Mother’s Independent Right to be Natural Guardian of Child

Facts: Two independent Writ Petitions with the same issue were filed. In the first Writ Petition, the first petitioner is the wife of the second petitioner. They jointly applied to the Reserve Bank of India (first respondent) 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 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 lead 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 and Section 19(b) of the Guardian and Wards Act, 1890 as violative of Articles 14 and 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 declaring the first petitioner as the natural guardian of the minor.
In the second Writ Petition, 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 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 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.

Contention: That the stated sections are 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 natural guardian of the minor, is made cognizable only “after” the father.

Discussion: Dr A.S. Anand, C.J. (for himself and M. Srinivasan, J.) (Concurring with Banerjee, J. but adding their own reasons)
The Court observed that in the statute, 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. The only provision to which exception is taken is found in Section 6(a) which reads “the father, and after him, the mother”. That phrase, on a cursory reading, does give an impression that the mother can be considered to be the natural guardian of the minor only after the lifetime 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 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 the court, where to do so would be in the interest of the welfare of the minor.
Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a court of law, 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, assumes importance only when the mother acts as the guardian of the minor during the lifetime of the father, without the matter going to the court, and the validity of 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 could function as a guardian only after the lifetime of the father and not during his lifetime.

The Court observed that 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 prefer 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.

The Court observed that Section 6(a) is capable of such construction as would retain it within the constitutional limits. The word “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 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 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 outcome of a harmonious construction of Section 4 and Section 6 of the HMG Act, without causing any violence to the language of Section 6(a).
The Court further observed that the message of international instruments — the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (“CEDAW”) 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 CEDAW having accepted and ratified it in June 1993, The interpretation that we have placed on Section 6(a) gives effect to the principles contained in these instruments. The domestic courts are under an obligation to give due regard to international conventions and norms for construing domestic laws when there is no inconsistency between them.

The Court further observed that 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). 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, 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 for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as 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.

Held: The Reserve Bank of India was not right in insisting upon 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 the petitioners evidencing their mutual agreement. The Reserve Bank now ought to accept the application filed by the mother.
The Court further held that, 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 the validity of any past transaction on the basis of this judgment.
Further, in the light of what the Court observed, it directed that the dispute between the petitioner and the first respondent as regards custody and guardianship of their minor son shall be decided by the District Court, Delhi where it is said to be pending.

Banerjee, J.—
Discussion: The father and mother, are natural guardians in terms of the provisions of Section 6 read with Section 4(c). In the matter of interpretation of a 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, 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. 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 d to defeat the true intent of the legislature.
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 differentiation between male and e 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 dehors 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 safeguard and guarantee so as to give a proper and effective meaning to the words used.

Held: The word “after” shall have to be given a meaning which would subserve the need of the situation, viz., the welfare of the minor and having due regard to the factum that law courts endeavour to retain the legislation rather than declare it to be 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., the welfare of the child. Literal meaning cannot be ascribed to the word “after” having regard to the object of the statute, read with the constitutional guarantee of gender equality and to give full play to the legislative intent, since any other interpretation would render the statute void and that should be avoided.

See the following Judgment: Githa Hariharan v Reserve Bank of India (Supreme Court of India, 1999)


Author: Vikrant Narayan Vasudeva
Photo by Nick Kenrick/ CC BY-NC-SA 2.0

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