.... ,.

GITHA HARIHARAN AND ANR .. A

v.

RESERVE BANK OF INDIA AND ANR.

FEBRUARY

17, 1999

[DR.

A.S. ANAND, C.J., M. SRINIVASAN AND B

UMESH C. BANERJEE, JJ.)

Hindu Law:

Hindu Minority and Guardianship Act, 1956 :

c

Section 6(a)-l'rovided that mother had the right to become a natural

guardian

of a minor only 'after' the father-Discrimination on ground of sex

alone-Constitutionality

of-Mother and father of a minor jointly applied to

the Reserve Bank

of India (RBI) for opening a deposit account in the name

of the minor-Mother, in agreement with the father, signed the application as

D

the guardian of the minor-But RBI refused to accept the application on the

ground that the mother, during the lifetime

of the f other, was not the natural

guardian

of the mother-Held, legislature is presumed to act in accordance

with the

Constitution-Hence, Section 6(a) can be const1Ued in such a

manner so as to retain it within constitutional limits-Moreover, if Ss. 4 and

6

of the HMG Act are constrned hannoniously, the word 'after' means 'in the E

absence of thereby ref ening to the f other's absence from the care of the

minor's property or person for any reason whatever-Hence, in such situa-

tions the mother

can valiliily act as the natural guardian of the minor even

during the lifetime

of the father who is considered to be absent-Therefore,

RBI was not right in refusing to accept the said

application-However, this

F

_... ..... judgment is to operate prospectivel~All organisations are directed to f onnu-

late appropriate methodology accordingly-Same decision to apply in respect

of guardianship under S. 19(b) of the GW Act-Constitution of India, 1950,

Alts, 14 and 15--Guardians and Wards Act, 1890, S 19(b )-Convention on

the Elimination of All Fonns of Discrimination Against Women, 1979

("CEDAW')--Beijing Declaration.

G

.>

Section 2-Scope and ambit of-Held, 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, shrntis and the commentaries as recognised by

the Courls of law but also statutes applicable amongst others to Hindus viz.,

Guardian and Wards Act, 1890 and Indian Majority Act, 1875. H

669

670 SUPREME COURT REPORTS (1999] 1 S.C.R.

A Jwispmdence of-importance of-Held, Hindu law has shown no signs

B

c

of decrepitude and it has its val11es and imp01ta11ce even today-Howeve1;

certain parts of Hindu law is codified to give f mitful meaning and stat11to1y

sanction to the prevailing concept of law having d11e regard to the social and

economic charges in the society.

Constitution of India, 1950 :

Article 51-Scope of-Held, when there is 110 inconsistency between

domestic and intemational laws, co~1ts are obliged to give due regard to

intemational co11ve11tio11s and nonns while constming domestic laws.

Interpretation of Statutes :

Basic mle~Held, where two i11te1pretations are possible the Cowt

should

lean inf avour of the statutory provision.

D General

mies-Held, 11a1Tow pedantic interpretation numing counter to

the constitutional mandate ought to be avoided always-ff such interpretation

departs from the legislative enactment, a wider debate is called for having due

regard to contextual facts.

Subsidiary ntles-Presumptions-Held, validity of a legislation is to be

E presumed-Only in the event of gross violation of constitutional sanctions that

the law courts would be within its jurisdiction to declare the legislative

enactment to be an invalid piece of legislation and not otherwise.

F

·Internal aids-Definition clause-Scope of-Held, same meaning

ought to be attributed to the same word used by the statute as per the

definition Section.

Words and Phrases :

''After"--Meaning of-fn the context of S.6(a) of the Hindu Minority

G and Guardianship Act, 1956.

"Guardian''-Meaning of-In the context of S.4(b) of the Hindu

Minority and Guardianship Act, 1956.

"Natural Guardian ''---Meaning of-In the context of S.4(c) of the Hindu

H Min01ity and Guardianship Act, 1956.

'

.. '

...

