PROVISIONS she, the mother, would go about as

PROVISIONS
INVOLVED:

Hindu Minority and Guardianship Act, 1956 – Section
2Hindu Minority and Guardianship Act, 1956 – Section 4, Hindu Minority and
Guardianship Act, 1956 – Section 6, Hindu Minority and Guardianship Act, 1956 –
Section 8; Guardians and Wards Act, 1890 – Section 19; Bombay Tenancy and
Agricultural Lands (Vidarbha Region) Act, 1958; Majority Act, 1875;
Constitution of India – Article 14, Constitution of India – Article 15,
Constitution of India – Article 32, Constitution of India – Article 227; Hindu
law

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FACTS:

The petitioner and Dr Mohan Ram were married in
Bangalore in the year 1982 and had a child in July 1984. In December 1984 the
candidate (petitioner) applied to the Reserve Bank of India (RBI) for 9% Relief
Bond to be held for the sake of the child showing that she, the mother, would
go about as the natural guardian for the purposes of investments. RBI restored the application advising the candidate
either to create an application marked by the father or a declaration of
guardianship from an able expert to support her to empower the bank to issue
bonds as asked. This
appeal to was identified with a request for the custody of the child coming
from a divorce proceeding pending in the District Court of Delhi. The husband
petitioned for custody in the proceedings. The petitioner filed an application
for maintenance for herself and the minor son, contending that the father had
total apathy towards the child and was not interested in the welfare of the
child.  He was just asserting the right
to be the natural

guardian without discharging any corresponding
obligation. On these facts, the
petitioner asks for a declaration that the provisions of Hindu Minority and
Guardianship Act, 1956 – Section 6, Hindu Minority and Guardianship Act, 1956-
Section 8, Guardians and Wards Act, 1890 – Section 19 and Constitution of India
– Article 14, Article 15 and Article 32.

 

ISSUES:

1.      Whether the communication from RBI is arbitrary and
violative of article 32 of the Indian Constitution.

2.      Whether Section 6 of the Hindu Minority and
Guardianship Act, 1956, discriminates against women
in the matter of guardianship rights, responsibilities and authority in
relation to their own children.

 

ARGUMENTS
IN BRIEF:

1.     
Whether the communication from RBI is arbitrary and
violative of article 32 of the Indian Constitution.

While both the parents are duty-bound to take care of the
minor and property of their minor child and act in the best interest of his
welfare, the court held that in all situations where the father is not in
actual charge of the affairs i.e., when he does not take the responsibility of
the minor either because of his indifference or because of an agreement between
him and the mother of the minor (oral or written) and the minor is in the
exclusive care and custody of the mother or the father for any other reason is
unable to take care of the minor because of his physical and/or mental
incapacity, the mother can act as natural guardian of the minor and all her
actions would be valid even during the lifetime of the father, who would be
deemed to be “absent” for the purposes of Section 6(a) of the HMG Act and
Section 19(b) of the

GW Act.

Hence, the Reserve Bank of India was not right in insisting
upon an application signed by the father or an order of the court in order to
open a deposit account in the name of the minor because the father was alive
during the procedure, particularly when there was already a letter jointly
written by both the petitioners evidencing their mutual agreement. The Reserve
Bank now must accept the application filed by the mother.

Till now, many transactions may have been
invalidated on the ground that the mother is not a natural guardian when the
father is alive. Those issues cannot be permitted to be reopened due to various
reasons concerning different things. In this judgment, it is clarified, it will
operate prospectively and will not enable any person to reopen any decision
already rendered or question the validity of any past transaction on the basis
of this judgment.

The Reserve Bank of India and similarly placed
other organisations, may formulate the needed procedure in the light of the
observations made above to meet the situations arising in the contextual facts
of a given case.

1.     
Whether Section 6 of the Hindu Minority and
Guardianship Act, 1956, discriminates against women in the matter of guardianship
rights, responsibilities and authority in relation to their own children.

The language in Section 6 of the Act paints a contrary
picture to such an equality of rights of the parents to act as guardian to the
minor child. It has a gender biased connotation attached to it. In respect to
the concept of guardianship, both the parents under the Hindu law were treated
as natural guardians. The codification of this law relating to guardianship,
however, brought about certain changes in regard thereto, to which we will
presently refer, but it is noteworthy 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.

 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? When it was the mother for all these years who took
care of the child she becomes the natural guardian by all means. The present
case has a feminist approach towards it.

