CASE

Githa Hariharan
vs
Reserve Bank of India[1999] 1
SCR 669

Summary Report by:

Supriya Pallavi Srivastava
CASE: Githa Hariharan v Reserve Bank of India [1999] 1
SCR 669
NAMES OF PARTIES:
Petitioner: Githa Hariharan
Respondent: Reserve Bank of India

JUDGES:
Justice A.S. Anand
Justice M Srinivasan
Justice Umesh C Banerjee

FACTS:
• Ms. Githa Hariharan (petitioner) was married to Dr. Mohan Ram in 1982 and they had a
son named Rishab. A divorce case was pending in the District Court of Delhi as the
respondent had been living in a state of total apathy towards the affairs of the child.
Still, he claimed for custody of their minor son in the same proceeding. The petitioner
has filed an application for maintenance for herself and the minor son.
• In 1984, she applied to the Reserve Bank of India (RBI) for 9% relief bonds to be held
in the name of their minor son Rishab as his natural guardian. The RBI sent back the
application to her advising her to either produce the application signed by the father of
Rishab or produce a certificate of guardianship from a competent authority in her
favour.
• In RBI's opinion, Dr Mohan was the natural guardian of Rishab based on Section 8(a)
of the Hindu Minority and Guardianship Act, 1956 (HMGA) which states that the
father is the natural guardian of a Hindu minor child and the mother is the guardian
"after" the father.
• Ms. Githa Hariharan challenged the constitutional validity of this provision in the
Supreme Court on grounds that it violated the right to equality guaranteed under
Articles 14 and 15 of the Indian Constitution. As a challenge to the Constitutional
validity of Section 6(a) of the HMG Act is involved in both the matters, the petitions
were heard together.
• Both husband and wife filed a petition for mandamus, to plead the court to issue
directions to RBI officials to issue bonds with the mother’s signatures for her son
without asking for the consent document of the father.
• The petition also includes that Section 6 (a) of the HMG Act and Section 19(b) of the
GW Act should be held unconstitutional on the grounds of gender discrimination.
• This petition is filed by the mother in the Supreme Court to strike down Section 6 (a) of
the HMG Act and Section 19 (b) of the GW Act because they give father the right to be
the natural guardian of the child which is gender discrimination. So, these provisions
are violative of Article 14 and Article 15 of the Constitution of India.
ISSUES:
• Are Section 6(a) of the HMG Act and Section 19(b) of the GW Act gender-biased?
• What does the term ‘After’ in Section 6(a) of the HMG Act implies to? Does that mean
after the death of the father, the mother will be the natural guardian or it is just father is
prioritized over the mother for the position of natural guardian of the child?
• Can a mother be made natural guardian of the property of the minor son when the
father is alive and fit to be a guardian?
• Can a mother get custody and guardianship of a minor son when the father is alive and
fit to be a guardian?
• Does Section 6(a) of the HMG Act and Section 19(b) of the GW Act should be
interpreted literally or the intent of the legislator should be considered?
• For the welfare of the minor can Section 6(a) of the HMG Act and Section 19(b) of the
GW Act be interpreted narrowly or widely depending upon the circumstances of the
case?

HOLDING:
In this case, a writ petition was filed under Article 32 of the constitution of India stating that
Section 6(a) of the Hindu Minority and Guardianship Act and Section 19(b) of the Guardians
and Wards Act is unconstitutional as it is violative of Article 14 and 15 of the Constitution of
India. Article 32 gives power to the citizens to file a petition against the law made by the
government which is against the constitutional provisions. Section 6(a) of the HMG Act says
that the father is the natural guardian of the minor and property of the minor, after the father,
the mother is the natural guardian of the minor and property of minor. Section 19(b) of the
GW Act says that the court cannot appoint a guardian of the minor whose father is not fit to
be the guardian.
As Section 6(a) of the HMG Act and Section 19(b) of GW Act both of them give father the
position of a guardian of the minor on priority but not to mother this is said to be gender bias
which is discouraged of article 14 and 15 of the Constitution. In this case, it will be discussed
whether Section 6 (a) of the HMG Act and Section 19(b) of the GW Act are unconstitutional
or constitutional and the reason behind the decision of the Supreme Court.

