Holding

The term "after" in Section 6(a) is to be read as "in the absence of the father", permitting the mother to act as natural guardian even while the father is alive, rendering the challenged provisions constitutionally valid.

Summary

The petitioners, a mother and father, applied to the Reserve Bank of India for relief bonds in their minor son's name, with the mother signing as guardian. RBI rejected the application, insisting on the father's signature or a guardianship certificate, relying on Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which appears to give the father priority as natural guardian. The petitioners challenged the constitutionality of this provision (and Section 19(b) of the Guardian and Wards Act, 1890) as violative of Articles 14 and 15. The Supreme Court interpreted the word "after" in Section 6(a) to mean "in the absence of the father"—including temporary or permanent absence—thereby allowing the mother to act as natural guardian even during the father's lifetime. Consequently, the provisions were held constitutionally valid, RBI was directed to accept the mother's application, and the judgment was made prospective. The second petition concerning custody was left to the district court.

Issues considered

The meaning of the word "after" in Section 6(a) of the Hindu Minority and Guardianship Act, 1956.
Whether Section 6(a) of the HMG Act and Section 19(b) of the Guardian and Wards Act, 1890 violate Articles 14 and 15 of the Constitution.
Whether the mother can be a natural guardian of a minor during the father's lifetime.
Whether RBI's refusal to accept the mother's application was lawful.

Legislation cited

Constitution of Indias. Article 14, s. Article 15, s. Article 51
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Guardian and Wards Act, 1890s. 19(b)
Hindu Minority and Guardianship Act, 1956s. 4(b), s. 4(c), s. 6(a)
Indian Majority Act, 1875

Subjects

gender equalitynatural guardianHindu Minority and Guardianship ActReserve Bank of Indiaconstitutional lawArticles 14 and 15statutory interpretationCEDAWminor's welfareguardianship

Judgment

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

B 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.
c Interpretation of Statutes :

Basic mle~Held, where two i11te1pretations are possible the Cowt
should lean infavour 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.

·Internal aids-Definition clause-Scope of-Held, same meaning
ought to be attributed to the same word used by the statute as per the
F 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
as a matter of fact was not interested in the welfare and benefit of the child G
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
0

her right, as a 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-
B
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]
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. F

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
G
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
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]

7.1. It is settled law that a narrow pedantic interpretation running
counter to the constitutionai mandate ought always to be avoided unless
B 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]

72. 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
his lifetime. However, such an interpretation violates gender- equality, one B
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).
[690-F-H] F
~- >
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
-Y
\

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
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.
B
(Under Article 32 of the Constitution of India).

Ms. Indra Jaisingh, Sanjay Parikh, Ms. Anitha Shenoy, Sanjay Ghosh,
Abinash Kumar Misra for the Pertitioners.

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 E
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
F
demonstrate the same. ·

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,
asserting that he was the only natural guardian of the minor and no
F 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: D

"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-
E
(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;
F
(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 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
680 SUPREME COURT REPORTS [1999] 1 S.C.R.

A 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-
B 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
however entrustment of the custody of the child for education or purposes
F 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,
B
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
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 E
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 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
y

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
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:

"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
D 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
E 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
F 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
G 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
H 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
y

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

/
·~

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
does not stand obliterated during the lifetime of the father and to read the G
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
y
686 SUPREME COURT REPORTS [1999] 1 S.C.R.

A 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
B 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.

/
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-
B
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.
c
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
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
y

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.

6.,Section 6 of the HMG Act reads as follows :
F
"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
G 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-
H ried girl-the mother, and after her, the father;
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 B
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."
c
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
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 E
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
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
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
B 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 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.
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
Agricultural Lands (Vidharba Region) Act, 1958 for termination of the
B
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
guardian because the fat her was not taking any interest in his minor
.. 4-
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:

--. "......... 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
F

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

A 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
B 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
c 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)
D
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).
E
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
B
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
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 :
G
"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
the minor or his estate and it further requires that such alienation H
694 SUPREME COURT REPORTS [1999] 1 S.C.R.

A 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 ("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) (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
an application signed by the father or an order of the Court in order to
B
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
given case. E

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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