GITHA HARIHARAN v. R.BJ. 671

•

JO'

The first petitioner and her husband, the second petitioner, jointly A

applied to the Reserve Bank of India, the first respondent, for issue of

Relief Bonds in the name of their minor son. The petitioners stated

expressly

that both of them agreed that the mother of the child, i.e., the

first petitioner would act as the guardian of the minor for the purpose of

investments made with the money held

by their minor son. Accordingly, in

B

the prescribed form of application, the first petitioner signed as the

guardian of the minor. The first respondent replied to the petitioners

advising them either to produce the application form signed

by the father

of

t,he minor or a certificate of guardianship from a competent authority

in favour of the mother

and refused to accept the deposit from the

petitioners.

c

Being aggrieved the petitioners filed a writ petition No. 489/95 before

this Court with prayers to strike down

Section 6(a) of the Hindu Minority

and Guardianship Act, 1956 (HMG Act) and Section 19(b) of the Guardian

and Wards Act, 1890 (GW Act) as violative of Articles 14 and 15 of the

D

~

Constitution and to quash and set aside the decision of the first respon-

dent refusing to accept the deposit from the petitioners

and to issue a

mandamus directing the acceptance of the of the same after declaring the

first petitioner

as the natural guardian of the minor.

In writ petition

No.

1018/91 filed before this Court, the petitioner is

E

the wife of the first respondent. The first respondent instituted a proceed-

ing for divorce against the petitioner

and it was pending in the District

Court. The first respondent

had also prayed for custody of their minor son

in the same proceeding. The petitioner

had in turn filed an application for

maintenance for herself

and the minor son. The first respondent had been F

repeatedly writing to the petitioner and the school in which the minor was

studying, asserting

that the first respondent was the only natural guardian

of the minor

and no decision should be taken without his permission. The

minor son was staying with the petitioner and, in spite of the best efforts

of the petitioner, the father

had shown total apathy towards the child and

G

as a matter of fact was not interested in the welfare and benefit of the child

-"

excepting, however, claiming the right to be the natural guardian without,

"

however, discharging any corresponding obligation. The petitioner, there-

fore, filed the present writ petition before this

Court challenging the

consiitutionality of

Section 6(a) of the HMG Act and Section 19(b) of the

GWAct.

H

672 SUPREME COURT REPORTS (1999) 1 S.C.R.

A On behalf of the petitioner it was contended that the two Sections

i.e. Section 6(a) of HMG Act and Section 19(b) of GW Act were violative

of the equality clause of the Constitution, inasmuch

as the mother of the

minor is .relegated to an inferior position on the ground of sex alone since

her right, as a

0

i:tatural guardian of the minor, was made cognisable only

B 'after' the father, and, therefore, both the Sections must be struck down as

unconstitutional.

On behalf of the respondents it was contended that the mother was

not the

natural guardian of the minor son and that it was also stated under

Section 6(a) of the HMG Act that the father of a Hindu Minor was the

C only natural guardian of the minor.

Disposing of the petition, this

Court

HELD : (Per

Umesh C. Banerjee, J.) :

D 1. The whole tenor of the Hindu Minority and Guardianship Act, 1956

is to protect the welfare of the child and as such the 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 6(a) of the HMG Act shall have to be

E interpreted. [ 684-C]

2.1.

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

at­

tributed to the word 'guardian' both the parents ought to be treated as

F 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 the

paramount consideration. The father and mother, there-

G fore, are natural guardians in terms of the provisions of

Section 6 read

with Section 4(c). [685-C-D, F]

J. V Gajre v. Pathankhan, [1970] 2 SCC 717, relied on.

Mc Grath,

Re : [1893] 1 Ch. 143 and Gyngall [1893] 2 QB 232,

H referred to.

-~-

GITHA HARIHARAN v. R.B.I. 673

2.2. Iiicidentally, it is io be noted that in the matter of interpretation A

of the statute the same meaning ought to be attributed to the same word

used

by the statute as per the definition Section. The word 'guardian' in

the definition

Sectfon means and implies both the parents. Therefore, the

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. Sec­

tion 6(a) itself recognises 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. [685-F-H]

B

c

3. Further, gender equality is one of the basic principles of our

Constitution and, therefore, the father

hy 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. Therefore, the word 'after'

D

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

or -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' E

as used in Section 6 then and in that event the same would be in

accord­

ance with the intent of the legislation viz., welfare of the child. Hence,

question of as scribing the literal meaning to the word 'after' in the context

does not and cannot arise.

[686-A-C; D-F]

Panni Lal v. Rajinder Singh, [1993] 4 SCC 38, relied on.

4. The Reserve Bank authorities are directed to formulate

ap­

propriate methodology in the light of the observations, as above, so as to

meet the situation as called for in the contextual facts.

