Judges: Dr. A.S. Anand, CJI, M. Srinivasanand U.C. Banerjee,JJ.

Facts:

WP (C) No. 489 of 1995

The petitioner and Dr. Mohan Ram were married and a son named Rishab Bailey was born to them. The petitioner applied to the Reserve Bank of India for 9% Relief Bond to be held in the name of their minor son Rishab alongwith an intimation that the petitioner being the mother, would act as the natural guardian for the purposes of investments. The first respondent, however, asked them to produce either the application form signed by the father of the minor or a certificate of guardianship from a competent authority in favour of the mother.

Hence, the present writ petition under Article 32 of the Constitution was filed by the petitioners . In the petition, the prayers were made 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 Constitution. It was also prayed 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.

WP (C) No. 1016 of 1991

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.

Issues:

(i) Whether Section 6(a) of HMG Act is violative of Articles 14 and 15 of Constitution?

(ii) Whether, in case of any incapacity of the father, either physically or mentally the mother can act as a natural guardian of such minor?

Law:

Hindu Minority and Guardianship Act, 1956 - Section 4 (c) - 'Natural guardian' defined as any of the guardians mentioned in Section 6.

Hindu Minority and Guardianship Act, 1956 - Section 6 (a) - 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-

1. 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

Constitution of India, 1950 - Article 14 - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Constitution of India,1950 - Article 15 -Article 15 of the Constitution of India forbids discrimination on grounds only of religion, race, caste, sex, or place of birth.

Contentions:

Petitioner

(i) Section 6(a) of HMG Act, 1956 and Section 19(b) of GW Act are violative of the equality clause of the Constitution. This is because the mother of the minor is relegated to an inferior position on ground of sex alone since her right, as a natural guardian of the minor, is made cognizable only 'after' the father. This section must be struck down as unconstitutional.

(ii) Section 6 of HMG Act seriously disadvantages woman and discriminate man against woman in the matter of guardianship rights, responsibilities and authority in relation to their own children.

(iii) On a true and proper interpretation of Section 4 of HMG Act, 1956 and various provisions thereunder and having due regard to the legislative intent, question of putting an embargo for the mother in the matter of exercise of right over the minor as the guardian or ascribing the father as the preferred guardian does not arise. However, the language in Section 6 of HMG Act runs counter to such an equality of rights of the parents to act as guardian to the minor child.

(iv) The statute in question covering this aspect of the personal law has used the expression 'after' in Section 6(a) of HMG Act. Same is running counter to the constitutional safeguards of gender justice and as such be termed to be void and ultra vires the Constitution.

(v) The interpretation has been ascribed to be having a gender bias and thus opposed to the constitutional provision.

(vi) The classification is based on marital status depriving a mother's guardianship of a child during the life time of the father which also cannot but be stated to be a prohibited marked under Article 15 of the Constitution.

Respondent

(i) The first petitioner is not the natural guardian of the minor son and the application was not rightly accepted by the bank.

(ii) Under Section 6(a) of the HMG Act, 1956 the father of a Hindu minor is the only natural guardian.

(iii) The application sent back to the petitioner by the RBI Authority advising her to produce the application signed by the father and in the alternative the Bank informed that a certificate of guardianship from a Competent Authority in her favour, ought to be forwarded to the Bank forthwith so as to enable the Bank to issue Bonds as requested. This communication from the RBI authorities, is not arbitrary and not opposed to the basic concept of justice

Analysis:

Section 6(a) of HMG Act 1956 - Constitutionality

(i) Validity of legislation is to be presumed and efforts should always be there on the part of the courts in the matter of retention of the legislation in the statute book rather than scrapping it. It is only in the event of gross violation of constitutional sanctions that courts would be within its jurisdiction to declare the legislative enactment to be an invalid piece of legislation and not otherwise.

(ii) The word 'guardian' and the meaning attributed to it by the legislature under Section 4(b) of the HMG Act, 1956 cannot be said to be restrictive in any way. Same would mean and include both the father and the mother. This is more so by reason of the meaning attributed to the word as "a person having the care of the person of a minor or his property or of both his person and property". It is an axiomatic truth that both the mother and the father of a minor child are duty bound to take due care of the person and the property of their child. Having due regard to the meaning attributed to the word 'guardian' both the parents' ought to be treated as guardians of the minor.

(iii) The expression 'natural guardian' has been defined in Section 4(c) of the HMG Act, 1956 as 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)of the HMG Act, 1956.

(iv) In the matter of interpretation of statute the same meaning ought to be attributed to the same word used by the statute as per the definition section. In the event, the word 'guardian' in the definition section means and implied both the parents, the same meaning ought to be attributed to the word appearing in Section 6(a)of the HMG Act, 1956. In that perspective mother's right to act as the guardian does not stand obliterated during the lifetime of the father and to read the same on the statute otherwise would tantamount to a violent departure from the legislative intent.

(v) Section 6(a) of the HMG Act, 1956 itself recognizes that both the father and the mother ought to be treated as natural guardians. 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. Thus, it cannot be said that there is violation of Article 14 of the Indian Constitution.

Incapacity of father - Mother can act as a natural guardian of minor

(i) Gender equality is one of the basic principles of our Constitution. The word 'after' in Section 6 of the HMG Act, 1956 is to be read to mean a disqualification of a mother to act as a guardian during the lifetime of the father. Same would definitely run counter to the basic requirement of the constitutional mandate and would lead to a differentiation between male and female.

(ii) Normal rules of interpretation shall have to bow down to the requirement of the Constitution. Since, the Constitution is supreme and the statute shall have to be in accordance therewith and not de hors the same.

(iii) 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. In that view of the matter, the word 'after' shall have to be interpreted in terms of the constitutional safe-guard and guarantee soas to give a proper and effective meaning to the words use.

(iv) 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. Court is primarily concerned with the best interests of the minor. His welfare is of widest sense while determining the question as regards custody and guardianship of the minor.

(v) 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. This is because, in its opinion, she could function as a guardian only after the life time of the father and not during his life time.

The word 'after' in Section 6(a) of the HMG Act, 1956, however, need not necessarily mean 'after the life time'. 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 harmonious construction of Section 4 and Section 6 of HMG Act, without causing any violence to the language of Section 6(a)of the HMG Act, 1956.

Conclusion:

(i) Both the father and mother are natural guardians of a minor Hindu child, and the mother cannot be said to be natural guardian only after the death of the father.

(ii) The law in question has not been struck down. But the Court has reinterpreted the reading of the same law.

(iii) Section 6(a) of HMG Act 1956is not violative of Articles 14 and 15 of the Constitution

(iv) The word 'after' shall have to be given a meaning which would subserve the need of the situation viz., welfare of the minor. Having due regard to the factum that courts endeavour to retain the legislation rather than declaring it to be a void, the word 'after' does not necessarily mean after the death of the father

Important Precedents:

(i) Jijabai Vithalrao Gajre v. Pathankhan and Ors. MANU/SC/0516/1970

(ii) Pannilal v. Rajinder Singh and Anr. MANU/SC/0552/1993

(iii) Apparel Export Promotion Council v. A.K. Chopra, MANU/SC/0014/1999