Ms. Githa
Hariharan & ANR Vs. Reserve Bank of India & ANR [1999] INSC 37 (17 February 1999)
Umesh
C. Banerjee 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."
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."
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. 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.
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