PETITIONER: MS. GITHA HARIHARAN & ANR. Vs. RESPONDENT: RESERVE BANK OF INDIA & ANR. DATE OF JUDGMENT: 17/02/1999. BENCH: Umesh C. Banerjee JUDGMENT:

Transcription

1 PETITIONER: MS. GITHA HARIHARAN & ANR. Vs. RESPONDENT: RESERVE BANK OF INDIA & ANR. DATE OF JUDGMENT: 17/02/1999 BENCH: Umesh C. Banerjee JUDGMENT: BANERJEE,J. Though nobility and self-denial coupled with tolerance mark greatest features of Indian womanhood in past and cry for equality and equal status being at a very low ebb, but with passage of time and change of social structure 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 Universal Declaration of Human Rights [as adopted and proclaimed by General Assembly in its resolution No.217A(III)] provided that everybody is entitled to all rights and freedom without distinction of any kind whatsoever such as race, sex or religion and ratification of convention for elimination of all forms of discrimination against women (for short CEDAW) by United Nations Organisation in 1979 and subsequent acceptance and ratification by India in June 1993 also amply demonstrate same. 2. We people of this country gave ourselves a written Constitution, basic structure of which permeates equality of status and thus negates gender bias and it is on this score, validity of Section 6 of Hindu Minority and Guardianship Act of 1956 has been challenged in matters under consideration, on ground that dignity of women is a right inherent under Constitution which as a matter of fact stands negatived by Section 6 of Act of In order, however, to appreciate contentions raised, it would be convenient to advert to factual aspect of matters at this juncture. The facts in WP c 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 m. In December, 1984 petitioner applied to Reserve Bank of India for 9% Relief Bond to be held in name of ir minor son Rishab alongwith an intimation that petitioner No.1 being mor, would act as natural guardian for purposes of investments. The application however was sent back to petitioner by RBI Authority advising her to produce application signed by far and in alternative Bank informed that a certificate of guardianship from a Competent Authority in her favour, ought to be forwarded to Bank forthwith so as to enable Bank to issue Bonds as requested and it is this communication from RBI authorities, which is stated to be arbitrary and opposed to basic concept of justice in this petition under Article 32 of Constitution challenging validity of section 6 of Act as indicated above. 5. The factual backdrop in WP c No.1016 of 1991 centres round a prayer for custody of 1

2 minor son born through lawful wedlock between petitioner and first respondent. Be it noted that a divorce proceeding is pending in District Court of Delhi and first respondent has prayed for custody of minor son in same proceeding. The petitioner in ir turn, however, herself also has filed an application for maintenance and minor son. On furr factual score for it appears writing that first respondent has been repeatedly to petitioner, asserting that he was only natural guardian of minor and no decision should be taken without his permission. Incidentally, minor has been staying with mor and it has been definite case of petitioner in this petition under Article 32 that in spite of best efforts of petitioner, far has fact shown total apathy towards child and as a matter of is not interested in welfare and benefit of child excepting however claiming right to be natural guardian without however discharging any corresponding obligation. It is on se facts that petitioner moved this Court under Article 32 of Constitution praying for de read claration of provisions of Section 6(a) of Act with Section 19(b) of Guardian Co nstitution. and Wards Act as violative of Articles 14 and 15 of 6.Since, challenge to constitutionality of Section 6 of Act is involved in both matters, petitions were heard toger. 7. Ms. Indira Jaisingh, appearing in support of petitions strongly contended that provisions of section 6 of Act seriously disadvantage woman and discriminate man against woman in matter of guardianship rights, responsibilities and authority in relation to ir own children. 8. It has been contended that on a true and proper interpretation of section 4 and various provisions reunder and having due regard to legislative intent, which is orwise explicit, question of putting an embargo for mor in matter of exercise of right over minor as guardian or ascribing far as preferred guardian does not arise, but unfortunately however, language in section 6 of Act runs counter to such an equality of rights of parents to act as guardian to minor child. 9. For convenience sake however section 6 of Act of 1956 is set out herein below: "6. Natural guardians of a Hindu minor- The natural guardians of a Hindu minor, in respect of minor's person as well as in respect of minor's property (excluding his or her undivided interest in joint family property), are- (a) in case of a boy or an unmarried girl- far, and after him, mor : provided that custody of a minor who has not completed age of five years shall ordinarily be with mor; (b) in illegitimate case of an illegitimate boy or unmarried girl- mor, and after her, an far; (c) in case of a married girl- husband: Provided that no person shall be entitled to act as natural guardian of a minor under provisions of this section- 2

