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PETITIONER: MS. GITHA HARIHARAN & ANR.

       Vs.

RESPONDENT: RESERVE BANK OF INDIA & ANR.

DATE OF JUDGMENT:       17/02/1999

BENCH: Umesh C. Banerjee

JUDGMENT:

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

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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

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     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

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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

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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

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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

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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

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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.