Even legal experts feel
the need for sweeping changes in such laws. “The existing laws are archaic and
were conceptualised with a patriarchal mindset. Fathers were granted exalted
status as they were the bread earners.1

DECISION
OF THE COURT:

The expression ‘natural guardian’ is defined in
Section 4(c) of Hindu Minority and Guardianship Act as any of the guardians
mentioned in Section 6. The term ‘guardian’ is defined in Section 4(b) of Hindu
Minority and Guardianship Act as a person having the care of the individual of
a minor or of his property or of both, his individual and property, and
includes a natural guardian among others.

 Section 6 of the HMG Act reads as follows2:

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 stepfather and a stepmother.

 The
only provision to which exception is taken is found in Section 6(a) which reads
“the father, and after him, the mother”. This expression conveys a gender
biased meaning. It is a depiction that
the mother can be thought to be the natural guardian of the minor only after
the lifetime of the father. Indeed, that
has all the earmarks of being the premise of the stand taken by the Reserve
Bank of India too. It isn’t in debate and is generally very much settled
additionally that the welfare of the minor in the most extensive sense is the
principal thought and notwithstanding amid the lifetime of the father, if
necessary, he can be replaced by the mother or any other suitable person by an
order of the court, where to do as such would be in light of a legitimate
concern and interest for the welfare of the minor. At whatever point a level-headed discussion concerning
the guardianship of a minor, between the father and mother of the minor is
raised in a court, “after” in the zone would have no massiveness, as
the court is mainly stressed over the best favourable circumstances of the
minor and his welfare in the most extended sense while choosing the request as
regards custody and guardianship of the minor. the minor’s welfare is of
paramount importance. In the present
case, the Reserve Bank of India has questioned the authority of the mother,
despite when she had acted with the concurrence of the father, because in its
opinion she could fill in as a guardian only after the lifetime of the father
and not during his lifetime. The question, in any context, attracts importance
exactly when the mother goes about to act as the guardian of the minor in the
midst of the lifetime of the father, without the issue be dragged to the court,
and the authenticity of such a movement is tried on the ground that she isn’t
the natural guardian of the minor in context of Section 6(a) of the Hindu
Minority and Guardianship Act, 1956.

The
Supreme Court has delivered judgments which have established mothers’ rights as
first guardians. Deciding on the Jijabai
Gajre vs Pathankhan in 1970, for instance, the court ruled that a
separated woman could be deemed her children’s “natural guardian”.

In
Jijabai Vithalrao Gajre v. Pathankhan (1970) 2 SCC 717. The litigant in that
case filed an application before the Tehsildar concerned under the provisions
of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 for
termination of the tenancy of the respondent therein after notice to him on the
ground of personal requirements. The Tehsildar found that the application was
viable and maintainable and also within time yet held that the rent deed
executed by the inhabitant for the litigant’s mother amid his minority when his
father who is the natural guardian as Section 6(a) of the HMA, was alive was
not substantial. In any case, the Tehsildar took the view that it could be
considered as a lease made after 1-4-1957 and along these lines the occupant
could be dislodged.

 Consequently,
the Bench dismissed the appeal. The interpretation placed by us above in the
earlier part of this judgment on Section 6(a) is, thus, only an expansion of
the principle set out by the Bench in Jijabai
Vithalrao Gajre.

Giving the opinion of the Court,
Banerjee J asserted the predominance of the child’s welfare in all
considerations. He considered the precedent of Gajre v. Pathankhan 3
in which, although the father was alive, he was not taking any interest in the
affairs of the child. In that case the mother was ruled to be the natural
guardian of her minor daughter. He set out that the Hindu law and the Act held
that the father is the natural guardian and after him the mother but in the
above case, the Court held the opposite.

RATIONAL OF THE DECISION OF THE COURT:

The judgment in Gajre v
Pathankhan considered that: “… 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 growth of the child.”

“… 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.” He felt strongly that a long-established law
should not easily be set aside; that a key point was interpretation of the word
“after”; and that: “… the word did not necessarily mean after the death of the
father, on the contrary, it means ‘in the absence off’ 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.” 4

He concluded that attributing
the strict significance to the word ‘after’ can’t emerge having due respect to
the protest of the Act and the constitutional guarantee of gender equality,
since some other translation would render the statute void which should be
stayed away from.