RATIONALE:
The decision of the Court in the writ petition was appropriate and confronts with the existing
law. The Court directed RBI to consider the application with the mother’s signature only and
Court directed the matter of custody and guardianship to Delhi District Court where it
belongs but it was only appropriate to an extent where the Court interprets the Section 6(a) of
HMG Act and Section 19(b) of GW Act harmoniously with Article 14 and 15 of Constitution.
The Section 6(a) of HMG Act and Section 19(b) of GW Act are gender biased and violative
of Article 14 and 15 of Constitution.
DICTA:
The decision of the court is not in conformity with the literal interpretation of Section 6(a) of
the HMG Act and Section 19(b) of the GW Act. Because in literal interpretation, the meaning
of the word “after” in Section 6(a) of HMG Act is after the life of father. Which means that
mother can only become the natural guardian of the minor child after the death of the father
which is indeed gender biased. The reasoning of the court that the provisions under the HMG
Act will be interpreted in such a way that the welfare of minor is taken into consideration is
in constituency with previous judgements of Supreme Court. Like in Jijabai Vithalrao Gajre
v. Pathankhan & Ors.3, it was held that the father was alive but was not taking any interest in
the property of the minor so for the welfare of the minor, the mother was recognized as a
natural guardian.

DISSENT:
The reasoning of the judgement that when the father is alive, fit and interested in the minor
person and its property, he will be treated as a natural guardian is in conformity with the
decision of the court in the earlier cases. Like in Panni Lal v. Rajinder Singh and Anr.4 where
the sale deed of property of minors was executed by their mother and attested by father, it
was held that the sale deed is voidable because attestation of a legal document cannot be
treated as its execution and the fact that father attested the deed shows that he was interested
in the affairs of the minor. So, the mother was not treated as a natural guardian because the
father was alive and interested in the affairs of the minor.

PARTY’S ARGUMENTS:
The applicant argued that the communication from the RBI is arbitrary and was opposed to
the basic concept of justice under Article 32 of the Constitution. They therefore challenged
the validity of s. 6 of the Hindu Minority and Guardianship Act of 1956 (the Act). Further
they argued that the provisions of Section 6 of the HMG Act discriminate against women in
the matter of guardianship rights, responsibilities and authority in relation to their own
children. It also stated that Section 6(a) of the HMG Act on the grounds of violation of
Articles 14 and 15 because Section 6(a) prioritizes the rights of the father over the rights of
the mother as a natural guardian of minor and property of minor and affairs related to it. So,
the mother and father of the child both together should have the right as the natural guardian.

JUDGMENT:
Section 4 of the HMG Act defines a guardian as the person who takes care of the minor and
his property. Section 4(b) of the HMG Act defines the term “Guardian” which also includes
“Natural Guardian”. So, there is no difference between a guardian and a natural guardian.
Section 4(c) of the HMG Act says that the natural guardian is defined under section 6 (a). So,
Section 4 of the HMG Act does not make any discrimination between father and mother.
Section 6(a) of the HMG Act does discriminate when interpreted literally because it says that
Natural Guardian is the father and after him, the mother is the natural guardian, which means
that the mother cannot be the natural guardian of her child till father of the child is alive.

But when it was constructed harmoniously with the Articles 14 and 15 of the Constitution.
Section 6(a) of HMG Act can be interpreted in such a way that it does not discriminate
against the rights of father and mother. The word “after” used under Section 6(a) of HMG Act
will not be interpreted as after the life of father only, the mother can become the natural
guardian of her child. Instead it will be interpreted as when the father is not fit or unwilling to
be the guardian. Based upon the circumstances, father can no longer be treated as natural
guardian of the child and the mother will be the natural guardian of the child. It is not
necessary that for a mother to be the natural guardian of the child, the father must not be
alive.
The legislator behind the HMG Act intends to recognize the welfare of the minor so words
under the HMG Act can be interpreted narrowly or widely depending upon the circumstances
of the case to ensure the welfare of a minor. Both the parents of the minor are liable to take
care of the minor and his property when the father is not alive or interested in the affairs of
the minor or in oral or written agreement with the mother that she is responsible for the
minor’s affairs or for any other reason the father is not able to take care of affairs of the
minor, as the case may be, the mother will be treated as natural guardian of the minor child.
Supreme Court directed the Reserve Bank of India to consider the letter signed by the mother
only and not to demand a letter signed by the father. This is a prospective judgement which
means that the earlier cases cannot be reopened on the grounds of this judgement of the
Supreme Court. The Writ Petition was dismissed and it was held that the question regarding
the custody and guardianship of a minor shall be decided by the Delhi District Court.