Author: Manvi Tokas, NorthCap University
CITATION- AIR 1999 SC 1149
BENCH- JUSTICE UMESH C. BENERJEE, M SRINIVASAN AND A.S. ANAND
PETITIONER- GITA HARIHARAN
RESPONDENT- RESERVE BANK OF INDIA
LAWS INVOLVED- HINDU MINORITY AND GUARDIANSHIP ACT,1956, GUARDIANSHIP AND WARDS ACT,1890 AND THE CONTITUTION OF INDIA, 1950
DATE OF JUDGMENT- 17 FEBRUARY 1999
INTRODUCTION
The case discovers the gender dynamics in the country, wherein fathers are preferred more over mothers as guardians. It discovers the issue as per provisions under section 6 (a) of Hindu Minority and Guardianship Act, 1956. This case examines the constitutional validity of the provision under article 14 and 15 of the Indian Constitution. The case therefore examines the gender stereotypes and patriarchal norms present in the society, which disregard or undervalue women’s role as guardians and their rights in the same.
FACTS-
The petitioner, Gita Hariharan was married to Dr. Mohan Ram in 1982. Both had a son named Rishab Bailey. A divorce between them was pending for some time in the District court. The husband, Dr. Mohan Ram was seeking hard to take custody of their son even though he lacked interest in the upbringing of the son. The wife, Gita Hariharan, filed a claim of maintenance or herself and her son Rishabh.
In 1984, Ms. Hariharan applied for bonds at 9% of rupees 20,000 for her son in RBI. In the agreement she mentioned that she would act as the natural guardian for her son, Rishabh. The RBI refused to accept the mother as the natural guardian and wanted a written acceptance of the husband regarding the same or get a guardian certificate declaring Ms. Hariharan as the natural guardian, citing section 6 (a) of the Hindu minority and guardianship act which declares “father” as the natural guardian. The term “after” iAs a result Gita Hariharan, filed a petition and challenged the constitutionality of the section 6(a) of the Hindu minority and guardianship act, 1956, and section 19 of the Guardianship and Ward act, 1890. The provisions she contended to be violative of the article 14 and 15 of the Indian Constitution.
Ms. Hariharan filed a petition under article 32 of the constitution in the Supreme court questioning the constitutional validity of section 6(a) of HMG Act and section 19(b) of the GW Act; seeking the right to be the ‘natural’ guardian of her son, Rishabh.
CONTENTIONS-
The petitioner in the case, Gita Hariharan, wanted to seek her lawful right to be ‘natural guardian’ of her son, Rishabh. She claimed the section 6(a) of HMG Act, which declared the father to be the natural guardian and section 19 of GW Act which is based on discrimination; as unconstitutional and to be violative of article 14 and 15 of the Indian Constitution. The wife, also claimed her right over the son as her husband, Dr. Mohan Ram, had been absent for most parts as a caretaker or a father figure for the son, Rishabh. Therefore she asserted this fact to establish herself as a lawful guardian for the rightful upbringing of the son.
The husband on the other, was seeking his right as a ‘father’, invoking the section 6 (a) of HMG Act which holds the father as the ‘natural’ guardian. He, for the bonds in the RBI contended his right as the lawful guardian as well as for the guardianship for Rishabh during the divorce proceedings. Mr. Mohan filed an affidavit asserting his exclusive rights as the guardian of the child.
The respondent, that is Reserve bank of India, contended that, lawfully they are bound to accept only the father as the natural guardian and not the mother. They asserted that they would only accept the mother as the guardian when there is either acceptance or permission by the father or there is certificate declaring the mother as the natural guardian by a competent authority. They claimed the assertions with respect to provisions of HMG Act and DW Act.
LEGAL QUESTIONS INVOLVED-
Whether a mother of a minor be recognized as a natural guardian?
Whether the sections 6(a) of Hindu Minority and Guardianship Act, 1956 violates the article 14 and 15 of the Indian Constitution?
LAWS INVOLVED-
The laws involved in the case are –
Hindu Minority and Guardianship Act (HMGA), 1956, Section 6 (a), which deals with the natural guardianship of a Hindu minor. It provides that 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 the minor’s undivided interest in joint family property) shall be-
Father will be the natural guardian of a boy and an unmarried girl. Mother will be their natural guardian after him. Furthermore, the mother will have the custody of a minor who is below the age of 5 years.
The mother is considered to be the natural guardian of her minor illegitimate son or the minor illegitimate unmarried girl. In such cases, the father shall only take custody of the minor after the death of the mother.
Article 14 deals with equality before law. It states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. No citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-
access to shops, public restaurants, hotels and places of public entertainment
the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
Section 19 (b) of the Guardianship and wards act states-
of a minor, other than a married female, whose father or mother is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor
JUDGMENT
The question of legality of provisions of section 6 (a) of HMGA and section 19(b) of GWA was questioned by the supreme court. There were several concepts and considerations examined by the court before reaching the desired judgment.
