that the classification is<br \/>\nbased on marital status depriving a mother&#8217;s guardianship of<br \/>\na child during the life time of the father which also cannot<br \/>\nbut be stated to be a prohibited marker under Article 15 of<br \/>\nthe Constitution.<\/p>\n<p>19. The whole tenor of the Act of 1956<br \/>\nis to protect the welfare of the child and as such<br \/>\ninterpretation ought to be in consonance with the<br \/>\nlegislative intent in engrafting the statute on the Statute<br \/>\nBook and not de hors the same and it is on this perspective<br \/>\nthat the word `after&#8217; appearing in section 6A shall have to<br \/>\nbe interpreted. It is now a settled law that a narrow<br \/>\npedantic interpretation running counter to the<br \/>\nconstitutional mandate ought always to be avoided unless of<br \/>\ncourse, the same makes a violent departure from the<br \/>\nLegislative intent-in the event of which a wider debate may<br \/>\nbe had hav ing due reference to the contextual facts..<\/p>\n<p>20.The contextual facts in the decision noticed above, depict<br \/>\nthat since the father was not taking any interest in the<br \/>\nminor and it was as good as if he was non-existing so far as<br \/>\nthe minor was concerned, the High Court allowed the mother<br \/>\nto be the guardian but without expression of any opinion as<br \/>\nregards the true and correct interpretation of the word<br \/>\n`after&#8217; or deciding the issue as to the constitutionality of<br \/>\nthe provision as contained in Section 6(a) of the Act of<br \/>\n1956 &#8211; it was decided upon the facts of the matter in issue.<br \/>\nThe High Court in fact recognised the mother to act as the<br \/>\nnatural guardian and the findings stand accepted and<br \/>\napproved by this Court. Strictly speaking, therefore, this<br \/>\ndecision does not lend any assistance in the facts of the<br \/>\nmatter under consideration excepting however that welfare<br \/>\nconcept had its due recognition.<\/p>\n<p>21. There is yet another<br \/>\ndecision of this Court in the case of Panni Lal vs Rajinder<br \/>\nSingh and Another (1993 (4) SCC 38) wherein the earlier<br \/>\ndecision in Gajre&#8217;s case was noted but in our view Panni<br \/>\nLal&#8217;s case does not lend any assistance in the matter in<br \/>\nissue and since the decision pertain to protection of the<br \/>\nproperties of a minor.<\/p>\n<p>22. Turning attention on the<br \/>\nprincipal contention as regards the constitutionality of the<br \/>\nlegislation, in particular Section 6 of the Act of 1956 it<br \/>\nis to be noted that validity of a legislation is to be<br \/>\npresumed and efforts should always be there on the part of<br \/>\nthe law courts in the matter of retention of the legislation<br \/>\nin the statute book rather than scrapping it and it is only<br \/>\nin the event of gross violation of constitutional sanctions<br \/>\nthat law courts would be within its jurisdiction to declare<br \/>\nthe legislative enactment to be an invalid piece of<br \/>\nlegislation and not otherwise and it is on this perspective<br \/>\nthat we may analyse the expressions used in section 6 in a<br \/>\nslightly more greater detail. The word `guardian&#8217; and the<br \/>\nmeaning attributed to it by the legislature under section<br \/>\n4(b) of the Act cannot be said to be restrictive in any way<br \/>\nand thus the same would mean and include both the father and<br \/>\nthe mother and this is more so by reason of the meaning<br \/>\nattributed to the word as &#8220;a person having the care of the<br \/>\nperson of a minor or his property or of both his person and<br \/>\nproperty&#8230;.&#8221; It is an axiomatic truth that both the mother<br \/>\nand the father of a minor child are duty bound to take due<br \/>\ncare of the person and the property of their child and thus<br \/>\nhaving due regard to the meaning attributed to the word<br \/>\n`guardian&#8217; both the parents ought to be treated as guardians<br \/>\nof the minor. As a matter of fact the same was the<br \/>\nsituation as regards the law prior to the codification by<br \/>\nthe Act of 1956. The law therefore recognised that a minor<br \/>\nhas to be in the custody of the person who can sub-serve his<br \/>\nwelfare in the best possible way &#8211; the interest of the child<br \/>\nbeing paramount consideration.