3 (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation-In this section, expressions `far' and `mor' do not include a step-far and a step-mor." 10. Be it noted that Hindu Minority and Guardianship Act of 1956 has been engrafted on statute book by way of an amendment and codification of certain parts of law relating to minority and guardianship among Hindus. It is not out of place to mention also that Hindu law being one of oldest known system of jurisprudence has shown no signs of decrepitude and it has its values and importance even today. But law makers however thought it prudent to codify certain parts of law in order to give a fruitful meaning and statutory sanction to prevailing concept of law having due regard to social and economic changes in society. It is on this perspective however certain aspects of law as it stood prior to codification ought to be noted. 11. As regards concept of guardianship both parents under Hindu law were treated as natural guardians, of persons and separate property of ir minor children, male or female except however that husband is natural guardian of his wife howsoever young she might be and adopted far being natural guardian of adopted son. The law however provided that upon death of far and in event of re being no testamentary guardian appointed by far, mor succeeds to natural guardianship of person and separate property of ir minor children. Conceptually, this guardianship however is in nature of a sacred trust and guardian cannot refore, during his lifetime substitute anor person to be guardian in his place though however entrustment of custody of child for education or purposes allying may be effected temporarily with a power to revoke at option of guardian. 12. The codification of this law pertaining to guardianship however brought about certain changes in regard reto, of which we will presently refer, but it is interesting to note that prior to enactment, law recognised both de facto and de jure guardian of a minor: A guardian-de- facto implying reby one who has taken upon himself guardianship of a minor-whereas guardian de-jure is a legal guardian who has a legal right to guardianship of a person or property or both as case may be. This concept of legal guardian includes a natural guardian: a testamentary guardian or a guardian of a Hindu minor appointed or declared by Court of law under general law of British India. 13. Incidentally, law relating to minority and guardianship amongst Hindus is to be found not only in old Hindu law as laid down by smritis, shrutis and commentaries as recognised by Courts of law but also statutes applicable amongst ors to Hindus, to wit, Guardian and Wards Act of 1890 and Indian Majority Act of Be it furr noted that Act of 1956 does not as a matter of fact in any way run counter to earlier statutes in subject but y are supplemental to each or as reflected in Section 2 of Act of 1956 itself which provides that Act shall be in addition to and not in derogation of Acts as noticed 3

4 above. 14. Before proceeding furr, however, on provisions of Act in its true perspective, it is convenient to note that lately Indian Courts following rule of equality as administered in England have refused to give effect to inflexible application of paternal right of minor children. In equity, a discretionary power has been exercised to control far'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 happiness and welfare of child. In re Mc Grath (1893, 1 Ch.143) Lindley, L.J., observed: "The dominant matter for consideration of Court is welfare of child. But welfare of a child is not to be measured by money only, nor by physical comfort widest only. sense. The word `welfare' must be taken in its The moral and religious welfare of child must be considered as well as its physical well being. Nor can ties of affection be disregarded." Lord Esher, M.R. in Gyngall (1893) 2 Q.B.232 stated: "The Court has to consider refore, whole of circumstances of case, position of parent, position of child, age of child, religion of child so far as it can be said to have any religion, and happiness of child. Prima facie it would not be for welfare of child to be taken away from its natural parent and given over to or people who have not that natural relation to it. Every wise man would say that, generally speaking, best place for a child is with its parent. If a child is brought up, as one may say from its mor'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 parent is poor and person who seeks to have possession of child as against parent is rich, that, without regard to any or consideration, to natural rights and feelings of parent, or feelings and views that have been introduced into heart and mind of child, child ought not to be taken away from its parent merely because its pecuniary position will be reby bettered. No wise man would entertain such suggestions as se." The English law refore has been consistent with concept of welfare ory of child. The Indian law also does not make any departure, refrom.. In this context, reference may be made to decision of this Court in (2) case of J.V. Gajre vs. Pathankhan and Ors. SCC 717) in which this Court in paragraph 11 (1970 of report observed: "We have already referred to fact that far and mor of appellant had fallen out and that mor was living separately for over 20 years. It was mor who was actually managing affairs of her minor daughter, who was under her care and protection. From 1951 onwards mor in usual course of management had been leasing out properties of appellant to tenant. Though from 1951 to 1956 leases were oral, for year a written lease was executed by tenant in favour of appellant represented by her mor. It is no doubt true that far was alive but he was not taking any interest in affairs of minor and it was as good as if he was non-existent so far as minor appellant was concerned. We are inclined to agree with view of High Court that in particular circumstances of this case, mor can be considered to be natural guardian of her minor daughter. It is needless to state that even before passing of Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956), mor is 4

