Githa Hariharan vs. Reserve Bank of India case delivered a new viewpoint to the existing situation by referring to the harmonious construction between section 6 of the Hindu Minority and Guardianship Act and the principle of equality. Parents have the unconditional responsibility of raising their children in a safe and protective environment. And in that process, both mothers and fathers have a crucial role to play. Certainly, mothers are deemed secondary in guardianship rights. As per section 6 of the Hindu Minority and Guardianship Act, 1956 a natural guardian of a boy or an unmarried girl is the father and after him the mother, which instantly sabotages the status of women as guardians. Thereby, violating the principle of equality established in the constitution.
AIR 1999 2 SCC 228
DATE OF JUDGMENT:
Umesh C. Banerjee
Hindu Minority and Guardianship Act,1956 / Constitution of India
Section 6 / Article 14, Article 15
FACTS OF MS. GITA HARIHARAN VS. RBI CASE:
- The petitioner and Dr. Mohan Ram tied a nuptial knot in 1982 and from the wedlock their son (Riahab Bailey) was born in 1984.
- The petitioner by an application requested the Reserve Bank of India for a 9% relief bond in favor of her son with a proclamation, that being the mother she would act as a natural guardian and supervise all the investments.
- However, the application was returned, and the Court instructed the petitioner to present the application signed by the father of the minor son and additionally furnish the certificate of guardianship by a competent authority in her favor.
- Second, there was a divorce proceeding pending between the petitioner and her husband in which the husband prayed for the custody of the child.
- In association with this, he had written many letters to the petitioner asserting that he is the natural guardian of the minor child and they could take no decision without his approval, which has resulted in the present case.
Whether the Constitution of India violates section 6 of the Hindu Minority and Guardianship Act?
- The assertion illustrated by the petitioner was twofold firstly it was contended that section 6 of the act is discriminatory against women and runs counter to the equality of parental rights.
- As the literal meaning of section 6 conveys the natural guardian of a boy or unmarried girl is the father and after him, such right rests with the mother, the term “after” in a general sense refers to the lifetime of the father providing secondary status to mothers.
- This contravenes Article 15 of the constitution and constrains the right of guardianship from the women.
- Second, it was contended that the husband/father is non-existent and completely apathetic regarding his son.
- The Hindu Minority and Guardianship Act, 1956 was fashioned for the protection and welfare of the children, therefore, any interpretation of its provision should be asper the judiciary should reject the intent of the legislation.
- While the interpretation of statute courts stresses harmonious construction and retention of the statute, scrapping is considered an end resort when there is a gross violation.
- The courts while analyzing the welfare of a child should consider the circumstances of the case, the position of parents, the religion of the child, etc., therefore, reliance was placed on the case of J.V Gajre V. Pathankan (1970) 2 SCC 717, where mother and father were separated for a long time and mother supervised all the affairs of the child and despite father was alive he was non-existent in management of his child’s life, the mother was granted the status of a natural guardian by the court.
DECISION IN GEETHA HARIHARAN VS. RBI CASE
- Gender equality is a critical element in constitutional law consequently when the term “after” characterizes as disqualification of the mother as a natural guardian during the lifetime of the father will be considered a contravention to constitutional law.
- “father being a dominant personality cannot be given preferential rights over mother” therefore, the term “after” in section 6 of the act, should not be interpreted in a narrow sense as “after the lifetime” on the contrary it should be characterized as “in absence of father” i.e. be it temporary or otherwise or total apathy by father because of any sickness or otherwise the mother would be considered as the natural guardian of the child.
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