[686-H]

S. In the light of the above observations the matter of custody and

guardianship of the minor child in the other petition should

be decided by

the District Court. [687-AJ

6. The law relating to minority and guardianship amongst Hindus is

F

G

to be found not only in the old Hindu law as laid down by the smritis, H

674 SUPREME COURT REPORTS [1999] 1 S.C.R.

A shrutis and the commentaries as recognised by the Courts of law but also

statutes applicable amongst others to Hindus,

viz, Guardian and Wards

Act,

1890 and Indian Majority Act, 1875. [687-B]

B

7 .1. It is settled law that a narrow pedantic interpretation running

counter to the constitutionai mandate ought always

to be avoided unless

of course, the same makes a violent departure from the Legislative intent • in the event of whkh a wider debate may be had having due reference to

the contextual facts.

[684-D]

7

2. Validity of a legislation is to be presumed and efforts should

C always be there on the part of the law courts in the matter of retention of

the legislation in the statue 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. (684-H; 685-A]

D 8. Hindu law being one of the oldest known systems of jurisprudence

has shown

no signs of decrepitude and it has its values and importance

even today. But the lawmakers, 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

E and economic changes in the society.

[680-C]

(Per Dr. A.S. Anand, CJ.I., for himself and M. Srinivasan, J. (Sup­

plementing) :

1. The definitions of'guardian' in Section 4(b) of the Hindu Minority

F and Guardianship Act, 1956 and 'natural guardian' in Section 4(c) of the

HMG Act

do not make any discrimination against the mother and she being

one of the guardians mentioned in

Section 6 would undoubtedly be a natural

guardian as defined in Section 4(c). The expression "the father, and after him,

the mother" does give an impression that the mother can be considered to

G be the natural guardian of the minor only after the lifetime of the father. But

it is not in dispute and is otherwise well settled also that the welfare of the

minor in the widest sense is the paramount consideration

and even during

the lifetime of the father, if necessary, he can

be replaced by the mother or

any other suitable person by an order of court, where to do so would be in

the interest of the welfare of the minor. The question, however assumes

H importance only when the mother acts as guardian of the minor during the

GI1liA HARIHARAN v. R.B.I. 675

... 'P lifetime of the father, without the matter going to court, and the validity of A

such an action is challenged on the ground that she is not the legal guardian

of the minor in

view of Section 6(a). In the present case, the Reserve Bank

of India has questioned the authority of the mother,

even when she had

acted with the concurrence of the father, because in its opinion she

coul.d

function as a guardian only after the lifetime of the father and not during

B

his lifetime. However, such an interpretation violates gender-equality, one

of the basic principles of

our Constitution. Where two interpretations are

possible, the

Court will lean in favour of the constitutionality of the

statutory provision on the ground

that Legislature

is presumed to have

acted in accordance with the Constitution. [689-E-H; 690-A-B]

2.1. Now Section 6(a) is capable of such construction as would retain

c

it within the Constitutional limits. The words 'after' need not necessarily

mean 'after the lifetime'. In the context in which

it appears in Section 6(a),

it means 'in the absence of, the word 'absence' therein referring to the

father's absence from the care of the minor's property

or person for any

reason whatever.

If the father is wholly indifferent to the matters of the D

.. ... minor even if he is living with the mother or if by virtue of mutual under-

standing between the father and the mother, the latter is

put exclusively in

charge of the minor,

or if the father is physically unable to take care of the

minor are either because of his staying away from the place where the

mother

and the minor are living or because of his physical or mental

E

incapacity, in all such like situations, the father can be considered to be

absent and the mother being a recognized natural guardian, can act validly

on behalf of the minor as the guardian. Such

an interpretation will be the

natural outcome of harmonious construction of Section 4

and Section 6 of

the HMG Act, without causing any violence to the language of Section

6(a).

F

~->

[690-F-H]

Jijabai Vithalrao Gajre v.Pathankhan, [1970) 2 SCC 717, relied on.

Pannilal v. Rajinder Singh, [1993) 4 SCC 38, held inapplicable,

2.2. Further, the above interpretation gives effect to the principles

G

contained in the

Convention on the Elimination of All Forms of Discrimina-

...

tion Against Women, 1979 "(CEDAW)" and the Beijing Declaration, which ,.

directs all State parties to take appropriate measures to prevent dis-

crimination of all forms against women. The domestic courts are under an

obligation to

give due regard to International

Convention and Norms for H

676 SUPREME COURT REPORTS [1999) 1 S.C.R.

A construing domestic laws when there is no inconsistency between them.

(694-D-E]

Apparel Export

Promotion Council v. A.K. Chopra, (1999] 1 S~R,

relied on.