5 natural guardian after far. The above Act came into force on August 25, 1956 and under section 6 natural guardians of a Hindu minor in respect of minor's person as well as minor's property are far and after him mor. The position in Hindu Law before this enactment was also same. That is why we have stated that normally when far is alive he is natural guardian and it is only after him that mor becomes natural guardian. But on facts found above mor was rightly treated by High Court as natural guardian." 15. Obviously, a rigid insistence of strict statutory interpretation may not be conducive for growth of child, and welfare being predominant criteria, it would be a plain exercise of judicial power of interpreting law so as to be orwise conducive to a fuller and better development and gro wth of child. 16. Incidentally Constitution of India has introduced an equality code prohibiting discrimination on ground of sex and having due regard to such a mandate in Constitution, is it justifiable to decry rights of mor to be declared a natural guardian or have far as a preferred guardian? Ms. Indira Jaisingh answers it with an emphatic `no' and contended that statute in question covering this aspect of Personal law has used expression `after' in Section 6 (a) but same cannot run counter to constitutional safeguards of gender justice and as such cannot but be termed to be void and ultravires Constitution. 17. Be it noted here that expressions `guardian' and `natural guardian' have been given statutory meanings as appears from Section 4(b) wherein guardian is said to mean a person having care of person of a minor or his property and includes: (i) natural guardian; (ii) a guardian appointed by will of minor's far or mor; (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; 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 rule of interpretation of statute, ought to be read subject to Section 6 being one of basic provisions of Act and it is this Section 6 which records that natural guardian of a Hindu minor, in case of a boy or an unmarried girl, is far and after him mor. The statute refore on a plain reading with literal meaning being ascribed to words used, depicts that mor's right to act as a natural guardian stands suspended during lifetime of far and it is only in event of death of far, mor obtains such a right to act as a natural guardian of a Hindu minor - It is this interpretation which has been ascribed to be having a gender bias and thus opposed to constitutional provision. It has been contended that classification is based on marital status depriving a mor's guardianship of a child during life time of far which also cannot but be stated to be a prohibited marker under Article 15 of Constitution. 19. The whole tenor of Act of 1956 is to protect welfare of child and as such interpretation ought to be in consonance with legislative intent in engrafting statute on Statute Book and not de hors same and it is on this perspective that word `after' appearing in section 6A shall have to 5

