The case of ‘Gita Hariharan v. Reserve Bank of India, (1999)’, is a landmark case. It is an important case not only as regard to interpretation rule but also to establishing the equal right of women on children.
The cause of contention
The case, challenge the validity of ‘Section 6´ of ‘Hindu minority and guardianship act, 1956’, on the ground that dignity of women is a right inherent under the Constitution which as a matter of fact stands negatived by said Section.
What was the matter?
- 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 along with 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.
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.
Incidentally, the minor had been staying with the mother and it had 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 was 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 was on these facts that the petitioner moved this Court under Article 32 of the Constitution praying for declaration of the provisions of Section 6(a) of the Act read with Section 19(b) of the Guardian and Wards Act as violative of Articles 14 and 15 of the constitution.
Provisions in dispute
Section 6(a) of Hindu minority and guardianship act, 1956
For convenience sake 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, 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;
Section 19(b) of Guardianship and wards act, 1890
19. Guardian not to be appointed by the Court in certain cases. —
Nothing in this Chapter shall authorize the Court to appoint or declare a guardian of the person—
(b) of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor;
The analysis of the court
Herein below the analysis of the court-
- 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 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.
- 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.
Welfare of the child is prominent
- 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.”
Indian perspective
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. Pathan khan and Ors. (1970 (2) SCC 717) in which supreme Court in paragraph 11 of the report observed:
“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. 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, 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.”
Interpretation of the section
The court in the present case, further analysed that,
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 having due reference to the contextual facts.
The 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.
Interpretation of ‘after’
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 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.
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 tantamount 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.
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 differentiation 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.
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.
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.
Reference
Gita Hariharan v. Reserve Bank of India, (1999)