B 2.3. Similarly, Section 19(b) of the Guardians and Wards Act, 1890

would also have to be construed in the same manner in which Section 6(a)

has been construed. (694-F]

3.1. While both the parents

are duty bound to take care of the person

and property of their minor child and act in the best interest of his welfare,

c in all situations where the father is not in actual charge of the affairs 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

D incapacity, the mother can act as a 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. (694-G-H; 695-A]

3.2. Hence, the Reserve Bank of India, was not right in insisting upon

E 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 particularly when there was

already a letter jointly written

by both petitioners evidencing their mutual

agreement. The Reserve Bank ought to accept the application filed by the

mother. (695-B]

F

-Y

4. It is possible that till now many transactions may have been in- ~ -

validated on the ground that the mother is not a natural guardian, when the

father is alive. Those issues cannot be permitted to be reopened. This

judgment,

it is clarified, will operate prospectively and will not enable any

person to reopen any decision already rendered

or question the validity of

G any past transaction, on the basis of this judgment. (695-C-D]

5. The Reserve Bank of India and similarly placed other

organisa­

tions, may formulate appropriate methodology in the light of the observa­

tions made above to meet the situations arising in the contextual facts of

H a given case. [ 695-F]

GITHA HARIHARAN v. R.B.l. [BANERJEE, J.) 677

6. The matter regarding the custody and guardianship of the minor A

son in the second petition pending in the District Court shall be decided

in the light of the above. [695-F]

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 489 of

1995 Etc.

(Under Article 32 of the Constitution of India).

Ms. Indra Jaisingh, Sanjay Parikh, Ms. Anitha Shenoy, Sanjay Ghosh,

Abinash Kumar Misra for the Pertitioners.

B

H.N. Salve, H.S. Parihar, Kuldeep S. Parihar, Ajit Pudussery and Ms. C C.K. Sucharita for the the Respondents.

The Judgments of the Court were delivered by

BANERJEE,

J. Though nobility and self-denial coupled with

tolerance mark the greatest features of Indian womanhood in the past and

D

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 CEDA W)

by the

United Nations Organisation in 1979 and

subsequent acceptance and ratification

by India in June 1993 also amply

demonstrate the same.

·

E

F

2. We the people of this country gave ourselves a written Constitu­

tion, 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 G

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. H

678 SUPREME COURT REPORTS [1999) 1 S.C.R.

A-The facts in WP. 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

B 9% Relief Bond to be held in the name of their minor son Rishab alongwith

an intimation that the petitioner No.l 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

C 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.

D

5. The factual backdrop in WP ©

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

E proceeding is pending in the District Court of Delhi and the first respon­

dent has prayed for custody of their minor son

in the same proceeding.

The petitioner in turn, however, also has filed an application for main­

tenance for herself and the minor son.

On further factual score it appears

that the first respondent has been repeatedly writing

to the petitioner,

F

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

G 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 declaration of the provisions of Section 6(a) of the Act read

with Section 19(b) of the Guardian Constitution and Wards Act

as violative

H of Articles 14 and 15 of the Constitution.

... -

-

GITHA HARIHARAN v. R.B.I. [BANERJEE, J.] 679

6. Since, challenge to the constitutionality of Section 6 of the Act is A

• -1 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.

B

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 C

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:

D

E

F

Provided that no person shall be entitled to act as the natural G

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 becom-

ing a hermit (vanaprastha) or an ascetic (yati or sanyasi). H

A

B

680 SUPREME COURT REPORTS [1999] 1 S.C.R.

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 guardian­

ship 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 though it prudent to codify certain parts of the

law in

order to

give a fruitful meaning and statutory sanction to the prevailing

C 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

D 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

E 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

F

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 guaidianship however

brought about certain changes in regard thereto, of which

we will presently

G 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

H be. This concept of legal guardian includes a natural guardian: a testamen-

GITHA HARIHARAN v. R.B.L [BANERJEE, J.) 681

~ ~ tary guardian or a guardian of a Hindu minor appointed or declared by A

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

B

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

C

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 D

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 Groth,

(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.

E

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 Eshe1; M.R.

in F

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

f acie 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

G

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 H

682 SUPREME COURT REPORTS (1999) 1 S.C.R.

A 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

B 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

y

make any departure, therefrom .. In this context, reference may be made to >

the decision of this Court in the case of J. V. Gajre v. Patha11kha11 and Ors.,

[1970] 2 SCC 717 in which this Court in paragraph 11 of the report

C observed:

D

E

F

G

H

"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

naturaj guardian.

But on the facts found above the mother was rightly treated

by the

High Court

as the natural guardian."