First of all, the concept of welfare of child was taken into consideration. The court held that the welfare of the child is of supreme importance and should be taken into account while deciding the guardianship. The court for reference cited the case of McGrath (1893), in which it was held that the welfare and safety of the child is of paramount importance. The physical, emotional and mental well-being of the child of the child is of more importance.
The court rightfully did consider the section 6(a) of HMGA discriminatory in nature as it had explicitly stated the father as the natural guardian and the mother “after him”, to be considered as a guardian. This provision the court held to be discriminatory in nature and unjust. This gender-based discrimination the court held to be violative of the article 14 and 15 of the Indian Constitution.
The court held that section 6(a) of HMGA, cannot take away or totally suspend the rights of the mother and in case of total suspension it can be said to violative of article 14 and 15 of the Indian Constitution, which guarantee Fundamental Rights to everyone. The court being rational held that the for a child both the parents share equal responsibility and father or mother cannot gain an extra importance due to gender.
Referring to the case of JV Gajre v. Pathankan, the court held that a mother could be held as a natural guardian when the father is absent or disinterested in being there for the welfare of the child. Thus, the court was of the opinion that in this case the mother should act as a ‘natural guardian, based on the circumstances.
Gender discrimination, the court held to be wrong and disregarded; holding that gender quality is the fundamental principle of the Indian constitution and every individual deserves those rights.
The term ‘after’ in the section 6 (a) of HMGA, the court claimed to not extinguish the rights of the mother; and that the mother has an equal right to that of the father. The court did not strike the provisions of HMGA and GWA, but held the fundamental rights which mothers deserve, against the gender-based discrimination.
The court also referred to the case of Pannilal v. Rajinder Singh and Anr. (1993), which recognized the legal necessity and court’s approval for transfer of property and protecting the rights of the minor’s interest.
Reference to international conventions was also made such as convention on the elimination of all forms of discrimination against women (CEDAW), which supported the women’s rights and eliminated the gender-based discrimination. The court therefore held itself responsible for intervening in matters wherein discrimination occurs and fundamental rights are infringed. Human rights and value are supreme and they must at all costs be upheld in every sphere of life.
The RBI, was therefore held unjustified in their action of not allowing Ms. Hariharan to be the natural guardian of their son and asking for husband’s signature or a certificate for the same.
Thus, the supreme court, upheld the rights of a mother toward her child which are equal to that of the father, while also holding the welfare of the child to be of paramount importance; and that in such cases decision should always be given based on child’s interest and well-being.
SUMMARY AND IMPORTANCE OF THE CASE-
The case of Githa Hariharan v. Reserve Bank of India(1999), has been a landmark case breaking the traditional patriarchal norms and upholding the rights of the women. The case recognized the need to put rights of mothers equal to that of the father and not always put them subordinate over others. The court identified the provision of section 6(a) of HMGA, which puts mother ‘after’ fathers as being highly discriminatory and held that a provision cannot and does totally suspend the rights of a mother.
The court held that the initiation by the RBI, asking Ms. Hariharan to get a certificate or husbands signature was thus unjustified and against equality that mother and father deserve.
Moreover, the court held the importance of welfare of a child, as in the given case, the father was in fact mostly absent and not interested in taking care of the child, it was for the best interested to give custody of the child to the mother, as child’s welfare is of paramount importance and legal provisions cannot hinder it.
As far as the mother not being the ‘natural guardian’ by the legal provision, the court held the same being discriminatory and against equality as guaranteed by article 14 and 15 of the constitution. The court declared mother and father to be equally important and responsible for their child.
The judgment of this case helped in-
giving equal right to mothers
identifying the discriminatory nature of the legal provision when it comes to guardianship
breaking down the patriarchal norms and traditions of holding the father as more important
holding the welfare of the child to be of paramount importance
CONCLUSION
The case of Githa Hariharan v. Reserve Bank of India (1999), thus stands as a landmark case which for the first time recognized the rights of the mothers for providing custody and guardianship of the child. Mother’s rights were held to be equal to that of the father in this given case. The decision in this case promotes equality and human rights an individual deserves and requires, breaking the patriarchal cycle.
FAQS
What is meant by the term Guardian?
A guardian is a person who is appointed to look after another person or his property. He or she assumes the care and protection of the person for whom he/she is appointed the guardian.
What does section 6(a) of the Hindu Minority and Guardianship Act say?
The natural guardian 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 case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;
In the case of a married girl—the husband.
Can mother be a natural guardian of the child, is there a legal provision that says so?
Yes, mother can be a natural guardian as she possesses equal right to that of the father, unfortunately, no legal provision currently says the same. Section 6a of HMGA, places the father to be the first natural guardian and the mother to be ‘after’ him.