The court
opined with the High Court because the father despite of being the natural
guardian of the minor was not taking any interest in the child’s welfare. So,
in the said case it appropriate by the court to assign the role of natural
guardian to the mother as she was managing the welfare of the child since the
initial stage. The court also reasoned that the 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 is the father and after him
the mother. The position in Hindu law before this enactment was also the same.

Subsequently, he dismissed the
petition regarding the constitutionality of the Act but directed the Reserve
Bank to formulate appropriate methodology in the light of his observations. He
also instructed the District Court, Delhi to take account of his comments when
considering custody and guardianship of the minor child.

That is why the
court stated that in normal circumstances 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 on above case the mother was rightly treated
by the High Court as the natural guardian.”

CRITICAL
ANALYSIS:

The ancient Hindu Dharamshastras doesn’t talk much
about guardianship. As such, there is no clear foundation of guardianship in
the Hindu personal law of the earlier time. This was due to the concept of
joint families. Earlier the Indian State consisted mainly of joint families. So
in the absence of the parent(s) for whatever respective reasons the minor was
taken care by the head of the family. The head looked into all the welfare
matters of the concerned child. Thus, there was no need to create any specific
guardianship laws. In the contemporary times, there was shift from the paternal
joint family system to tackle guardianship to the idea of protection of the
minor and Hindu Minority and Guardianship Act, 1956 that codifies the
laws regarding minority and guardianship with the welfare of the child at the
core.

The Planning Commission of India
has recently drawn up an aspiring outline to guarantee that women appreciate a
more prominent level of strength and empowerment. A board framed by the
commission and headed by the ministry of women and child development has
advanced some changing proposals in its Report of the Working Group on Women’s
Agency and Empowerment as part of the Commission’s 12th Five Year Plan. Among other things, the panel recommends that all laws
need to be reviewed to make mothers equal guardians of their children and “to
recognise that since it is the mother who primarily looks after the children,
she should be listed as the first guardian”.5

Despite
that ruling, some provisions of the HMGA, along with certain sections of the
existing Guardian and Wards Act, 1890 (which debars courts from appointing the
guardian of a minor whose father is living), continue to undermine a mother’s
right to be the guardian of her minor child.

The ancient Hindu Dharamshastras doesn’t talk much
about guardianship. As such, there is no clear foundation of guardianship in
the Hindu personal law of the earlier time. This was due to the concept of
joint families. Earlier the Indian State consisted mainly of joint families. So,
in the absence of the parent(s) for whatever respective reasons the minor was
taken care by the head of the family. The head looked into all the welfare
matters of the concerned child. Thus, there was no need to create any specific
guardianship laws. In the contemporary times, there was shift from the paternal
joint family system to tackle guardianship to the idea of protection of the
minor and Hindu Minority and Guardianship Act, 1956 that codifies the
laws regarding minority and guardianship with the welfare of the child at the
core.

Under the Hindu Minority and Guardianship Act, 1956 a person who is a minor that
is below the age of Eighteen years who is incapable of taking care of himself
or of handling his affairs and thus requires help, support and protection.
Then, under such a situation a guardian has been appointed for the care of his
body and his property. In that view of the above matter, the
question of ascribing the literal meaning to the word “after” in the context
does not and cannot arise having with regard to the object of the statute, read
with the constitutional guarantee of gender equality and to give a full effect
to the legislative intent, since any other interpretation would render the
statute void and which situation, in our view, ought to be avoided. 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
the validity of a legislation is to be presumed and efforts should always be
there on the part of the law courts.

In my opinion, the word “after” shall have to be given
a meaning which would give effect to the need of the situation, viz., the
welfare of the minor and having due regard to the factum that law courts to
retain the legislation rather than declare it to be void, I feel 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., the welfare of the child.

 

 

1 https://www.telegraphindia.com/1120229/jsp/opinion/story_15193043.jsp
(accessed on January 23rd, 2018, 9:11am)

2 https://indiankanoon.org/doc/1241462/
(accessed on January 23rd, 2018, 9:11am)

3 (1971 AIR 315, 1971 SCR (2) 1

4 http://www.equalrightstrust.org/ertdocumentbank/Microsoft%20Word%20-%20Hariharan.pdf
(accessed on January 23rd, 2018, 10:01am)

 

5 https://www.telegraphindia.com/1120229/jsp/opinion/story_15193043.jsp
(accessed on January 23rd, 2018, 21:11pm)