GITHA HARIHARAN v. R.B.I. [BANERJEE, J.] 683

15. Obviously, a rigid insisten1 ~ of strict statutory interpretation may not A

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.

16. Incidentally the Constitution of India has introduced an equality B

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

C

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) D

wherein guardian is said to mean a person having the care of the person

of a minor or his property

ai:td includes:

(i) natural guardian;

(ii) a guardian appointed by the will of the minor's father or E

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; F

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

inter­

pretation of statute, ought to be read subject to Section 6 being one of the G

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 H

684 SUPREME COURT REPORTS [1999] 1 S.C.R.

A mother obtains such a right to act as a natunl 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 con­

tended 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

st~ted to be a prohibited marker under Article 15 of the Constitu-

B tion.

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

C 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 man­

date 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.

D

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

E opinion

as regards the true and correct interpretation of the word 'after'

or deciding the issue as

to the constitutionality of the provision as con­

tained 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

F 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 v. Rajinder Singh and Another, (1993] 4 SCC 38 wherein the earlier

G decision in Gajre's case was noted but in our view Panni Lat'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

H it is to be noted that validity of a legislation is to be presumed and efforts

y

/

·~

GITHAHARIHARANv. R.B.I. [BANERJEE,J.) 685

~ should always be there on the part of the law courts in the matter of A

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

B

slightly more greater detail. The word 'guardian' and the meaning at-

tributed 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 c

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

D

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 E

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

F

-· •

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

G

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. H

A

B

686 SUPREME COURT REPORTS [1999] 1 S.C.R.

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 differentia-

tion 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

C 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

D 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

E 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.

F

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

G our view ought to be avoided.

27. In view of the above, the Writ

Petition © 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

H above, so as to meet the situation as called for in the contextual facts.

y

•

/

.,

GI1HA HARIHARAN v. R.B.I. [ANAND, CJ.] 687

28. Writ Petition © No.1016 of 1991 also stands disposed of in the A

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 how-

ever be no order as to costs.

DR. A.S. ANAND, CJ. (For himself and M. Srinivasan, J.) We have

had the advantage of reading the draft judgment of our learned Brother

Banerjee,

J. While agreeing with the conclusion, we wish to add our own

reasons.

2. The facts in

W.P. (C) No. 489/95 are shortly as follows : The first

petitioner jslthe wife of the second petitioner. The first petitioner is a writer

B

c

and several of her books are said to have been published by Penguin. The

second petitioner is a Medical Scientist in Jawaharlal Nehru University,

New Delhi. They jointly applied

10 the Reserve Bank of India (first D

respondent) on 10.12.1984 for 9% Relief Bonds in the name of their minor

son Rishab Bailey for Rs. 20,000. They stated expressly that both of them

agreed that the mother of the child, i.e., the first petitioner would, act as

the guardian of the minor for the purpose of investments made with the

money held by their minor son. Accordingly, in the prescribed form of

E

application, the first petitioner signed as the guardian of the minor. The

first respondent replied to the petitioners advising them either to produce

the application form signed by the father of the minor or a certificate of

guardianship from a competent authority in favour of the mother. That led

to the filing of this writ petition by the two petitioners with prayers to strike

down Section 6(a) of the Hindu Minority and Guardianship Act,

1956, F

(hereinafter referred to as HMG Act) and Section 19(b) of the Guardian

and Wards Act,

1890 (hereinafter referred to as GW Act) as violative of

Articles

14 & 15 of the Constitution and to quash and set aside the decision

-of the first respondent refusing to accept the deposit from the petitioners

and to issue a mandamus directing the acceptance of the same after

G

declaring the first petitioner as the natural guardian of the minor.

3. In the counter affidavit filed on behalf the first respondent, it is

stated that the first petitioner is not the natural guardian of the minor son

and the application

was not rightly accepted by the bank. It is also stated

that under Section 6(a) of the HMG Act the father of a Hindu minor

is H

688 SUPREME COURT REPORTS [1999] 1 S.C.R.

A the only natural guardian. The first respondent prayed for the dismissal of

the writ petition.

4. In

W.P. (C) No. 1016/91, the petitioner is the wife of the first

respondent. The latter has instituted a proceeding for divorce against the

former and it

is pending in the District Court of Delhi. He has also prayed

B for custody of their minor son in the same proceeding. According to the

petitioner, he had been repeatedly writing to her and the school in which

the minor

was studying, asserting that he was the only natural guardian of

the minor and no decision should be taken without

his permission. The

petitioner has in turn filed an application for maintenance for herself and

C the minor son.