6 be interpreted. It is now a settled law that a narrow pedantic interpretation running counter to constitutional mandate ought always to be avoided unless of course, same makes a violent departure from Legislative intent-in event of which a wider debate may be The had hav ing due reference to contextual facts contextual facts in decision noticed above, depict that since far was not taking any interest in minor and it was as good as if he was non-existing so far as minor was concerned, High Court allowed mor to be guardian but without expression of any opinion as regards true and correct interpretation of word `after' or deciding issue as to constitutionality of provision as contained in Section 6(a) of Act of it was decided upon facts of matter in issue. The High Court in fact recognised mor to act as natural guardian and findings stand accepted and approved by this Court. Strictly speaking, refore, this decision does not lend any assistance in facts of matter under consideration excepting however that welfare concept decision had its due recognition. 21. There is yet anor of this Court in case of Panni Lal vs Rajinder Singh and Anor (1993 (4) SCC 38) wherein earlier decision in Gajre's case was noted but in our view Panni Lal's case does not lend any assistance in matter in issue and since decision pertain to protection of properties of a minor. 22. Turning attention on principal contention as regards constitutionality of legislation, in particular Section 6 of Act of 1956 it is to be noted that validity of a legislation is to be presumed and efforts should always be re on part of law courts in matter of retention of legislation in statute book rar than scrapping it and it is only in event of gross violation of constitutional sanctions that law courts would be within its jurisdiction to declare legislative enactment to be an invalid piece of legislation and not orwise and it is on this perspective that we may analyse expressions used in section 6 in a slightly more greater detail. The word `guardian' and meaning attributed to it by legislature under section 4(b) of Act cannot be said to be restrictive in any way and thus same would mean and include both far and mor attributed and this is more so by reason of meaning to word as "a person having care of person of a minor or his property or of both his person and property..." It is an axiomatic truth that both mor and far of a minor child are duty bound to take due care of person and property of ir child and thus having due regard to meaning attributed to word `guardian' both parents ought to be treated as guardians of minor. As a matter of fact same was situation as regards law prior to codification by Act of The law refore recognised that a minor has to be in custody of person who can sub-serve his welfare in best possible way - interest of child being paramount consideration. 23. The expression `natural guardian' has been defined in Section 4(c) as noticed above to mean any of guardians as mentioned in section 6 of Act guardians of This section refers to three classes of viz., far, mor and in case of a married girl husband. The far and mor refore, are natural guardians in terms of provisions of Section 6 read with Section 4(c). Incidentally it is to be noted that in matter of interpretation of statute same meaning ought to be attributed to same word used by statute as per definition section. In event, word `guardian' in definition section means and implies both 6

7 parents, same meaning ought to be attributed to word appearing in section 6(a) and in that perspective mor's right to act as guardian does not stand obliterated during lifetime of far and to same on statute orwise would tentamount read to a violent departure from legislative intent. Section 6(a) itself recognises that both far and mor ought to be treated as natural guardians and expression `after' refore shall have to be read and interpreted in a manner so as not to defeat true intent of legislature. 24. Be it noted furr, that gender equality is one of basic principles of our Constitution and in event word `after' is to be read to mean a disqualification of a mor to act as a guardian during lifetime counter of to far, same basic requirement would of definitely run constitutional mandate and would lead to a differenciation between male and female. Normal rules of interpretation shall have to bow down to requirement of Constitution since Constitution is supreme and statute shall have to be in accordance by reason rewith and not de hors same. The far of a dominant personality cannot be ascribed to have a preferential right over mor in matter of guardianship since both fall within same category and in that view of matter word `after' shall have to be interpreted in terms of constitutional safe-guard and guarantee so as to give a proper and effective meaning to words used. 25. In our opinion word `after' shall have to be given a meaning which would sub-serve need of situation viz., welfare of minor and having due regard to factum that law courts endeavour to retain legislation rar than declaring it to be a void, we do feel it expedient to record that word `after' does not necessarily mean after death of far, on contrary, it depicts an intent so as to ascribe meaning reto as `in absence of `- be it temporary or orwise or total apathy of far towards child or even inability of far by reason of ailment or orwise and it is only in event of such a meaning being ascribed to word `after' as used in Section 6 n and in that event same would be in accordance with intent of legislation viz. welfare of child. 26. In that view of matter question of ascribing literal meaning to word `after' in context does not and cannot arise having due regard to object of statute, read with constitutional guarantee of gender equality and to give a full play to legislative intent, since any or interpretation would render statute void and which situation in our view ought to be avoided. above, Writ Petition c No In view of of 1995 stands disposed of with a direction that Reserve Bank authorities are directed to formulate appropriate methodology in light of observations, as above, so as to meet situation as called for in contextual facts. 28. Writ Petition c No.1016 of 1991 also stands disposed of in light of observations as recorded above and matter pending before District court, Delhi, as regards custody and guardianship of minor child, shall be decided in accordance rewith. 29. In facts of matters under consideration re shall however be no order as to costs. 7