<\/p>\n<p>23. The expression `natural<br \/>\nguardian&#8217; has been defined in Section 4(c) as noticed above<br \/>\nto mean any of the guardians as mentioned in section 6 of<br \/>\nthe Act of 1956. This section refers to three classes of<br \/>\nguardians viz., father, mother and in the case of a married<br \/>\ngirl the husband. The father and mother therefore, are<br \/>\nnatural guardians in terms of the provisions of Section 6<br \/>\nread with Section 4(c). Incidentally it is to be noted that<br \/>\nin the matter of interpretation of statute the same meaning<br \/>\nought to be attributed to the same word used by the statute<br \/>\nas per the definition section. In the event, the word<br \/>\n`guardian&#8217; in the definition section means and implies both<br \/>\nthe parents, the same meaning ought to be attributed to the<br \/>\nword appearing in section 6(a) and in that perspective<br \/>\nmother&#8217;s right to act as the guardian does not stand<br \/>\nobliterated during the lifetime of the father and to read<br \/>\nthe same on the statute otherwise would tentamount to a<br \/>\nviolent departure from the legislative intent. Section 6(a)<br \/>\nitself recognises that both the father and the mother ought<br \/>\nto be treated as natural guardians and the expression<br \/>\n`after&#8217; therefore shall have to be read and interpreted in a<br \/>\nmanner so as not to defeat the true intent of the<br \/>\nlegislature.<\/p>\n<p>24. Be it noted further, that gender equality<br \/>\nis one of the basic principles of our Constitution and in<br \/>\nthe event the word `after&#8217; is to be read to mean a<br \/>\ndisqualification of a mother to act as a guardian during the<br \/>\nlifetime of the father, the same would definitely run<br \/>\ncounter to the basic requirement of the constitutional<br \/>\nmandate and would lead to a differenciation between male and<br \/>\nfemale. Normal rules of interpretation shall have to bow<br \/>\ndown to the requirement of the Constitution since the<br \/>\nConstitution is supreme and the statute shall have to be in<br \/>\naccordance therewith and not de hors the same. The father<br \/>\nby reason of a dominant personality cannot be ascribed to<br \/>\nhave a preferential right over the mother in the matter of<br \/>\nguardianship since both fall within the same category and in<br \/>\nthat view of the matter the word `after&#8217; shall have to be<br \/>\ninterpreted in terms of the constitutional safe-guard and<br \/>\nguarantee so as to give a proper and effective meaning to<br \/>\nthe words used.<\/p>\n<p>25. In our opinion the word `after&#8217; shall<br \/>\nhave to be given a meaning which would sub-serve the need of<br \/>\nthe situation viz., welfare of the minor and having due<br \/>\nregard to the factum that law courts endeavour to retain the<br \/>\nlegislation rather than declaring it to be a void, we do<br \/>\nfeel it expedient to record that the word `after&#8217; does not<br \/>\nnecessarily mean after the death of the father, on the<br \/>\ncontrary, it depicts an intent so as to ascribe the meaning<br \/>\nthereto as `in the absence of `- be it temporary or<br \/>\notherwise or total apathy of the father towards the child or<br \/>\neven inability of the father by reason of ailment or<br \/>\notherwise and it is only in the event of such a meaning<br \/>\nbeing ascribed to the word `after&#8217; as used in Section 6 then<br \/>\nand in that event the same would be in accordance with the<br \/>\nintent of the legislation viz. welfare of the child.<\/p>\n<p>26.In that view of the matter question of ascribing the literal<br \/>\nmeaning to the word `after&#8217; in the context does not and<br \/>\ncannot arise having due regard to the object of the statute,<br \/>\nread with the constitutional guarantee of gender equality<br \/>\nand to give a full play to the legislative intent, since any<br \/>\nother interpretation would render the statute void and which<br \/>\nsituation in our view ought to be avoided.<\/p>\n<p>27. In view of<br \/>\nthe 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.<\/p>\n<p>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.<\/p>\n<p>29. In the facts of the matters under consideration there shall however be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India PETITIONER:MS. GITHA HARIHARAN &amp; ANR. Vs. RESPONDENT:RESERVE BANK OF INDIA &amp; ANR. DATE OF JUDGMENT: 17\/02\/1999 BENCH:Umesh C. Banerjee JUDGMENT:BANERJEE,J. Though&hellip;<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[100,548,233],"class_list":["post-207","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-child-custody","tag-custody","tag-natural-guardian"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/207","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=207"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/207\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=207"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=207"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=207"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}