She has filed the writ petition for striking down Section 6( a)

of the HMG Act and Section 19(b) of the GW Act as violative of Articles

14 and 15 of the Constitution.

5.

Since, challenge to the constitutionality of Section 6( a) of HMG

D Act and Section 19(b) of GW Act was common in both cases, the writ

petitions were heard together. The main contention of

Ms. Indira Jai

Singh

learned senior counsel for the petitioners is that the two sections i.e.

Section 6(a) of HMG Act and Section 19(b) of GW Act are violative of

the equality clause of the Constitution, inasmuch

as the mother of the

minor

is relegated to an inferior position on ground

of sex alone since her

E right, as a natural guardian of the minor, is made cognisable only 'after'

·the father. Hence, according to the learned counsel both the sections must

be struck down as unconstitutional.

F

G

H

6.,Section 6 of the HMG Act reads as follows :

"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 unmar­

ried girl-the mother, and after her, the father;

y

+

GITHA HARIHARAN v. R.B.L [ANAND, CL) 689

/

( c) in the case of a married girl-the husband: A

Provided that no person shall be entitled to act as the natural

I

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."

7. The expression 'natural guardian' is defined in Section 4(c) of

HMG Act

as any of the guardians mentioned in Section 6 (supra). The

term

'guardian' is defined in Section 4(b) of HMG Act as a person having

the care of the person of a minor or of

his property or of both, his person

B

c

and property, and includes a natural guardian among others. Thus, it is D

seen that the definitions of 'guardian' and 'natural guardian' do not make

any discrimination against mother and she being one of the guardians

mentioned

in Section 6 would undoubtedly be a natural guardian as defined

in Section 4(c). The only provision

to which exception is taken is found in

Section 6(a) which reads

"the father, and after him, the mother". (underlining

ours). That phrase, on a cursory reading, does

give an impression that the

mother can be considered to be natural guardian of the minor only

after

the life time

of the father. In fact that appears to be the basis of the stand

taken

by the Reserve Bank of India also. It is not in dispute and is

otherwise well settled also that welfare of the minor in the widest sense is

E

the paramount consideration and even during the life time of the father, if F

necessary, he can be replaced

by the mother or any other suitable person

by an order of court, where to do so would be in the interest of the welfare

of the minor.

8. Whenever a dispute concerning the guardianship of a minor,

between the father and mother of the minor

is raised in a Court of law, G

the word 'after' in the Section would have no significance, as the Court is

primarily concerned with the best interests of the minor and his welfare in

the widest sense while determining the question

as regards custody and

guardianship of the minor. The question, however, assumed importance

only when the mother acts

as guardian of the minor during the life time of H

690 SUPREME COURT REPORTS (1999] 1 S.C.R.

'

A the father, without the matter going to Court, and the validity of such an

B

action is challenged on the ground that she is not the legal guardian of the

minor in

view of Section 6(a) (supra). In the present case, the Reserve

Bank

of India has questioned the authority of the mother, even when she

had acted with the concurrence of the father, because in its opinion she

could function

as a guardian only after the life time of the father and not

during his life time.

9. Is that the correct way of understanding the section and does the

word 'after' in the Section mean only 'after the life time'?

If this question

is answered in the affirmative, the section has to be struck

qown as

C unconstitutional as it undoubtedly violates gender-equality, one of the basic

principles

of our Constitution. The

HMO Act came into force in 1956, i.e.,

six years after the Constitution. Did the Parliament intend to transgress the

constitutiojial limits or ignore the fundamental rights guaranteed by the

Constitution which essentially prohibits discrimination on grounds of sex?

D In our opinion -No. It is well settled that if on one construction a given

statute

will become unconstitutional, whereas on another construction,

which may be open, the statute remains within the constitutional limits, the

Court will

pref er the latter on the; ground that the Legislature is presumed

to have acted in accordance with the Constitution and courts generally lean

in favour

of the constitutionality of the statutory provisions.

E

10. We are of the view that the Section 6(a) (supra) is capable of

such construction as would retain it within the Constitutional limits. The

word 'after' need not necessarily mean 'after the life time'. In the context

in which it appears in Section 6(a) (supra), it means

'in the absence of,' the

p word 'absence' therein referring to the father's absence from the care of

the minor's property or person for any reason whatever.

If the father is

wholly indifferent to the matters of the minor even if he is living with the

mother or if by virtue

of mutual understanding between the father and the

mother, the latter is put exclusively in charge of the minor, or if the father

is physically unable to take care of the minor either because of his staying

G away from the place where the mother and the minor are living or because

of his physical or mental incapacity, in all such like situations, the father

can be considered to be

absent and the mother being a recognized natural

guardian, can act validly on behalf of the minor as the guardian. Such an

interpretation

will be the natural

outeome of harmonious construction of

H Section 4 and Section 6 of HMO Act, without causing any violence to the

'

GITIIAHARIHARANv. R.B.I. [ANAND, O.] 691

'~

language of Section 6( a) (supra). A

11. The above interpretation has already been adopted to some

extent

by this Court in Jijabai Vithalro Gajre v. Pathankhan and Others, [1970] 2 SCC 717. The appellant in that case filed an application before

the concerned Tehsildar under the provisions of Bombay Tenancy and

B

Agricultural Lands (Vidharba 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 main-

tainable and within time but held that the lease deed executed

by the tenant

in favour of the appellant's mother during his minority when his father was

alive was not valid. However, the Tehsildar took the view that it could be c

considered as a lease created after April 1, 1957 and therefore the tenant

could be dislodged. The application

was granted on that ground.

On

appeal, the appellate authority and in further revision, the Tribunal con-

firmed the findings. The aggrieved tenant filed a writ petition under Article

227 of the Constitution challenging the said orders. The High Court held

D

that the lease was valid on the ground that the mother was the natural

4-

guardian because the fat her was not taking any interest in his minor

.. daughter's affairs and refused to grant the relief of possession but held that

the appellant

was entitled to resume a portion of the land leased for

personal cultivation. Consequently, the matter was remanded. That judg-

ment of the High Court

was challenged in this Court. The Division Bench E

of this Court found that it was the mother who was actually managing the

affairs of her minor daughter who

was under her care and protection and

though the father was alive, he

was not taking any interest in the affairs of

the minor. In the words of the Bench:

F

" ......... 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

G

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

tnte that the father was alive but he

was not taking any

illferest in

the affairs

of the minor and it was as good as if he was non-existent H

A

B

c

D

E

692

SUPREME COURT REPORTS [1999) 1 S.C.R.

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 the Hindu minor in

respect of minor's person

as well as minor's property are the father

and after him the mother. The position

in Hindu Law before the

enactment

was also the same. That is why we have stated that

nonnally 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 Cowt

as the natural

guardian."

(Emphasis supplied)

Consequently, the Bench dismissed the appeal. The interpretation placed

by us above in the earlier part of this judgment on Section 6(a) (supra) is,

thus, only an expansion of the

principle set out by the Bench in Jijabai

Vithalrao Gajre (supra).

12. Our attention has been drawn to a later judgment of another

Bench of this Court

in Pannilal v. Rajinder Singh and Another, [1993] 4

SCC

38. In that case, some property belonging to the respondents therein was

sold when they were minors by their mother acting as their guardian to the

p appellant under a registered sale deed. Upon attaining majority, the

respondents sued the appellant for possession of the land on the ground

that the sale having been made without the permission of the Court

was

void. The appellant relied heavily on the fact that the sale deed was attested

by

the father of the respondents and contended that it should be deemed

to be a sale. validly made

by the legal' guardian of the respondents. It was

G also argued that the sale was for legal necessity as well as for the benefit

of the respondents. The trial court found that there

was no reliable

evidence on record to show that the sale

was made for legal necessity or

for the benefit of the respondents and having been effected without the

permission of the Court

was voidable.

Ultimately the trial court held the

H same to be void and granted a decree as prayed for by the respondents.

GITHAHARIHARANv. RB.I. [ANAND, CJ.] 693

That was affirmed by the District Court and the High Court. In this Court A

the Division Bench observed that in view of the concurrent findings, the

sale

was in any event voidable. Dealing with the question whether the sale

could be considered to have been effected by (the father) natural guardian

of the minors, (though

actually made by the mother) because father had

attested· the sale deed, the Court referred . to the judgment in Jijabai

Vithalrao Gajre (supra) and observed :

"In this behalf our attention was invited to this Court's judgment

in

Jijabai Vithalrao Gajre v. Pathankhan, (1970] 2

SCC 717. This

was a case in which it was held that the position in Hindu law was

B

that when the father was alive he was the natural guardian and it C

was only after him that the mother bt:came the natural guardian.

Where the father

was alive but had fallen out with the mother of

the minor child and

was living separately for several years without

taking any

i11terest in the affairs of the minor, who was in the keeping

and care of the mother, it rs held that, in the peculiar circumstan-

ces, the

father should be treated as if non-existent and, therefore, D

the mother could be considered as the natural guardian of the

minor's person

as well as property, having power to bind the minor

by dealing with her immovable

property."

(Emphasis supplied) E

Distinguishing the facts in Jijabai Vithalrao Gajre (supra), the Court ob­

served that there

was no evidence to show that the father of the minor­

respondents was not taking any interest in their affairs or that they were

keeping in the care of the mother to the exclusion of the father. An inference

was drawn from the factum of attestation of the sale deed that the father F

was very much 'present' and in the picture. The Bench held that the sale

by the mother notwithstanding the fact that the father had attested the

deed, could not be held to be a sale by the father and natural guardian,

satisfying the requirements of Section

8. Confirming the decree of the

courts below, the Bench opined :

"The provisions of Section 8 are devised to fully protect the

property of a minor, even from the depredations of

his parents. Section 8 empowers only the legal guardian to alienate a minor's

immovable property provided it

is for the necessity or benefit of

G

the minor or his estate and it further requires that such alienation H

694

A

SUPREME COURT REPORTS [1999] 1 S.C.R.

shall be effected after the permission of the Court has been

obtained.

It is difficult, therefore, to hold that the sale

was voidable,

not void,

by reason of the fact that the mother of the minor

respondents signed the sale deed and the father attested

it."

13. Thus, on the fact of

Pa1111i/al's case (supra) even if the sale had

B been made by the father, it could have been annulled for want of permis­

sion from the court.

It is, thus, evident from the two paragraphs extracted

above, that the conclusion in

Pa1111ilal's case (supra) turned mainly on the

fact that the sale

was not supported by legal necessity; was not for the

benefit of the minor and the same had been effected without the permission

C of the Court. That judgment, therefore, does not run counter to the

interpretation

now placed by us on

Section 6 (supra), as that case was

decided on its peculiar facts and is clearly distinguishable.

14. The message of international instruments -Convention on the

Elimination of All Forms of Discrimination Against Women, 1979

D ("CEDA

W") and the Beijing Declaration, which directs all State parties to

take appropriate measures to prevent discrimination of.

all forms against

women

is quite clear. India is a signatory to CEDA W having accepted and

ratified

it in June, 1993. The interpretation that we have placed on

Section

6(a) (supra) gives effect to the principles contained in these instruments.

E Tlie domestic. courts are under an obligation to give due regard to Inter­

national Conventions and Norms for construing domestic

laws when there

is no inconsistency between them.

(See with advantage -Appa1-e Apparel

Expo1t Promotion Council v. A.K. Chopra, Civil Appeal Nos. 226-227 of

(1999) decided on January 20, 1999.

F

. 15. Similarly, Section 19(b) of the GW Act would also have to be

construed in the same manner

by which we have construed

Section 6(a)

(supra).

16. While both the parents are duty

bound to take care of the person

G and property of their minor. child and act in the best interest of his welfare,

we hold that in all situations where the father is not in actual charge of the

affairs 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

H for any other reason is unable to take care of the minor because of his

)

GITHAHARIHARAN v. R.B.I. [ANAND, O.] 695

k physical and/or mental incapacity, the mother, can act as natural guardian A

of the minor and all her actions would be valid even during the life time

of the father, who would be deemed to be 'absent' for the purposes of

Section 6(a) of HMG Act and Section 19(b) of GW Act.

17. Hence, the Reserve Bank of India was not right in insisting upon

B

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 particularly when there

was already a letter jointly written

by both petitioners evidencing their

mutual agreement. The Reserve Bank, now ought to accept the application

filed by the mother.

c

18. We are conscious of the fact that 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. This judgment, it is clarified, will operate prospectively and will

not enable any person to reopen any decision already rendered or question

D

>-

the validity of any past transaction, on the basis of this judgment.

19. The Reserve Bank of India and similarly placed other organisa-

tions, may formulate appropriate methodology in the light of the observa-

tions made above to meet the situations arising in the contextual facts of a

E

given case. 20. In the light of what we have said above, the dispute between the .

pe~itioner and the first respondent in Writ Petition No. 1016 of 1991 as

regards custody and guardianship of their minor son shall be decided by

the District Court, Delhi, where it

is said to be pending. F

.-

~

21. The Writ Petitions are disposed of in the aforesaid manner but

without any order as to costs.

v.s.s. Petitions disposed of.

G

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